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A man convicted of child porn possession has been fighting to reclaim his personal emails and photos from the government, but so far has been rebuffed by its claims that separating the good and bad files would be too difficult to pursue. A lower court agreed with the government's assessment of the situation, but this has now been overturned by the Ninth Circuit Court of Appeals.
As the ruling [pdf link] notes, the lower court failed in its duty to shift the burden of proof from the convicted man to the government.
The panel held that the district court’s decision not to put the burden of proof on the government was legal error, where the defendant filed the Rule 41(g) motion after he pleaded guilty and the government no longer needed his property as evidence. The panel held that the government could not have carried its burden of proof had the district court correctly placed it on the government, where the government failed to submit any evidence of the difficulty and costs of segregating the defendant’s data, which it claimed was a legitimate reason for retention of the non-contraband files.
(Score: 0) by Anonymous Coward on Saturday January 10 2015, @02:56AM
While I agree with you in principle, I want to play devil's advocate here:
"I was arrested for possession of cocaine. The cocaine was cut with aspirin. Can I have my aspirin back, please?"
(I have no idea what legal stuff cocaine is cut with; it's just an example.)
(Score: 2) by LoRdTAW on Saturday January 10 2015, @04:11AM
Mostly cut with anything that is A:White, B: a powder and C:not likely to kill the user right away. Baking soda, baby powder, lactose, etc.
(Score: 2) by sjames on Saturday January 10 2015, @04:28AM
The court didn't determine that everything non-illegal must be returned regardless of the expense, only that the government has the burden to prove that the cost and/or effort makes doing so impractical. Even then, the judge hinted that if the defendant is willing to pay the costs, the government has a duty to allow it.
So in your example, if the defendant is willing to pay the costs of chemically separating out the aspirin, fine and dandy.
Otherwise, you end up with police deciding that a $10,000 big screen TV can't be returned because it may have a tiny trace of THC on it even though in the end the defendant was only charged with a misdemeanor.