The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY September 11, 2025
2025COA77
No. 24CA0268, Peo v Woo — Criminal Procedure — Postconviction Remedies; Appeals — Final Appealable Order
A division of the court of appeals considers for the first time
whether a district court’s postconviction order denying a motion for
return of property is a final and appealable judgment, even though
the defendant could refile the motion following the conclusion of the
pending postconviction proceedings. The division concludes that
the district court’s order is final and appealable because it fully
addressed the motion on the merits. COLORADO COURT OF APPEALS 2025COA77
Court of Appeals No. 24CA0268 El Paso County District Court No.16CR2069 Honorable Samuel A. Evig, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
James Takchuan Woo,
Defendant-Appellant.
ORDER AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE LUM Lipinsky and Pawar, JJ., concur
Announced September 11, 2025
Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver, Colorado, for Plaintiff-Appellee
James Takchuan Woo, Pro Se ¶1 Defendant, James Takchuan Woo, appeals the district court’s
postconviction order denying his motion for return of property.
¶2 This appeal requires us to consider for the first time whether a
district court’s order resolving such a motion is a final and
appealable judgment, even though Woo could refile the motion
following the conclusion of the pending postconviction proceedings.
We conclude that the district court’s order is final and appealable
because it fully addressed Woo’s motion on the merits and
terminated a discrete proceeding embedded within another.
¶3 Because we also conclude that the district court abused its
discretion by denying the motion as to certain items of property but
didn’t abuse its discretion as to other items, we affirm in part,
reverse in part, and remand for further proceedings.
I. Background
¶4 After J.T. ended a yearslong relationship with Woo, police
found her body in a storage locker that Woo leased. Police arrested
Woo and seized property he was carrying (along with property found
at his apartment) as evidence, including a number of digital devices
that stored large quantities of files, including image files.
1 ¶5 A jury convicted Woo of first degree murder, and the district
court sentenced him to life in prison without the possibility of
parole. A division of this court affirmed Woo’s conviction on direct
appeal. People v. Woo, (Colo. App. No. 18CA0584, Nov. 25, 2020)
(not published pursuant to C.A.R. 35(e)).
¶6 As part of extensive postconviction proceedings, Woo moved
for the return of his seized property. The district court reserved
ruling on Woo’s motion pending the outcome of a separate civil
replevin action that Woo filed, in which he also sought the return of
the seized property.
¶7 The Colorado Supreme Court affirmed the district court’s
dismissal of Woo’s replevin action. Woo v. El Paso Cnty. Sheriff’s
Off., 2022 CO 56, ¶ 53. In that decision, the supreme court held
that, in criminal proceedings, a district court retains ancillary
jurisdiction to resolve a motion for return of property following a
direct appeal, during postconviction proceedings, or after any
appeal related to those proceedings. Id. at ¶ 42. The court then
laid out the standards governing how district courts should address
a motion for return of property (which we discuss infra Part III.A).
Id. at ¶¶ 45-48.
2 ¶8 After the supreme court announced Woo, Woo filed a Crim. P.
35(c) motion claiming ineffective assistance of counsel (ineffective
assistance motion). That motion remains pending in the district
court.
¶9 Around the same time, the district court ordered Woo to
update the court on whether he wished to pursue his motion for
return of property. Woo then filed the updated motion at issue.
Woo requested that numerous items of property be returned to him
or sent to his family overseas. The items include various digital
devices, such as hard drives, thumb drives, SD cards, a digital
camcorder, and an Amazon tablet; documents; a computer tower;
medications; cash; jewelry; and miscellaneous articles of clothing,
accessories, and other items. Woo also requested an evidentiary
hearing on the motion.
¶ 10 The court denied Woo’s request for a hearing, granted Woo’s
motion as to some of the property, and denied his request for the
return of other property, including certain digital devices. The court
issued its order “without prejudice,” noting that “the circumstances
may change” after the resolution of Woo’s ineffective assistance
motion.
3 ¶ 11 Woo appealed. A motions division of this court issued an
order to show cause why the appeal should not be dismissed for
lack of a final appealable judgment. Woo filed a response, and the
motions division deferred the finality ruling to this division. We
address finality first and Woo’s substantive arguments second.
II. Finality
¶ 12 A final judgment is “one that ends the particular action in
which it is entered, leaving nothing further for the court
pronouncing it to do in order to completely determine the rights of
the parties involved in the proceedings.” People v. Guatney, 214
P.3d 1049, 1051 (Colo. 2009). “[I]n determining whether an order is
final, we must look to the legal effect of the order and not merely its
form.” In re Marriage of Wiggs, 2025 COA 10, ¶ 8.
