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Let us assume you were arrested on a firearms charge. The police seize your entire gun collection. The charges are subsequently thrown out, but the police refuse to return your seized property.

You sue.

It gets appealed all the way to the Supreme Court of your state, and the Supreme Court rules that the police can destroy your property.

Would it be pitchforks and torches time?

It wasn't illegal, but you're guilty anyway!

Police property: It’s finders keepers in NH

The state Supreme Court ruled on Tuesday that the government can keep and destroy more than 500 CDs taken from Michael Cohen, owner of Pitchfork Records in Concord, in 2003 even though the state failed to prove that a single disk was illegal.

Cohen was arrested for attempting to sell bootleg recordings. But the police case collapsed when it turned out that most of the recordings were made legally. Police dropped six of the seven charges, and Cohen went to trial on one charge. He beat it after the judge concluded that the recording was legal.

However, the police refused to return Cohen’s CDs. In the state Supreme Court’s Tuesday ruling, Chief Justice John Broderick, writing for the majority, reasoned so poorly that it appeared as if he’d made up his mind ahead of time.

Dissenting, Justice Linda Dalianis wrote, perceptively, that “the majority does not explain how statutes prohibiting the production, publication, or sale of certain works render possession of such works unlawful.â€

Further, Dalianis concluded that “the state’s failure to establish in any way that the seized property constitutes contraband†made it impossible to justify keeping Cohen’s property.

Indeed, the majority’s reasoning is chilling. The majority concedes that no crime or illegal act was proven, but allows the confiscation anyway by concluding that a crime might have been committed. The majority used words such as “apparently,†“likely†and “would have†to describe the alleged illegal activity.

It should go without saying that speculation by a few judges that a crime might have been committed is a frightening basis for taking someone’s property.

Earlier this year, Nashua police confiscated video recordings of two officers being rude to a citizen at his own home. Though police dropped all charges against Michael Gannon and admitted they could not prove the recordings were illegal, they still kept the tapes.

If someone is found with cocaine or any other item clearly illegal to possess, confiscation is easily justified. But the illegality of these items was never proven, and mere possession was not itself illegal.

If the government can seize and keep a citizen’s property by simply asserting that it is contraband, even when the assertion is unsupported by the facts, then we have entered into dangerous territory.

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Malum Prohibitum said:
He admitted the CDs were counterfeit, so I have extinguished my torch and put the pitchfork back in the hay barn.
It's not clear to me that he did make that admission. But, say that he did. I think the dissent makes a compelling argument that possession of counterfeit CDs is not illegal. The are not contraband per se, and should not be retained by the government.
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