search-and-seizure sovereignty
Sovereign immunity and recovering seized property
<p>Can sovereign immunity defeat an attempt to recover seized property? For instance, if a cop seizes some cash asserting that it is &quot;drug money&quot;, and the owner sues to recover it, can the government dismiss the suit on the basis of sovereign immunity?</p>

<p>As always, some specification of jurisdiction is necessary: I will pick US (a seizure by DEA agents). A suitcase of cash in the trunk can be seized given an appropriate warrant, on the premise that it is evidence in a criminal investigation. The owner cannot then (immediately) sue to recover the property, which is being held as evidence: the seizure was lawful. At some point the case will be disposed of: to be kind to the plaintiff, assume the case was closed without charges being filed (therefore, the money is not evidence). Also, the government does not officially institute civil forfeiture proceedings. In that case, the government is supposed to return the property at this point, but there's no guarantee that they will. <em>Then</em>, the owner can sue. But, following <a href="https://scholar.google.com/scholar_case?case=16380364834433439332" rel="nofollow noreferrer">Price v. US</a>, 174 US 373 and citations therein:</p>
<blockquote>
<p>It is an axiom of our jurisprudence. The government is not liable to
suit unless it consents thereto, and its liability in suit cannot be
extended beyond the plain language of the statute authorizing it</p>
</blockquote>
<p>The <a href="https://en.wikipedia.org/wiki/Federal_Tort_Claims_Act" rel="nofollow noreferrer">Tort Claims Act</a> is such a statute. <a href="https://www.law.cornell.edu/uscode/text/28/2674" rel="nofollow noreferrer">28 USC 2674</a> states that</p>
<blockquote>
<p>The United States shall be liable, respecting the provisions of this
title relating to tort claims, in the same manner and to the same
extent as a private individual under like circumstances, but shall not
be liable for interest prior to judgment or for punitive damages.</p>
</blockquote>
<p>The claim &quot;you can't sue the government&quot; is refuted by a federal statute that says otherwise, so any such government motion to dismiss will be denied. (Not to say that they couldn't succeed on some other grounds). <a href="https://www.law.cornell.edu/uscode/text/28/2675" rel="nofollow noreferrer">§2675</a> lists various exceptions where you can't sue the government for loss</p>
<blockquote>
<p>caused by the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or
employment, unless the claimant shall have first presented the claim
to the appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified or
registered mail.</p>
</blockquote>
<p>That is, lawsuit can't be your first response. Other exceptions are in <a href="https://www.law.cornell.edu/uscode/text/28/2680" rel="nofollow noreferrer">§2680(c)</a>, for instance you can't sue if &quot;the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property&quot; (comments refer to a <a href="https://law.stackexchange.com/questions/887/how-exactly-does-civil-asset-forfeiture-work-in-the-united-states">question about civil forfeiture law</a>) – thus civil forfeiture law allows some taking, but the present instance (willful failure to return property held as evidence) is different.</p>
<p>So if the government just decided to keep your cash, illegally, you can sue to get it back and the suit will not be dismissed on grounds of sovereign immunity.</p>

<p>Yes, in Colorado, at least, but only if there is some procedural means at some point to recover the property, not necessarily in a lawsuit and not necessarily to the full extent that it would be possible if seized by a non-governmental actor.</p>
<p>The following quoted material is from the official syllabus to the cited case in Colorado with that holding (to clarify, a &quot;replevin&quot; action is an action to recover physical possession of tangible personal property):</p>
<blockquote>
<p>Arrestee brought replevin action against county sheriff's office and
district attorney's office seeking return of property seized during
and after his arrest and damages for alleged wrongful detention of
property. The District Court, El Paso County, Larry E. Schwartz, J.,
dismissed complaint. Arrestee appealed. Holdings: The Court of
Appeals, Navarro, J., held that:</p>
<ol>
<li><p>arrestee's replevin claim was barred by Colorado Governmental
Immunity Act (CGIA);</p>
</li>
<li><p>applying CGIA to bar arrestee's claim did not violate arrestee's due
process rights; and</p>
</li>
<li><p>dismissal with prejudice was warranted.</p>
</li>
</ol>
</blockquote>
<p><em>Woo v. El Paso County Sheriff's Off.</em>, <a href="https://www.casemine.com/judgement/us/5f6308e14653d03826b9d58b" rel="nofollow noreferrer">2020 COA 134</a>, reh'g denied (Oct. 1, 2020) (certiorari was not sought by Woo).</p>
<p>The analysis of the due process challenge to this provision is important, however, because an important part of the holdings was that there was some procedural mechanism to recover the property of which the inmate allegedly failed to avail himself as explained in the following portion of the body text of <em>Woo v. El Paso County Sheriff's Off.</em> opinion (with links in the quoted material to the most important U.S. Supreme Court case and Colorado Supreme Court case on point):</p>
<blockquote>
<p>¶ 15 Because the CGIA bars Woo's replevin action to recover the
property and damages, we must address his contention that barring his
action violates his federal and state constitutional rights against
deprivations of property without due process of law. See U.S. Const.
