Police Can Use a Legal Gray Area to Rob Anyone of Their Belongings

When officers categorize wallets or cellphones as evidence, getting them back can be nearly impossible—even if the owner isn’t charged with a crime.

Lucy Nicholson / Reuters

Last summer, Kenneth Clavasquin was arrested in front of the Bronx apartment he shared with his mother. While the 23-year-old was being processed, the New York Police Department took his possessions, including his iPhone, and gave him a receipt detailing the items in police custody. That receipt would be his ticket to getting back his stuff after his case ended.

But the recovery process would soon turn into a nightmare. Clavasquin’s case was dismissed on December 8, 2015, and one day later, he took a court document proving the dismissal to the NYPD property clerk’s office. He was told that the department had classified his possessions as arrest evidence, to give the district attorney the option of considering them in the case. But the district attorney didn’t, and now that the case was over, the classification meant Clavasquin was about to enter a bureaucratic obstacle course.

Clavasquin needed to get a release from the district attorney’s office stating that his property would no longer be needed for evidence. Over the following three months, he repeatedly called the assistant district attorney assigned to his case, but he neither got a release nor a written explanation of why he was being denied one.

Then, with the help of an attorney at the Bronx Defenders, a public-defender office that had been representing him since the day after his arrest, Clavasquin sent a formal written request for the district attorney’s release. He got no response.

Clavasquin still hasn’t gotten his phone back—but he had to continue paying for its service contract as it remained locked up in an NYPD facility.

His ordeal is a common one. Earlier this year, the Bronx Defenders filed a class-action lawsuit against New York City that named three plaintiffs: Clavasquin and two other men who were also given the runaround when they tried to pick up their property, including their cellphones, after an arrest. The lawsuit alleges that the city has shown a “policy, pattern, and practice” of unconstitutionally depriving people of their property after an arrest, without due process.

There are two avenues available to the government for seizing items that were used to commit a crime, or cash that was made unlawfully. If a person is convicted of a crime, the government can use a legal tool called criminal forfeiture that allows it to confiscate property that was involved. Civil forfeiture, on the other hand, does not require a criminal charge—only a suspicion that a piece of property was involved in a crime, or that it was obtained illegally.

But neither of those legal processes were used against Clavasquin, his coplaintiffs, and the estimated “hundreds if not thousands” of others just in New York City that they represent in the lawsuit. Instead, they got caught in legal limbo: When their property was classified as evidence after their arrest, slow-moving bureaucracy and red tape turned what should be a routine transaction—getting back personal property after the state no longer has any use for it—into a near-impossibility.

In New York, the multi-step process required to get the NYPD to release possessions can be opaque and circuitous. When the Bronx Defenders circulated a questionnaire in 2014 among its clients who had possessions taken from them at the time of arrest, nearly half said they were never even given the itemized voucher that Clavasquin received.

Even with that voucher in hand, petitioning the district attorney’s office for the necessary forms to release items categorized as evidence can be fruitless: More often than not, requests to the district attorney’s office—whether phoned in, written, or emailed—go unanswered, said Adam Shoop, a Bronx Defenders attorney who helped bring the class-action lawsuit against the city. The only reliable way to force a response is to file an administrative appeal, a legal tool that the average non-lawyer almost certainly wouldn’t be able to use on his or her own, Shoop said.

If someone is able to jump through all the hoops and obtain a district attorney’s release, there’s one final hurdle: The NYPD property clerk, which actually holds on to the items, requires two forms of ID before releasing any property. Drumming up two forms of ID can be difficult on its own, but it’s made harder still if the person’s wallet, which may contain a driver’s license, is in police custody. (The property clerk won’t count a seized license as a valid form of ID.) When that’s the case, the person has to notarize an authorization for someone else to pick up the items on their behalf.

Of the items that might be seized during an arrest, cars, cellphones, and wallets with cash are among the most valuable. Cellphones are especially likely to be categorized as arrest evidence, throwing up additional hurdles to recovery. (Shoop says that people arrested on drug-related charges are most likely to get their phones categorized as evidence.)

If a phone is taken and is hard to get back, not only does its owner have to keep paying for service—or pay an early termination fee, if it’s under contract—but he or she loses a basic tool of modern life. Younger, lower-income, non-white, and uneducated people are particularly likely to depend on their smartphones as their only way of accessing the internet, and some lower-income families may only have one smartphone.

All manner of other things get taken, too. James King, a staff attorney at the Public Defender Service for the District of Columbia, says his clients often want to get their winter coats back after an arrest. “Since they’re hiring us, they can’t afford attorneys,” King said. “These are people who are poor.” But the hunt to get their coat back sometimes takes so long that, even if it’s ultimately successful, winter has ended by the time the coat is returned.

In New York, a clock starts ticking the moment a criminal case is over, whether or not it resulted in a prison sentence: A property owner has 120 days to demand the return of their things before the NYPD has the right to dispose of the property, which can mean auctioning off a vehicle or sending seized cash to the city’s general fund. If they can’t demand the property back in person—perhaps because they’re behind bars—they must formally authorize an attorney, friend, or family member to do so.

(If the items are categorized as evidence, the property owner has another 270 days after making the original demand to secure the elusive district attorney’s release. If the items are slated for forfeiture, the owner also needs an additional release from the NYPD civil legal bureau.)

In Washington, D.C., on the other hand, formal deadlines are hard to come by. I spoke to three criminal-defense attorneys who work in the district, and none knew of any official timeline for getting back seized items. They described a chaotic, “ridiculous” system where none of the separate parties involved in property seizures communicate effectively, leaving property owners without a way to recover their things even when prosecutors make it clear they no longer need the items.

