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What law says gov can keep private property they claim is "instrument of crime?" What law/rights protect against the taking?

Pittsburgh, PA |

I was forced to take a plea involving charges where my camera is being called instrument of crime. The judge and Public lawyer never told me Id give up rights to my property if sentenced. I didn't agree to this for plea contract. I wanted to fight case. Judge denied withdraw of plea. Now my case is over and they want to keep my property which was seized illegally and by ignoring civil rights. What law says they can keep even camera? And Doesn't 5th Amendment protect against this? "nor shall private property be taken for public use, without just compensation." Can property decisions by judge be appealed to higher court? What else can prevent gov theft and destruction of my property after they set me up?

Attorney Answers 4


The short answer is that forfeiture laws permit property used in certain types of crimes to be forfeited to the prosecuting agency. I can't speak to the DA's practices in the Pittsburgh area, but some counties are rather lax with their procedures. A forfeiture petition is supposed to be filed and a hearing held to determine whether forfeiture is appropriate. Some counties just hold the property for a while and claim it as their own if nobody complains.

Other counties, however, are on top of things. They'll file petition as a matter of course and even address forfeiture during plea negotiations. It doesn't sound like that's what happened in your case, but your public defender would know. If the matter wasn't addressed at all you could file a petition for return of property, but I can't tell you how likely such a petition is to succeed.

Contact a lawyer in your area to discuss the facts of the case so s/he can determine whether such a fight would be worthwhile.

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If it was evidence of a crime, and you plead to the crime, you are probably out of luck. Speak with your attorney, or perhaps hire another to look into this.

R. Jason de Groot, Esq., 386-337-8239

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Being familiar with procedures in Allegheny County my guess is that the issue of forfeiting the property came up for the first time at sentencing when the Assistant District Attorney asked the court to include language in your sentencing order to forfeit the property. If you are within thirty (30) days of that sentencing then you might be able to appeal that part of the sentencing order to the Superior Court. Although I am not certain, I would expect that the Public Defenders Office would not file and litigate such an appeal for you, and I'm not certain you would want to incur the expense of an appeal even if you could afford to do so. If you are interested in pursuing this you need to speak first with your trial counsel. If that does not prove satisfactory to you then you will need to hire private counsel without delay.

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I find your question very interesting. You say you were "forced" to take a plea. For a guilty plea to be valid it must be the knowing, intelligent and voluntary choice of the defendant to plead guilty. Thus if you were truly "forced' to take a plea then the plea is invalid. Even it the appeal period (thirty days after sentencing) has expired, you would still have one year from the last day you could have filed an appeal to file a petition under the Post Conviction Relief Act, under which you can claim that the plea was involuntary. You say that the judge denied your request to withdraw your plea. You didn't say whether your request was filed before or after sentencing. If it was before sentencing the standard for withdrawing your plea is very liberal and most judges will grant such a request. If the thirty days from the date of your sentencing has not elapsed, you could appeal based upon the judge's refusal to grant a pre-sentencing request to withdraw your plea. If your request to withdraw your plea was after sentencing then it becomes much more difficult and you would basically have to show that the pleas was involuntary. If the judge erred in refusing to find a plea involuntary as raised in a post trial motion, you would have thirty days to file an appeal. It is your decision, not the public defender or your private attorney's decision, to file an appeal. You have the absolute right to file an appeal in Pennsylvania. As far as the voluntariness of the plea, most counties use written guilty plea colloquies which fully explain all of the rights one gives up by choosing to plead guilty. It is very difficult to show that a plea is involuntary in the face of such written evidence to the contrary.

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