Colorado Criminal Law – The Return Of Property Seized By The Police
By H. Michael Steinberg – Colorado Criminal Defense Lawyer – Attorney
Colorado Criminal Law – Dismissed – The Return Of Property Seized By The Police – It is frustrating and unfair when the police refuse to return personal property to a person whose case has been completed – either by a sentence or as a result of a not guilty verdict or voluntary dismissal by the State for lack of evidence.
This article is intended to shed some light on a complex problem but is in no way the perfect answer to a very troubling system.
Quick Note 1: Keep ALL Paperwork
Before providing the law and analysis in this area – a quick note: KEEP all of your paperwork that you have received from law enforcement or the District Attorney. Identifying when, whee and how property was seized will be key to obtaining the return of that property.
Look for documents that provide:
1. The date of seizure,
2. The identities of the police officer(s) involved,
3. A complete list of items seized (police inventory number).
Quick Note 2: Contraband Will NOT Be Returned
Contraband ae items that are illegal to possess or were evidence of a crime that cannot be returned (such as weapons). The basis for the seizure of your property will become important as you continue to read this article.
The key issue is this:
What was the legal justification for the seizure of the property?
The easy case is when the police seize your property solely for safekeeping. Here the return is almost automatic and typically uncomplicated procedures are put in place for the return of the property from the property office.
BUT, if the seized property is contraband, the police will not return the property and no amount of paperwork will compel it’s return.
When property is seized as evidence, the complicating factors increase exponentially.
Is The Case “Under Investigation?”
Property that has been properly seized (by warrant) may be held for weeks, months or even years while the case is “under investigation.” While the State, through the District Attorney, has the authority to return property, Judges tend to rule that evidence can be held as long as the case is “open.”
There is no rule or law setting out a hard “deadline” for the return of property held as evidence.
If criminal charges are not filed within a reasonable period of time – your lawyer can file a Motion to compel that release and at the very least, a Judge may set a deadline at the conclusion of the hearing on what is typically labeled a Motion for Return of Property.
The State of Colorado Law On The Return Of Evidence
The law in Colorado is not crystal clear in this area – but what follows is my analysis of the relevant factors.
The basic rule – return the property!
When the need for property seized in a case has ended, the trial court has the jurisdiction and the obligation to order its return and, if necessary, to conduct a hearing to determine its appropriate disposition and any ancillary issues.
People v. Rautenkranz, 641 P.2d 317, 318 (Colo. App. 1982).
If a Defendant can make out a bare bones claim (called a prima facie case) that evidence of a seizure of personal property occured and that the Defendant is the owner of that property, then the burden of proof shifts to the State to prove by a preponderance of the evidence that the items seized were the fruit of an illegal activity or that a connection exists between those items and criminal activity.
Typically the evidence in question is seized incident to an arrest or seized pursuant to a search or an arrest warrant.
First: The Court HAS Jurisdiction To Rule On This Matter Even If The Case Has Ended
We hold that the district court, once its need for the property has terminated, has both the jurisdiction and the duty to return the contested property here regardless and independently of the validity or invalidity of the underlying search and seizure…
Second: An Assertion That Property May Be Subject To “Forfeiture” Won’t Stop The Return Of The Property
If the State alleges that the property is “subject” to forfeiture” the State must PROCEED with a civil forfeiture case “expeditiously.”
A claim by the owner for the return of his property cannot be successfully resisted by asserting that the property is subject to forfeiture.
Third: Colorado Law Does NOT Require The Filing Of A Separate Civil Lawsuit
It goes without saying, that if the Government seeks to forfeit the property a proper proceeding should be instigated to accomplish that purpose.
A Defendant does not have to file a separate lawsuit to compel the return of property – the criminal court has “ancillary jurisdiction,” also called inherent power, to entertain defendant’s post-sentence motion for return of property.
Fourth: A Possible Procedure To Follow
As noted, while the Defendant has the initial burden of proof for the return of property, that burden is easy to satisfy. The Defendant need only show the propety was seized from him and is being held by law enforcement authorities.
One way to make this showing is to file a Verified Motion For The Return Of Property and attach a sworn affidavit providing a list of the property and an assertion that it is the Defendant’s property.
