How Do I Get Confiscated Property Back From Police After an Arrest?
Having your property confiscated after an arrest can be a confusing and frustrating experience. So do you have any remedy when the police take your belongings? There is more than one answer to that question because there is more than one scenario you might face. The answer to this question depends on why they took it, and how they are holding it.
Why did the police take your property?
There are a number of reasons why the police might take your property incident to an arrest, including safekeeping, evidence, contraband, proceeds of a crime, or instrumentality of a crime. How you get it back (or if you get it back) depends on why the police took it in the first place.
Safekeeping
The police might take your jewelry before they put you in jail, for example, and you would need a receipt to get it back after your release. They might impound your car after a first-offense DUI to keep people from stealing or vandalizing it. If your DUI is a first offense, you might be able to get your car back as soon as you get out of jail. You will have to pay towing and impoundment fees. You will also have to present acceptable identification and bring the title of your car to prove ownership.
Evidence
The police might keep your property as evidence. Your iPhone might contain incriminating messages, for example. The police can keep evidence until your case ends, including any appeal. You will have to file a motion with the court seeking the return of your property. You should hire a lawyer to help you with this process.
Contraband
If the police catch you with an ounce of cocaine, for example, or an unlicensed firearm, you won’t get it back no matter what you do. The idea is that since it is contraband, you never should have been carrying it in the first place.
Proceeds of criminal activity
If the police suspect you of drug trafficking, for example, they might confiscate large amounts of cash they find in your possession. For the seizure to be legal, the police must have “probable cause” to believe that your property is connected to a crime. Probable cause is about as much evidence as the police need to arrest someone. This standard is far below the standard of “beyond a reasonable doubt” that the prosecution needs to convict someone of a crime.
After the police seize your property as proceeds of criminal activity, they will send you a Notice of Seizure and Forfeiture. You then have 30 days to file a claim for the return of your property with the Tennessee Department of Safety and Homeland Security. You will get a hearing, and you will need to convince a judge that the property the police took was not the proceeds of criminal activity.
Instrumentality of a crime
The police might take any property they think you used to commit a crime – drug paraphernalia, for example, or a car used to transport drugs. The police might even confiscate your car as an instrumentality of crime if they arrest you for a second or subsequent offense DUI.
The procedure for seeking the return of this property is the same as the procedure for seeking the return of property that the police take as proceeds of criminal activity. In other words, you’ll have to request a hearing by the 30-day deadline.
Forfeiture elements and burden of proof
If the police seize your property as proceeds of a crime or instrumentality of a crime, to keep it they must prove the following two facts (“elements”):
- Your property was connected to criminal activity, and
- The seizure complied with legal procedures (probable cause or a search warrant, for example).
The state must prove these two elements by “a preponderance of the evidence,” which is a “more likely than not” standard. If they fail to do so, they must return the property to you.
Now suppose the police seize contraband from you (drugs, for example). If the seizure was illegal, Tennessee cannot use it as evidence to convict you of a crime. Nevertheless, even if the search was illegal, the police still do not have to return the contraband to you.
The “innocent owner” defense to forfeiture
You can use the “innocent owner” defense if someone else used your property as an instrumentality of a crime without your consent. By the time you raise this defense, the government will have already proven that the property was used to commit a crime. Accordingly, the burden of proof shifts to you to prove your innocence.
You can establish the innocent owner defense if you prove that:
- You did not know about the criminal use of your property, or
- You did not consent to it.
The classic case occurs when a teenager “borrows” their parent’s car to commit a drug offense.
Criminal forfeiture vs. civil forfeiture
The preceding discussion has centered on Tennessee’s civil forfeiture laws. Tennessee also allows criminal forfeiture. The major differences between civil forfeiture and criminal forfeiture are that a smaller percentage of crimes justify criminal forfeiture than civil forfeiture, and permanent criminal forfeiture requires a criminal conviction.
It is also easier to challenge criminal forfeiture than civil forfeiture. In civil forfeiture, the government relies on the legal fiction that the action is against the property itself, not the property owner. That’s why a criminal conviction or even a criminal charge is not required for civil forfeiture. Critics find the coexistence of these two types of forfeiture to be unnecessary and redundant.
Forfeiture under federal law
The federal system has its own civil and criminal forfeiture statutes. These laws are largely similar to Tennessee’s forfeiture laws, with some significant differences. Tennessee’s forfeiture laws are generally more disadvantageous to the defendant than federal forfeiture laws.
A Franklin County criminal defense lawyer can help you in more ways than you might imagine
Franklin, Tennessee is not a good place to face criminal charges. Prosecutors tend to take a hard line against defendants, and you will find little sympathy in the justice system except for your lawyer. With your future at stake, now is no time to hesitate.
Fear not, because the Law Offices of Adrian H. Altshuler & Associates will fight hard to see that you obtain the best possible outcome. Contact us at your earliest convenience so that we can listen to your story and discuss your options.