Petitions for Return of Property in Pennsylvania Criminal Cases

A common question that we receive from clients who have been charged with crimes or had their belongings seized by the police is how to get those items back. In some cases, it is possible to get your things back from the government by filing a Petition for Return of Property pursuant to Pennsylvania Rule of Criminal Procedure 588. Whether or not and when you can get your things back depends on the nature of the item and the status of the criminal case, but in most cases where the item itself is not contraband or stolen, you may be able to seek its return either while the case is pending or within thirty days from the end of the case.

Pennsylvania Rule of Criminal Procedure 588

Pa.R.Crim.P. 588 governs the return of property in criminal court. The rule provides:

(A) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.

(B) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.

(C) A motion to suppress evidence under Rule 581 may be joined with a motion under this rule.

This means that a petition may be filed in the Court of Common Pleas where the case is or was being heard seeking the return of property. For example, if the police took your things while investigating the case and refuse to give them back despite them having no evidentiary value, you may be able to file a petition seeking an order from the court directing the police to return the items. If the items were seized during an illegal search or seizure, you may also be able to combine the motion for the return of your items with a motion to suppress.

How long do I have to file a petition for return of property?

The Pennsylvania Superior Court recently decided the case of Commonwealth v. Caviness, holding that a petition for return of property associated with a criminal case must be filed within thirty days of the conclusion of the case.

In Caviness, the defendant’s wife filed a motion for the return of some family photos which were on electronic devices that had been seized from the defendant. The petition was filed more than thirty days after the case had concluded, and the defendant had been convicted in the case. The Commonwealth opposed the petition, arguing that the family photos were on electronic devices which contained other contraband and that it did not have the resources to sort through the device to ensure that no contraband would be returned with the family photos. The trial court accepted the Commonwealth’s position and denied the motion.

The defendant’s wife appealed, arguing that the Commonwealth should be required to return all of the photos. The Superior Court rejected the wife’s argument on appeal, finding that the trial court lacked jurisdiction to entertain the motion under Rule 588 because more than thirty days had passed from the defendant’s sentencing. Therefore, the trial court no longer had jurisdiction over the case.

Thus, in order to file a motion with the criminal court, the motion must be filed either while the case is pending or within thirty days from the conclusion of the case. It is important to note that it may also be possible to seek the return of property in Commonwealth Court and that you may have longer to do so, but that process can be more complicated than filing the petition for return of property in criminal court.

The Commonwealth will also sometimes agree to allow the late filing of a petition (a nunc pro tunc petition) if there is a good reason for the delay.

What types of property can I get back?

Generally, you can seek the return of anything that is not contraband. Obviously, the law does not require the police to return drugs, illegal guns, or other items that were used to commit a crime even if the case is over or the search was conducted illegally. However, if the items no longer have evidentiary value or it can be shown that the police seized the items in an unconstitutional manner, then it may be possible to seek the return of property like cars, cash, and other valuable items.

The timing of such a petition depends on the nature of the case and status of a case. For example, it may not be possible to get property back right away because the police may need to process the items as evidence. But once that process has finished, it may be possible to seek the return of the property even if the charges are still pending. This frequently happens in cases involving cars - the police may want to dust the car for fingerprints or swab it for DNA, and that process may take a few days or even weeks. Once it is over, however, the police should return the car as they are unlikely to introduce the car itself at trial. If they refuse, it may be possible to obtain a court order directing them to do so.

How do I file the Petition?

In Philadelphia, a Petition for Return of Property must be filed in person on the second floor of the Criminal Justice center. It generally must describe the property, the circumstances under which it was seized, and it must also establish proof of ownership. In general, it is important to discuss the situation with your criminal defense lawyer prior to filing anything in court as there may be reasons why it may make sense to wait to file the petition until the case is over. Either way, the police cannot simply keep your things just because they want to, and a Philadelphia criminal defense lawyer may be able to help you get your property back.

Is a return of property different from a forfeiture?

Petitions for return of property are often closely related to forfeiture proceedings. In many cases, the Commonwealth initiates the litigation regarding whether property should be returned by filing a forfeiture petition. For example, if the police seize a large amount of cash while making an arrest for possession with the intent to deliver, the police will typically keep the cash. The prosecution will then file a forfeiture petition asking a judge to order that the Commonwealth should keep the money. In this situation, it often makes sense to move to stay the forfeiture proceedings until the criminal case is resolved. If the defendant wins the case or wins a motion to suppress, the government may be required to return the money. The main difference in this situation is that the Commonwealth files the petition instead of the defendant, and it usually makes sense to wait to resolve the forfeiture issue until the criminal case is over.

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If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.