Criminal Justice System

Search and Seizure: The Safe Return of the Client’s Property

The Moment When Property is Taken

As a criminal defense attorney, I have the ability to help others when they do not have the capability of helping themselves.

One such situation in which this is clear is when meeting with a new client shortly after a search and seizure has been performed and the client has had their property seized pursuant to a warrant. Sitting across the table from them as they break into a diatribe about when, where, and how the police raided their house or searched their car a sense of helplessness is present in their voices. Oftentimes, there is a sense of worry or dread that encapsulates these clients. Impending doom drips from everything they say. They fear the situation and do not rightly know how to proceed. Other times, there is disbelief and anger. The cops had no right to seize their stuff and they want it back! The basis of the meeting, however, is invariably the same – what happens now?

Secretly, I love these meetings. At its very core, this is the essence of why it is that I do what I do.

Texas Law on Return of Property

There are some attorneys that will say tough luck, the state has the property and it will never be seen again. There is a likelihood of that happening; but it’s also not entirely true. The Texas Code of Criminal Procedure has several different mechanisms for the return of property depending upon: (1) the nature of the seizure, and (2) the posture of the case. [1]

These two factors greatly impact the process by determining what area of the Code controls, who has jurisdiction to hear the matter, and when the matter will be heard. Indeed, knowing the mechanisms for the return of the property may have a substantial impact on how the rest of the case will proceed – if it proceeds at all. As such, this article will analyze that narrow situation in which property has been seized pursuant to a warrant yet the case is still pre-indictment.

It is readily known that the government has no urgency to do anything more with seized property than to simply keep it. Yet, little if anything is ever done pre-indictment to prod the government into returning the property. Meanwhile, there is mounting pressure to do whatever is necessary to get the property back – and the sooner the better. This is a lovely ideal; one in which a modest “please give it back” will not suffice. Which brings me to the question of why sit around and wait when the requisite cattle prod is available? All we have to do is know how and when to use it properly.

Chapter 18 of the Code of Criminal Procedure describes the procedure surrounding the issuance, seizure, and disposition of property pursuant to a search warrant. As we are all quite aware,

“No search warrant shall issue for any purpose in this state unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance.” Tex. Code Crim. P. Art. 18.01(b).

This is done through the use of a supporting affidavit that sets forth substantial facts establishing probable cause. Id.

Ultimately, the magistrate is only afforded enough information by the government to procure the requested warrant. This information is very much one-sided as it would be counter-intuitive for the government to present exculpatory information in a search warrant affidavit. This is the very definition of ex parte as the general public and criminal defense attorneys have no way of offsetting such an impartial procedure at that time.

However, once an officer has effectuated a seizure pursuant to a search warrant, an inventory must be made and presented to the magistrate who signed the warrant. Tex. Code Crim. P. Art. 18.10.

“The officer who seized the property shall retain custody of it until the magistrate issues an order directing the manner of safekeeping the property.” Id. This is when Articles 18.12 – 18.14 act as a counter-balance of sorts.

“The magistrate, upon the return of a search warrant, shall proceed to try the questions arising upon the same, and shall take testimony as in other examinations before him.” Tex. Code Crim. P. Art. 18.12. Furthermore, if the magistrate upon examination “be not satisfied . . . that there was good ground for the issuance of the warrant” the defendant shall be discharged and given restitution of the property seized. Tex. Code Crim. P. Art. 18.13. “While article 18.13 allows the property’s return at a post-charge stage,” article 18.12 grants the “magistrate to whom return was made” jurisdiction to return property seized by warrant “pending arrest and charge or indictment.” In re Cornyn, 27 S.W.3d 327, 334-35 (Tex. App. – Houston [1st Dist.] 2000, no pet.) (emphasis added). Finally, article 18.14 provides that a magistrate shall conduct an examining trial if the magistrate “is satisfied there was good ground for issuing the warrant.” Id.

What exactly does this mean? First and foremost, it provides a vehicle to go on the offensive to short-circuit any charge or indictment before it even happens and have the property returned at the same time. Secondly, it is a jurisdictional mandate. The magistrate that granted the search warrant may not simply receive and review the return but “shall proceed to try the questions arising upon the same, and shall take testimony as in other examinations before him.” Tex. Code Crim. P. Art. 18.12. It is this requirement which appears to present a unique opportunity – a chance to depose the officer.

Criminal Attorney on Search & Seizure

Basically, the officer that effectuated the search warrant must provide sworn testimony on the stand that probable cause existed to search and seize the property. This means the officer is then subject to cross-examination as in other proceedings. Essentially the officer may be deposed in regards to the investigation leading up to the warrant, the procuring of the warrant, and how the warrant was effectuated.

After considering the testimony, if the magistrate is not convinced that probable cause either existed at the time of the search or still exists to continue holding the property, the magistrate can order the property returned. Even if the property is not returned there is still sworn testimony that can be used later for impeachment purposes. Either way, an advantage is gained.

In the end, helping clients get their property returned when they cannot do it themselves highlights the true nature of criminal defense work. I am uniquely situated to affect a change in someone’s life after it has been thrown asunder – sometimes not even of their own doing. And that is why I do what I do.

[1] A third factor – what type of property – is also a consideration, but one that does not necessarily change the approach at this stage.