amend. XIV, § 1; Colo. Const. art. II, § 25. He does not present a
facial challenge to the law; so, we must decide whether the CGIA is
unconstitutional as applied to his claim.</p>
<p>¶ 16 Given that Woo preserved this constitutional claim in the
district court, we review it de novo. <em>See People v. Perez-Hernandez</em>,
2013 COA 160, ¶ 10, 348 P.3d 451. We presume a statute is
constitutional, and the challenger bears the burden to prove its
unconstitutionality beyond a reasonable doubt. <em>TABOR Found. v. Reg'l
Transp. Dist</em>., 2018 CO 29, ¶ 15, 416 P.3d 101. To show a procedural
due process violation, a plaintiff must first identify a liberty or
property interest that has been interfered with by the state. <em>Ky.
Dep't of Corr. v. Thompson</em>, 490 U.S. 454, 460, 109 S.Ct. 1904, 104
L.Ed.2d 506 (1989). Next, the plaintiff must show that the procedures
attendant to that deprivation were constitutionally insufficient. Id.</p>
<p>¶ 17 We assume for the sake of our analysis that the property Woo
seeks to obtain belongs to him. Under that assumption, he suffered a
deprivation of a property interest when the state seized and did not
return the property. Woo does not argue that the initial seizure was
unconstitutional. The question thus becomes whether applying the CGIA
to preclude Woo's replevin action to recover the property violates his
due process rights. See <strong><em>Hudson v. Palmer</em>, <a href="https://supreme.justia.com/cases/federal/us/468/517/" rel="nofollow noreferrer">468 U.S. 517</a>, 533, 104 S.Ct.
3194, 82 L.Ed.2d 393 (1984) (“For intentional, as for negligent
deprivations of property by state employees, the state's action is not
complete until and unless it provides or refuses to provide a suitable
postdeprivation remedy.”)</strong>.</p>
<p>¶ 18 On this question, <em>Desert Truck Sales</em> [<em>ed. City &amp; Cty. of Denver v.
Desert Truck Sales, Inc.</em>, <a href="https://www.casemine.com/judgement/us/5914beebadd7b049347ab0fc" rel="nofollow noreferrer">837 P.2d 759</a>, 763 (Colo. 1992)) is again
instructive because
the supreme court considered whether applying the CGIA to preclude the
replevin action violated the purported property owner's due process
rights. 837 P.2d at 768. Like Woo, the plaintiff in that case argued
that barring a replevin action denied due process because it was the
only remedy to recover the property — there, a vehicle seized by
police on suspicion of theft and then detained because its vehicle
identification number had been removed. <em>Id</em>. at 762. The supreme court
rejected that argument, reasoning that the plaintiff had a statutory
right to a post-seizure hearing to prove ownership and obtain
possession of the car, and that the hearing was mandatory. <em>Id</em>. at
767-68 (citing § 42-5-110, C.R.S. 2019). The court concluded that this
procedure adequately protected the plaintiff's due process rights.
