SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

Return of Property:
(4) The law enforcement agency has procedures to ensure the
affidavit is retained for 10 years (permanently in capital
cases) after the final disposition of the case, pending further
order of the court (see Gov’t. Code § 68152(j)(18)); and
(5) The magistrate has made a sufficient record of the
documents reviewed, including the sealed materials, to
permit identification of the original sealed affidavit or to
permit reconstruction of the affidavit.
(People v. Galland (2008) 45 Cal.4 th 354, 368; also
finding that the loss of the affidavit did not
invalidate the warrant when “other evidence may be
presented to establish the fact that an affidavit was
presented, as well as its contents.”)
Property seized by search warrant may only be released by court order:
P.C. § 1536: All property taken by warrant is to be retained by the
officer “subject to the order of the court.”
P.C. § 1540: The magistrate has the authority to release property
seized by warrant.
Stolen or embezzled property in cases where a complaint has been filed
should be released by a magistrate after notice to anyone claiming an
interest in the property. (P.C. §§ 1408, 1410, 1413(c))
Otherwise, property may be returned to the lawful owner by the seizing
law enforcement officer, but only after notice is given to the person from
whom the property was seized. (P.C. § 1413(b))
If, after termination of any related prosecution, or if no case has
been filed, and the owner fails to claim the property and no one
else has claimed it, it “may” be delivered to the county for disposal
pursuant to the procedures set out in P.C. § 1411.
Note: Special provisions for the disposition of firearms (P.C. §
12028) and money (P.C. §§ 1420 et seq.)
It is not legally necessary for officers executing a search warrant to give a
person from whom property has been seized any notice of the applicable
statutes or the means by which that person may seek the return of his or
her property. (City of West Covina vs. Perkins (1999) 525 U.S. 234 [142
378
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