A. Search and Seizure
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).)
The contents of your motion will depend upon how your property was seized from you. This Guide discusses motions to be drafted under the following situations and scenarios:
Consider which Situation most closely fits your own. Then look at the section on the drop-down menu for this page to find information and a Sample Brief.
You can save the Sample Brief to your device and use it to draft your own Motion
This Guide contains sample briefs for your use. You can save the modifiable brief templates to your device and draft your own brief using your own circumstances and applicable law.
You will need to decide which brief is most applicable to your case, and which law applies. These sample briefs are for your assistance and do not constitute legal advice. You may wish to consult an attorney.
If you were represented at trial by an attorney, the attorney can make your motion for return of property for you as part of the criminal proceeding and there should be no filing fee. If the attorney will not, or for other reasons you wish to do it yourself, you may first need to file a 'Substitution of Attorney' form naming yourself as your own attorney to regain the right to represent yourself in court.