Legal Issues

by Tim Cushing


Filed Under:
asset forfeiture, evidence, nypd



The NYPD's Third 'Forfeiture' Option: Call Seized Items 'Evidence;' Never Give Them Back

from the the-system-works dept

It's not just asset forfeiture being used by law enforcement to take property away from people. With civil asset forfeiture (as opposed to criminal asset forfeiture), property is deemed "guilty," even if its former possessors are not. Kaveh Waddell of The Atlantic is highlighting another way law enforcement agencies are taking possession of property: by calling it "evidence" and playing keep away with former defendants who've had their cases dismissed or have been acquitted.

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 ticket is worthless. His case was dismissed but no one involved in the seizure of his items showed any interest in returning them. He brought the court's dismissal to the NYPD to retrieve his iPhone but the property desk claimed it was being held as "arrest evidence" -- even though there were no more criminal charges forthcoming. He was sent to the District Attorney's office to ask for permission to obtain the no longer needed "evidence," but the office was less than interested in helping him reclaim his belongings.

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's iPhone was seized in the summer of 2015. His case was dismissed in December. The phone is still in the possession of the NYPD while Clavasquin has continued making monthly service contract payments for a phone he can't use.

The article points out that this noxious blend of asset seizure and bureaucratic malaise affects "hundreds, if not thousands" of New York City arrestees. The city is now facing a class-action lawsuit over this process, filed by Clavasquin and two others with the help of Brooklyn Defenders. In these cases, neither form of asset forfeiture -- civil or criminal -- is being used. Instead, the NYPD is tying up possessions seized during arrests in miles of red tape, subverting what would appear from the outside to be a straightforward, two-step process: case dismissed, items returned.

Even if someone is able to move heaven, earth, and the District Attorney's office, that's not the end of the frustration. One thing most arrestees carry often disappears into the evidence locker as well, greatly increasing the difficulty of retrieving possessions.

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.)

Not only is the process labyrinthine, frustrating, and nonsensical, but there's a clock ticking the whole time. A person has 120 days from the point the criminal case has ended to demand return of their items from the NYPD. If their case has been dismissed, they have 270 days to secure the elusive release form from the DA's office -- something that explains the office's disinterest in answering phone calls, emails or letters asking for this piece of paper. Once the clock runs out, the city is free to auction off the seized property.

If the DA's office wants to put seized items into indefinite limbo, all it has to do is classify them as "investigatory evidence," which means they might be used at some point in future to further a criminal investigation. The DA's office has every reason to put seized items out of reach of their owners and very little compelling it to relinquish control of property that can eventually be used to (indirectly) fund its office. In practical terms, being arrested by the NYPD means losing whatever you had on you permanently -- unless you have the funds to pay an aggressive lawyer to navigate the deliberately daunting retrieval process.

Also of note is the fact that the most common item in NYPD evidence lockers are cellphones. Considering how many of these were seized during run-of-the-mill arrests, one has to question assertions made by district attorneys like Cyrus Vance, who claim there are hundreds of phones prosecutors and investigators can't access because of encryption. Sure, the numbers may be correct (Vance claimed his office was dealing with 175 uncrackable phones), but one has to ask how many of these actually may hold evidentiary value, and how many are simply sitting around waiting for the clock to run out so they can be auctioned.

It's just another form of legal robbery, once you strip away the bureaucratic lingo and law enforcement statements that try to give this a veneer of respectability. When criminal cases are dismissed, seized belonging are "evidence" of nothing and should be released to their owners. Instead, law enforcement agencies and district attorneys offices are working together to keep non-criminals from their rightful belongings.


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  • icon
    That One Guy (profile), 22 Aug 2016 @ 2:45am

    "Why no, we seem to have misplaced the paperwork, and will continue to do so for... 56 more days it looks like."

    How fast do you imagine they would be to release all stolen goods(because lets be honest, that'e exactly what it is at this point) if any proceeds from the sale of said goods went not to their coffers but was added to the budget of public defenders?

    If the incentives were reversed like that, if stealing items from those they arrest, stonewalling requests to get it back until too late, and then selling them padded not their wallets but helped pay for the defense of those they accuse I imagine they would not only not stonewall, they'd go out of their way to either 'lose' the items in some cop's house or return it as quickly as possible.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 22 Aug 2016 @ 3:49am

    The is nothing "good" that can't be turned "bad".

    We're gonna take their property, because we can, & then auction it off to cover the costs of arresting them. It doesn't matter if the charges end up dismissed, they need to pay for having drawn our attention.

