A member of Colorado’s second-highest court asked the state Supreme Court on Thursday to address the consequences of its 2022 decision outlining how convicted defendants are supposed to seek the return of property seized by law enforcement.

In Woo v. El Paso County Sheriff’s Office, the justices concluded that defendants cannot bring a separate civil case to get their possessions back. Instead, they should use their existing criminal case to make the request. Defendants can do so only when the trial court has jurisdiction over their case, meaning before the time to appeal has expired, after the appeal is decided, or during postconviction proceedings.

But what if none of those things is happening?

“So a defendant who just wants their property returned and has no legitimate basis to challenge their conviction or sentence must nevertheless file such a motion (no matter how meritless) simply to give the motion for return of property something to attach to,” wrote Judge Karl L. Schock in an Oct. 30 concurring opinion. “I see no reason why a defendant’s right to seek the return of their property should hinge on whether the defendant can conjure up a (potentially meritless) direct appeal or postconviction motion.”

In the underlying case, Jason C. Thomson pleaded guilty to identity theft and was sentenced in January 2022. Although his lawyer mentioned at the time that police had seized Thomson’s personal property and Thomson intended to ask for its return, the defense did not file a motion for more than a year.

In August 2023, then-Denver District Court Judge Darryl F. Shockley ordered the government to return Thomson’s personal cell phone and a safe. But he concluded that Thomson’s remaining electronic devices were connected to criminal activity and should remain in police hands.

Thomson appealed Shockley’s decision, but the prosecution countered that under Woo, Shockley could not have considered the request in the first place.

“Defendant filed his motion for return of property more than one year after the deadline to file a direct appeal expired,” wrote Assistant Attorney General Josua J. Luna, noting there is a 49-day window for appealing a trial judge’s decision.

A three-judge Court of Appeals panel agreed.

“Thomson did not file a direct appeal or a postconviction motion. Therefore, the trial court lost subject matter jurisdiction forty-nine days after the sentencing hearing,” wrote Judge Elizabeth L. Harris for herself and Judge Sueanna P. Johnson. “Thomson filed the motion seeking return of property more than a year later. Filing the motion did not revive the court’s jurisdiction.”

Schock, writing separately, also believed the Woo decision dictated that outcome. However, he argued the Supreme Court’s stated procedure “leads to some strange results, and I question whether it is what the supreme court intended.”

Schock elaborated that a defendant who files an appeal and loses can seek the return of his property over a longer period than a defendant who does not appeal in the first place.

Moreover, during the 49-day window to appeal, “the defendant’s focus will inevitably be directed toward the decision of whether to file an appeal,” rather than on his seized property, Schock wrote.

The procedure in Woo could also incentivize a defendant to file a non-viable motion for postconviction relief, on grounds such as ineffective assistance of counsel or new evidence, just to get a trial judge to address the unrelated request for the return of property.

Schock believed the Supreme Court probably intended for judges to entertain return-of-property requests under two scenarios. Narrowly, they can act after a defendant is successful on appeal and the case goes back to the trial court. Or, more expansively, trial courts can consider such motions so long as the case is not actively being appealed.

“I would respectfully urge the supreme court to clarify this rule,” he wrote.

The case is People v. Thomson.