While investigating a suspected crime, your property can be collected as evidence. There are several times when police can take your property: after being arrested, with a search warrant, with your consent, or during any other lawful seizure. They may collect contraband, anything which is related to a crime, or which may be evidence of any crime. Once your property is seized, it is not simply returned if you are not charged with a crime, if the charges are dismissed, or if you are acquitted.
Return of Property
Wisconsin provides a mechanism to request your property be returned when it is seized. However, you are responsible for petitioning the court to return your property. At a hearing on that petition, the court determines the true owner of the property and determines if return of the property is proper. Wis. Stat. §968.20.
Even when you demonstrate true ownership, the property does not need to be returned when it is still required for court proceedings or is contraband. Contraband includes both illegal items and items which are generally legal to possess but are related to illicit activity. In considering if an item is contraband, the underlying criminal conviction (or lack of convictions or charges are not being reviewed. Wis. Stat. §968.13(1)(a); Return of Property in State v. Jones, 226 Wis.2d 565 (1999); State v. Voshart, 39 Wis.2d 419 (1968).
Uphill Battle
You will have the burden to establish ownership of the items. Then the burden to show that the property is contraband or otherwise should not be returned is placed on the State. The State must prove by a preponderance of the evidence there is a logical nexus (or substantial connection) between the property and an illegal activity by the greater weight of credible evidence.
Preponderance of the evidence only requires that it is more likely than not that the item is related to an illicit activity. This is an easy burden for the State to meet; they only need to show it 51% or more likely that the property is contraband. Logical nexus is described as the relationship between the statute allowing the State to retain certain property and the use made of that property.
For example, in Jones, cash and drug paraphernalia (small scale, six cigarette lighters, and three pieces of charred “Chore-boy” scouring pads) were seized from the defendant, he was charged with drug related offenses and those charges were later dismissed. The officer who seized the items testified that in his experience, those items were used in the selling and consumption of crack cocaine. The defendant did not present any evidence that the items were not contraband.
When evaluating the likelihood of success in obtaining the property that was seized, reviewing the evidence the State could present showing a connection to illegal activity should be compared to the evidence your property is not contraband.
While the Court is not reviewing the underlying charges, the State is able to present the evidence from they believe support those charges to support their assertion the property is contraband. When the Court is hearing this case, it will be making credibility assessments in determining if the State has met its burden. The fact that the charges were dismissed would not be considered by the Court in the request for return of property.
Conclusion
There is a mechanism provided by statute to request you property be returned. However, the State is only required to show that items are contraband by a preponderance of the evidence. So, if there is a “logical nexus” between your property and illegal activity, it will be difficult to obtain your property.
