Retrieving Property after an Arrest

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 Why Is Property Confiscated During an Arrest?

When the police seize and confiscate a person’s property during arrest, it is generally pursuant to warrant requirements. However, there are several instances in which warrantless searches for property are justified. As such, it is helpful to first discuss searches made without a warrant before continuing to discuss property rights.

The Fourth Amendment protects American citizens from unreasonable law enforcement searches and seizures. It is intended to protect individual privacy interests, which is referred to as a person’s “reasonable expectation of privacy.” This limits when and how the police may conduct a search of a citizen’s home, papers, effects, or physical being.

It is important to note that the Fourth Amendment only protects citizens against “unreasonable” searches. As such, reasonable searches may override a person’s Fourth Amendment protections; meaning, if no reasonable expectation of privacy can be determined, the Fourth Amendment cannot protect them from a search being conducted.

There are a number of exceptions to the rule stating that police officers must obtain a warrant by proving probable cause in order to conduct a search. Some common examples include:

  • Frisk Search: Police are allowed to briefly frisk a person’s outer clothing for weapons. This is considered to be a safety measure, but does not allow the officer to simply frisk search everyone they come in contact with in the name of safety. When frisking a suspicious person’s outer clothing for weapons, the officer may feel other items that cause them to be suspicious. If the “plain feel” of these items makes it immediately obvious that the item may be illegal, they may confiscate them. However, the officer is required to use the least intrusive means available to seize those items, which generally limits the officer to reaching into the suspect’s pockets;
  • Consent Search: A consent search is when a person consents freely and voluntarily to have the officer conduct a search. Although the police have no legal obligation to inform the public that they may refuse to consent to a search, they may not coerce, trick, or intimidate someone into giving their consent;
  • Plain View Doctrine: If the police are lawfully in an area, they do not need a search warrant in order to search for and confiscate any evidence that may be in their plain view;
  • Search “Incident to Arrest:” Officers do not need a search warrant once a person has been arrested. State definitions of the area of immediate control may differ; in general, anything that is within the suspect’s physical reach is considered to be subject to confiscation;
  • Search of a Motor Vehicle “Incident to Arrest:” Officers do not need a warrant to search the glove compartment of a vehicle, and confiscate its contents, if the person they arrest was a recent occupant of said vehicle; and/or
  • Emergency Exceptions: Generally speaking, officers do not need a warrant to conduct a search when time restraints make it impractical.

To return to the topic of retrieving property after an arrest, some of the most common reasons that police may confiscate personal property include:

  • Evidence/Investigation purposes: Using property as confiscated evidence in a criminal trial is the foremost reason why property is confiscated. If the property will be used as evidence in a trial, it will generally be retained by authorities until the case is concluded. The property may sometimes be signed in and out of a log for use in the trial;
  • Contraband: Property that is considered to be illegal to own is referred to as contraband. Seized contraband is generally held as evidence, and then destroyed after its use in court;
  • Forfeiture: This refers to property that has been seized because it is the proceeds or an instrumentality in the commission of a crime. Common examples of such items include cash, weapons, and drug paraphernalia; and/or
  • Safekeeping: This would be property that the arrested person may have on their person at the time of arrest. If the item has nothing to do with the commission of the crime, it can generally be returned at the owner’s request as long as they display identification and an invoice receipt. Examples include jewelry and clothing that the person was wearing during the arrest.

To summarize, whether or not you can retrieve your property after an arrest largely depends on the purpose that the property will be used for. The more closely the property is related to the criminal offense, the more difficult it will be to obtain before the trial is over.

What Happens To Items Seized By Police? 

What happens to items seized by police is determined on a case by case basis. Generally speaking, when the police seize a person’s property, it is up to the property’s owner to prove that the property was “innocent.” What this means is that the property was not linked to any crime.

If the police seize property during an arrest, they are legally required to provide the property’s owner with a receipt. This receipt should note which items the police have in their custody. 
On a similar note, if the police seize the property during a search warrant, they must complete an itemization of the property they seized. This is referred to as a search warrant return, which must be filed with the clerk of court’s office within 5 days of the date in which the police executed the search warrant.  A copy of this return is available after the fact, either from the clerk’s office or in discovery, if criminal charges are issued.

How Do I Retrieve My Confiscated Property?

It is important to note that the laws governing the return of property seized by police may vary from state to state. As such, there may be different deadlines for when you may request for your property back.

Once an arrest has been made, confiscated property is generally taken to the police department where it will be filed and catalogued by a clerk. The clerk will then issue a “property voucher” to the owner. This acts as a receipt, and will allow the owner to retrieve their property if it is lawful to do so. Property vouchers will often state the reason as to why the property has been confiscated.

You will need to present the clerk with valid identification, as well as the corresponding property voucher, in order to retrieve your property. You might also be asked to provide additional information, such as:

  • Any identifying marks on the property, such as serial numbers;
  • The type, quantity, and value of the items; and
  • A description or a photograph of the item.

If the property is being held as evidence for investigation purposes, or is being held for safekeeping, you may need a letter from the District Attorney or an Investigative Officer in order to have the property released. The judge may allow you to retrieve your property if a substitute, such as a photograph or a copy of a document, can be used as evidence in place of the actual item.

Property that was confiscated because it was contraband may NOT be returned, unless the defendant can prove that they were in lawful possession of the contraband item. Doing so may require the skill and knowledge of an attorney. Finally, in order to retrieve property that is subject to a forfeiture action, you will generally be required to attend a formal hearing under oath regarding the property.

Whether there is such a thing as a court order to retrieve personal property, this would more so apply to retrieving property through a writ of possession. This has little to do with property that has been seized by police.

Do I Need a Lawyer When Getting My Property Back After an Arrest?

If police seized your property after an arrest, you should consult with an experienced and local criminal lawyer as soon as possible. An attorney can help you understand your rights and legal options according to your state’s laws regarding the matter. 

Your criminal attorney can guide you through the process of getting your property back, and will also be able to represent you in court, as needed.


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