YOUR NAME

1 Street Address
City, State, Zip
2 Phone Number (with area code)
Fax Number: if available
3 Email: if available

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YOUR NAME, IN PRO PER
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SAN DIEGO
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THE STATE OF CALIFORNIA ) Case No.:
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Plaintiff(s), ) MEMORANDUM OF POINTS AND
12 ) AUTHORITIES IN SUPPORT OF MOTION
vs. ) TO RETURN PROPERTY
13 )
NAME OF DEFENDANT(S), )
14 ) DATE: (date of hearing)
) TIME: (time of hearing)
15 ) DEPT: (department number)
Defendant(s). )
16 ) Judge: (name of hearing judge)
) Dept: (department number)
17 ) Action Filed: (date)
) Trial Date: (Date or Unassigned)
18 )
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20 Petitioner and Real Party in Interest submits the following Points and Authorities in support of [

21 his/her] Motion to Return Property Seized by [ insert name of agency which seized property]

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23 THE PROPERTY SEIZED IN THIS CASE SHOULD BE RETURNED TO THE

24 PETITIONER
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26 A court in possession of property legally seized under a search warrant has authority to direct its

27 delivery to the persons entitled to it on a showing of good cause. This authority is within the express

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MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF MOTION TO RETURN SEIZED
PROPERTY
 1 power conferred by California Penal Code Section 1536 and is further within the scope of the

2 inherent power of the court to control and prevent the abuse of its process. Ensoniq Corp v Superior

3 Court (1998) 65 CA 4th 1537, 1547; Buker v Superior Court (1972) 25 CA3d 1085, 1089. The same

4 rule applies when property is seized without a warrant. See Gershenhorn v Superior Court (1964)

5 227 CA2d 361, 366.

7 [CHOOSE SECTIONS BELOW WHICH APPLY TO YOUR CASE]

10 A. A NONDEFENDANT PETITIONER MAY SEEK THE RETURN OF PROPERTY

11 WHICH WAS UNREASONABLY SEIZED

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13 A nondefendant may seek return of property under California Penal Code Section 1539, which

14 provides a remedy for “a person who is not a defendant in a criminal action at the time of the

15 hearing is held…” in cases in which the grounds upon which the warrant was issued are

16 controverted. More generally, Penal Code Section 1540 provides “If it appears that the property

17 taken is not the same as that described in the warrant, or that there is no probably cause for

18 believing the existence of the grounds on which the warrant was issued, the magistrate must cause it

19 to be restored to the person from whom it was taken.”. These remedies under sections 1539 and

20 1540 are available to defendants and nondefendants alike. Ensoniq Corp v Superior Court (1998) 65

21 Cal App 4th 1537, 1547; People v Superior Court (Chico) (1986) 187 Cal App 3rd 648, 62.

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23 B. A NONDEFENDANT MAY SEEK THE RETURN OF PROPERTY WHICH WAS

24 LEGALLY SEIZED UPON A SHOWING OF GOOD CAUSE

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26 Authority to release property which was legally seized under a search warrant is within the express

27 power conferred by California Penal Code Section 1536 which states: “All property or things taken

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MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF MOTION TO RETURN SEIZED
PROPERTY
 1 on a warrant must be retained by the office in his custody, subject to the order of the court to which

2 he is required to return the proceeding before him, or of any other court in which the offense in

3 respect to the property or things taken is triable.”

5 See Ensoniq Corp v Superior Court (1998) 65 Cal App 4th 1537, 1552 (nondefendant petitioner

6 properly brought motion for return of property under section 1536). Furthermore, according to the

7 court in Buker v Superior Court (1972) 25 Cal App 3d 1085, 1089, “Such authority is within the

8 scope of the inherent power of the court to control and prevent the abuse of its process.”

10 C. WHERE NO CHARGES ARE EVER FILED, PETITIONER IS ENTITLED TO THE

11 RETURN OF PROPERTY

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13 According to the California Court of Appeals in Ensoniq Corp v Superior Court (1998) 65 Cal App

14 4th 1537, 1546, “The right to regain possession of one’s property is a substantial right.” (Franklin v

15 Municipal Court (1972) 26 Cal App 3d 884, 896).” Continued official retention of legal property

16 with no further criminal action pending violates the owner’s due process rights.” People v Lamont

17 (1997) 53 Cal App 4th 544, 549.

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20 D. WHERE NO FORMAL ALLEGATION OF THEFT HAS BEEN MADE NO HEARING

21 UNDER SECTION 1407-1410 IS REQUIRED PRIOR TO THE RETURN OF

22 PROPERTY

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24 “An allegation of theft or embezzlement must be included in a complaint or criminal charge’.

25 Ensoniq Corp v Superior Court (1998) 65 Cal App 4th 1537, 1552. A search warrant issued upon

26 grounds that there is a probable cause to believe that the property to be seized is stolen, when not

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MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF MOTION TO RETURN SEIZED
PROPERTY
 1 followed by a criminal charge of theft or embezzlement, is not enough to trigger a hearing under

2 Sections 1407-1410 before its return. Id. At p 1548, 1552.

4 Accordingly, petitioner respectfully requests the court to order the return of seized property:

5 [List property seized]

7 Respectfully Submitted,

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DATED:______________________
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Your signature
13 YOUR NAME
In Pro Per
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MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF MOTION TO RETURN SEIZED
PROPERTY