¶ 13 Woo argues that the district court’s order, although issued
without prejudice, is a final appealable judgment. The People
contend that the order isn’t final because “the factual and legal
issues underlying the dispute have not been resolved” due to the
ongoing proceedings regarding Woo’s ineffective assistance motion.
For three reasons, we agree with Woo.
4 ¶ 14 First, although entered “without prejudice,” the district court’s
order resolved Woo’s motion on the merits as to each item of
property he requested. In doing so, the court left nothing further to
decide “in order to completely determine the rights of the parties”
with respect to the return of Woo’s property. Guatney, 214 P.3d at
1051. Thus, the order “terminate[d] a discrete proceeding
embedded within another.” Wiggs, ¶ 11. Colorado law recognizes
the finality of such orders. See id. at ¶¶ 7-11 (citing as examples
temporary financial orders in dissolution of marriage proceedings,
probate rulings, postjudgment collection orders, and contempt
orders). We acknowledge that the circumstances may change after
Woo’s ineffective assistance proceedings have concluded, and the
change in circumstances may result in a different disposition if Woo
files another motion for return of property at that time. But
Colorado law also recognizes that certain types of orders — such as
a permanent protection order (PPO) — are final and appealable,
even though they may be modified in the future. See id. at ¶ 15;
Martin v. Arapahoe Cnty. Ct., 2016 COA 154, ¶¶ 22-23 (A PPO is a
“final ruling regarding the plaintiff’s entitlement to a civil protection
order.”); § 13-14-108(2), C.R.S. 2025 (establishing that a protected
5 party may move to modify a PPO at any time and a restrained party
may move to modify a PPO two years after its entry or after the
disposition of a prior motion to modify).
¶ 15 Second, we agree with Woo that, if we were to deem this order
nonfinal simply because he may refile the motion in the future
based on changed circumstances, the order may never be final,
thus denying Woo his right to appellate review. See Woo II, ¶ 48 (A
“trial court may deny a motion for return of property without
prejudice to allow the defendant to refile it after a direct appeal,
during postconviction proceedings, or following an appeal from
those proceedings.”). That is especially true when — as here — Woo
has no time limit to file a motion for postconviction relief under
Crim. P. 35(c). Likewise, such a conclusion could unfairly hamper
the People’s position. If the district court denied a motion as to
some items of property but erroneously granted it as to other items
over the People’s objection, the People would be unable to seek
review of the order before any retrial — and would potentially be
required to retry the case without crucial evidence.
¶ 16 Third, this approach appears consistent with that of appellate
courts in other jurisdictions, which have reviewed comparable
6 orders addressing motions for the return of property despite
ongoing postconviction proceedings (or the possibility of future
postconviction proceedings). See, e.g., United States v. Alford, 805
F. App’x 924, 926 (11th Cir. 2020) (per curiam) (reviewing and
affirming a district court’s denial of the defendant’s motion for
return of property because the evidence would be needed at a new
trial if the defendant’s motion to vacate was successful); State v.
Assad, 8 N.W.3d 729, 731-33 (Neb. 2024) (reviewing a partial denial
of the defendant’s motion for return of property despite the
possibility that the defendant could file a future postconviction
motion); Sutherland v. State, 860 So. 2d 505, 506 (Fla. Dist. Ct.
App. 2003) (reviewing and affirming a trial court’s denial of a motion
to return property despite the defendant’s pending ineffective
assistance motion and noting that, if the motion was denied, the
defendant could renew his motion to return property); see also
United States v. Nocito, 64 F.4th 76, 81 (3d Cir. 2023) (noting that
an order denying a Fed. R. Crim. P. 41(g) motion for return of
property is final if “made independently of a criminal
prosecution — in that it is not intended to gain some strategic
advantage for a criminal defendant”); Di Bella v. United States, 369
7 U.S. 121, 131-32 (1962) (noting that even a pre-indictment motion
for return of property under then Fed. R. Crim. P. 41(e)1 can be final
if the motion (1) “is solely for return of property” and (2) “is in no
way tied to a criminal prosecution in esse against the movant”2).
¶ 17 For these reasons, we hold that an order resolving a
defendant’s motion for the return of property on its merits is a final
appealable judgment.
¶ 18 We next turn to the merits of Woo’s appeal.