<em>Id</em>.; <em>cf. Hudson</em>, 468 U.S. at 533, 104 S.Ct. 3194 (“[A]n unauthorized
intentional deprivation of property by a state employee does not
constitute a violation of the procedural requirements of the Due
Process Clause of the Fourteenth Amendment if a meaningful
postdeprivation remedy for the loss is available.”).</p>
<p>¶ 19 Likewise, Woo had an adequate post-seizure remedy. He could have
sought (and, as to some property, he did seek) return of the property
in his criminal case. Though no statute or rule sets out the procedure
available to a criminal defendant to recover property that was legally
seized, longstanding Colorado case law recognizes that a criminal
defendant may file a motion for return of such property in the
criminal court. <em>See, e.g., People v. Hargrave</em>, 179 P.3d 226, 228-29
(Colo. App. 2007); <em>People v. Fordyce</em>, 705 P.2d 8, 9 (Colo. App. 1985);
<em>People v. Wiedemer</em>, 692 P.2d 327, 329 (Colo. App. 1984); <em>People v.
Rautenkranz</em>, 641 P.2d 317, 318 (Colo. App. 1982); <em>People v. Buggs</em>, 631
P.2d 1200, 1201 (Colo. App. 1981); <em>cf. People v. Angerstein</em>, 194 Colo.
376, 379, 572 P.2d 479, 481 (1977) (tacitly approving this practice
but holding that, as to some categories of legally seized property,
there is no right to have it returned). (Footnote 3: In addition,
Crim. P. 41(e) allows an aggrieved person to move the district court
for the return of illegally seized property.)</p>
<p>¶ 20 To recover property seized as part of a criminal proceeding, a
defendant may file a verified motion seeking the return of that
property with the same court in which the charges were brought.
<em>Rautenkranz</em>, 641 P.2d at 318. The court should then hold an
evidentiary hearing to determine the parties’ rights. Id. The
defendant makes a prima facie case of ownership by showing that the
items were seized from him at the time of his arrest and that they are
being held by law enforcement authorities. <em>Fordyce</em>, 705 P.2d at 9. The
burden then shifts to the prosecution to prove by a preponderance of
the evidence that the items were the fruit of an illegal activity or
that a connection exists between those items and criminal activity.
<em>Id</em>.</p>
<p>¶ 21 This procedure in the criminal court provides adequate protection
against the risk of an erroneous deprivation of property. <em>See Mathews
v. Eldridge</em>, 424 U.S. 319, 344, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)
(“[P]rocedural due process rules are shaped by the risk of error
inherent in the truthfinding process.”). Crim. P. 41(d)(5)(VI)
requires officers who seize property under a warrant to issue a
receipt listing the properties taken, so a defendant will have notice
of what property should be included in the motion for return of
property. The defendant may present evidence of ownership at the
hearing, and the burden to establish a prima facia case is not high.
<em>See Fordyce</em>, 705 P.2d at 9. The aggrieved party may file a timely
appeal of the district court's ruling on the motion, providing the
opportunity to correct an erroneous order. <em>See Buggs</em>, 631 P.2d at
1201.</p>
<p>¶ 22 Still, Woo contends that this procedure is insufficient because,
unlike the post-seizure proceeding discussed in <em>Desert Truck Sales</em>, a
hearing on a motion for return of property is not mandatory. But our
supreme court said that the hearing in <em>Desert Truck Sales</em> was
mandatory in the sense that it must be granted “upon request.” 837
P.2d at 768. Similarly, where a timely motion for return of property
and any response present pivotal factual disputes, a hearing would be
necessary. <em>See Rautenkranz</em>, 641 P.2d at 318 (“[O]n the filing of the
motion an evidentiary hearing should be held.”). Hence, divisions of
this court have reversed district courts’ rulings that declined to
hold a hearing on a motion for return of property or that denied such
a motion even though the prosecution did not present evidence refuting
the defendant's prima facie showing. <em>See id.; Buggs</em>, 631 P.2d at 1201.</p>
<p>¶ 23 Woo also maintains that the procedure in the criminal court is
inadequate because that court might no longer have jurisdiction to
entertain his motion for return of the property given that he has been
sentenced already. True, divisions of this court have divided over
whether a criminal court retains jurisdiction to hear a post-sentence
motion for return of property. <em>See People v. Chavez</em>, 2018 COA 139, ¶¶
9-14, ––– P.3d –––– (discussing the split and answering in the
negative). <em>Compare Wiedemer</em>, 692 P.2d at 329 (holding that the
imposition of a sentence ends a criminal court's jurisdiction to hear
a motion not authorized by Crim. P. 35), with <em>Hargrave</em>, 179 P.3d at
230 (holding that a criminal court has ancillary jurisdiction to
entertain a post-sentence motion for return of property). So far, our
supreme court has not resolved this debate.</p>
<p>¶ 24 Even if, however, the criminal court now lacks jurisdiction to
consider any motion for return of property filed by Woo, barring his
replevin action does not violate his due process rights. Our supreme
court in Desert Truck Sales recognized that the availability of a
post-seizure remedy to recover seized property satisfies the alleged
owner's due process rights. Such a remedy was available to Woo in the
criminal court, at least before he was sentenced. That this remedy
might not be perpetual does not mean that it is constitutionally
inadequate. <em>See In re Estate of Ongaro</em>, 998 P.2d 1097, 1105-06 (Colo.
