In re Shepard Smith: getting seized property back after charges are dismissed
On May 27, 2026, the Supreme Court of Pennsylvania ordered the Commonwealth to return a Philadelphia woman's lawfully owned handgun and magazines, seized in an arrest that ended with every charge dismissed. John Julian briefed and argued the case for her in the Superior Court and the Supreme Court. The decision closes a gap that had let prosecutors keep property indefinitely without ever filing a forfeiture petition, and it matters to anyone whose phone, car, cash, or firearm is still sitting in a police evidence room after a case went away.
By John A. Julian, Esq. Updated October 1, 2026.
What happened
On December 12, 2021, Alisha Shepard Smith had an altercation with her neighbors outside her home. Police seized a loaded magazine from her pocket, and then, under a warrant, a Sig Sauer 9mm handgun and a second magazine from her house. She was charged with firearms offenses under 18 Pa.C.S. ยงยง 6106 and 6108, simple assault, and recklessly endangering another person. The firearms charges were dismissed at the preliminary hearing on February 10, 2022. On April 19, 2022, the remaining charges were dismissed without prejudice because the Commonwealth was not ready to proceed.
Ms. Smith, representing herself, filed two motions for return of property under Pa.R.Crim.P. 588 on May 6, 2022, within the thirty-day window that Commonwealth v. Allen, 107 A.3d 709 (Pa. 2014), requires. At the hearing the Commonwealth conceded she owned the gun and it was registered to her, called no witnesses, and introduced no evidence. It argued only that she had used the gun to threaten her neighbors and that returning it would endanger them. The trial court denied the motions. Its opinion relied on a police report, an arrest report, and a witness statement, none of which had been entered into evidence, and found Ms. Smith's own testimony not credible.
The Superior Court affirmed in a published opinion, In re Smith, 307 A.3d 140 (Pa. Super. 2023), reasoning that Rule 588 lets a court deny a motion for return of property, without ordering forfeiture, whenever the property is derivative contraband. The Supreme Court granted allowance of appeal, 329 A.3d 1124 (Pa. 2024), heard argument on September 9, 2025, and reversed. Every Justice agreed with the result.
What the Court held
Justice Dougherty wrote for six Justices in In re Shepard Smith, Nos. 70 and 71 EAP 2024 (Pa. May 27, 2026). The Court started from Commonwealth v. Irland, 193 A.3d 370 (Pa. 2018), which held that Rule 588 does not itself authorize forfeiture: civil forfeiture of derivative contraband, property that is legal to own but was allegedly used in a crime, requires a statute. The Commonwealth had never identified one for a handgun allegedly used in a simple assault, and there is none.
The holding: 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." A de facto forfeiture is still a forfeiture, and without statutory authority it cannot stand. Ms. Smith was entitled to her property back.
The Court rejected the Commonwealth's fallback, first raised on appeal, that police may keep evidence of a crime until the statute of limitations runs. That rule would force every person whose charges are dismissed to file at least two motions, one within thirty days to avoid waiver under Allen, and another years later once the limitations period has passed, an approach the Court called "fundamentally unfair." The Court also referred Rule 588 to the Criminal Procedural Rules Committee for review.
What the Court did not decide
- The evidentiary error. Ms. Smith also argued that the trial court could not rest its ruling on documents never admitted into evidence. The majority did not need to reach that claim. Justice Wecht, concurring in the result, would have reversed on that ground alone: a finding that she used the gun unlawfully "lacks sufficient record support" when it rests on a police report and a witness statement that were never entered at the hearing.
- Cases with a real evidentiary need. Footnote 10 limits the decision to its facts. Where the Commonwealth alleges in good faith that the property will be needed in a prosecution that is still possible, where a criminal forfeiture statute applies, or where the property is contraband per se, the analysis is different.
- How much the Commonwealth must show. Justice Wecht's concurrence warns that an "ongoing evidentiary need" is a low bar and that Rule 588, as written, is incompatible with Irland and needs rewriting, with a time limit on how long the Commonwealth may hold property when it does not refile charges.
Why it matters
Police seize property in nearly every arrest: phones, cash, cars, firearms, computers. When the case ends in a dismissal, a withdrawal, or a nolle pros, the property often stays where it is, and the person is told to wait. Before this decision, a Philadelphia trial court could deny a return motion by finding, on whatever it chose to read, that the property had been used in a crime, and the Commonwealth never had to file a forfeiture petition or prove a case. Now, if the Commonwealth wants to keep property after the charges are gone, it must either point to a forfeiture statute and satisfy it or allege a specific, ongoing evidentiary need. Saying the owner is a bad person is not enough.
The decision also confirms the practical sequence. The return motion must be filed within thirty days of the dismissal or it is waived. The Commonwealth then carries the burden. And a trial court's credibility finding against the owner does not fill a hole in the Commonwealth's evidence.
How this connects to post-conviction work
Return of property is not a PCRA claim, but it comes up constantly alongside one. A client whose conviction is vacated, whose charges are dismissed after a successful petition, or whose case ends in a nolle pros after a police misconduct disclosure often has property still held by the Philadelphia Police Department. The thirty-day clock under Allen starts when the charges end, and it is easy to miss while the larger case is being resolved. If that describes your situation, request a case review and say so.
Not sure how this applies to your case? The first thing we do in a case review is pull the docket and calculate the deadline. Request a case review or call (215) 568-0607.
Common questions
Can the police keep my property after my charges were dismissed?
Not indefinitely, and not without a reason the law recognizes. Under In re Shepard Smith, if the Commonwealth does not allege an ongoing evidentiary need and no forfeiture statute applies, denying a motion for return of property is a de facto forfeiture and is unlawful.
How long do I have to file a motion for return of property in Pennsylvania?
Under Commonwealth v. Allen, the motion must be filed while the criminal case is pending or within thirty days after the charges are dismissed. Waiting longer waives the claim.
What does the Commonwealth have to prove to keep my property?
Once the owner shows lawful possession, the Commonwealth bears the burden. It must prove the property is contraband, and, after Shepard Smith, it must either have statutory authority to forfeit it or allege a real, ongoing evidentiary need. Argument by the prosecutor is not evidence, and a police report that was never admitted does not count.
Did the Court decide whether a judge can rely on a police report that was not put into evidence?
The majority did not reach the question. Justice Wecht's concurrence would have reversed on that basis, stating that the trial court's finding lacked sufficient record support.