    We're gonna have a list of sex offenders, but we are going to expand the "crimes" that can get you on that list making it mostly useless except for punishing people. So what if they can't find a place to live, they never should have peed in that alley.

    It is becoming clear that the only difference between the justice system & gangs is better matching uniforms & badges.

    People never seem to care until it directly nails them, & then are outraged that it can happen... ignoring the thousands others who got screwed over before them that they ignored assuming the system is fair & just.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Aug 2016 @ 4:34am

    Cell Phones are people my friend, and you violated its rights.

    reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 22 Aug 2016 @ 7:22am

      Re:

      You don't have many suspects who are innocent of a crime. That's contradictory. If a person is innocent of a crime, then he is not a suspect.
      - Attorney General Edwin Meese III

      Surely that applies to cell phones too.

      reply to this | link to this | view in chronology ]

      • identicon
        DogBreath, 22 Aug 2016 @ 9:25am

        Re: Re:

        Now it is more like:

        "TROOPS is filmed on location with the men of the Imperial Forces. All suspects are guilty--period! Otherwise, they wouldn't be suspects, would they?"

        - Bill Farmer (1997) [Intro opening monologue for the Star Wars Troops/COPS parody]

        Only today on this planet, it is not a parody, but a reality.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Aug 2016 @ 4:42am

    Note from NYPD.

    We arrested you, therefore you must be guilty and if the courts won't punish you we will, by keeping your property. If you disagree with our punishment, it is going to cost your more in time and fees than the property is worth.

    reply to this | link to this | view in chronology ]

  • identicon
    Quiet Lurcker, 22 Aug 2016 @ 5:11am

    Can't go through, under or over the wall....

    so go around, following these simple steps to at least go after any cell phones.

    1. You get arrested, the charges are dropped.
    2. Request the return of the evidence in writing immediately.
    3. Cops/DA stonewall, delay, refuse, etc.
    4. File multiple, written requests, perhaps along with cautionary language as
    You are hereby notified that these items will be considered stolen unless returned intact and undamaged on or before $DATE.
    A report of theft of property will be filed on $DATE with $AGENCY. Your possession of this letter or a copy thereof constitutes lawful knowledge that there is probable cause to assert that a crime has been committed....
    and so on.
    5. On the date indicated in step four above, submit printed copies of any and all letters requesting the return of any phone(s) seized by the cop to the cell phone service provider(s) and report them stolen, asking that the service be terminated or suspended.
    6. After the phone(s) are auctioned/sold/etc., identify and locate the new owner, give them a chance to return the phone. If they refuse, turn them over to the prosecutor with a formal complaint that they are in possession of stolen property.

    Likely, this won't work, but hopefully, but if followed and publicized enough times, it might make people think two or three times before buying cell phones at police impound auctions.

    At minimum, it should make it more difficult for people to get service for those seized phones.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Aug 2016 @ 6:18am

      Re: Can't go through, under or over the wall....

      Police shoot unarmed citizens with little to no accountability. Destroy houses when they have the keys. What makes you think they care about paperwork

      reply to this | link to this | view in chronology ]

    • icon
      PRMan (profile), 22 Aug 2016 @ 6:20am

      Re: Can't go through, under or over the wall....

      Yeah, there's absolutely no way that you won't end up back in jail on a trumped-up charge after doing that...

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Aug 2016 @ 5:15am

    Unintended consequences

    will be that they'll pick the wrong john/jane doe and he/she will bring about such retribution that the policies will change thereafter. What a lot of these individuals forget is that their whereabouts is known and when you stir up enough hornets, you will get stung.

    Idiots will often poison their own well, forgetting that they do have to drink from it eventually. The LEO's and DA's have families and extended families that are in all likelihood being set up as targets by the very actions these individuals participate in.

    One has to be sad at the stupidity of the various LEO and associated groups as they fail to recognise that their terror tactics will eventually fail them and they will be hoited by their own petards.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 22 Aug 2016 @ 5:25am

      Re: Unintended consequences

      Unintended consequences will be that they'll pick the wrong john/jane doe and he/she will bring about such retribution that the policies will change thereafter.

      And there goes my chance for "Funniest comment of the Week" again. Why even try?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Aug 2016 @ 5:47am

    I guess law enforcement is starting to really change its mind about the whole "crime doesn't pay" thing.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Aug 2016 @ 6:47am

      Re:

      Crime DOES PAY, and it pays very well!