“This is extraordinary,” said William Claiborne, an attorney in D.C. who has brought a class-action lawsuit against the District of Columbia government regarding civil forfeiture. “It’s based on the old days, when ships used to travel around and maybe the ship was carrying contraband—so you’d snatch the ship because you didn’t know where the owner was.”

Claiborne and Joseph Scrofano, who also practices criminal-defense law in the district, said phones are nearly always categorized as evidence in D.C. Scrofano said fewer than half of his clients are able to recover their property after the police seize it. Some give up before they get their things back, deciding it’s not worth the trouble.

“The fundamental principle here is that prisoners do retain rights in their property—even prisoners who have been convicted of a crime,” said David Fathi, director of the national prison program at the American Civil Liberties Union. “If a piece of property is legitimately evidence in a criminal proceeding—and certainly you can imagine a situation where a cellphone would be—it can be held for that purpose, but that should not be indefinite.”

In both Washington and New York, defense attorneys lamented a lack of coordination between police departments—which make the initial call of how to categorized seized items—and prosecutors. Unless prosecutors are bringing a major felony case, they almost never pursue a search warrant to gather evidence from a smartphone, the lawyers said, but police keep categorizing them as evidence, turning attempts at recovery into punishing experiences.

And forget getting back a phone marked as evidence while court proceedings are underway: Unless the court intervenes, which it does infrequently, there’s no way to even start the process of getting back possessions until the case is wrapped up.

Even if a person is arrested but isn’t charged with a crime, his or her possessions can be seized. (In certain cases, police can even seize property without arresting its owner.) But the lack of criminal charges don’t make recovery any easier. In fact, in Washington and New York, it lands individuals in another gray area that can be even more difficult to navigate than the maze of red tape that follows the end of criminal proceedings.

Shoop and Claiborne said they advise clients who haven’t been charged to go back to their arresting officer or call the officer’s station, to try and get the hold on the property lifted because of the lack of charges. “You can imagine it’s not a comfortable experience for our clients to have to go the precinct and speak to the person who arrested them to do them a favor,” wrote Shoop in an email.

In one case, Shoop said, a Bronx client who wasn’t charged with a crime asked his arresting officer for his property back—but instead of releasing it, the officer changed the property’s designation to “investigatory evidence,” a classification Shoop called “essentially the black hole of property confiscation.” It means that the district attorney wants to hold on to the property in case it chooses to go forward with a case in the future, even though it has no plans to bring a case now. An internal NYPD document shows that investigatory evidence can be held for a year, but that officers can ask for that timeframe to be extended.

According to Dick Carpenter, the director of research at the Institute for Justice, the difficulty of getting back seized assets in New York and D.C. is representative of similar problems nationwide. The prevalence of civil forfeiture and the bureaucracy that surrounds it are generally worse in large cities, he said, but state and federal laws remain unfriendly to property holders. He co-authored a report last year that graded every state on the fairness of their civil forfeiture laws. New York got a C, and the District of Columbia got a B+. By contrast, 24 states got a D- and two—Massachusetts and North Dakota—got an F.

“In this country you’re supposed to be innocent until you’re proven guilty,” said Robert Johnson, an attorney at the Institute of Justice. “Civil forfeiture takes that and turns it on its head. It makes people prove their own innocence before they get their property back.”

In the last year, both Washington and the Bronx have started to introduce reforms to their civil forfeiture processes. In response to the class-action lawsuit from the Bronx Defenders, the Bronx District Attorney’s office has proposed significant updates to the way the property release process works, introducing an electronic tracking system for property release requests for the first time. The system will notify assistant district attorneys about requests for releases, and allow them to accept or defer the request with one click. The office has also hired an assistant district attorney who will help people who are asking for their property back along their process, and provide responses if the claimants don’t initially get one within a reasonable amount of time.

Julian O’Connor, deputy counsel at the Bronx District Attorney’s office, says the electronic tracking system is “90 percent complete.” He and others from the office will soon meet with the Bronx Defenders and other public-defense organizations to introduce them to the system and ask for feedback, before starting to roll it out across the county for a three-month evaluation phase. (There are currently no plans to share the findings of the evaluation with New York’s other four boroughs, or to export the Bronx model elsewhere if it succeeds.)

In Washington, the city council passed a change last year that makes it harder for D.C. police to profit from assets and money seized in forfeiture cases, hoping to remove unsavory incentives to pursue forfeiture. The change also raises the bar of evidence that the government must meet in order to take possession of a vehicle involved in a crime. A spokesperson for the district’s Metropolitan Police Department was not immediately able to comment on the city’s forfeiture policies.

These changes—especially the ones underway in the Bronx—may help prevent people who haven’t even been convicted of a crime from being deprived of essential property. But in most of the country, the system still works against them.

Claiborne says he’s seen a significant bias in the way the system works in Washington. “These are just wealth-stripping devices, and they’re directed basically at black people,” he said. “I’ve talked to a lot of people whose cars were taken, but I’ve only talked to one white person whose car was taken, and they got it back. There may be more white people out there, but I haven’t found them. This preys on the most economically vulnerable people.”

King, who also works in the District of Columbia, was more blunt. “To me it feels like legal robbery, like a shake down,” he said. “If our clients were doing what the police are doing, it’d be called robbery, and they’d be charged or indicted within a day or two.”