Police may seize property belonging to defendants, victims, and witnesses—even those who seemingly have nothing to do with the crime. If law enforcement took custody of your property—whether it’s a phone, car, jacket, or firearm—you’re likely very interested in getting it back. Whether you will be successful and how quickly depends on what the property is and why the authorities have the item. Read on to learn how the process works.
Why Did Police Take My Property?
Law enforcement can seize (take) and hold onto property in a number of circumstances. This article will discuss:
- property held in safekeeping after an arrest and jail booking
- property held as evidence of a crime
- contraband, and
- property subject to forfeiture.
For the most part, when police are holding legally seized property, they can hold onto it for as long as it’s needed for a criminal investigation or proceeding. Even when police illegally seize property, they might not be obligated to return it right away. And when they seize contraband (property that is illegal to possess), they don’t need to return it at all. But if the government goes too far, the property owner can seek remedies through the court.
How Long Can Police Keep My Property?
When the police have your belongings, they can often keep them until there’s no legitimate reason to hold them for an investigation, court case, or safety reasons. In practice, that usually means your property stays in police custody while charges are pending and, if it’s needed as evidence, through trial and even the appeal period. Once the case is over and the items are no longer needed as evidence (and they’re not contraband or forfeited), you can generally ask for them back.
Property Taken After an Arrest
When police arrest and take a person to jail, the arrestee must hand over their personal effects, including their clothing and anything in their pockets, purses, and bags. Jail personnel will place these items into a locker or storage room for safekeeping and should give arrestees an inventory (receipt) of everything taken.
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 right away, especially if they haven’t been charged with a crime. But for those facing charges, whether their clothing and other belongings will be returned depends on the prosecutor’s need (or not) for the items as criminal evidence.
For example, imagine police arrest a man 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 the defendant's clothes in order to present them in court as evidence that the defendant was the assailant.
In these situations, the police won’t 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 Held as Evidence
As part of a criminal investigation, police might obtain a search warrant to search for and seize evidence of a crime. Say a defendant is charged with possession of child pornography. Police might get a warrant to seize the defendant’s computers, hard drives, cameras, photographs, and phones. As long as the evidence is legally seized (and sometimes even if it isn’t), the police can generally hold onto it for as long as it’s needed as evidence in the criminal case.
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.
Will Police Ever Return Contraband?
When law enforcement obtains custody of contraband—items that you cannot legally possess—don’t expect to get them back. For instance, if police seized illegal drugs in your possession, they won’t be returning them. You could also lose illegal firearms and weapons. Most likely, law enforcement will destroy these items.
What Is Forfeiture and Can I Stop It?
When police seize property used or involved in illegal activity, state or federal law often allows the government to take the property and start forfeiture proceedings. If successful, the forfeited property becomes the property of the government—meaning the owner will not get the property back, even when the case is long over.
Forfeiture laws allow law enforcement to seize and sell (for their benefit) items such as cars used to commit or flee a crime. Police can also keep cash that represents the proceeds of a crime (say money from drug sales). When property is subject to forfeiture, time can be of the essence. Forfeiture can happen even before the owner has been charged with a crime, let alone convicted.
Many laws provide for a hearing where the seizing authority (usually police) must justify its retention of the property, such as by showing that the property was involved in a crime. But some laws put the burden on the property owner to file a motion and prove the opposite is true—that the property wasn’t used in the offense or that the owner wasn't aware of its illegal use by another. Either way, law enforcement will typically retain the item until the matter is settled.
How to Get Property Back
Seized property that isn’t contraband or forfeited must generally be returned once the government (prosecution or police) no longer has a need for it. This might be as soon as charges are dismissed, or it could take as long as waiting for all related criminal proceedings to wrap up, which could include post-conviction motions, appeals, or a retrial. In other cases, the owner might need to take the matter to court.
After Dismissal or Conclusion of a Criminal Case
Generally, once all criminal proceedings have concluded, the government should return the property. The property owner might need to bring a receipt or letter showing they can reclaim the property to the law enforcement station’s property and evidence division. If the government fails to return the property, the owner can file a motion in court seeking the return of the property. A person might even ask the court to make the government return the property earlier on the basis that the government doesn’t actually have a need for it (for instance, the government can’t keep the property merely because it might be relevant to a future investigation).
If Police Illegally Took Property
When the government illegally seizes property, the owner can also seek a court order for the return of the property. But that return is not guaranteed. The government might still be able to argue a legitimate need exists to retain the property. For instance, the prosecutor might argue that that property is subject to forfeiture or can be admitted as evidence despite the underlying illegality of the search. If either situation exists, the government likely won’t need to return the property until the matter is settled. However, the judge often retains discretion on whether to release or retain the property. If the government acted egregiously in the illegal search, the judge may decide to return the property regardless of the government's purported need.
If Property Is in Forfeiture
As mentioned above, in forfeiture proceedings, you or your lawyer may need to act quickly. Forfeiture laws are complex and can sometimes proceed in advance of a criminal case. But this isn't to say all is lost. The law may afford the owner several legal arguments to get back their property, such as by proving the item isn't actually connected to the crime (perhaps the cash was earned legitimately). Some laws provide an "innocent owner" defense, where the owner can show they were not (nor should they have been) aware of the illegal activity (such as stepson took his stepdad's car and sold drugs out of it unbeknownst to stepdad). Depending on the law, other arguments might also be available for the return of the property.
What Happens If Police Lose or Damage Your Property?
Police have a responsibility to make sure property and evidence are stored properly and documented carefully. It’s important to the criminal case and for liability purposes. When property gets lost or damaged, you may need to file a claim with the department seeking compensation.
Talk to a Lawyer
If police seized your property, speak with an attorney about your options to get your property back. Your attorney can review your specific circumstances and help develop a strategy aimed at getting back your property.