Aug 22

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

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.

H/t reader kevin a.

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