Ninth Circuit Decides There Must Be “Legitimate Reason” for Retaining Property

Overview: The Ninth Circuit recently held that, once a criminal investigation or prosecution is completed, the government bears the burden of proof to demonstrate that there exists “legitimate reason” for retaining property seized from an individual — here, a computer that contained child pornography.

Training Points: When a motion for return of property is made before an indictment is filed, it is important to remember that the defendant must prove that the property’s seizure was illegal and that he or she is entitled to its return. However, this burden of proof shifts to the government agency when the property is no longer needed for evidentiary purposes because the trial is complete, the defendant has plead guilty or the government has abandoned its investigation. At that point, the defendant is presumed to have a right to a return of the property and the government bears the burden of demonstrating it has a legitimate reason to retain, rather than return, the property. To meet this burden, the agency must be able to show that returning the property would be difficult or costly, or that it has another reason beyond its use as evidence in an open case.

Regardless of the agency’s reason, it must provide evidence to support its argument. Agencies should consider the circumstances on a case-by-case basis to determine if there is a reasonable justification to retain the property, and if evidence can be provided to support that reason. While obvious contraband — like illegal weapons, drugs and the child pornography in this case — need never be returned, all other property must presumptively be given back to the owner after the case has concluded. However, agencies may have very good reasons to retain the property. For example, public safety and rehabilitation may qualify as rationale for opposing the return of property. Law enforcement may consider assistance from the probation department regarding the return of an offender’s property, particularly during the term of probation. Another option would be to argue against returning the property directly to the offender, and rather return it to a family member or other responsible person.

Summary Analysis: In United States v. Gladding, after defendant Gladding pled guilty to receipt or distribution of child pornography, he filed a request for the return of computer files that were not considered to be contraband. While the defendant conceded that the computers and electronic storage devices in question were forfeited, he requested the government return his personal emails and family photos contained on his computer that were not associated or linked to the material considered to be contraband.

The government claimed that segregating contraband from noncontraband files would be both difficult and time consuming. The Court of Appeal held that, since the government failed to submit any evidence supporting its position, it failed to meet its burden to prove that it had a “legitimate reason” for not returning the files. The court emphasized that the difficulty and cost of segregating data can be a legitimate reason for the government to retain a defendant’s property; however, the government must produce evidence that has a tendency to show its cost concerns are reasonable under the circumstances. Because the government did not submit any supporting evidence for its assertion that returning the property would be difficult or cost consuming, it did not meet that burden here, the court ruled.

The court provided several alternatives to a government agency that has received such a request, including requiring the defendant to pay the costs of segregation or providing the defendant with a printed directory of all files so a more detailed request for specific items can be made.