Criminal Law

Getting Property Back After an Arrest

By Janet Portman, Attorney
Police may seize property belonging to defendants, victims, and witnesses—even those who seemingly have nothing to do with the crime. Whether you’ll get it back depends on what the property is, and why it was taken.

Updated April 9, 2016

If law enforcement has custody of property belonging to you, whether it’s a phone, car, piece of clothing, or firearm, you’re likely very interested in getting it back. Whether you will be successful, and how quickly, depends on whether you can lawfully possess it, and why the authorities have the item. Read on to learn how the process works.

Property Seized After Your Arrest

People who are arrested and taken to jail must hand-over their personal effects, including their clothing and anything in their pockets, purses, backpacks, and brief cases. These items put into a locker or storage room for safekeeping. The jail personnel should give arrestees an inventory of everything taken, described sufficiently to enable identification. Authorities defend this practice as a way to ensure that weapons or contraband do not enter the facility, and to lessen the chances that belongings will go missing.

Most arrestees either make bail, get released on their own recognizance, or are released without charges. Upon release, they should be able to retrieve their possessions, most particularly if they have not been charged with a crime. But for those facing charges, whether their clothing and other belongings will be turned over depends on whether they are or could be needed by the prosecution as evidence that the arrestee committed the charged crime.

For example, imagine a man arrested for assaulting another on the street, knocking him down and stealing his wallet. The defendant was arrested a few hours later, because his clothes matched the victim’s description of the suspect’s garb. The prosecutor will want to keep these items in order to present them to the victim in court and ask, “Do these items match the clothing worn by your assailant?” An affirmative answer is some proof that the defendant was the assailant.

In these situations, the police will not release the property until the prosecutor tells them it’s alright to do so. This can take quite a while, as the case waits to be resolved with a plea or proceeds to trial. Even when the result is a guilty verdict, the items may still remain in government custody if the defendant files an appeal. The prosecutor will want them on hand in the event the appellate court overturns the verdict and sends the case back for retrial.

Property of Non-defendants Seized as Evidence

Personal property can end up in the police station evidence locker even when it was not owned by the person arrested for the crime. For example, the clothing of a sexual assault victim may contain evidence of the attacker’s bodily fluids that, when tested, can be compared to the defendant’s profile. The prosecutor will keep it for that reason. Or, if you’ve been robbed of your cell phone, that phone might eventually be shown to you in court when you’re asked to identify it as yours (earlier, the arresting officer will have testified that it’s the phone he found when he searched the defendant upon arrest). Again, a homeowner’s burgled property won’t be returned to him until the case is definitively over (post-appeals).

Forfeited Property

The final type of confiscated property is items that were used or involved in the crime, which state or federal law allows the government to take and not return. That’s right—the owner will not get them back, even when the case is long over and they are not contraband. Forfeiture laws allow law enforcement to seize and sell, for their benefit, items such as cars used as get-away vehicles, and even land that has been put to an illegal use (including land used to grow marijuana).

Forfeiture laws are very controversial, for they sometimes have unfair results. For example, in the early days of such laws, even an “innocent owner” stood to lose property that another had used in connection with a crime. The most famous case involved a woman whose husband used the family car to conduct business with a prostitute. State law provided for forfeiture of cars used by those who participated in prostitution, so the car (which was registered to both husband and wife) became the property of the state, despite the co-owning wife’s complete unawareness of her husband’s crime and use of the car to facilitate it. (Bennis v. Michigan, 116 S. Ct. 994 (1996).) Largely as a result of public discomfiture with such results, the federal forfeiture law was changed in 2000 to allow for an “innocent owner” defense, which is present in most state forfeiture laws as well (though some states require all owners to be innocent, which would not have helped the wife in Bennis). (18 U.S.C. § 983(d).)

A second, and equally troubling aspect of forfeiture laws in action is the widespread practice of some law enforcement to arrest even minor law breakers in order to get their hands on the arrestee’s car or property, so that the property can be sold and police coffers enriched (though local police must share the proceeds with the federal government). Forfeiture can happen even before the owner has been charged with a crime, let alone convicted. In January 2015, U.S. Attorney General Eric Holder announced that local agencies would no longer be able to use federal law to seize the assets of without warrants or criminal charges.

If your property is the subject of a forfeiture action, you’ll need the help of an experienced criminal defense attorney immediately. All laws provide for a hearing, in which the seizing authority must justify its retention of the property, as something involved in the commission of a crime. Your lawyer can challenge this position, and may also raise an “excessive fines” defense. The Eighth Amendment prohibits excessive fines when the size of the fine is disproportionate to the seriousness of the criminal activity on which it is based.

Questions to Ask Your Lawyer

  • What can I do if the police failed to give me an inventory of my belongings when I was booked?
  • How can we convince the prosecutor to release my property?
  • What are the chances that my car will be forfeited?
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