Police often seize property during investigations if they believe that the items are illegal to possess or that the property is evidence of a crime.
Of course, police have the authority to collect evidence for criminal prosecutions. Citizens, though, have the right to be free from unreasonable seizures. Individuals in the United States also have the right to Due Process before the government can simply take their property. When these forces collide, courts use a balancing test to weigh the government's need for seizure vs. the individuals legitimate right to keep his stuff.
There are a few different legal procedures that need to be followed to get your stuff back, depending on what the item is, why it was taken, and how the criminal case resolved.
Evidence
If police seize some property that they intend to use as evidence in a criminal case, they generally get to keep it in an evidence locker until the case is resolved. They will not give important evidence back to the defendant while the criminal case is still pending for obvious reasons -- the items may be necessary at trial to prove the DA's case.
After the case is resolved (by conviction, dismissal, acquittal, reduction, plea deal, etc.), the fun part begins. When the case is over, then the items are no longer needed as "evidence". If the owner wants his stuff back, then the government must either return it, or else make a compelling counterargument to convince a judge otherwise. And there are a few good counterarguments.
Contraband
Obviously, the court will not order the police to return something that is illegal to possess. Illegal weapons, for example, must be destroyed by law after a case is resolved. The same is true for drugs, drug paraphernalia, and counterfeit goods.
These hearings get interesting when we don't agree on whether or not a particular item is technically "contraband". Cases involving large loads of marijuana, custom-built firearms, knives and military antiques can require some complicated legal arguments. It's amazing how many police, prosecutors and even judges don't understand these laws. Police often seize legal weapons because they "look scary". A good lawyer (like myself) can explain the relevant statutory and case law to the judge and help obtain a court order for the return of your property.
Forfeiture
If property is the "fruit of a crime" (it was earned through criminal activity) or if it was used in the commission of a crime, a court may order it forfeited. If property is forfeited, the police get to keep it. This has become a huge area of controversy lately. Some police departments have become dependent on forfeiture actions to balance their budgets. Perverse financial incentives drive police to focus their attention on crimes that tend to generate a lot of revenue (drug dealing), and to neglect dangerous and violent crimes that don't make money for the department.
The issue of forfeiture is usually addressed as part of a plea deal, before the case is resolved. If police seized a large amount of money or valuable items during their investigation, the defendant might agree to forfeit his property in exchange for a lenient sentence. This is especially common in cases involving poaching and illegal fishing. Poachers and illegal fishermen usually possess a lot of expensive gear. The Fish & Wildlife agents really want that gear. In my experience, we can often negotiate favorable deals in poaching cases (hunting, fishing, diving, trapping, etc.) if you are willing to surrender some of your gear to the Department of Fish & Wildlife. If you're not willing to forfeit your valuable gear, we can help you keep it.
Marijuana
Marijuana is legal in California, but it is also subject to many regulations and restrictions. This commonly leads to situations where police find large, suspicious loads of weed and they don't know what to do. If police seize your cannabis, call our office to discuss your options.
If your marijuana was taken by police, we can file the appropriate motions in court to ask a judge to order its return. This may be risky, though. By admitting that you are the owner of a large load of marijuana, you may be talking yourself into more serious trouble. Talk to us before you talk to the police.
Firearms
Guns are even more complicated. Before police will release firearms to their owner, cops have to determine whether or not the owner is actually eligible to receive them. This requires a background check and some simple paperwork that must be run through the State Department of Justice in Sacramento.
If the owner is NOT eligible to possess firearms due to a criminal conviction, a restraining order, or an involuntary civil commitment, police will not release the weapons. In that case, we can help the owner sell or transfer the firearms to some other person who is eligible to retrieve them. This is a several-step process, but it can be done.
If you or a loved one has questions about retrieving property from the police anywhere in Southern California, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Orange County Criminal Defense Lawyer
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