Return of seized property

[LostParcel]

What is the name of your state (only U.S. law)? California

A friend of mine had a S&W handgun seized during an illegal
vehicle stop and search. The charges have been dismissed
after a Penal Code Section 1538.5 motion for suppression of
evidence and return of property was filed.

My friend has owned the gun for 25 years. The district attorney's
office claims that the gun was stolen in 2000. A police report from Bakersfield,
400 miles away, states that a S&W handgun with the same serial
number as my friend's gun was reported stolen. That case was never
pursued.

There are at least five S&W .38 cal. revolvers with the same serial
number as my friend's gun.

What is the standard for proof of ownership or entitlement to seized
property?What is the name of your state (only U.S. law)?

 

[justalayman]

There are at least five S&W .38 cal. revolvers with the same serial
number as my friend's gun.

can your friend prove his isn't the one that was stolen?

 

[LostParcel]

He does not have a receipt, nor was the gun registered

He has no way of definitively proving that his gun is not the
stolen gun.

The "stolen" gun was reported stolen by the wife of the owner
on the night that he died in the hospital. The suspect was the
man's 55 year-old son, who lived with them. There were other
guns allegedly stolen also. The guns were all registered.
I have been told by the Bureau of Firearms that I need the
permission of the dead man's estate to get any information
about the registered revolver with the same serial # as my
friend's gun. The son has died also, and the wife apparently
moved to Texas. I am fairly sure that the "stolen" gun was a
Centennial or Regulation Police model.

Who has the burden of proof regarding ownership?

Does my friend have to prove that he owns it, or
does the prosecutor have to prove that he does not?

 

[CdwJava]

My friend has owned the gun for 25 years. The district attorney's
office claims that the gun was stolen in 2000. A police report from Bakersfield,
400 miles away, states that a S&W handgun with the same serial
number as my friend's gun was reported stolen. That case was never
pursued.

There are at least five S&W .38 cal. revolvers with the same serial
number as my friend's gun.

What is the standard for proof of ownership or entitlement to seized
property?

He may well have to get a copy of the Bakersfield report and look in to following up with the party reporting that weapon stolen to see if he can convince a court or the agency that the firearm held by the police is, indeed, the firearm he claims to have owned for 25 years.

Unfortunately for him, the police are not just going to take his word for it. Until or unless your friend can get a judge to order the release of THAT gun, they are not going to let it go.

Plus, your friend is also going to have to jump through hoops with the DOJ to show that he has a lawful right to possess a firearm as well. This can be a 30-60 day approval process, so he might want to look into getting that moving as well.

 

[xylene]

A good rule - Don't get too senitmental about a gun

A local gun dealer / pawn shop has a similarly (or less) used S&W for a FRACTION of the cost, excluding the time, to sort this out.

Another pointer... register your gun. It's not a conspiracy.

With the time and money saved, buy a 357... or an nice automatic pistol

 

[justalayman]

Does my friend have to prove that he owns it, or
does the prosecutor have to prove that he does not?

so, he want to claim ownership of a stolen firearm?

As it stands, it is presumed to be the stolen gun. Your friend would have to prove it isn't.

Is there some reason he really wants this gun back? As xylene stated, it would be far easier and cheaper to just buy a new gun.

 

[LostParcel]

so, he want to claim ownership of a stolen firearm?

As it stands, it is presumed to be the stolen gun. Your friend would have to prove it isn't.

Is there some reason he really wants this gun back? As xylene stated, it would be far easier and cheaper to just buy a new gun.

The gun is not stolen. It is a different gun from the one alleged to have been stolen. There was never a determination that the Bakersfield gun was actually stolen. It was missing, and the son was suspected of theft by the widow. As it was, the son was probably the rightful heir to the gun so it was actually his when his father died.


At this point, it is costing no additional money to fight. The 1538.5 motion has already been paid for, and succeeded on the first part, suppression. The issue is now the second part, return of property.


What is the basis for the presumption that the gun is stolen?

