People v. Rautenkranz, 81CA0526

• Citation: 641 P.2d 317
• Decision Date: 11 February 1982
• Docket Number: No. 81CA0526,81CA0526
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Edward RAUTENKRANZ, Defendant-Appellant. . I
• Court: Court of Appeals of Colorado

Page 317

641 P.2d 317

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Edward RAUTENKRANZ, Defendant-Appellant.

No. 81CA0526.

Colorado Court of Appeals, Div. I.

Feb. 11, 1982.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Jeffrey Weinman, Asst. Atty. Gen., for plaintiff-appellee.

Robert C. Ozer, P. C., Robert C. Ozer, Conifer, for defendant-appellant.

SILVERSTEIN, ^* Judge.

Defendant appeals an order of the trial court which denied his motion for return of seized property. We reverse.

Pursuant to a search warrant, law enforcement officers seized various articles from the defendant, including a jeep and the tail section of a windmill. Defendant was charged with several counts of theft, possession of a vehicle with removed identification number, and misuse of license plates. Defendant pled guilty to one count of theft by receiving, not involving the jeep or the windmill tail, and all other charges were dismissed.

Thereafter, defendant filed a verified motion for return of the two items, alleging that he was the lawful owner thereof, and that there was no longer any ground for their continued retention. At the hearing on the motion, the People did not dispute defendant's ownership of the jeep but resisted its return on the grounds that it was contraband, and relative to the windmill tail, that it was owned by one Emery.

Although defendant was prepared to offer proof of his ownership of the items, and the People had a witness present to testify as to Emery's ownership, the court did not permit any evidence to be introduced. After lengthy argument the court ruled:

"(1) That the Sheriff of Park County, Colorado, has a duty to return property seized pursuant to a Search Warrant, or otherwise, to the lawful owner of such property.

(2) That the defendant's Motion for Return of Seized Property under this criminal action does not adequately inform parties who may have a claim to the property of the Court's actions. Therefore, the defendant's remedy is a civil action for the return of the property identified on the motion.

It is therefore ordered that the defendant's motion for Return of Seized Property be Denied."

Although it is true that the defendant may have a civil remedy, nevertheless, the procedure he elected to pursue was proper. In ruling on the same issue as here, the court in United States v. Wilson, 540 F.2d 1100 (D.C.Cir.1976), stated:

"We hold that the district court, once its need for the property has terminated, has both the jurisdiction and the duty to return the contested property here regardless and independently of the validity or invalidity of the underlying search and seizure .... It goes without saying, that if the Government seeks to forfeit the property a proper proceeding should be instigated to accomplish that purpose. In Re Brenner, 6 F.2d 425, 426-27 (2d Cir. 1925). A claim by the owner for the return of his property cannot be successfully resisted by asserting that the property is subject to forfeiture. If the property is subject to forfeiture, appropriate proceedings should be started expeditiously.

....

"(T)he Government argues that adequate civil remedies exist for appellant's relief. That is true. He could also bring a civil action, but, as we just noted, that neither discharges the district court's duties nor disturbs its jurisdiction."

We are aware of no Colorado cases in which the present issue regarding the proper forum for the relief sought has been determined. However, in People v. Angerstein, 194 Colo. 376, 572 P.2d 479 (1977), and People v. Buggs, Colo.App., 631 P.2d 1200 (1981), the appellate courts tacitly acknowledged that the filing of a motion for return of seized property in the same action in which the charges...