III. Return of Property
A. Applicable Law and Standard of Review
¶ 19 In a motion for return of property, “a criminal defendant must
make a prima facie showing that: (1) he owns or is otherwise
entitled to possess the requested property and (2) the requested
property was seized by law enforcement as part of his case.” Woo,
1 Subsection (e) of Fed. R. Crim. P. 41 was redesignated in 2002 as
subsection (g), and “courts have applied the case law concerning former Rule 41(e) to the current Rule 41(g).” De Almeida v. United States, 459 F.3d 377, 380 n.2 (2d Cir. 2006). 2 Federal courts have applied this two-part test established under
Di Bella v. United States, 369 U.S. 121, 131-32 (1962), to both pre- and post-indictment Rule 41(g) motions. See, e.g., United States v. Nocito, 64 F.4th 76, 81-83 (3d Cir. 2023); Allen v. Grist Mill Cap. LLC, 88 F.4th 383, 394 n.10 (2d Cir. 2023).
8 ¶ 45. The district court concluded, and the People don’t dispute,
that Woo satisfied the prima facie showing.
¶ 20 Next, “the burden shifts to the prosecution to demonstrate by
a preponderance of the evidence” at least one of the following:
(1) the requested property is the fruit of illegal activity or is
otherwise connected to criminal activity;
(2) the defendant is not the owner of the requested property
or a person entitled to possess it;
(3) it would be unlawful for the defendant to possess the
requested property;
(4) the prosecution may need the requested property later,
including after a direct appeal, during postconviction
proceedings, or following an appeal from those
proceedings; or
(5) based on any relevant factors, including the type of case
and the nature of the requested property, it would be
inappropriate to grant the defendant’s motion.
Id. at ¶ 46. The preponderance of the evidence standard “directs
the court to decide whether the existence of a contested fact is
‘more probable than its nonexistence.’” People v. Marx, 2019 COA
9 138, ¶ 49 (quoting People v. Taylor, 618 P.2d 1127, 1135 (Colo.
1980)). “In its discretion, the [district] court may hold a hearing
(evidentiary or non-evidentiary) before resolving a motion for return
of property.” Woo, ¶ 48.
¶ 21 We review the denial of a motion for return of property for an
abuse of discretion. See DeLoge v. State, 2007 WY 71, ¶ 22 (citing
federal cases). “A trial court abuses its discretion when its ruling is
manifestly arbitrary, unreasonable, or unfair, or if it misconstrues
or misapplies the law.” People v. Quillen, 2023 COA 22M, ¶ 14.
When the district court’s ruling rests on an underlying question of
fact, we defer to the court’s factual determination unless it is clearly
erroneous. See People v. Smith, 2024 CO 3, ¶ 16 (noting that we
generally defer to a postconviction court’s factual findings if
supported by the record); see also United States v. Dean, 100 F.3d
19, 20 (5th Cir. 1996) (deferring to the district court’s factual
findings when reviewing the denial of a motion for return of
property). We review the court’s legal conclusions de novo. See
Smith, ¶ 16.
10 B. Additional Facts
¶ 22 After the police seized Woo’s digital devices following his
arrest, the sheriff’s office’s computer forensics unit copied the
contents of the devices to a six-terabyte hard drive for discovery
purposes (discovery drive). The prosecution explained in a pretrial
motion that certain of the files on the devices were “intimate” or
“explicit” photos and videos of J.T. (The prosecution didn’t explain
how it distinguished between “intimate” and “explicit” images or
whether any of them were sexual in nature.) The prosecution
sought a protective order precluding Woo’s trial counsel from
disseminating any of the “explicit” images and requiring defense
counsel to return them after trial because, the prosecution alleged,
Woo had threatened to release the images. Woo’s trial counsel
didn’t object to the entry of the protective order, and the court
granted the prosecution’s motion at a hearing. After his conviction,
Woo moved (1) to lift the protective order and (2) for release of the
discovery drive to him. The court denied both motions. (Those
denials are not before us.)
