Court-Martial Trial Practice Blog
How many clients ask about property taken by law enforcement and not promptly returned, or had their personal property lost or stolen while they are in pretrial confinement?
There are several methods I’ve used to jog the system, sometimes successfully.
a. Property seized in a search with no evidentiary value: Ask the TC and case agent for an accounting and return of property not considered of evidentiary value; make a motion for return of property, citing as analogy Fed. R. Crim. Pro. 41(g);
A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.
b. Post-trial file: Ask first, write a letter next, and if no reasonable response, file a claim. This has worked wonders in at least four cases. The persons property is magically produced and returned to the client or family. Be sure to make a distinction between what is evidence and what isn’t. I have a number of clients who have had their computer returned sans either the hard-drive or the data on the hard-drive. I’m aware of some CP cases where the client’s family is given the option to have the computer but not the hard-drive, or the agent will erase the hard-drive. Big hard-drives are cheap to replace these days.
c. In situations where the person has been placed in pretrial confinement or other situations where their personal property is left behind, it is my view that the command (the United States) has an obligation to inventory and secure that property. In a couple of instances I have assisted clients file a claim against the United States for the loss of such property. Interestingly a couple of times the property has been found (so those were likely some bureaucratic problems, but the claim got the bureaucracy moving). I have one still pending (according to the client) for upwards of $40,000.00 because his property was stolen from his room while in pretrial confinement.