California Search and Seizure: Motion for Return of Seized Property: Specific Situations

The 4th Amendment of the U.S. Constitution, and Article I, Section 13 of the California Constitution protects against "unreasonable" searches and seizures by law enforcement and forbids the courts to issue search warrants except where justified by "probable cause." Every search warrant must particularly describe the place to be searched and the person(s) and thing(s) to be seized.

If property was taken from you in violation of the 4th Amendment, it cannot be used as evidence to prosecute you for a crime, and you may have a constitutional right to get it back.

B. Due Process

The government may not deprive a person of property without "due process of law." The right to due process is guaranteed by both the 5th and 14th Amendments to the U.S. Constitution and Article I, Section 7 of the California Constitution. Due process of law entitles the owner of seized property to an early court hearing to determine the validity of the seizure. ( Williams v Justice Court for Oroville Judicial District , 230 Cal. App. 2d 87 (1964).)

C. Contraband

There are certain types of contraband property that you can never get back, even if the police took it from you illegally. Contraband includes certain kinds of dangerous or deadly weapons, narcotic or poisonous drugs, explosives, burglary tools, vehicle chop shop equipment, some forms of obscenity, and any type of property that is unlawful to possess - especially if it was used by a criminal defendant in the commission of a crime. (See California Penal Code §1417.6, §1538.5(e); People v Lamonte, 53 Cal. App. 4th 544 (1997).)

Stolen property in the hands of a thief is also contraband and will not be given back to the defendant convicted of a theft. Even in the absence of a conviction, the prosecutor can prevent the return of property to a suspected thief by proving that the property was stolen. ( Ensoniq Corp. v Superior Court , 65 Cal. App. 4th 1537 (1998).)