How long can the government keep seized computers"

I got a really good question not too long ago (it’s taken me too long to respond, I’m afraid): How long can the government keep the computers it seizes in a criminal investigation?

It’s a very good question because, as I thought about it and did a little research, the answer seems to be a variation of “it depends” and “beats me.” There are some state statutes, which I’ll talk about in a minute, that deal with the retention of seized evidence in general, but it seems the practice in this area varies . . . from state to state, maybe even from courthouse to courthouse. So I can’t promise you any definitive answers here (though I’d love to hear one if you have it?). All I’m going to do is to talk about the issue, the law I found, and the policy questions.

Let’s start with a few basic principles. First, I’m going to assume we’re dealing only with evidence (property, tangible or intangible) that was lawfully seized in the execution of a search warrant. I’m also going to assume, as I explain below, that the evidence seized was used against you in a criminal proceeding; that is, I’m assuming you were charged with a crime and that your seized property was used against you at your trial on those charges. Evidence can also be lawfully seized if the owner consents to the seizure, but since the person who gives consent can withdraw it at essentially any time. I’m not sure consent seizures are at issue here.

The other basic principle is the default procedure the law establishes for getting back property that has been lawfully seized with a search warrant. I’m sure we’re all familiar with the process of moving to suppress evidence; that tends to be the scenario in most reported cases, because the stakes are a lot higher if and when you’re charged with a crime and they want to use your property against you. Here, the person filing the motion is not seeking the return of the seized property (though that could follow if the motion to suppress is granted); they’re trying to block its being used against them in a criminal case.

We’re not concerned with motions to suppress here; our concern is with whether the government can keep the evidence (property) they seized from you and then used against you. (I suppose we’re also concerned with the situation in which they use a search warrant to seize your property, charge you with crimes as to which that property constitutes evidence, and then you somehow get the charges dismissed, which ends the case.)

As I explained in an earlier post (“Seeking the return of seized computers”), the way you go about trying to get your seized property back if (i) you have not and clearly are not going to be charged with a crime or (ii) you have been charged with a crime, the evidence was used at trial, and you’ve been convicted, acquitted or got the charges dismissed somehow. The point is that we’re concerned only with (ii) because in (i) the government has absolutely no justification for hanging on to your property.

Basically, as I explained in that earlier post, you file what in the federal system is called a “Rule 41(g) motion,” because you file the motion under Rule 41(g) of the Federal Rules of Criminal Procedure. Rule 41(g) says that a “person aggrieved . . . by the deprivation of property [seized by the government] may move for the property’s return.” If the court grants the motion, it returns the property; if it does not grant the motion, you don’t get your property back.

Nothing in the law is simple, but basically the rule is that a court should not grant a Rule 41(g)-style motion for the return of seized property as long as there is a criminal case “pending” against the owner, a case with regard to which the property is relevant as evidence. “Pending” seems to be construed broadly.

In United States v. Marabini, 2006 WL 3921906 (U.S. District Court – Southern District of Florida), Marabini moved for the return of two computers that were apparently seized pursuant to a search warrant. He asked that these “personal assets” be returned and given to his fiancé, because he had already (i) pled guilty to all the charges against him, (ii) been sentenced and (iii) agreed to forfeit $150,000 to the U.S. (basically as a way to disgorge money he’d allegedly earned from the crimes with which he was charged, i.e., unlawfully dealing in steroids and human growth hormone).

The government opposed the motion “arguing, among other things, that the computers . . . were properly seized as `evidence of a crime’ and, therefore, should not be returned until it is no longer needed as evidence.” Marabini, supra. The government said the proceedings in the case had not ended because Marabini had not (i) appealed his conviction and/or (ii) filed a petition for habeas relief. Marabini, supra. (In an appeal, a defendant directly challenges what occurred below; in a habeas petition, the defendant raises what’s called a collateral attack, which differs procedurally, but both try to knock out the conviction).

So, you’re not likely to win on a motion for return of property if there is any prospect that something can still occur in, or in relation to, the criminal case as to which it constitutes evidence.

But I’m not sure that’s really the issue the person I mentioned earlier raised. I think the question there was, essentially, can they keep seized computers FOREVER? So now let me take a shot at that.

The length of time the government can kept property it’s seized as evidence doesn’t seem to have been much of a concern, until recently. The big issue in that area now concerns DNA evidence, and there are statutes and other efforts to ensure that courts retain biological samples collected as evidence in a criminal case . . . essentially forever because, as we have seen, they can result in the release of innocently-convicted people.

But computers are different. If the government takes a sample of your DNA, you don’t lose your DNA; you still have it, so there’s really not a good “property” kind of argument here. You could say the same thing about seized data, but that’s a different issue, as I’ll note at the end of this post.

Leaving aside DNA-specific statutes, some states (not all by any means, it seems) have statutes that set a time period (e.g., 1 year after conviction, 3 years after conviction) for the retention of evidence used at trial. A few allow the owner to claim the property at the end of that period, unless it’s contraband (drugs) or firearms or a few other problematic things. If the owner is allowed to and doesn’t claim his property (and, maybe, even if that isn’t an option, hard to tell in some cases), then some statutes allow the court to order that it be destroyed or sold, with the proceeds going, usually, to the court. Other states have statutes that allow the prosecutor (or some other official) to file a motion seeking the disposal, sale or destruction of evidence used in a criminal case after the case is no longer “pending.”

I’ve also read that in some states it’s pretty much up the court clerk’s office. I get the sense that in those states they hang onto things and then, when they run out of space, they get rid of some of them.

As you can maybe see from this very brief outline of state law in this area, no one seems to have given much thought to the retention of evidence, historically. It seems to have treated pretty pragmatically: someone asks for it back, maybe we’ll return it, maybe not; we’ll keep it till we don’t have space, then get rid of it. I can’t seem to find any federal statutes on point, so I’m assuming federal courts handle this via local rules and practices.

I suspect, then, that in state and federal cases computers and computer data would be treated pretty much the same way. That is, I assume the government hangs onto the computers and data until it is really, really sure the case is no longer “pending.”

There’s a related, slightly different issue that comes up with the seizure (copying) of computer data, but this is already a long post, so I’ll address that issue next time.