HOUSE DOCKET, NO. 3870        FILED ON: 1/18/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3266

The Commonwealth of Massachusetts

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PRESENTED BY:

Mark J. Cusack

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to the examination of evidence rooms and evidentiary procedures.

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PETITION OF:

HOUSE DOCKET, NO. 3870        FILED ON: 1/18/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3266

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act relative to the examination of evidence rooms and evidentiary procedures.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Chapter 276 of the General Law is hereby amended by adding the following section:-

Section 104. (a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:

“Auditing entity”, a person, or an employee or department of the commonwealth, who is experienced and trained in evidence collection, storage and auditing, who is deemed qualified by the secretary to perform audits of a department’s evidence, property, and evidence and property room.

“Chief executive officer”, the chief executive officer or person in charge of each department.

“Department”, the Massachusetts state police, the Massachusetts Bay Transportation Authority police force, any police department in the commonwealth or any of its political subdivisions; any law enforcement council, as defined in section 4J of chapter 40, created by contract between or among cities and towns, pursuant to section 4A of said chapter 40; the environmental police appointed pursuant to chapter 21A; and any entity employing 1 or more special state police officers appointed pursuant to section 63 of chapter 22C.

“District attorney”, the district attorney or designee who has jurisdiction for prosecutions where a department is located.

“Evidence”, all items seized as a result of a police investigation that are physical, biological, digital or any other materials that have been collected for their potential evidentiary value during the investigation of a crime.

“Evidence and property custodian”, a person appointed by the chief executive officer or designee for the custody and operations of the department’s evidence and property room.

“Evidence and property room”, any area, including but not limited to, any room, vault, locker, or other repository, located within the legal control and jurisdiction of a department that contains any evidence or any property.

“Full audit”, a full review of all items of evidence and property from the particular evidence and property room log book, whether in electronic format or hard copy, to ensure that all evidence or property is located in the appropriate storage location in the particular evidence and property room of each department. If evidence or property is stored off-site, the individual conducting the full audit shall contact the particular off-site location and ensure, in writing, that any item of evidence or property is at that particular location.

“Inspection”, a review of the evidence and property room and evidence and property handling procedures including, but not limited to: (1) ensuring department adherence to all security controls and evidence handling procedures; (2) verifying that the limited access control system to the evidence and property room functions properly; (3) ensuring the existence and accuracy of a list of department personnel authorized to access the evidence and property room or handle evidence or property; (4) ensuring general cleanliness of the evidence and property room; (5) ensuring manageable inventory levels within the evidence and property room; (6) ensuring evidence and property custodians have acceptable levels of aptitude and training; (7) inspecting all internal evidence and property room cameras, when applicable; and (8) ensuring the evidence and property room logs are operational and current. 

“Municipal executive officer”, the manager in a city or town with a manager form of government; in other cities, the mayor; and in other towns, the board of selectmen.

“Property”, all items, other than evidence, in the custody of a department that are being stored because they were: (i) lost; (ii) abandoned; (iii) taken from a person under arrest by an employee of the department in their normal course of employment; or (iv) seized by the department for their connection to a potential crime. 

"Purge”, the disposal, destruction or release of evidence or property at a singular time by a department.

"Random-sampling audit", a review and analysis of randomly selected items of evidence or property from the particular evidence and property room log book, whether in electronic format or hard copy, to ensure that the selected evidence or property is located in the appropriate storage location in the particular evidence and property room of each department. If evidence or property is stored off-site, the individual conducting the random-sampling audit shall contact the particular off-site location and ensure, in writing, that any randomly selected item of evidence or property is at that particular location. A random-sampling audit shall review the lesser of 10 percent of the department’s total number of items of evidence or property or 50 items of evidence or property, provided, however, that any department with fewer than 100 items of evidence or property shall review at least 10 items and any department with fewer than 10 items of evidence or property shall review all items.

"Secretary”, secretary of the executive office of public safety and security.

(b) A random-sampling audit shall be conducted no less than annually at the direction of the chief executive officer.

The random-sampling audit shall be conducted by a department employee, provided that, the employee shall:

(1)  not be the evidence and property custodian;

(2)  not have specific oversight or responsibilities for the evidence or property being audited or the evidence and property room in which the items are stored; and

(3)  not have conducted the required semi-annual inspections in paragraph (c). 

If a department has an internal affairs division, a member of the internal affairs division shall perform the random-sampling audit.

A written report of the random-sampling audit shall be submitted to the chief executive officer and the municipal executive officer within 30 days of completion.

(c) A semi-annual inspection of the evidence and property room shall be conducted by the designated supervisor or the unit commander of the evidence and property room.

A written report of an inspection shall be submitted to the chief executive officer and the municipal executive officer within 30 days of completion.

