A blog of the Philadelphia Bar Association’s Criminal Justice Section

violet oakleBy Burt Rose

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The Supreme Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania, Appellant v. Todd ALLEN, Appellee, 2014 WL 7404543, No. 40 EAP 2013 (Dec. 29, 2014).


On January 10, 2002, the Appellee was arrested during a traffic stop for driving a stolen vehicle. During the vehicle search that followed, the police seized $1060.00 in cash. The Commonwealth, however, withdrew the charges against him and Appellee’s case was disposed of on November 8, 2002. On July 22, 2010, Appellee filed a petition for return of the cash pursuant to Rule 588. The Commonwealth moved to dismiss, asserting that the Appellee had waived his right to seek return of the property by not moving for its return upon the final disposition of his criminal case while the trial court retained jurisdiction. By a 4-2 vote, the Supreme Court agreed.


Rule 588 provides as follows:

(A) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.


The Supreme Court held that because the Appellee had a prior opportunity to move for the return of property during the pendency of the criminal charges against him, his failure to do so resulted in waiver of this issue. Thus a return motion is only timely when it is filed by an accused in the trial court while that court retains jurisdiction, which is up to thirty days after disposition.


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