We have a case where multiple devices were seized and those devices contained child pornography. The case was investigated and presented to a Grand Jury, however, the Grand Jury returned a No Bill. The owners of the property want their property back, but 2 of the devices collected contain child pornography (the issue was who placed the porn on the computer to begin with). Can we give the property back? What measures do we need to take to return the property? Can we destroy the property? Under what authority?

Just some thoughts off of the top of my head to get some debate going....
1. the easy answer is "child porn is contraband". Remove the offending images and return the devices.
2. However, if you haven't found the "real" culprit yet, then this case is still pending, even if it is cold. Removing the images may be destroying evidence. You don't want to make a copy of it so the only remedy may be to keep the evidence until you either find the responsible party or the statute of limitations runs out on whatever particular crime you are looking at (is it local porn? child sexual assault?) However, think might require you re-looking at the investigation (you can't just throw away the the hard drives and claim it's an investigation).

Either way, I think you can legitimately keep the evidence and they can file with the Court to have it returned. If the Judge wants to say "NO" and return the item, so be it. But if not, and if you get more info later, this would be a great case to take back to the Grand Jury.

Just some thought off of the top of my head. Anyone?

Were the devices seized pursuant to a search warrant? If so, then the devices are subject to CCP 18.11 & 18.12 & CCP 18.18. The question of their return is for the issuing magistrate to decide. “If there is no prosecution following a seizure, the magistrate to whom the return was made shall notify in writing the person found in possession of the alleged . . .child pornography . . . to show cause why the property seized should not be destroyed.” CCP 18.18(b). Further procedures are outlined in that statute. Subsection (f) states that “[u]nless the person proves by a preponderance of the evidence that the property . . . is not . . . child pornography . . . and that he is entitled to possession, the magistrate shall dispose of the property . . .”

Even if there wasn’t a warrant, I would refuse to authorize the return of these devices absent a court order. You could argue that the procedures of 18.18 should be followed even if the evidence was validly seized without a warrant.

Also, the case against your suspect could be further developed and presented again to the grand jury at a later date. Or, additional suspects may be found and the devices will then be evidence against them. Regardless, those images are corpus delicti. A crime has occurred. A return of such property, in my opinion, should only occur over a prosecutor’s cold dead body.

NWOOD - AMEN! We don't return child porn.