Maintaining Seized Drugs or Paraphernalia for Training or Search Purposes
by Eric Snow
Montgomery County Sheriff's Office
On July 1, 2014, several new or updated laws took effect in Virginia. One of the updates directly impacts canine officers and evidence technicians. Section 19.2-386.23, titled “Disposal of seized controlled substances, marijuana, and paraphernalia” was amended to allow the Department of State Police, local police departments, and local sheriff’s offices to utilize certain controlled substances for training and research when authorized by a judge. Several criteria and requirements must be met for departments to satisfy the requirements of this code section. Prior to amendment, §19.2-386.23 only allowed for the Department of Forensic Science to utilize controlled substances and paraphernalia.
The amendment allows for “all controlled substances, imitation controlled substances, marijuana, synthetic cannabinoids as defined in §18.2-248.1:1, or paraphernalia” to be forfeited after submission of a written application and judicial approval. The amendment further states that no more than five pounds of any specific type of controlled substance and no more than 25 pounds of marijuana or synthetic cannabinoids can be retained by each agency and each request for forfeiture of items must state that forfeiture will not result in these limits being exceeded by the department.
Updates to the code section require monthly inspection and inventory of seized items, including a description and weight of the items, with a written report made to the Chief or Sheriff of the agency within ten days of the inspection. Additionally, a written report of forfeited items used for training shall be filed at the completion of each fiscal year. Further update to the section requires that each law enforcement agency destroy all items forfeited for training and research purposes within twelve months of the item being obtained by court order. Required documentation of destruction includes a statement prepared under oath, typically accomplished by having the document notarized, indicating the description of the item as well as the date, time, location, and manner of destruction.
Code section 19.2-386.23 requires that no substances or paraphernalia shall be destroyed or forfeited if they have been used in a criminal prosecution until all rights of appeal of the individual charged have ended. The single exception to this requirement is outlined in section 19.2-386.24, which allows for departments who seize large quantities of controlled substances or marijuana to retain only ten pounds of each item and destroy the remaining quantity. Certain requirements, such as photographing the items to be destroyed with identifying case numbers and notification of the accused and/or the attorney of the accused, must be met before the destruction can occur. Other important requirements of code section 19.2-386.23 have been retained. These requirements include the need for a court order to destroy all items of paraphernalia, controlled substances, and marijuana.
The most recent amendments to code section 19.2-386.23 created by the Virginia legislature allows State and local law enforcement departments the ability to maintain seized drugs for research and training purposes. The most likely use for these items will be training of drug detection canines, but agencies may also elect to maintain varieties of drugs for training of new officers, community education, and other educational programs. It is important to note that nothing in this code section allows for the seized drugs to be used for ongoing investigations such as reverse buy operations, where law enforcement officers sell drugs to individuals and arrest them for the offense, or other drug related crimes.
Disclaimer: The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.