 

[CdwJava]

The gun is not stolen. It is a different gun from the one alleged to have been stolen. There was never a determination that the Bakersfield gun was actually stolen. It was missing, and the son was suspected of theft by the widow. As it was, the son was probably the rightful heir to the gun so it was actually his when his father died.

Unfortunately, so long as the gun in the possession of the local cops matches what is believed to be a stolen or missing gun, they are not going to release it absent a judge specifically ordering it.

What is the basis for the presumption that the gun is stolen?

The original report and entry.

The entering agency will have been required to have entered specific data concerning the firearm. They will also be expected to have maintained a file to support and justify the continued entry of the weapon into the SFS (Stolen Firearm System). It may take a lot of work to get those records or to get someone to look in to the entry to see if the entry is still justified. However, per CJIS regulations, the entry should have been reviewed at least a couple of times since its entry in 2000. As such, it is likely that there IS supporting documentation to include make, model, color, serial number, and good cause to enter the weapon as stolen or missing.

It is not likely to be an easy task to clear this up.

 

[justalayman]

LostParcel;2758341]The gun is not stolen.

well, the guys holding it right now believe it was. In fact, apparently they are keeping it from you because they believe it to be the stolen gun

It is a different gun from the one alleged to have been stolen.

gee, then it should be easy since smith and wesson will have a record of what model of gun was given the serial number that is on your gun.

here was never a determination that the Bakersfield gun was actually stolen. It was missing, and the son was suspected of theft by the widow. As it was, the son was probably the rightful heir to the gun so it was actually his when his father died.

well, it appears that the folks holding onto your gun think otherwise

At this point, it is costing no additional money to fight. The 1538.5 motion has already been paid for, and succeeded on the first part, suppression. The issue is now the second part, return of property.

this has nothing to do with your case anymore. It has to do with a gun in the police lock up that they are under the understanding is stolen.

What is the basis for the presumption that the gun is stolen?

I don't know. Ask the folks that told you that is was stolen. You are the one that said you were told it was stolen.

 

[LostParcel]

well, the guys holding it right now believe it was. In fact, apparently they are keeping it from you because they believe it to be the stolen gun

That is because they, like you, are clueless about S&W serial numbers.

gee, then it should be easy since smith and wesson will have a record of what model of gun was given the serial number that is on your gun.

Read my post. There are at least 5 .38 cal revolvers with the same serial #
as my friend's gun.

well, it appears that the folks holding onto your gun think otherwise

Because they are clueless.

this has nothing to do with your case anymore. It has to do with a gun in the police lock up that they are under the understanding is stolen.

It has everything to do with the case. Read my post. It is a Section 1538.5 motion. If you do not know what that is, look it up. You won't sound so ignorant.

I don't know. Ask the folks that told you that is was stolen. You are the one that said you were told it was stolen.

A gun with that serial # was reported stolen. Not my friend's gun



Before you cop an attitude, get a clue**************.....

 

[justalayman]

=LostParcel;2758413]That is because they, like you, are clueless about S&W serial numbers.

well, apparently their cluelessness is going to allow them to keep your gun. Serial numbers are not a big deal. They looked at yours and they looked at the one on the stolen gun list and lo and behold, apparently they matched. If they don't match, this would all be real simple. So, because they do match, your gun is the stolen gun until you can prove otherwise.

Read my post. There are at least 5 .38 cal revolvers with the same serial #
as my friend's gun.

I read that and because of that, every one of them is considered to be THE stolen weapon. If a cop sees any one of them, he is going to confiscate the weapon regardless of how many of them there are. Until somebody then proves that their specific weapon is not the stolen gun, they aren't getting it back. That is where you are right now. You have to prove that your gun with the serial number of a stolen gun stamped into it is not actually the stolen gun.

Because they are clueless.

but they have your gun. Sounds like they are winning even though they are clueless.

It has everything to do with the case. Read my post. It is a Section 1538.5 motion. If you do not know what that is, look it up. You won't sound so ignorant.