2000) (“[A] statute of limitations does not deprive a claimant of its
rights to due process unless the time for bringing the claim is so
limited as to amount to a denial of justice.”); <em>cf. Cacioppo v. Eagle
Cty. Sch. Dist. Re-50J</em>, 92 P.3d 453, 464 (Colo. 2004) (“[W]e hold that
the five-day time limit imposed by section 1-11-203.5 is also not
‘manifestly so limited as to amount to a denial of justice.’ ”)
(citation omitted). Indeed, his defense counsel's motion for release
of certain items to Woo in the criminal case shows that his counsel
knew of this procedure, though the motion might have been tardy.</p>
<p>¶ 25 Finally, to the extent Woo argues that barring his damages claim
for wrongful detention of the property violates his due process
rights, we disagree. The statute at issue in <em>Desert Truck Sales</em> did
not permit damages for the property's detention, see 837 P.2d at 767
n.9 (citing § 42-5-110), yet the supreme court found it sufficient to
satisfy due process. Moreover, parties do not have a constitutionally
protected property right to sue the government for damages for their
alleged injuries. <em>See Norsby v. Jensen</em>, 916 P.2d 555, 563 (Colo. App.
1995); <em>see also State v. DeFoor</em>, 824 P.2d 783, 795 (Colo. 1992)
(“There is no constitutional right for persons to sue and recover a
judgment against the state for the state's tortious conduct.”)
(Rovira, C.J., specially concurring in part). Rather, the right to
maintain a tort action or tort-like action against a public entity is
derived from statute. <em>Fritz v. Regents of Univ. of Colo</em>., 196 Colo.
335, 339, 586 P.2d 23, 26 (1978); <em>see Desert Truck Sales</em>, 837 P.2d at
767 (“In enacting the [CGIA], the General Assembly described in minute
detail the circumstances that can result in tort liability for a
public entity or its employees.”). As discussed, the CGIA bars Woo's
replevin action, including his damages claim.</p>
<p>¶ 26 In sum, Woo has failed to show beyond a reasonable doubt that the
CGIA is unconstitutional as applied to his replevin action.</p>
</blockquote>
<p>In many cases where the person from whom the property was seized is not a criminal defendant, as in this case, the process is set forth in a civil forfeiture statute (see generally: <a href="https://law.stackexchange.com/questions/887/how-exactly-does-civil-asset-forfeiture-work-in-the-united-states">How exactly does civil asset forfeiture work in the United States?</a>).</p>
<p>Outside of the criminal justice process, a suit for return of the property could be barred, but an &quot;<a href="https://en.wikipedia.org/wiki/Inverse_condemnation" rel="nofollow noreferrer">inverse condemnation</a>&quot; lawsuit seeking due compensation for property taken without due process of law is available. But there is a <a href="https://www.casemine.com/judgement/us/591497f1add7b049345fbc03#p1203" rel="nofollow noreferrer">criminal justice exception</a> to the right to bring an inverse condemnation lawsuit:</p>
<p><a href="https://i.stack.imgur.com/HFydT.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/HFydT.png" alt="enter image description here" /></a></p>
