When you are arrested, the police may take your property for four reasons. First, they can take your property for safekeeping because it is valuable, like your money, a car, cell phone, jewelry, or clothing. Second, they can take your property for forfeiture because they believe that it was used or obtained in the course of criminal activity. Third, they can take it as evidence of a crime. Fourth, they can take what they believe is contraband.
The process for getting your property back if it has been taken by the police varies from county to county. The following is the information for New York City, adapted from the Legal Aid Society's webpage, "How Do I Get My Stuff Back?"
Contact your local public defender office for information specific to the county where you live. (http://www.nysda.org/ChiefDefendersList.html)
1. How can I get my property back if it was held for safekeeping?
- If the police take your money or other valuables for safekeeping you are entitled to a voucher. The voucher is pink and lists every item that was taken from you.
- Present the voucher to the property clerk's office when you are released from central booking. If your property is not there, it is at the precinct where you were arrested.
- If you are being held in jail with pending charges (because bail was not set or you could not pay it), you may apply for the return of your property by mail while you are in jail.
2. What if I don't have a voucher?
- If you did not obtain a voucher when you were arrested because you were transferred to central booking before it was prepared, you can obtain one in person at the precinct where you were taken when you were arrested.
- Be prepared with the following information (your defense attorney will have it if you do not):
- Arrest date
- Arrest number
- Name of arresting officer
- If the voucher is not ready, ask the property officer for the number assigned to it.
- Don't sign a voucher that is missing any items that you know were taken. Indicate any missing item on the original white copy. You do not have to sign the voucher to have your property returned. Tell your attorney if the voucher given to you is incomplete.
3. Can I pick up property for a friend or family member?
- You may pick up property held for safekeeping while your friend or relative is being held with pending charges. You must bring the property voucher, a notarized letter authorizing you to pick up the property, and identification. Many banks and post offices provide notary services; be sure to bring your photo ID. You can ask your friend or family member's criminal defense attorney to notarize your document.
4. What is "forfeiture"? How can I get my car or money back if there is a forfeiture hold?
- If you are arrested for Driving While Intoxicated, the Police Department will take and hold your car. This is called a "forfeiture hold" and may lead to a "forfeiture case" about your car, money, or other property separate from your criminal case.
- Other charges that can lead to a "forfeiture hold" include:
- Driving without a license
- Car used to obtain drugs or services of a prostitute
- Car carrying a loaded gun
- Money seized from your apartment, car, or pocket during a drug arrest
- To start the process of getting your car back, you need:
- A voucher - Obtain this from the Property Officer at the precinct where you were arrested. Provide them with the arrest date, arrest number, and arresting officer's name. You can get this information from your defense attorney
- A DA's Release - Ask your defense attorney to make a written request for this from the Assistant District Attorney on your case.
- You have a right to a hearing within 10 business days from when your car was taken by the police. You can get a "Notice of Right to Retention Hearing" from the police. This packet includes a form to request a hearing and information about the hearing process. If you do not receive it from the police after your arrest, ask your defense attorney for help getting it.
- Within two weeks of when the police receive your hearing request, they will send you a letter with the date and time of your hearing. All hearings take place at Office of Administrative Trial and Hearings (OATH), 40 Rector St., in Manhattan. http://www.nyc.gov/html/oath/
- If you choose to have a hearing, you can be represented by an attorney at this hearing, but unlike in criminal court you will not be assigned one automatically. If you don't have an attorney you can represent yourself, or a friend can help represent you.
- At the hearing, the police will have to show that the car was used to commit a crime. You can challenge their evidence and story and present your own evidence. You can testify and tell your side of the story, but anything you say in this hearing can be used against you in criminal court. So if you have an open criminal case you must talk to your defense attorney before testifying in an OATH hearing.
- If you own the car but were not arrested and did not know it was being used in a crime, you may use the "innocent owner" defense - someone else used the car and committed a crime without your knowledge.
- The OATH judge will issue a written decision a few days after the hearing. It will state whether the car will remain impounded or be returned to you, and explain the reasons. This only decides what happens to the car during the course of the criminal case.
- In DWI cases, the police will usually offer you what they call a "settlement agreement" instead of a hearing. This agreement settles the civil forfeiture case that the police must bring to keep your car permanently. Get advice from your criminal defense attorney about whether your best option is to request a hearing or accept the terms of the settlement.
- In this settlement, you agree:
- To complete a substance abuse program certified by the New York State Office of Alcoholism and Substance Abuse Services (OASAS). **There is usually a $1,000 fee for completing an OASAS program
- To pay a storage fee of $5/day (maximum $500) while you are completing the program and the car is being held.
- If all terms are met, you will receive a "release" and will be able to go to the Auto Pound and get your car. When you go, you will need to present:
- Document from the Police Vehicle Seizure Unit telling the Pound to return your car
- Valid ID
- Proof that you own the vehicle
- How to get to the Pound:
- Ask the Vehicle Seizure Unit whether your car is being held at College Point, or at the Erie Basin or Gowanus Pound. The College Point pound can be reached by taking the No. 7 train to Main Street, Flushing, and the Q25 bus to the pound. By car, take the Van Wyck Expressway (Whitestone Expressway) to the Linden Pl. exit. Take 31st Ave. to the end on Flushing Bay. You may need to drive if your car is at the other pounds. Bring booster cables if your car has been in the pound for a long time.
5. Additional Resources
- What to Do If the Police Take Your Car During An Arrest: A Guide to Krimstock Hearings in New York City
* This handout is an excerpt from The Consequences of Criminal Charges: A People's Guide, published by The Bronx Defenders. It is for informational purposes only and is NOT a substitute for legal advice. It is up to date as of October 2010.