¶ 23 In his motion for return of property at issue in this appeal,
Woo sought the return of the original digital devices (rather than
11 the discovery drive or other storage devices to which some of his
files may have been copied) and the data stored on the original
storage devices. The district court granted his request for the
return of some of the devices and denied the request as to other
devices. The court found that seven devices contain “graphic
images” of J.T., which would be inappropriate to return to Woo
given the nature of the case:
• “47-RSH”: “Western Digital 1TB black hard drive”;
• “48-RSH”: “Seagate 5TB external hard drive”;
• “49-RSH”: “Iomega external hard drive enclosing 1 TB
Seagate hard drive”;
• “50-RSH”: “Western Digital ‘My Passport’ Ultra 2TB external
hard drive”;
• “51-RSH”: “Toshiba 1 TB external hard drive”;
• “52-RSH”: “Canon Vixia HF10 digital camcorder”; and
• “73-RSH”: “Black Dell 128MB thumb drive,” “Samsung 2GB
SD card,” and “Transcend 2GB SD card.”
(We refer to these devices collectively as the “image devices.”) The
court rejected Woo’s suggestion that images of J.T. be removed from
the image devices under his supervision before the devices are
12 returned to him (or sent to his family overseas). Finally, the court
expressed uncertainty over whether Woo owns or has the right to
possess the “graphic images” and noted that, in any event, a
Colorado Department of Corrections regulation prohibits inmates
from possessing sexually explicit images.
¶ 24 The court also denied the return of multiple items of digital
and nondigital property, including “66-RSH”: “Western Digital
250GB hard drive in box” (drive 66-RSH), because it concluded that
the prosecution had met its burden to demonstrate a potential need
for them in the event of a retrial.
¶ 25 Woo contends that the district court abused its discretion by
denying his request for return of (1) the seven image devices
because the People didn’t prove by a preponderance of the evidence
that each device contains “graphic” images; (2) other evidence
because the prosecution didn’t prove it may need that evidence in
the event of a retrial; and (3) drive 66-RSH because the court failed
to resolve a dispute about whether the prosecution could open the
13 drive and whether it may need the files stored on it in the event of a
retrial.3
¶ 26 Based on the record, we conclude that the district court
abused its discretion by denying the return of the image devices
and drive 66-RSH based solely on the prosecution’s statements in
response to Woo’s motion. However, we conclude that the district
court didn’t abuse its discretion with respect to any other items of
property.
C. Analysis
1. Contents of the Image Devices
¶ 27 The district court’s ruling denying the return of the image
devices contains three parts: (1) factual findings that each device
contains “graphic” images of J.T.; (2) a discretionary ruling rejecting
Woo’s suggested “procedure” that images of J.T. be deleted from the
devices in his presence; and (3) a discretionary ruling that, given
the nature of the case (and the court’s rejection of Woo’s suggested
removal procedure), it would be inappropriate for Woo to regain
3 As best we can discern, Woo doesn’t appeal the court’s finding
that he wasn’t entitled to certain items of property because he doesn’t own them.
14 possession of the devices (or for them to be sent to his family in
Hong Kong) because they contained “graphic” (or “explicit”) images.
¶ 28 As we understand his appellate arguments, Woo doesn’t seek
the return of any images of J.T. But he contends that the
prosecution didn’t present sufficient evidence that each of the image
devices in fact contains such images. We agree.
¶ 29 In its response to Woo’s motion for return of property, the
prosecution noted that the protective order remained in place “over
any materials which contained [e]xplicit images” of J.T. and stated
its positions as to each image device as follows:
[47-RSH:] Detective Mackey bookmarked 7 graphics. Include protected content. Object to release.
[48-RSH:] Detective Mackey bookmarked 19 graphics. Object to release.
[49-RSH:] Includes protected content. Object to release.
[50-RSH:] Detective Hubbel bookmarked over 600 items on this device.
[51-RSH:] Detective Mackey bookmarked 29 graphics after review of this device. Object to release.
[52-RSH:] Photos of victim in lingerie or nude with a ring on her finger. Object to release.
15 [73-RSH:] Includes protected content. Object to release.
¶ 30 The district court denied the return of these devices based on
these statements alone. But the prosecution’s arguments aren’t
evidence. See Robertson v. People, 2017 COA 143M, ¶ 35 (“The
arguments of counsel, of course, are not evidence.” (alteration
omitted) (quoting City of Fountain v. Gast, 904 P.2d 478, 482 n.5
(Colo. 1995)). And the court couldn’t find that the prosecution
satisfied its burden to prove by a preponderance of the evidence
that the image devices contain images of J.T. (and therefore
shouldn’t have been returned to Woo) when the prosecution didn’t
produce any evidence in support of its claim. Cf. DeLoge, ¶¶ 24-26
(holding that unsubstantiated representations are insufficient for
purposes of demonstrating a continuing legitimate government
interest in retention of a defendant’s property).
