Getting Property Back After an Arrest
1. What are the reasons the police might take my property after an arrest?
- When you are arrested, the police may take your property (such as your money, belongings, or car). You should receive a property invoice (called a "voucher") with a list of all the property that has been taken from you.
- There are five reasons the police may take your property. The reason your property was taken will be listed in the upper right hand corner of your voucher:
- Safekeeping: your property can be taken because it is valuable; for example, they might take your money, a car, cell phone, jewelry, or clothing.
- Forfeiture: police believe that it was used or obtained in the course of criminal activity.
- Arrest evidence: police believe it is evidence that is related to an ongoing case.
- Contraband: any property that it is illegal to possess.
- Investigatory evidence: police believe they will need it to investigate other criminal activities.
- You have a right to receive a voucher when you are arrested. You will need this voucher to get your property back.
- 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)
2. 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 should list every item that was taken from you.
- Present the voucher and two forms of ID 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 set or you could not pay it), you may apply for the return of your property by mail while you are in jail.
- Property will be held for 120 days from the date of the voucher. If it is not retrieved after 120 days have passed, you will lose your right to get it back.
3. What if I don't have a voucher?
- If you did not get a voucher when you were arrested (if, for example, you were transferred to central booking before it was prepared,) you can obtain one in person at the precinct you were taken to when you were arrested.
- Be prepared with the following information (your defense attorney will have it if you do not):
1. Arrest date
2. Arrest number
3. Name of arresting officer
- If the voucher is not ready, ask the property officer for the number assigned to it.
- If the voucher is missing items that you know were taken, do not sign it. 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.
4. What can I do if I don't have two forms of ID?
- You can write a notarized letter authorizing another person (friend, family member, etc.) who DOES have 2 forms of ID to pick up your property on your behalf. They must bring the property voucher, a notarized letter authorizing them to pick up the property, and two forms of photo identification. Many banks and post offices provide notary services.
5. Can I pick up property for a friend or family member?
- Yes, you may pick up property held for safekeeping while your friend or relative is being held on pending charges.
- Follow the process in #4. You will need to bring 2 forms of ID, the property voucher, and a notarized letter authorizing you to pick up their property. You can ask your friend or family member's criminal defense attorney to notarize your document.
6. What is "forfeiture"? How can I get my car or money back if there is a forfeiture hold?
- The police can hold property for forfeiture if they believe it is either the instrumentality or proceeds of a crime.
- This is called a "forfeiture hold" and may lead to a forfeiture case about your car, money, or other property. If you are arrested for Driving While Intoxicated ("DWI"), the Police Department will take and hold your car. This case is separate from your criminal case, but statements that you make during your forfeiture cases may be entered into evidence in your criminal case, so be careful.
- Other charges that can lead to a "forfeiture hold" include:
- Driving without a license
- Using a car 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 - You should receive a voucher when you are arrested. If you do not, obtain it from the Property Officer at the precinct where you were arrested. See question #2 above for details.
- 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. You have a right to receive this when you are arrested. 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, or contact the NYPD Legal Bureau at 917-454-1111.
- Within ten days 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 the 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 you will not be assigned one automatically. If you do not 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.
- The "innocent owner" defense: 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. This means that 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 will explain the reasons for the decision. This only decides what happens to the car during the course of the potential forfeiture case.
Should I request a hearing or accept a settlement agreement?
- In a typical case, the police will offer you what they call a "settlement agreement" instead of a hearing. This agreement settles the civil forfeiture case, which is the 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 a DWI settlement, you typically agree:
- To pay a settlement fee, usually between $250 and $1000
- To complete a substance abuse program certified by the New York State Office of Alcoholism and Substance Abuse Services (OASAS). **There is usually a fee for completing an OASAS program. The fee will be determined based on the type of insurance you have.**
- You may also need to pay a storage fee, so retrieve your car as soon as possible.
- Note: For the OASAS program, you must complete the entire period of treatment before the car will be returned. The length of treatment varies, but the average is about 12 weeks, and it is not usually longer than 26 weeks (though it depends on the circumstances).
- 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 where your car is being held.
- Before you go, call the Auto Pound to make sure your car will be available and to confirm which documents they will require.
- It's best if the owner of the car appears in person at the Auto Pound to retrieve the car.
- If that is not possible, the owner may have an authorized representative claim the vehicle. This representative must have a notarized letter from the owner, and this letter must identify the person that the owner has chosen as his/her representative.
- Bring booster cables if your car has been in the pound for a long time.
If you are told that your property is being held for forfeiture, you can also make a Formal Demand to force the NYPD to start a forfeiture case.
- A formal demand for everything but a car is made with the Property Clerk of the NYPD located in the basement of the Bronx Criminal Court, located at 215 East 161st Street, Bronx, NY between Sherman & Sheridan Avenue. To file a formal demand for property you must have:
- District Attorneys' Release; and
- Personal Identification
- You should fill out an Acknowledgment of Demand Form and get a copy. Once this is completed, the NYPD has 25 Days to respond by either returning the property or initiating a forfeiture case.
- A formal demand for a vehicle is made at the NYPD Legal Bureau, 2 Lafayette Street, New York, NY. To file a formal demand for a vehicle you must show:
- DA's Release;
- Certificate of Title;
- Registration; and
- Personal Identification.
7. 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 November 2013.