The government can keep seized property, even if you are not guilty.

W

Wildcard

Moderator
Police property: It’s finders keepers in NH
http://www.unionleader.com/article.aspx?headline=Police+property%3A+It%E2%80%99s+finders+keepers+in+NH&articleId=c2807a58-75ed-4972-8ab9-caec6bbbb979

19 hours, 51 minutes ago

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.”

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.
 
More drivel - from the Wildman....

12-34hom
Click to expand...

It seems that saying things like that is a fast track towards not being a member. I don't even understand why you would jump into a thread like this and call it 'drivel'. :confused:
 
Look at the bright side. The more tyranny rears it's ugly head, the more people become aware of what's going on. Most laugh or ignore the problem until THEIR ox gets gored.

badbob
 
Unless his story is an outright lie, I don't see the drivel

Hopefully the case will go to a higher court
Even the distention doesn't make sense to me
“the majority does not explain how statutes prohibiting the production, publication, or sale of certain works render possession of such works unlawful.”
Click to expand...
I thought it was ruled that the disks were not illegal, so why would there be any question as to whether possession of some thing that is not illegal being legal (?)
 
Just more governmental authority out of control. :mad:

This is the type of thing that used to get people tarred-and-feathered. Why'd we ever give that up? :(


-azurefly
 
Well, a quick google search of "michael cohen pitchfork records" didn't seem to turn up anything readily about this case. I suppose it might be nice to have a link to the N.H.S.C. case file in order to verify that this actually happened...


-azurefly
 
Well, to start with, don't they usually put the case file up on a website when something like this is decided? There could be a link, or at least a Supreme Court case docket number.


-azurefly
 
Um...well how about things like the basis of the trial courts decsion, the specific facts involved, the satutory law cited...

Not just a newspaper opinion causing everyone to spout other opinions.

WildstillnoonehascomeupwiththecorrectanswerAlaska
 
Read the opinion: Tell me if my synopsis covers it

Guy is recording and selling CDs without permission of the copyright holder/musicians/etc.

Guy is not criminally charged or found guilty due to the fact that it was unintentional. The guy requests his CDs be returned. The state says no because the CDs were being sold illegally.

Cohen then moved to have the compact discs returned to him. The
objected, arguing that the compact discs were contraband. During the hearing, Cohen’s attorney stated, “In fact, we concede if the CDs ended up back up
his store, he was selling those CDs again, it would be an entirely new offense.” Cohen makes similar concessions on appeal. The trial court denied Cohen’s motion, stating, “The items in question were being offered for sale when
were seized. It would be illegal to sell these items knowing that they are counterfeit.” The defendant then filed a motion to reconsider, to which the State objected. That motion was denied, and this appeal followed.
Click to expand...

That is cut from the first decision, which is restated in the link to the appeal.

And the Appeal Conclusion:
We begin by examining whether the compact discs at issue could be considered contraband per se. RSA 352-A:2, II(b) is not the only statute that governs the illegal production and distribution of compact discs. To the contrary, the legislature has made it a misdemeanor to produce or publish, without permission of the author, any uncopyrighted literary, dramatic or musical composition, as well as many other works. RSA 352:1, :2 (1995). Similarly, Congress has made it a felony to willfully infringe copyrights either of works having a value of more than $1,000, or for purposes of commercial advantage or private financial gain. 17 U.S.C. § 506(a) (2000); 18 U.S.C.
§ 2319 (2000 & Supp. III 2003). As the creation of compact discs in violation of copyright laws is illegal under both State and federal statutes, we conclude that such discs are per se contraband, and thus contraband for the purposes of RSA 595-A:6.
Click to expand...

There's a lot more following the above, but it's all the same. The court decided that the CDs did in fact constitute contraband and were therefore not returned. Read the whole appeal link posted by Wildcard. And WC, after reading the court opinion, I don't understand the problem.
 
The Dissent pretty much says it all.

