At one time I was under investigation for commiting a criminal act under Texas Penal Code 33.02 (Unauthorized access of a computer system). On/around February 15th, the police executed a warrant to search my place of residence and seize any device which allows the "storage of data". They have now been in posession of my property for almost four months. I am "aggreived by the deprivation of property" and would like to file a motion for the return of my property as allowed by Rule 41(g) of the Federal Rules of Criminal Procedure (18 App. U.S.C). What rules do the law enforcement officials have to follow as far as the timely filings of charges? There has been no investigation of any kind for about three months, and I have yet to hear anything back about the return of my property.
Further, while originally discussing the return of my property, the investigative entity (Abilene Christian University Police Department) required that I allow them to destroy all of my personal data contained on said devices before returning them to me. Is it allowed for them to destroy my property before returning it to me? I do not believe I have violated any kind of forfeiture rules, should I not get my property back in its original form?
Criminal Defense Attorney
Your facts indicate that you were under investigation for an alleged violation of a State charge, and you cite the Federal Rules as if they will apply to the State proceedings. That is not typical, as each State has it's own statutory rules pertaining to the return of seized property. In short, the State can hold your property while it is part of any evidential basis to an on-going investigation. Just because the water is calm on the surface, does not mean that the State is not proceeding with the investigation. Examination of a hard drive is expensive and time-consuming. The State could be continuing the investigative process without you knowing what they are doing, as they are not required to inform you as to the status of their investigation. In representing client's here in NJ, we have seen cases linger for more then several years while the investigation continued and we waited to see if an indictment was going to be issued.
While you can file a Motion for the return of the property, I suggest that you discuss this with a local lawyer who practices criminal defense before you decide whether to file the motion. Good luck.
This information is offered for educational purposes only. It is not intended as legal advice and you should not rely upon it to decide how to resolve this issue. No Attorney-Client relationship is intended or established by this response. You are faced with a situation where you need to consult with an experienced defense lawyer admitted to practice law in your State before you make any decisions as to how to resolve this issue.
Criminal Defense Attorney
My colleague's answer is correct and thorough but I would add that you are not likely to get any property back until the criminal investigation is over. Sometimes that means after a trial and a not guilty verdict. As noted, the FRCP have no applicability in a state law proceeding.