§16.8 H. Motion for Return of Seized Property (Pen C §1536) [The first page of every paper filed in court must begin with a caption, in the format prescribed by Cal Rules of Ct 2.111. See sample first page in §1.12. For discussion of Cal Rules of Ct 2.111, see §§1.4-1.10.] TO THE ABOVE-ENTITLED COURT, AND TO THE DISTRICT ATTORNEY OF _ _ _ _ _ _ COUNTY, STATE OF CALIFORNIA: PLEASE TAKE NOTICE that on _ _[date]_ _, in Department _ _[number]_ _ at _ _[time]_ _, or as soon thereafter as the matter may be heard, the defendant, _ _[name]_ _, will move for an order directing the _ _[name of police department]_ _, the Office of the District Attorney of _ _[name]_ _ County, and their agents to turn over to _ _[name]_ _, attorney for defendant, the following property seized from defendant’s _ _[residence/vehicle/person]_ _ on _ _[date]_ _ by agents and representatives of the _ _[name]_ _ police department _ _[under _ _[name]_ _ Court search warrant no. _ _[specify]_ _]_ _: _ _[List items]_ _. This motion will be based on the attached supporting memorandum, the attached declaration(s), _ _[the attached exhibit(s),]_ _ evidence taken at the hearing on this motion and argument at that hearing, and on all papers filed and records in this action. Date: _ _ _ _ _ _ Respectfully submitted, __[Signature of attorney]__ _ _[Typed name]_ _ _ _[Title if in public defender office]_ _ Attorney for _ _[name of defendant]_ _ [The supporting memorandum should start on a new page. Caption is unnecessary if attached to papers with caption and first page caption includes all parts of motion. See §1.9; California Criminal Law Procedure and Practice §18.5 (Cal CEB Annual).] SUPPORTING MEMORANDUM A court in possession of property legally seized under a search warrant has authority to direct its delivery to the persons entitled to it on a showing of good cause. This authority is within the express power conferred by Penal Code section 1536 and is further within the scope of the inherent power of the court to control and prevent the abuse of its process. Ensoniq Corp. v Superior Court (1998) 65 CA4th 1537, 1547, 77 CR2d 507; Buker v Superior Court (1972) 25 CA3d 1085, 1089, 102 CR 494. The same rule applies when property is seized without a warrant. See Gershenhorn v Superior Court (1964) 227 CA2d 361, 366, 38 CR 576. _ _[Specify why good cause for return of the property is shown under the facts of your case (e.g., retention of property not required for trial preparation or as evidence at trial, possession of property required by defendant), with reference to supporting declaration(s) (e.g., by attorney and defendant).]_ _ Date: _ _ _ _ _ _ Respectfully submitted, __[Signature of attorney]__ _ _[Typed name]_ _ _ _[Title if in public defender office]_ _ Attorney for _ _[name of defendant]_ _ [A proposed order should begin on a new page. See, e.g., Los Angeles Ct R 8.6(b) (proposed order must be separate document). Even if filed as part of the motion, it should have a separate caption. For further discussion, see Comment, §18.5.] SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF _ _ _ _ _ _ PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff vs _ _[Name]_ _, Defendant. ____________/ Dept. _ _[number]_ _ No. _ _[case number]_ _ [PROPOSED] ORDER FOR RETURN OF PROPERTY TO _ _[NAME OF POLICE CHIEF]_ _, POLICE CHIEF OF _ _[NAME OF POLICE DEPARTMENT]_ _ POLICE DEPARTMENT: On GOOD CAUSE SHOWN, you are ordered to turn over to the defendant, _ _[name of defendant and any identifying information]_ _, the following item, listed in the police report number _ _ _ (attached), and seized on _ _[date]_ _, from the defendant by _ _[name of officer]_ _: _ _[List items to be returned]_ _ Date: _ _ _ _ _ _ __[Signature]__ Judge of the Superior Court §16.8 H. Motion for