Return of Seized Property
This Guide will instruct you on how to undertake drafting a motion to ask the Court to return property to you that was seized by the police or other agency.
This is a research guide only. It is not intended to be legal advice. You are strongly encouraged to read the referenced Code sections, as well as the cited cases, to see whether these apply to you, and to be familiar with them prior to your court hearing.
Petitioning the Court for Return of Property : Introduction
Can I ask the Court for return of property seized by the police or other agency?
California Penal Code Section 1536 provides that under certain circumstances a defendant may be able to move the Court (file a motion) to have property that was seized by the police returned to them.
Take a few moments to review the Jurisdiction and Procedure section of this Guide, as well as the Specific Situations page and then determine which sample motion best fits your situation.
Use the Sample Motions as templates to draft your own motion, inserting your own facts and tailoring it to your own situation, and then file it with the Court and serve it on any interested parties (such as the prosecution and/or the police). The contents of the motion will depend on the situation under which your property was seized. Different code sections apply depending on how the property was seized. Take the time to read the samples, and determine which sample language best suits your situation.
You will then need to appear in Court at a hearing, argue your case, and receive the judge's decision.
Can I File a Civil Lawsuit Instead?
The short answer: Maybe.
In addition to the above, you may also bring a separate civil lawsuit against the governmental agency holding your property to seek the return of property (a suit for 'claim and delivery'), or to seek money damages for the property of the loss of its use (a suit for 'conversion').
These lawsuits are time-consuming and expensive, however. You will need to pay a civil filing fee, often over $300; you may need to post a bond, and prior to filing suit you may need to pursue an administrative claim against the governmental agency.
Civil lawsuits are beyond the scope of this Guide. If you are interested in reading about or pursuing one of these remedies you can research them in:
12 California Forms of Pleading and Practice (M Bender 2003) Claim and Delivery, at KFC 1010 .C352 2004
13 California Forms of Pleading and Practice (M Bender 2003) Conversion at KFC 1010 C 352 2004
California Government Tort Liability Practice (CEB 2004) at KFC 332 .C352 2004