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If the Police Take Your Property, Can You Get it Back?

Attorney Dave Stegall blogs about what happens with the police seize your property and what your rights on getting that property back are.
If the Police Take Your Property, Can You Get it Back?

Dave Stegall

If The Police Take Your Property Can You Get It Back?

Often times when a police officer makes an arrest, the officer will also seize your personal property.  Depending the facts of the arrest and the type of property seized by the police, reclaiming the property can be a long and frustrating process.    This article briefly discusses the general authority for the police to seize property in the first instance and provides steps you can take to assist in reclaiming your property.

If the police seized your property during an arrest they are required to provide you with a receipt. The receipt will indicate which items the police have in their custody.  Likewise, if the police seize property during a search warrant, they must fill out an itemization of the property they seized, which is called a search warrant return. The search warrant return must be filed with the clerk of courts office within 5 days from the date the police executed the search warrant.  A copy of the return is available after the fact either from the clerk’s office or in the discovery if criminal charges are issued.

Why Did the Police Seize My Property?

To figure out how to get your property back, the first question that must be answered is why did the police take your property in the first place.  In general, the police may lawfully seize property for four main reasons.

1.   Safe Keeping.  On occasion the police will seize valuables such as money, jewelry, expensive electronics, or similar items to safeguard the items from theft.  This situation typically arises during a traffic stop.  For example, if the police arrest the driver during a traffic stop they will typically inventory the car if it needs to be towed from the scene.  During the inventory process, the police will remove and seize any “expensive” items to prevent them from being lost or stolen.  If no charges are issued, and the seized items are not needed for any other purpose, they can be returned to the rightful owner upon discharge from the police station.

2.   Forfeiture.  The police may seize certain property because the police believe the property was used or obtained during the commission of a crime.  If true, the police may be able to permanently keep, or even sell, your property if they can make a sufficient showing in court.  Typical examples of property subject to forfeiture include:

  1. Money that was exchanged for drugs, or was intended to be exchanged for drugs, or was used for gambling.

 

  1. Vehicles can be forfeited in a variety of circumstances including: transporting any property or weapons used or received in the commission of any felony.  In addition, vehicles that were used in prostitution or human trafficking are also subject to forfeiture.

 

  1. Cell phones.  With the advent of smart phones, the police are increasingly seizing cell phones following an arrest especially if the phones were used during the commission of an offense (e.g. calling someone to sell/buy drugs). 

3.   Contraband.  Contraband simply refers to property that the police seized because it is a crime to have it in the first place.  This category of property includes illegal drugs, drug paraphernalia (e.g. pot pipes, bongs), unlicensed handguns, switchblade knives, counterfeit documents/money, etc.  If you have been charged with possessing contraband (typically drugs) the police will hold the property as evidence until the case is over and will likely destroy it afterwards. 

4.   Evidence.  Depending on the facts of the arrest, certain property, although not contraband or subject to forfeiture, is nonetheless needed by the district attorney to prosecute the criminal case.  Although in some circumstances your defense attorney may be able to reclaim your property while the case is pending, the general rule is that the property will be held until the conclusion of your case and can even include time spent on appeal as well.  For example, if you were wearing a distinctive item of clothing that could identify you as a perpetrator of a crime the prosecutor could hold that property until the case is over on an “evidence hold.”

How and When Do I Get My Property Back?

Assuming the property is not contraband, determining when you can reclaim your property depends on a number of factors including the legal justification for the seizure and the nature of the property.  For example, if the police seized your property solely for safekeeping they will typically return the property upon your release from custody or make arrangements with you to reclaim your property at a future date from the property office.  If the seized property was contraband, the police will not return the property under any circumstances.

If the police seized your property as evidence, it will likely be held until the conclusion of the criminal case.  Depending on the particulars of your case, this process can take weeks, months or even years.  If the police initially seized property as “evidence” and it is later determined not to be relevant to the case, your defense attorney could speak with the prosecutor in an attempt to arrange a return prior to the conclusion of the case.  However, as noted above those arrangements are the exception and not the rule.

Upon completion of the case, if the prosecutor will not agree to voluntarily return the property your only recourse may be to file a petition for return of property with the court.  If the government still will not return the property the judge will hold a hearing and determine what should happen with the property. 

A difficult situation arises when the police seize your property but no criminal charges are filed, at least initially.  This can be the most challenging situation in which to compel the return of your property.  If the police will not voluntarily return the property they will typically continue possession under the guise of a “pending investigation.”  In situations like this, I strongly recommend you consult with an attorney to discuss the possibilities (and potential risks) of pursuing the return of property in a pre-charging scenario.

If the government files a forfeiture proceeding against your property then you should consult with an attorney to discuss your rights and options as soon as practical.  Depending on the property and the statute that the government is proceeding under you will generally have a right to a hearing to contest the forfeiture.  However, there are certain deadlines that you must comply with or you will give up your right to contest the forfeiture.  The most common examples of forfeiture occur when the police seize vehicles and money often associated with drug investigations.

Finally, make sure to keep the documents that you receive from the police.  Those documents will contain important information about the seizure of your property including, the date of seizure, the identities of  police officer(s) involved, a list of items seized, and a police inventory number.  Having access to this information will greatly increase the chances of getting your property returned in a timely manner.

I am hope you found my article helpful and informative.  If you have any questions please feel free to contact me directly at dstegall@lawtoncates.com.    

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