Return of Seized Property (Pen C §1536) [The first page of every paper filed in court must begin with a caption, in the format prescribed by Cal Rules of Ct 2.111. See sample first page in §1.12. For discussion of Cal Rules of Ct 2.111, see §§1.4-1.10.] TO THE ABOVE-ENTITLED COURT, AND TO THE DISTRICT ATTORNEY OF _ _ _ _ _ _ COUNTY, STATE OF CALIFORNIA: PLEASE TAKE NOTICE that on _ _[date]_ _, in Department _ _[number]_ _ at _ _[time]_ _, or as soon thereafter as the matter may be heard, the defendant, _ _[name]_ _, will move for an order directing the _ _[name of police department]_ _, the Office of the District Attorney of _ _[name]_ _ County, and their agents to turn over to _ _[name]_ _, attorney for defendant, the following property seized from defendant’s _ _[residence/vehicle/person]_ _ on _ _[date]_ _ by agents and representatives of the _ _[name]_ _ police department _ _[under _ _[name]_ _ Court search warrant no. _ _[specify]_ _]_ _: _ _[List items]_ _. This motion will be based on the attached supporting memorandum, the attached declaration(s), _ _[the attached exhibit(s),]_ _ evidence taken at the hearing on this motion and argument at that hearing, and on all papers filed and records in this action. Date: _ _ _ _ _ _ Respectfully submitted, __[Signature of attorney]__ _ _[Typed name]_ _ _ _[Title if in public defender office]_ _ Attorney for _ _[name of defendant]_ _ [The supporting memorandum should start on a new page. Caption is unnecessary if attached to papers with caption and first page caption includes all parts of motion. See §1.9; California Criminal Law Procedure and Practice §18.5 (Cal CEB Annual).] SUPPORTING MEMORANDUM A court in possession of property legally seized under a search warrant has authority to direct its delivery to the persons entitled to it on a showing of good cause. This authority is within the express power conferred by Penal Code section 1536 and is further within the scope of the inherent power of the court to control and prevent the abuse of its process. Ensoniq Corp. v Superior Court (1998) 65 CA4th 1537, 1547, 77 CR2d 507; Buker v Superior Court (1972) 25 CA3d 1085, 1089, 102 CR 494. The same rule applies when property is seized without a warrant. See Gershenhorn v Superior Court (1964) 227 CA2d 361, 366, 38 CR 576. _ _[Specify why good cause for return of the property is shown under the facts of your case (e.g., retention of property not required for trial preparation or as evidence at trial, possession of property required by defendant), with reference to supporting declaration(s) (e.g., by attorney and defendant).]_ _ Date: _ _ _ _ _ _ Respectfully submitted, __[Signature of attorney]__ _ _[Typed name]_ _ _ _[Title if in public defender office]_ _ Attorney for _ _[name of defendant]_ _ [A proposed order should begin on a new page. See, e.g., Los Angeles Ct R 8.6(b) (proposed order must be separate document). Even if filed as part of the motion, it should have a separate caption. For further discussion, see Comment, §18.5.] SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF _ _ _ _ _ _ PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff vs _ _[Name]_ _, Defendant. ____________/ Dept. _ _[number]_ _ No. _ _[case number]_ _ [PROPOSED] ORDER FOR RETURN OF PROPERTY TO _ _[NAME OF POLICE CHIEF]_ _, POLICE CHIEF OF _ _[NAME OF POLICE DEPARTMENT]_ _ POLICE DEPARTMENT: On GOOD CAUSE SHOWN, you are ordered to turn over to the defendant, _ _[name of defendant and any identifying information]_ _, the following item, listed in the police report number _ _ _ (attached), and seized on _ _[date]_ _, from the defendant by _ _[name of officer]_ _: _ _[List items to be returned]_ _ Date: _ _ _ _ _ _ __[Signature]__ Judge of the Superior Court .
Posted on: Mon, 19 Aug 2013 08:15:15 +0000