¶ 31 We also note that, for devices 48-RSH, 50-RSH, and 51-RSH,
the prosecution alleged that a detective “bookmarked” certain
“items” or “graphics,” without providing any additional details about
what was bookmarked. Thus, it’s not clear that the prosecution
16 even alleged that those devices contain images of J.T. (whether
subject to the protective order or not).
¶ 32 We acknowledge that some of Woo’s arguments contain at
least an implied concession that images of J.T. are stored on some
of the devices. But Woo argued below (and he argues on appeal)
that the data on some of the image devices predate his first
encounter with J.T. and therefore can’t contain photos of her. And
he specifically disputed that devices 49-RSH and 73-RSH contain
any data regarding J.T. In any event, the burden was on the
prosecution to demonstrate, by a preponderance of the evidence,
why Woo isn’t entitled to the return of the items he requested. See
Woo, ¶ 46.
¶ 33 Under these circumstances, we conclude that the district
court erred by denying the motion based solely on the prosecution’s
representations. See DeLoge, ¶ 26. We reverse the court’s order
and remand for further proceedings. On remand, the district court
may, in its discretion, take additional evidence or hold a hearing
17 regarding the contents and disposition of the image devices.4 See
Woo, ¶ 48.
¶ 34 Because they may arise in the same posture on remand, we
also address two of Woo’s other contentions. First, we reject Woo’s
claim — to the extent he makes it — that the district court abused
its discretion by rejecting his suggested procedure for removing the
images of J.T. In rejecting Woo’s suggestion to remove the images
in Woo’s presence, the district court cited (1) “logistical and safety
concerns” of bringing evidentiary items to prison and (2) concerns
about spoliation in the event any evidence was needed in the future.
These considerations are reasonable, and it wasn’t an abuse of
4 To the extent the People contend that the trial court also denied
Woo’s motion based on the need to retain the image devices in the event of a retrial, we disagree. The court set forth general principles about the need of the evidence for a retrial and the reasons it would be inappropriate to return to Woo devices containing graphic images and then explained, “Following the above analysis and conclusions, the Court will now address the individual items of evidence [Woo] has requested be returned to him.” The court then listed the items of property and made “Findings and Order[s]” pertaining to each item. The court’s only findings and orders pertaining to the image devices were that the drives “contain graphic images” that would be inappropriate to return to Woo or his family.
18 discretion to preclude Woo from viewing any images of his victim
during the removal process.
¶ 35 Second, we reject Woo’s argument that Woo’s fifth prong —
allowing a district court to deny the return of property because it
would be inappropriate — is unconstitutional. See id. at ¶ 46. We,
like the district court, “are bound by the rule[s] as expressed by the
Colorado Supreme Court, and we are not free to depart from [its]
precedent.” People v. Robson, 80 P.3d 912, 914 (Colo. App. 2003).
2. Potential Need for Retrial
¶ 36 Woo next contends that the court abused its discretion by
denying the return of all other items of property because the
prosecution didn’t present sufficient evidence that the items may be
needed in the event of a retrial. Except for drive 66-RSH, infra Part
III.C.3, we disagree.
¶ 37 In its order, the district court largely adopted the prosecution’s
position that Woo’s ongoing ineffective assistance proceedings give
rise to the possibility of a retrial. We agree. To the extent the
district court needed evidence that a retrial is a possibility, it could
simply take judicial notice of the ineffective assistance proceedings
in its own file. See People v. Sena, 2016 COA 161, ¶ 23 (“The
19 occurrence of legal proceedings or other court actions are proper
facts for judicial notice.”). And we agree with the district court and
the People that it’s not possible to know with certainty what
evidence may be necessary in the event of a retrial. See Assad, 8
N.W.3d at 732 (holding that the State had an interest in retaining
defendant’s seized property because defendant’s potential
postconviction actions could lead to a new trial); Sutherland, 860
So. 2d at 506 (affirming denial of motion for return of property in
light of defendant’s motion to vacate his plea due to ineffective
assistance of counsel); State v. Walls, 2018-Ohio-329, ¶ 78 (6th
Dist.) (upholding refusal to return defendant’s seized property
because defendant’s challenges to the validity of the convictions
demonstrated that the property may be needed as evidence in
potential new trial). Thus, under these circumstances, the district
court didn’t abuse its discretion by denying the return of property
for this reason.
3. Drive 66-RSH Inaccessibility
¶ 38 Finally, Woo contends the court abused its discretion by
denying the return of drive 66-RSH. We agree.
