The St. Paul attorney who was cleared of criminal charges for driving into and killing a pedestrian last year is taking the city to court, demanding that it return his BMW and other belongings.

Peter Berge filed a petition in Ramsey County District Court Monday alleging that the St. Paul Police Department refuses to release the items even though criminal charges were never filed against him in the Feb. 22, 2017, death of Scott Spoo.

"The policy is troubling for any member of the public in any case, let alone this one," said Berge's attorney, Steven Sitek. "It is Peter's position that his property should be returned because law enforcement has determined after 22 months of careful investigation that no criminal charges are warranted, because Peter needs his property in order to properly defend himself in the wrongful death lawsuit and because it is his property and an 'indefinite' forfeiture of his property is simply wrong."

Soon after the collision Berge was diagnosed with an aggressive brain cancer — multifocal glioblastoma — and five tumors, which factored into the Hennepin County Attorney's decision in February not to file felony charges against him. The St. Paul City Attorney's Office decided in April not to file lower-level charges.

Sitek also alleges that the city violated Berge's constitutional right to due process.

A doctor determined that Berge's medical condition caused him to experience "strokelike" symptoms and "significant" vision problems at the time of the collision, Sitek wrote, adding that evidence showed Berge was not on his phone and was not impaired by alcohol or drugs.

Berge is seeking the return of his 2013 silver BMW, keys, iPhone, passport, wallet and "other miscellaneous items" seized from him when he was arrested the day he killed Spoo.

There are "potentially critical pieces of evidence" among the items that Berge needs to investigate to defend himself against a wrongful-death suit filed by Spoo's family in October, Sitek said.

The suit alleges that Berge's medical condition had no bearing on his actions that day, and that he was looking down at his cellphone at the time.

Sitek alleged that after Hennepin County and the city of St. Paul declined to file charges against Berge, an attorney for Berge contacted St. Paul police on May 4 to inquire about obtaining Berge's items. The police deferred to the City Attorney's Office, which never responded to the initial inquiry.

St. Paul City Attorney Lyndsey Olson said Wednesday that the police department and county that reviewed the case have ultimate authority over when and if evidence can be released in a homicide.

"The city attorney's office would not determine disposition of property relating to a homicide investigation where the county has jurisdiction," Olson said. "The city attorney may be consulted in its role as counsel for [St. Paul police], but we are not the disposition authority for the property in this matter."

Berge's petition alleged that Assistant City Attorney Daphne Van Buren told one of his attorneys on Nov. 26 that the police were holding onto his belongings "in good faith as potential evidence … and consistent with the applicable evidence retention schedule."

According to Berge's petition, the "Ramsey County Uniform Evidence Retention Policy" that Van Buren sent a few days later to support her argument also stated that "if the investigation is complete and no one is charged" the "property may be returned to the owner upon request."

St. Paul police spokesman Steve Linders said the department is retaining the evidence in accordance with "all policies and protocols and laws."

"We will release as much property as soon as possible once the law allows us to do so," Linders said.

Berge is asking a judge to order the police to return his belongings and for the city to pay his legal costs.

Sitek said that Berge is "relatively stable" and has completed "aggressive treatment" for his cancer. He underwent surgery, and doctors do not recommend additional surgeries at this point.

Berge had been given about a year to live when he was diagnosed, and has "greatly exceeded expectations," Sitek said.