June 19, 2019

Colorado Court of Appeals: Person Whose Property was Unlawfully Seized by Law Enforcement Has Standing to Bring Claim for Return of Property

The Colorado Court of Appeals issued its opinion in Boudette v. State of Colorado on Thursday, July 26, 2018.

Crim. P. 41(e)StandingMotion for Return of Property.

Boudette was a caretaker of a farm during the owner’s absence. An officer of the Southwest Drug Task Force obtained a search warrant from the Montezuma District Court. The officer signed an affidavit that accompanied the warrant. The affidavit stated that law enforcement believed the owner and his son used the farm as an illegal marijuana growing operation. The warrant described the items to be seized.

While the owner was away, law enforcement executed the warrant and allegedly seized property owned by Boudette, including a cellphone; a computer; notebooks; antique muskets; titles to his truck, motorcycles, and trailer; British pounds; Euros; and Boudette’s passport. No charges were ever filed against Boudette.

Boudette filed a motion for return of his property citing Crim. P. 41(e). He stated the warrant was insufficient on its face; the property seized was not described in the warrant; and there was not probable cause to believe the existence of the grounds on which the warrant was issued. He served the motion on the district attorney. The district court, sua sponte, issued an order dismissing Boudette’s case for lack of standing because he filed a criminal motion and there was no criminal case against him.

On appeal, Boudette contended that he has standing to bring his claim. Boudette alleged an injury-in-fact, the unlawful seizure of his property, and harm to a legally protected interest, because Crim. P. 41(e) permits him to bring a claim for the return of his unlawfully seized property. Although there was no criminal complaint filed against Boudette, Rule 41(e) is still applicable because (1) the Colorado Rules of Criminal Procedure govern all criminal proceedings, which include proceedings before a criminal complaint or information has been filed, and (2) Rule 41(e) does not require that a person be a criminal defendant to file a motion under that rule.

The order was reversed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

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