Not anymore it doesn't. Regardless of your legal situation, it isn't going to affect the problem with the gun having the same serial number as a gun reported stolen. Your 1538.5 motion can be essentially approved but you still aren't getting your gun back. The problem is it is seen as the stolen gun and until you can prove differently, you aren't getting the gun. You need to get over the thought this has to do with your original legal problems. It really doesn't.

A gun with that serial # was reported stolen. Not my friend's gun

and guess what; they have a gun with that serial number in their hands. As far as they are concerned, that is the stolen gun.

Before you cop an attitude, get a clue**************.....

Before you get so belligerent, you need to look at the big picture and realize that your initial legal issue is not what is going to prevent you from getting the gun back.

 

[TheGeekess]

There's no use for a serial number if it isn't unique.

2. A full description, including the serial number, usually found on the butt, rear cylinder face, on the bottom of the barrel above the ejector rod, and on the insides of the stocks. On a few models it will be stamped on the front strap of the grip frame, rather then on the bottom of the butt. On newer revolvers it is stamped on the frame behind the yoke (the yoke it the part that holds the cylinder when you swing it out to the left), and you have to swing out the cylinder to see the number. You may also find a model number stamped below the serial number. Be aware that on older revolvers there is a number in that place which is not the serial number. On an individual gun the serial number will be stamped in one or more of these places, but not in all of the places listed above. In addition, list any other markings such as patent dates stamped on top of the barrel if there are any, and caliber/cartridge markings stamped on the side of the barrel. Remember, correct identification will depend on the information you send.

Common S&W Identifying Features - THR

 

[LostParcel]

How about this from a former San Diego County DA:

Burden of Proof when the Return of Property is Contested:
“‘When a motion for return of property is made before an
indictment is filed (but a criminal investigation is pending), the
movant bears the burden of proving both that the seizure was
illegal and that he or she is entitled to lawful possession of the
property.’ United States v. ******son, 809 F.2d 1364, 1369 (9th
Cir.1987) (citations omitted). ‘However, when the property in
question is no longer needed for evidentiary purposes, either
because trial is complete, the defendant has pleaded guilty, or . . .
the government has abandoned its investigation, the burden of
proof changes. The person from whom the property is seized is
presumed to have a right to its return, and the government has the
burden of demonstrating that it has a legitimate reason to retain the
property.’ Id. (footnotes and citations omitted). The ‘government
must justify its continued possession of the property by
demonstrating that it is contraband or subject to forfeiture.’ Id.”
(United States v. Harrell (9th Cir. 2008) 530 F.3rd 1051, 1057.)


Can you read and understand it?

gee**************......

 

[justalayman]

There's no use for a serial number if it isn't unique.



Common S&W Identifying Features - THR

well, the problem is; the state doesn't care. As long as they have a weapon in hand with the serial number that matches a stolen gun report, they have the stolen weapon until somebody can prove otherwise.

A similar thing happened to a kid in my state. This kid saved his pennies to buy some war relic (about $2k if I remember correctly). When he registered it (as that is required here), it was found to have the serial number that matched a stolen gun. After a bit of research, it was discovered that the manufacturer used the exact same serial number for hundreds, if not thousands of this weapon.

Kid never got his gun back because there was no way to prove his gun wasn't the stolen gun.

 

[justalayman]

Can you read and understand it?

gee**************......

I can understand that quite well but you continue to refuse understand that has nothing to do with the problem if the gun having a serial number that matches a reported stolen gun. This is beyond your 1538.5 action.

Even if you want to argue the 1538.5 motion:

and the government has the
burden of demonstrating that it has a legitimate reason to retain the
property.’

they have a legitimate reason to retain the property. It is, as far as they are concerned, a stolen weapon which gives them the right to keep it.

and further:

the
movant bears the burden of proving both that the seizure was
illegal and that he or she is entitled to lawful possession of the
property.’

you cannot lawfully posses a stolen weapon so, under the reason it is considered a stolen weapon, you can't have it and then you cannot prevail in a 1538.5 action because you cannot lawfully posses a stolen weapon and the state has a legitimate reason to retain the property because, as far as they are concerned, it is a stolen gun.