Section 9.46 Motion for Return of Property

• Library: Criminal Practice 2012 Supp

D. (§9.46) Motion for Return of Property

When a defendant moves to suppress and that motion is sustained, § 542.296.7, RSMo 2000, requires that the judge order the property subject to the motion to be returned to the moving party unless its retention is authorized by § 542.301, RSMo Supp. 2004, or other law. Section 542.301 governs return of stolen property and disposition of property used in the commission of a crime as well as obscene materials. State v. McAllister, 767 S.W.2d 362, 364 (Mo. App. E.D. 1989). For a case discussing the return of property seized from a defendant who has been arrested, see State v. Johnson, 956 S.W.2d 941, 942 (Mo. App. W.D. 1997).

Currency is not a “tool[ ]” or “device[ ]” as used in § 542.301.1(2) and, therefore, cannot be subject to forfeiture based on that section. State v. One Hundred Fifty-Two Thousand, Seven Hundred Sixty, and 00/100 Dollars ($152,760.00) in United States Currency, 87 S.W.3d 374 (Mo. App. S.D. 2002). Video game machines used to commit the felony of promoting gambling in the first degree meet the statutory definition and are subject to forfeiture. Chandler v. Hemeyer,49 S.W.3d 786, 792–93 (Mo. App. W.D. 2001). It is not...