Legal status of items taken by accident

My experience has been that as long as a "return" or list of items seized has not been made to the issuing court, items can be returned to the point of seizure without a problem. By policy the items returned are listed and reported to the issuing court as seized but no application to detain is made for those things. This is based on Canadian practice but I don't imagine that there is much difference anywhere else.

… items can be returned to the point of seizure without a problem.

May I ask WHAT is "point of seizure"?
The suspect?
What if (hypothesis) the item is a USB stick and contains CP?

Am I getting right in understanding that in Canada, if the officer that lists the items commits a mistake the missed evidence is like "never existed"?

I.e. that something like the "exclusionary rule"
http//en.wikipedia.org/wiki/Exclusionary_rule

comes into play?

jaclaz

… items can be returned to the point of seizure without a problem.

May I ask WHAT is "point of seizure"?
The suspect?
What if (hypothesis) the item is a USB stick and contains CP?

Am I getting right in understanding that in Canada, if the officer that lists the items commits a mistake the missed evidence is like "never existed"?

I.e. that something like the "exclusionary rule"
http//en.wikipedia.org/wiki/Exclusionary_rule

comes into play?

jaclaz

Point of seizure is the named physical place to be searched as specified in the warrant.

How would you know the USB stick contained evidence? If it is seized outside the scope of the warrant it should not be examined in an attempt to validate the seizure of a " thing not named". When drafting the application for a warrant for computerized material the practice is to describe things in such terms as to cover all possibe storage devices and media.

If the circumstances of other things properly seized pursuant to the warrant indicate reasonable and probable grounds that the unnamed item is believed to contain evidence of any offence under any act of Parliament, then another warrant will be applied for the search of and to possibly seize those things.

In Canada things such as computers are searched for evidence as set out in the warrant and during the execution of the search warrant, then seized, not seized and then searched.

I believe the exclusionary rules in the US are to deal with defective warrants in general, not things seized outside the scope of the warrant where other things seized were properly taken. In Canada if a warrant is found defective, the court may admit evidence if it's exclusion would bring the administration of justice into disrepute.

Beetle, please be patient ) , I am trying to understand.

Say that the Court gives a warrant to search a house, in search for (properly named, and enclosing all possible media) "computer storage".
The officer should make a list of the things he/she actually takes/seizes in the course of the search.
This list comprises (among other things)

• ….
• Notebook make … model ….. serial …. complete with mains adapter/charger
• Black leather carrying bag for the above
• …..

Now, let's say that in one of the pockets of the bag there is one (black) of these
http//www.thinkgeek.com/images/products/zoom/pico_memory_key.jpg
http//www.thinkgeek.com/images/products/additional/large/pico_memory_key_side.jpg
that goes unnoticed and it is not listed.

When the seized material arrives to the digital forensics laboratory, the USB thingy is found.

What is the status of the thingy?
What will happen to it?

jaclaz

It depends on when the thing is discovered.

If it is found prior to the formal report of things seized being made to the court and the application for detention of things seized, then it can be added to the formal list without problem. The item not being mentioned in the officers notes is not an issue as notes are considered to be aide memoires and not part of the report on things seized.

If the thing is discovered after the court has ordered the initial detention of things seized then a new warrant to seize the item will be required.

If it is found prior to the formal report of things seized being made to the court and the application for detention of things seized, then it can be added to the formal list without problem. The item not being mentioned in the officers notes is not an issue as notes are considered to be aide memoires and not part of the report on things seized.

OK.
The procedure seems like a little different here as the suspect (or however the owner or caretaker of the thing(s) seized has the right to have a copy of the report/list, and there is not AFAIK notes vs. "formal list", just the "formal list")

If the thing is discovered after the court has ordered the initial detention of things seized then a new warrant to seize the item will be required.

OK.
For the reasons mentioned above, this could be a serious issue here, as most probably suspicions/exceptions would be raised about the item being "planted" 😯 .

So, if I get it right now, in neither case in Canada the thingy is going to be returned to "point of seizure" or however returned to the suspect without being - one way or the other - seized and examined. ?

jaclaz

Under the circumstances you described and based on the normally broadly worded descriptions of electronic evidence used here for search warrants, it would be very unlikely that the "thingy" would be returned without examination.

Under the circumstances you described and based on the normally broadly worded descriptions of electronic evidence used here for search warrants, it would be very unlikely that the "thingy" would be returned without examination.

Good ) , but they are exactly (though more narrowed) the same circumstances asked about by the OP

We often get additional items within evidence bags where they have not been recorded and the officer was not aware of them at the time (USB flash, mem cards, 3G dongles etc). What is the legal status of these devices? Have they actually been seized as no actual decision was taken about their status on site or should they be returned to the suspect.

to which - at first sight and AFAICU - you seemed to have replied the exact opposite of what is now coming out.

It seemed to me like improbable that such evidence may be returned to the suspect (or to "point of seizure") without prior examination.

What I can see as an issue, as said, is the validity of such evidence in the hypothetically following trial.

jaclaz

Not really the opposite. I was at simply stating that the additional thing could be returned without problem and that as the OP described the issue, it had been taken but not seized as it was not seen (you can't seize something you haven't seen). This happens all the time where things are taken for the wrong time period (most common mistake with documents - electronic or otherwise), are not as named in the warrant, are third party property found in a common area (such as banking records of another person not named in the warrant) etc.

As far as being admissible at trial, there is the issue of what capacity the finder of the thing is legally acting in. In Canada, federal officers enforce specific acts of the agencies they are assigned to but can also seize items that are evidence of offences of other acts of Parliament not named in the warrant and in plain view (wildlife, narcotics control etc.)
I am not sure if the OP is a peace officer or civilian so that also will affect the situation. Here we have latitude as federal agents or police in what we can do, such as exigent seizures. In the scenario you had described (the OP was general) I, as a federal officer, would have seized the item "outside the warrant" as exigent circumstances would dictate that the return of the item would likely result in the destruction of evidence (the CP). Of course I would have to demonstrate that I had grounds to examine the item in the first place (found CP on other media properly seized during the execution of the warrant). The item would then be arguably admissible even though seized outside the original warrant and seized without an issued warrant. As a civilian, you can't do that. I would expect you would report what you found to the agent in charge of the case to make a decision.