(d) All written reports required by subsections (b) and (c) of this section shall be submitted to the secretary not later than January 30 of each year.

A department which fails to submit all reports to the secretary on or before January 30 of each year, shall be issued a written warning by the secretary, provided, however that the department shall be allowed an additional 60 days to submit the reports.

After 60 days, if the department fails to file the reports or refuses to comply, the department shall undergo a full audit of all the evidence and property stored and in the possession of the department as well as all evidence and property rooms under the legal control and jurisdiction of the department. The full audit shall be completed by a neutral auditing entity not affiliated with the department chosen by the chief executive officer from a list of qualified auditing entities provided by the secretary. The cost of the full audit shall be borne by the department. The chief executive officer and department shall have 30 days from the secretary’s notice to select an auditing entity from the list provided.

A written report of the full audit shall be submitted to the secretary, the chief executive officer and the municipal executive officer within 30 days of completion.

(e) Once every 5 years a full audit of the evidence and property held by a department shall be completed by an employee of the department at the direction of the chief executive officer; provided, however the employee shall:

(1) not be the evidence and property custodian; and

(2) not have specific oversight or responsibilities for the evidence or property being audited or the evidence and property room in which these items are being stored.

A written report of the full audit shall be submitted to the secretary, the chief executive officer and the municipal executive officer within 30 days of completion. 

If a department fails to conduct the required full audit or submit the full audit report in accordance with this subsection, the department shall undergo a full audit of all the evidence and property stored and in the possession of the department as well as all evidence and property rooms under the legal control and jurisdiction of the department. The full audit shall be completed by a neutral auditing entity not affiliated with the department chosen by the chief executive officer from a list of qualified auditing entities provided by the secretary. The cost of the full audit shall be borne by the department. The chief executive officer and department shall have 30 days from the secretary’s notice to select an auditing entity from the list provided.

A written report of the full audit shall be submitted to the secretary, the chief executive officer and the municipal executive officer within 30 days of completion.

Upon the transfer, resignation or replacement of the chief executive officer, the chief executive officer currently in charge shall order a full audit of the evidence and property held by a department. This full audit shall reset the 5 year timeline of the mandatory full audit and the 5 year timeline shall begin after the completion of the full audit conducted pursuant to this paragraph.

(f) All moneys seized by a department as evidence or within the course of an investigation, shall be deposited into an interest bearing account held by the department, except if the moneys physically hold evidentiary value as determined by the department or the district attorney. The moneys shall be kept in the account until otherwise instructed by the court. All moneys deposited shall be recorded, including but not limited to, the time, date, account number, denomination of the moneys, person depositing the moneys, institution where the account is held, case number associated with the moneys and origin of the moneys. A written report of all moneys held by the department shall be submitted annually to the secretary, the chief executive officer, the municipal executive officer and the district attorney on or before January 30 of each year.

(g) (1) Any evidence or property that is disposed of, returned, auctioned or no longer in custody of the department shall be recorded. The records shall be made available to any governmental entity that needs to view the records for legal, official or other public safety or health reasons.

A department which completes a purge of the evidence or property under the department’s control shall keep records, including, but not limited to: time, date, type of evidence, method of disposal, case number, description, name of employee and reason for disposal. Upon completion of a purge, all records shall be delivered to the secretary, the chief executive officer, the municipal executive officer and the district attorney.

(2) A department may dispose of items held as evidence by destruction, return to owner, sale at auction or other lawful disposition pursuant to a court order or after certifying to the district attorney that the disposition is in compliance with section 47A of chapter 94C, section 3 of chapter 276, or chapter 278A.

Records of the disposal of controlled substances pursuant to section 47A of chapter 94C shall be kept by the department.  All records shall be submitted annually to the chief executive officer, the secretary, the municipal executive office and the district attorney on or before January 30.

SECTION 2. The department of environmental protection shall conduct a study and investigation of the licensing of incinerators in the commonwealth. The study shall investigate at a minimum:  (i) the possibility of mandating the disposal of controlled substances as criteria to obtaining a license , (ii) methods to improve the disposal of controlled substances through safe and legal means within the commonwealth to prevent the theft and over stock of controlled substances, and (iii) potential mandates for departments directed towards frequency and usage of incinerators for purposes of the disposal of controlled substances.  The department shall submit a report of its findings to the joint committee on environment, natural resources and agriculture, the joint committee on consumer protection and licensure, the joint committee on the judiciary, and the joint committee on public safety and homeland security on or before July 1, 2019.

SECTION 3. A department within the commonwealth, as defined by subsection (a) of section 104 of chapter 276, shall complete a full audit pursuant to subsection (e) of section 104 of chapter 276 of the General Laws within 1 year of the effective date of this act.