DALIANIS, J., dissenting. The majority concedes that nothing in RSA 352-A:2, II(b) (Supp. 2005) prohibits the possession of compact discs produced without the permission of the owners or performers. It further notes that “contraband per se” is defined by Black’s Law Dictionary as “[p]roperty whose possession is unlawful regardless of how it is used.” Black’s Law Dictionary 341 (8th ed. 2004). The majority then cites State and Federal statutes prohibiting the production, publication, or sale of copyright-infringing materials to reach the conclusion that compact discs created in violation of copyright laws are per se contraband. However, the majority does not explain how statutes prohibiting the production, publication, or sale of certain works render possession of such works unlawful. Thus, I disagree with the majority’s conclusion that the compact discs at issue may constitute per se contraband.
6
I further disagree that the compact discs at issue in this case, on the record before us, constitute derivative contraband. The State has failed to show that the defendant, or a third party, committed any crime or illegal act, or that the seized property was used in the commission of any such act. Instead, the State merely posits that the compact discs “were created and apparently sold or distributed to the defendant by a third party,” and that such manufacture and sale “would have” constituted a violation of RSA 352-A:2. The majority credits the State’s position by noting that the party or parties responsible for producing the compact discs “likely committed several hundred State misdemeanors, or various federal felonies.” While the majority’s conclusion may have merit, on the record here it is nothing more than conjecture, and we cannot suppose criminality where there is none proven.
The majority concludes that the compact discs are, “in fact,” contraband.
It bases its conclusion upon the defendant’s concession that resale of the compact discs would constitute a “new offense,” and a statement by the trial court noting that sale of the discs “would be illegal . . . knowing that they are counterfeit.” The statements of the defendant and the trial court are predicated upon the assumption that the compact discs are counterfeit, and do not, in my view, sufficiently compensate for the State’s failure to establish in any way that the seized property constitutes contraband. Thus, I respectfully dissent.
GALWAY, J., joins in the dissent.
 
Very good then. The dissent is boiled down to "it's illegal to make these CDs, but not illegal to possess them" in the first part? Is that what you read? The second part of the dissent is that while making and selling these CDs would by necessity break laws, there is no proof or record that those laws were in fact broken?

Trying to wade through legalese. Is that in essense the points made in the dissent?
 
From the Dissent
The statements of the defendant and the trial court are predicated upon the assumption that the compact discs are counterfeit,
Click to expand...


From the majority:
Cohen conceded below, and does again on appeal, that the compact discs were counterfeit. The trial court also made a specific finding to this effect.
Click to expand...

So either they were counterfeit or they weren't right? The majority says that the guy conceded AND they proved it in trial court. The dissent says that the CDs were assumed counterfeit. Which is it?
 
The majority then cites State and Federal statutes prohibiting the production, publication, or sale of copyright-infringing materials to reach the conclusion that compact discs created in violation of copyright laws are per se contraband. However, the majority does not explain how statutes prohibiting the production, publication, or sale of certain works render possession of such works unlawful. Thus, I disagree with the majority’s conclusion that the compact discs at issue may constitute per se contraband.
Click to expand...

She's saying that the state has attempted to use the laws that say it's illegal to PRODUCE, PUBLISH or SELL CDs that violate copyrights in order to demonstrate that it is illegal to POSSESS them.

So, there should be no impediment to POSSESSING the CDs even if they are in violation of copyright, because the laws cited deal specifically with making them or selling them.


-azurefly
 
From the decision:
It appears that the State was unable to prove that Cohen knew or should have known that the tapes were created without the permission of the owners or performers.
Click to expand...
Meaning that the State could not prove mens rea, or criminal intent on the part of Cohen.

The State did however, prove that the CD's were copied without approval of the copyright holders. The CD's were contraband because of that. Because they were contraband and because now Cohen also knows they are contraband, they can not turn them over to him, nor can he lawfully posses them without him (Cohen) becoming a criminal. The State cannot be complicit in that act. At best, the State could turn the contraband over to the lawful owners, the copyright owners, should they want them. Doubtful.

The dissenters are wrong.
 
You must log in or register to reply here.
Back
Top