Pursuant to the Fourth Amendment, law enforcement officers routinely obtain warrants under a "probable cause" standard to seize items that may contain evidence of a crime.

This is a taking of private property for public use (i.e., the public interest in prosecuting crimes) and therefore, pursuant to the Fifth Amendment, "just compensation" should be paid to the owner.

I have come across examples in which police seize items from third parties (e.g., computer or video systems that may have captured evidence of a serious crime by unrelated suspects). As best I can tell, in practice so long as police assert that the seized item is potentially useful in their investigation of a crime (which, if serious but unsolved, may never be formally abandoned), they can avoid returning seized property – even if the ownership is uncontested and the items are not contraband. I.e., even when the owner is effectively permanently deprived of their property, I have not found any practical legal mechanism for them to seek compensation. (The only redress I have found is a right to petition for return of property, which is apparently denied so long as police assert the property has value in a criminal investigation or prosecution.)

Are there any particular laws, rules, or procedures that provide for payment of compensation in these cases?

1 Answer 1


This is a good question, which I am going to answer from a practical perspective, rather than a theoretical one, which would probably justify a law review article (applications of the takings clause to criminal justice fact patterns is actually one of my pet areas of legal scholarship, but a lot of it calls for dramatic changes in established practice and precedents reached from other perspectives, making it impractical to pursue in real life).

I recently had a case along these lines in my office where my client's property was seized as evidence in a criminal case against a third-party.

The crime involved a gun shop where all of the guns that were in the possession of the shop owner for repairs at the time of the bust (i.e. as bailments), including ours worth several thousand dollars in addition to having some sentimental value, were seized as evidence of charges against a shop owner who was fencing stolen goods, making sales to felons off the books, falsifying excise tax returns, etc.

He seemed legitimate and had been in business for many years in what was not a fly by night operation. He had all of the proper licenses. Who knew we were dealing with a crook?

In that case, we intervened on behalf of our client in the primary case to seek the physical return of the property (basically a replevin claim), as have others affected by the bust. It took a few months and some legal fees, but we prevailed without too much effort, as have the other intervenors.

Generally speaking, to make a 5th Amendment claim, you would have to show a total taking and move into some legal gray areas in this context, while it is usually hard for authorities to show a continuing need for possession of third-party property in the face of a demand for its return, especially when photography and other scientific tools can document the evidence in great detail these days. In that case, showing that our client's particular gun was not involved in any illegitimate transaction also simultaneously made it less important as evidence, although that would not necessarily be true in general in these kinds of situations.

There is a pending case in Colorado posing similar issues, where a suburban police department essentially destroyed a guy's home in order to catch a felon with no relation to the homeowner whatsoever, who had fled into it and taken refuge there. But, that case, as far as I know, has not yet been resolved on the merits.

  • Is it correct to understand your first paragraph to mean that any "ideally..." answers have not been tested under current law? But that in practice you have seen requests for writs of replevin in the associated criminal actions have secured timely return of property? (Also: Links to law review articles addressing the question would not be unwelcome ;)
    – feetwet
    Commented Oct 12, 2017 at 15:32
  • @feetwet I am not aware of takings cases squarely on point but I wouldn't be surprised if there are a handful somewhere out there, particularly in civil forfeiture jurisprudence. I have seen requests for returns of property in the associated criminal cases that are functionally equivalent to writs of replevin that have secured return of the property in a matter of a few months and sometimes even weeks. My to do list includes writing a law review article on the topic, but I haven't yet reviewed the literature to see if there are any existing law review articles on point. I haven't seen one yet.
    – ohwilleke
    Commented Oct 12, 2017 at 18:44
  • Yes, searches on this topic tend to get swamped by things relating to civil forfeiture. I'd love to help edit that article when you get to it!
    – feetwet
    Commented Oct 12, 2017 at 19:06

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