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Boudette v. State

Court of Appeals of Colorado, Sixth Division

July 26, 2018

Gregory Boudette, Plaintiff-Appellant,
v.
State of Colorado, Defendant-Appellee.

          Montezuma County District Court No. 17CV8 Honorable Todd J. Plewe, Judge.

          Gregory Boudette, Pro Se.

          No Appearance for Defendant-Appellee.

          OPINION

          FURMAN JUDGE.

         ¶ 1 In this case, we conclude that a person who has had property unlawfully seized by law enforcement officers, and who has not been charged with a crime, has standing to bring a claim for return of the property under Crim. P. 41(e).

         ¶ 2 Because the district court found otherwise with respect to plaintiff, Gregory Boudette, we reverse and remand for further proceedings.

         I. The Seizure of Boudette's Property

         ¶ 3 This case arose from the seizure of Boudette's personal property during the execution of a search warrant at a farm in Montezuma County. Boudette served as caretaker of the farm during the owner's absence. He lived in a room in the main house. The owner lived in Phoenix, Arizona.

         ¶ 4 An officer of the Southwest Drug Task Force obtained a search warrant from the Montezuma District Court. The officer signed an affidavit that accompanied the warrant which stated that law enforcement believed the owner and his son used the farm as an illegal marijuana growing operation.

         ¶ 5 The warrant described the items to be seized as follows:

Marijuana, Marijuana plants, processed marijuana, gas extraction devices, weapons, cellular phones, computers, tablets & electronic notebooks, large sums of United States currency, records of money transfers and deposits, receipts for items purchased, evidence of occupancy/ownership, receipts, paraphernalia for the use of marijuana, paraphernalia for the distribution of marijuana, handwritten notes, numbers and addresses, photos and videotapes, closed and locked containers, pay/owe sheets, ledgers, publications referencing marijuana and the use or cultivation of marijuana . . . .

         ¶ 6 Citing Crim. P. 41(b), the warrant sought the seizure of property that (1) was stolen or embezzled; (2) was designed or intended for use, or which are or have been used, as a means of committing a criminal offense or the possession of which is illegal; or (3) would be material evidence in a subsequent criminal prosecution.

         ¶ 7 While the owner was away, law enforcement officers executed the warrant. In the process, law enforcement officers allegedly seized property owned by Boudette, including a cellphone; a computer; notebooks; antique muskets; titles to his truck, ...


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