20 ¶ 39 The prosecution objected to releasing drive 66-RSH. It
asserted that the drive “[c]ould not be opened at this time,” that it
might be able to access the drive’s contents in the future, and that
data stored on the drive might be needed in the event of a retrial.
The prosecution didn’t explain, however, why it couldn’t open drive
66-RSH, nor did it present any evidence that it had tried and failed
to do so or suggest what data stored on 66-RSH might possibly be
needed for a retrial. Woo asserted that the prosecution had opened
the drive before his trial and concluded that it didn’t contain any
relevant information. He also asserted that all data on this drive
predates his first encounter with J.T.
¶ 40 The district court accepted the prosecution’s representation
that it couldn’t access the drive and concluded that a “retrial is
possible” because of Woo’s pending ineffective assistance claim.
The court therefore found that the prosecution had proved that
drive 66-RSH contains data that might be needed to retry the case.
¶ 41 As noted above, we agree with the district court that a retrial
is possible. But as with the image devices, the district court erred
by relying solely on the prosecution’s unsworn representations in
their response to Woo’s motion to support its finding that the device
21 “was unable to be accessed” before Woo’s first trial and “may be
able to be accessed at a future time.” See Robertson, ¶ 35. And
Woo specifically asserted the prosecution had opened the device
and determined that its contents weren’t relevant to his case.
Therefore, we reverse the court’s order as to drive 66-RSH.
¶ 42 On remand, the district court may take additional evidence or
hold a hearing on the prosecution’s efforts to open the drive, its
assertion that it may be possible to open the drive in the future,
and the basis for the prosecution’s assertion that certain of the data
stored on drive 66-RSH may be needed at a retrial. See Woo, ¶ 46
(explaining that, if the defendant makes a prima facie case for
return of the subject property, the prosecution bears the burden of
demonstrating by a preponderance of the evidence, among other
facts, that it “may need the requested property later, including after
a direct appeal, during postconviction proceedings, or following an
appeal from those proceedings”).
IV. Miscellaneous Claims
A. “Forfeiture”
¶ 43 As best we can discern, Woo argues that the denial of his
motion for return of property permanently deprives him of the
22 property such that it is an “effective forfeiture” in violation of the
Eighth Amendment. See U.S. Const. amend. VIII; see also Colo.
Const., art. II, § 20 (prohibiting cruel and unusual punishment).
We have reversed the district court’s order as to the image devices
and drive 66-RSH, so we need not consider this argument with
respect to those items. As for the property that the prosecution
established it may need at a retrial, the district court’s order doesn’t
“permanently” deprive Woo of his property. To the contrary, the
order contemplates that Woo can refile his motion after the
conclusion of the ineffective assistance proceedings, any possible
retrial, or any proceedings following the retrial. See Woo, ¶ 48. We
therefore reject Woo’s characterization of the partial denial of his
motion as a “forfeiture.”
B. Illegal Seizure
¶ 44 Woo also argues that some of the property at issue was seized
illegally. However, such a claim is outside the scope of Woo’s
motion for return of property, and the court didn’t err by not
ordering the return of property on this basis. Contrast id. at ¶¶ 1,
43, 52-53 (establishing remedy in criminal cases for seeking
postconviction return of property “lawfully seized by the
23 government” or “validly seized by law enforcement”), with Crim. P.
41(e) (permitting motion for return of property on grounds of
unlawful search and seizure).
C. DNA Preservation
¶ 45 Woo argues that the court erred by concluding that section
18-1-1103(2), C.R.S. 2025, applies to his property. That statute
concerns a law enforcement agency’s duty to preserve DNA evidence
obtained when conducting a criminal investigation that results in a
conviction for a class 1 felony. Id.; § 18-1-1102(1)(b), C.R.S. 2025.
Assuming, without deciding, that the court erred in this respect,
any error was harmless because the court concluded that Woo
waived his right to have the DNA evidence preserved, see § 18-1-
1106(2), C.R.S. 2025, and therefore it didn’t deny the return of
property on this basis. See Hagos v. People, 2012 CO 63, ¶ 12.
V. Disposition
¶ 46 We reverse the district court’s denial of the return of property
as to the image devices and drive 66-RSH. All other portions of the
district court’s order remain undisturbed. The case is remanded to
the district court. On remand, the district court may take
additional evidence or hold a hearing as described above.
24 JUDGE LIPINSKY and JUDGE PAWAR concur.