The Colorado Supreme Court provided guidance on Monday for how convicted criminal defendants may ask law enforcement to return their property seized as part of an investigation.

Previously, the state’s Court of Appeals had offered conflicting instructions about whether a judge overseeing a criminal case has the ability to order the return of a defendant’s belongings after his sentencing. In the case of James Woo, who was sentenced only one week after his conviction, the Court of Appeals suggested he was out of luck for not making his request within that narrow window.

The Supreme Court has now established that convicted defendants have a broader ability to reclaim their property than the Court of Appeals advised in Woo’s circumstances. Justice Carlos A. Samour Jr. explained criminal judges retain the ability to hear such requests, including after sentencing, as long as the case is not awaiting action in the appellate courts.

“And we clarify that even after a trial court is divested of subject matter jurisdiction over a criminal case, it reacquires such jurisdiction following a direct appeal, during postconviction proceedings, or after any appeal related to those proceedings,” Samour wrote in the Dec. 12 opinion.

The decision gives breathing room to defendants who faced the prospect of being permanently denied their possessions if they did not move to recover them before the “moment” of sentencing.

Woo, representing himself from prison, brought his appeal to the Supreme Court following his 2018 conviction in El Paso County for the murder of Julie Tureson. He is currently serving a sentence of life in prison. During his arrest at Seattle-Tacoma International Airport, law enforcement seized his luggage, and also took other items from Woo’s San Francisco apartment.

Shortly after his conviction, Woo filed a motion in the district court asking for return of his seized hard drives. He later sent a letter to El Paso County outlining $18,514 worth of items he wanted back, including electronic devices, his suitcase, medication bottles, jewelry, clothes and cash. The judge presiding over his criminal case, Jann P. DuBois, eventually issued an order that the district attorney’s office “will not release any property at this time nor in the foreseeable future” because Woo’s criminal conviction was on appeal, and the possessions might be relevant if an appellate court ordered a new trial or review of Woo’s conviction.

Woo, in the meantime, had filed a civil lawsuit against the sheriff and the Fourth Judicial District Attorney’s Office. Known as a “replevin” action, Woo sought the return of his items as well as monetary damages. Although Woo did not contest that his property was seized lawfully, he argued its continued detention by the government amounted to a constitutional violation.

A judge dismissed the case, believing Woo should have directed his request to the judge handling his criminal proceedings. Then a three-judge panel of the Court of Appeals weighed in, deciding in September 2020 that Woo was likely at a dead end.

The Colorado Governmental Immunity Act, which generally shields public entities from liability lawsuits, prevented his replevin action, the panel found. Because Woo was being deprived of his possessions, the question became whether he effectively had zero options for getting them back, which would infringe on his due process rights.

Writing for the panel, Judge Anthony J. Navarro laid out the path that could theoretically lead the government to return Woo’s items. While there was “no statute or rule” governing the return of legally-seized property, Woo could file a motion in the criminal court. Granted, it was not clear that a criminal judge had jurisdiction after Woo’s sentencing. But even if they lack jurisdiction now, it did not violate Woo’s rights because the judge did have jurisdiction in 2018.

“That this remedy might not be perpetual does not mean that it is constitutionally inadequate,” Navarro concluded.

Woo then appealed to the Supreme Court, describing his predicament. Even though his property was not used as evidence in the trial, the government was now empowered to hold onto it indefinitely. Woo could not have obtained the items before his conviction because of the active case, but he cannot obtain the property afterward because the appellate court doubted the trial judge has jurisdiction.

Two organizations representing criminal defense lawyers submitted a brief on behalf of Woo. They pointed out two competing decisions in the Court of Appeals that were hamstringing Woo’s case, People v. Chavez and People v. Hargrove. The Chavez ruling found that criminal judges could not hear a motion to return a defendant’s belongings after sentencing, but Hargrove believed they could. If the Supreme Court sided with Chavez, the organizations argued, defendants will not have a meaningful opportunity to recover their property because prosecutors will routinely claim the items have value as evidence.

“As a matter of policy, it is better to litigate the return of seized property in the criminal case rather than a separate civil replevin case,” wrote Antony Noble for the Colorado Criminal Defense Bar and the Office of Alternate Defense Counsel.

Woo rejected that logic, however, by arguing a civil lawsuit was necessary so he could recover monetary damages in case the government destroyed his possessions. He also claimed the defense groups had “little concern with their convicted clients’ post-sentence requests for seized property,” given that he had to challenge the Court of Appeals’ competing instructions on his own.

The Supreme Court sided against Woo in ruling that his civil case could not proceed because of governmental immunity. However, it also rejected the Chavez decision for its insufficient protection of defendants’ property rights. Practically speaking, wrote Samour, defendants are unable to retrieve their property before sentencing because of its potential use as evidence should an appellate court order additional proceedings.

Where Chavez went wrong, he explained, was assuming “a trial court is permanently divested of subject matter jurisdiction the moment a defendant is sentenced.”

Instead, the Supreme Court decided that a defendant in Woo’s position may ask for his property back until the deadline to file an appeal expires, and also when a trial judge regains jurisdiction following an appeal. Even if the trial judge denies the defendant’s motion prior to appeal, it would still be possible ask again after the appeal is concluded.

“To our minds, these procedural safeguards are constitutionally adequate,” Samour wrote.

Woo’s case will now return to El Paso County. District Court Judge Samuel A. Evig, who replaced DuBois as the judge in Woo’s criminal case, ruled last year that he intended to wait for the Supreme Court’s guidance before deciding whether to act on Woo’s request for his belongings.

The case is Woo v. El Paso County Sheriff’s Office et al.