      The Police are flagrant and in our face with corruption and abuse. They are taunting us. The police seem to be intent on starting a war with citizens. The BLM seems ready to respond as well.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 22 Aug 2016 @ 1:14pm

      Re:

      Oh crime pays very well depending on who and what you are. Have a badge or the right connections and you can start raking in the cash, and not only will the legal system not hinder you it will go out of it's way to help you.

      Remember, 'Stupid criminals end up in prison, smart criminals end up in law enforcement and/or politics.'

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Aug 2016 @ 5:57am

    good ol' US of A, if you're caught stealing, but are an ordinary person, you risk being shot at worse, prison at best, even if it's over a candy bar! if the items have been taken from you as part of a police/D.A. case, they can be kept for an allotted amount of time, not liable to return them to the owner when a case is dismissed and then sell those items so money goes into a police officers fund, a D.A. fund, a station fund or into individual pockets, this stealing is ok! and yet again, the police wonders why no one trusts them!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Aug 2016 @ 6:14am

    Another reason not to go anywhere near that stinkin' city.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Aug 2016 @ 6:23am

    There was a time in this country that Law enforcement would make every effort to get your stolen property back to you.

    Now, making a robbery or theft report is just letting the police know to go get your property and keep it until you aren't interested in it anymore.

    Why call the police anymore?

    Why fund the police/thieves?

    reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 22 Aug 2016 @ 6:25am

    I would bet those stolen items never made it to the evidence locker and instead were taken as trophies that cannot be given back since they probably show evidence of having been in use since their seizure

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Aug 2016 @ 6:39am

    NYPD
    Property Clerk | Police Auctions
    Information

    Property is now auctioned online at www.propertyroom.com.


    Ya, so there's that.....

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Aug 2016 @ 7:02am

    RICO act

    Sounds like the entire NYPD needs to be charged under the RICO act for stealing goods and cash that they illegally take from those they stop and search. They are pushing further and further into the criminal world everyday and this is just proof that they don't even care about rights or innocence anymore.

    reply to this | link to this | view in chronology ]

    • icon
      Padpaw (profile), 22 Aug 2016 @ 10:36am

      Re: RICO act

      At this rate in a few years they might just be lined up against a wall and shot.

      The police seem to have no desire for reform and the citizens have shown they are losing patience with the justice system. Some breaking down and shooting cops sooner than others.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Aug 2016 @ 1:04pm

        Re: Re: RICO act

        SOME citizens are losing patience.

        Most just do not give a fuck... MOST. Most have to lose patience for it to have a real effect.

        But yea, next time you vote for that "Tough on Crime politician or judge" just remember, you just renewed the vim, piss, and vigor of your abusive police force.

        The moment a politician can track their lost job to a corrupt police department is the moment shit gets cleaned up!

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Aug 2016 @ 8:05am

    Well, this certainly goes a long way towards explaining why stop and frisk was so popular with the NYPD.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Aug 2016 @ 11:32am

    My father used to tell me stories of the "old country" (Ceausescu's Romania) about how the police were little more than gangs with government backing. Looks like I'll be telling my children the same stories in the not to distant future.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 22 Aug 2016 @ 1:54pm

      Re:

      Are you prepared to have them taken into custody by child care since you are radicalizing them? Children tend to pass on what they are told, and you'll get reported to the authorities.

      U.S. citizens with Irish roots have Square and Line dances to memorize their origins. You have the NYPD.

      reply to this | link to this | view in chronology ]

  • identicon
    MPH, 24 Aug 2016 @ 3:44pm

    Try this

    Supposedly, shortly after Virginia made RADAR detectors illegal, an out of state attorney had his confiscated. He had the trooper who took it arrested by the FBI for theft. Perhaps one could get the NY state police or an FBI agent to arrest the property clerk for theft (Yes.. that's the man that took my cellular phone and won't give it back). Or perhaps the FCC could be involved (could the NYPD's use of your phone constitutes a violate of an FCC regulation?).

    Then there's this one: in St. Petersburg, FL, a man had his new Corvette impounded because the flour spilled on the center console had to be tested for being a drug (even the owner agreed that this part of it was reasonable). But they had the car for weeks, and were using it (he'd seen it being driven around). He sued for rental fees, at $150/day plus miles, and WON. So perhaps people should start suing the NYPD for rental of their phones. Once you start affecting their budget, you might be able to make them do what is required.

    But I like the theft route, if you can do it. They've got it, they know they shouldn't, and they won't give it back. Sounds like theft to me.

    reply to this | link to this | view in chronology ]


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