H. Michael Steinberg has 38+ years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Colorado Criminal Law: How To Retrieve Property Seized by the Police


By H. Michael Steinberg Colorado Criminal Defense Lawyer


In many Colorado criminal cases – property belonging to the accused is seized and held as evidence. When the case is over the questions often asked are: can I get my property back and what is the procedure used to return non-contraband personal property?

While I have written on this subject before, this article seeks to update the reader based on calcification and changes in the law.

Colorado Criminal Law – The Return Of Property Seized By The Police

Thus article is intended to help answer update the first article and to update the law as to thus important question.

In Woo v. El Paso County Sheriff’s Office 22CO56 (December 12, 2022) Colorado Supreme Court Chief Justice Carlos Samour logically and carefully provides the law and the procedures for seeking the return of seized property from the police.

It is important to note that this article does NOT address the return of illegally seized evidence. The following rule of Criminal Procedure Rule 41 addresses this issue. It is included for reference only.

Rule 41. Search, Seizure, and Confession

(a) – (d)

(e) Motion for Return of Property and to Suppress Evidence. A person aggrieved by an unlawful search and seizure may move the district court for the county where the property was seized for the return of the property and to suppress for use as evidence anything so obtained on the ground that:

(1) The property was illegally seized without warrant; or
(2) The warrant is insufficient on its face; or
(3) The property seized is not that described in the warrant; or
(4) There was not probable cause for believing the existence of the grounds on which the warrant was issued; or
(5) The warrant was illegally executed.

The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial.

The motion to suppress evidence may also be made in the court where the trial is to be had. The motion shall be made and heard before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court, in its discretion, may entertain the motion at the trial. An aggrieved person shall be deemed to have waived any reason to suppress evidence not timely raised in accordance with this rule, and any such reason shall not be raised or considered on appeal.

The Facts

In the Woo case (decided December of 2022) the Defendant requested the return of hard drives, an iPad, cash, headphones, a ring, a computer, a camcorder, several flash drives, and numerous other documents. The District Attorney refused on the grounds that the grounds that some of the property sought may have been stolen from Mr. Woo’s previous employer and, in any event, may be needed later in post-conviction proceedings.

The Law: The Relevant Questions

Does a Trial Court have the jurisdiction to order the return of a convicted Defendant’s lawfully seized property after sentencing?

The answer is yes: A Colorado Criminal Court has “ancillary jurisdiction” to decide whether to return lawfully seized property after sentencing. Even a convicted defendant may file a motion for the return lawfully seized property after sentencing.

What is ancillary jurisdiction” and when does it “attach?”

(1) [An] ancillary matter arises from the same transaction which was the basis of the main proceeding, or arises during the course of the main matter, or is an integral part of the main matter; (2) the ancillary matter can be determined without a substantial new fact finding proceeding; (3) determination of the ancillary matter through an ancillary order would not deprive a party of a substantial procedural or substantive right; and (4) the ancillary matter must be settled to protect the integrity of the main proceeding or to insure that the disposition in the main proceeding will not be frustrated.

Because a Trial Court already has subject matter jurisdiction over a criminal case, a Colorado Criminal Court may exercise ancillary jurisdiction over a Defendant’s motion to order law enforcement to return his validly seized property.

A criminal motion that raises this issue is a matter ancillary to the Court’s subject matter jurisdiction over the prosecution of the charges brought. If a trial court lacks subject matter jurisdiction over a criminal case, ancillary jurisdiction cannot vest the court with authority to rule on such a motion.

Websters dictionary describes ancillary as 1: “having a subordinate, subsidiary, or secondary nature ancillary functions an ancillary agreement 2: serving as a supplement or addition ancillary documents 3: directly related ancillary claims

Important Deadlines to Understand

There are two important warnings that the Defendant must understand in this situation:

1. The motion for the return of legally seized property must be filed before the deadline to file a direct appeal expires or a direct appeal is timely perfected and…

2. After the trial court “reacquires jurisdiction” (ancillary jurisdiction) the motion must be heard following the direct appeal, during post-conviction proceedings, or after an appeal related to any of those proceedings.

In the words of the Colorado Supreme Court:

[W]e now hold that, subject to the limitations we discuss in this opinion, a defendant may file a motion for return of lawfully seized property following entry of a conviction and imposition of a sentence, so long as the motion is filed: (1) before the deadline to lodge a direct appeal expires or a direct appeal is timely perfected; or (2) once the trial court reacquires jurisdiction following a direct appeal, during post-conviction proceedings, or after any appeal related to those proceedings.

The Procedure in Colorado to File the Motion for the Return of Legally Seized Property

The motion for the return of property can be formatted like any other motion and a lawyer is not needed to file the request. A Defendant can file a “letter-request” with the Court – (copy to the District Attorney) to explain to the Judge what property is being sought to be returned and why it should be returned.

The “Movant” – the Defendant making the request – must establish one or more of the following:

(1) That the Defendant owns or is otherwise entitled to possess the requested property, and

(2) That the requested property was seized by law enforcement as part of his or her case.

If the Defendant makes their case then the state (through the District Attorney) must then show one or more of the following “by a preponderance of the evidence” (to prevent the return of the property)

Colorado Criminal Burdens of Proof

(1) That the requested property was the fruit of illegal activity or is otherwise connected to criminal activity; or

(2) That Defendant is not the owner of the requested property or a person entitled to possess it; or

(3) That it would be unlawful for the Defendant to possess the requested property; or

(4) That the prosecution may need the requested property later, including after a direct appeal, during post-conviction proceedings, or following an appeal from those proceedings; and/or

(5) That based on any relevant factors, including the type of case and the nature of the requested property, it would be inappropriate to grant the Defendant’s motion.

The prosecutor may also raise any applicable defenses, including laches (waiting too long to file the motion – e.g. “sitting on your rights”), or untimeliness.

What Is A Prima Facie Case?

To meet the “burden of proof” for a Defendant’s motion for return of property, the Defendant must make a prima facie showing that:

(1) he owns or is otherwise entitled to possess the requested property and (2) the requested property was seized by law enforcement as part of his case.

But what is a “prima facie” case? Simply put, a prima facie case requires only the most minimal showing of proof.

Proof that law enforcement took the requested property from a Defendant at the time of his or her arrest is usually enough. The police are required to leave a receipt documenting the property taken from a Defendant is enough to make out a prima facie case for the purposes of filing the motion.

Once the prima facie case is made, the burden of proof “shifts” to the prosecution to demonstrate by a preponderance of the evidence that the property should NOT be returned.

The losing party may also appeal the Trial Court’s ruling.

Colorado Criminal Law – The Return Of Property Seized By The Police – An Update

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The reader is alerted to the fact that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.

Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael will be at your side every step of the way – advocating for justice and the best possible result in your case. H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case

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Colorado Criminal Law – The Return Of Property Seized By The Police