Peo v. Woo

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.

25