A handgun and ammunition sit on a wooden table.
PHILADELPHIA – Cops will have to give back the gun of a Philadelphia woman after seizing it during her arrest and subsequently refusing to release it when criminal proceedings went nowhere.
The issue of one Sig Sauer 9mm handgun made it all the way to the state Supreme Court, which ruled last week that Alisha Smith is entitled to the return of her firearm. The criminal complaint against her, stemming from a dispute with neighbors, has been dismissed, but lower courts still found the gun was “derivative contraband.”
Justice Kevin Dougherty and his colleagues reversed, rejecting the idea the gun was still evidence in a crime.
“The problem for the Commonwealth here is that it never in good faith asserted any intent to refile the charges against appellant, nor did it allege any other evidentiary need for the property,” Dougherty wrote.
“In its brief before this Court, the Commonwealth simply declares it should be ‘permitted to keep evidence of a crime until the statute of limitations for the crime has expired.’ Even setting aside the speedy trial concerns inherent in the Commonwealth’s position, it is unclear what individuals in appellant’s shoes would need to do to eventually regain possession of their property.”
It’s been more than four years since Smith and her husband were involved in an altercation with neighbors. During it, Smith told her daughter to retrieve the gun and was alleged to have pointed it at the neighbors.
Police who responded to the incident found a loaded magazine in her sweatshirt, then located the gun from her bedroom. She was charged with two counts each of simple assault and recklessly endangering another person, plus carrying a firearm without a license on public property.
The firearms charges were dismissed after a preliminary hearing, and the remaining charges were tossed when witnesses failed to appear for the prosecution. On May 6, 2022, Smith filed motions for return of her property but was denied.
Smith had committed a criminal act under the Uniform Firearms Act, it was alleged, by “bringing that handgun outside the house.” The ongoing feud with neighbors also presented a safety issue, the state said.
The Superior Court agreed to withhold the gun because Smith’s testimony that she used the gun in defense was contradicted by testimony that she was the aggressor. The state had a right to keep the gun from her because Smith’s version of events was not credible, the court ruled.
The Supreme Court disagreed once prosecutors argued the gun shouldn’t be returned until after the statute of limitations runs out on refiling criminal charges.
“We agree with appellant this ‘would create a fundamentally unfair system for returns of property,’” Dougherty wrote.
“Thus, we hold that, in situations like the one before us, where the Commonwealth in objecting to a motion for return of property does not allege an ongoing evidentiary need for the property and none is apparent, the denial of a motion for return of property essentially serves as a de facto forfeiture.”