If the District Attorney disagrees with the Motion and Affidavit, he or she must submit evidence that refutes the allegations contained within the verified motion and provide evidence justifying the people’s retention of the seized property. The State must successfully dispute the Defendant’s ownership of the claimed property. It the State cannot accomplish this – the property must returned to the Defendant.
A Sample Motion For The Return Of Property
The DEFENDANT, by and through undersigned counsel, requests this Court to exercise its inherent authority and order the return of Defendant’s property that is now in the custody of the XXXXX Sheriff’s Office.
As GROUNDS FOR THIS MOTION, the Defendant states the following:
1. The following property was seized from the Defendant by the (agency) pursuant to Defendant’s arrest in this case: (add description of property).
2. The listed property is exclusively the property of the Defendant.
3. The listed property was not and is not contraband.
4. The listed property is not the fruit of any illegal activity.
5. The Defendant has entered a plea of guilty or nolo contendere and has been sentenced. The seized property is no longer needed as evidence.
[5. OR – This case has been dismissed as a result of a verdict of not guilty – ( or dismissed by the State for ….(reason).]4. When a trial court has assumed jurisdiction over criminal charges, it is thereafter vested with the inherent power to assist the owner in the recovery of property seized by law enforcement.
WHEREFORE, Defendant respectfully requests that this Court enter an Order directing the XXXXX Sheriff’s Office to return to Defendant or Defendant’s designee the listed property.
Civil Forfeiture
This article does not address the attempted civil forfeiture of property seized in a criminal case as that has been addressed in other articles.
Colorado law has very specific procedures for the forfeiture of property seized in criminal cases that include the right to a hearing to contest the forfeiture.
I am providing, below, a couple of the key laws governing Colorado Forfeiture Law
The primary Colorado civil asset forfeiture law, the Colorado Public Nuisance Abatement Act, addresses the confiscation and forfeiture of property.
Forfeiture is a civil action undertaken in combination with a criminal prosecution in Colorado.
Colorado Revised Statutes Title 16 Criminal Proceedings § 16-13-307
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(1.5) No judgment of forfeiture of property in any forfeiture proceeding shall be entered unless and until an owner of the property is convicted of an offense listed in section 16-13-301 or 16-13-303, or a lesser included offense of an eligible offense if the conviction is the result of a negotiated guilty plea. Nothing in this section shall be construed to require the conviction to be obtained in the same jurisdiction as the jurisdiction in which the forfeiture action is brought. In the event criminal charges arising from the same activity giving rise to the forfeiture proceedings are filed against any individual claiming an interest in the property subject to the forfeiture proceeding, the trial and discovery phases of the forfeiture proceeding shall be stayed by the court until the disposition of the criminal charges. A stay shall not be maintained during an appeal or post-conviction proceeding challenging a criminal conviction. Nothing in this section shall be construed to prohibit or prevent the parties from contemporaneously resolving criminal charges and a forfeiture proceeding arising from the same activity.
(1.6) Upon acquittal or dismissal of a criminal action against a person named in a forfeiture action related to the criminal action, unless the forfeiture action was brought pursuant to one or more of paragraphs (a) to (f) of subsection (1.7) of this section, the forfeiture claim shall be dismissed and the seized property shall be returned as respects the subject matter property or interest therein of that person, if the case has been adjudicated as to all other claims, interests, and owners, unless possession of the property is illegal. If the forfeiture action is dismissed or judgment is entered in favor of the claimant, the claimant shall not be subject to any monetary charges by the state for storage of the property or expenses incurred in the preservation of the property, unless at the time of dismissal the plaintiff shows that those expenses would have been incurred to prevent waste of the property even if it had not been seized.
….
(c) If the plaintiff proves by clear and convincing evidence that the property was instrumental in the commission of an offense listed in section 16-13-303(1) or that the property is traceable proceeds of the offense or related criminal activity by a nonowner and the plaintiff proves by clear and convincing evidence that an owner is not an innocent owner pursuant to section 16-13-303(5.2)(a), a judgment of forfeiture may be entered without a criminal conviction of an owner.
Colorado Criminal Law – The Return Of Property Seized By The Police
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