Do Police Officers Have to Return Property Obtained During the Course of a Criminal Proceeding?

September 10, 2022 Don Pumphrey, Jr. Criminal Defense Social Share

There are many reasons why police officers may confiscate, obtain, seize, or otherwise collect someone’s property during the course of a criminal investigation and proceeding. But, once the case is over, who gets to keep the property? Does law enforcement have a duty to return seized property?

In this blog post, we will cover all the necessary details regarding law enforcement’s ability to keep or return seized property after a criminal proceeding has concluded.

Means of Seizing Property

Property may be seized by law enforcement for a variety of reasons – evidence found during a search and seizure, illegal contraband confiscated, etc. Here are the various ways law enforcement may seize your property during the course of criminal proceedings:

Safekeeping

Sometimes law enforcement will take valuable items like jewelry, money, electronics, or other expensive items in order to safeguard them from criminal activity, like theft. The context this usually arises in is traffic stops, though it can result from any type of police search. On occasion, law enforcement will arrest a driver during a traffic stop and perform an inventory search of the car when the car requires towing from the scene. During the inventory search, law enforcement usually seizes valuable items so that they don’t get stolen or become lost. If the driver does not face any charges and law enforcement no longer requires the items, they are generally returned to the owner once the driver leaves the police station. The owner of the property usually just needs to provide their identification and an invoice receipt, which is given by law enforcement upon seizure of the items.

Contraband

Contraband is seized by police because it is illegal to possess. This usually includes things like illicit substances, drug paraphernalia, illegal firearms or weapons, or counterfeit currency. Typically, the seizure of such items will result in a possession charge of whatever type of contraband they take – drugs, weapons, firearms, money, etc. Unlike items taken for safekeeping, contraband is usually retained as evidence in criminal proceedings and destroyed at the conclusion of the proceedings.

Evidence

Evidence seized during a criminal investigation or proceeding can include virtually any type of item that has a link to the prosecution’s burden of proving the charges against the defendant. This property is usually held until the end of proceedings as the prosecutors will need it during the presentation of their evidence. Sometimes the defendant’s defense counsel can request reclamation of the property while the case is ongoing. This could be in the form of a motion for Return of Property, which would be filed by the defense attorney in order to get property in the custody of the local law enforcement agency back to the defendant.

Forfeiture

Property subject to forfeiture refers to property seized as the instrumentality of a crime, meaning it was used in some way to commit a criminal offense.

Examples of what this can encompass include:

• Money that was used to purchase illicit substances or to participate in illegal gambling
• Drug paraphernalia used to ingest or consume illicit substances
• Weapons used to commit criminal offenses
• Vehicles used to transport stolen property, illegal weapons, illicit substances, or used to commit any felony.
• Cell phones used to commit a felony, usually a sex offense.

If the property was, in fact, used to commit a crime, law enforcement generally may be able to keep, sell, or destroy the property upon a sufficient showing in court.

Florida’s Statute

The return of property seized by law enforcement as evidence is codified in Florida Statute Section 705.105 “Procedure regarding unclaimed evidence.” The statute states: “[t]itle to unclaimed evidence or unclaimed tangible personal property lawfully seized pursuant to a lawful investigation in the custody of the court or clerk of the court from a criminal proceeding or seized as evidence by and in the custody of a law enforcement agency shall vest permanently in the law enforcement agency 60 days after the conclusion of the proceeding.”

That means that those who have had property seized by a law enforcement agency have up to sixty (60) days to retrieve their property before the property legally becomes the agency’s once their case is over.

The statute also provides for disposition methods when property of “appreciable value” is collected by the agency. The agency can do any of the following after the expiration of the 60 days:

• Keep the property for the agency’s own use;
• Transfer the property to another unit of state or local government;
• Donate the property to a charitable organization;
• Sell the property at public sale

In the event the property is not of “appreciable value”, the law enforcement agency can destroy it after the expiration of the 60 days.

Under Florida Statute 933.14, any person who seeks the return of their property seized by law enforcement where either (1) no arrest was made and no case was filed, or (2) where the items seized are not the same as those which the warrant had been issued for, can petition the court to have their property returned to them. While this statute does not allow the return of illegally seized items (as explained above, they are considered contraband and are dealt with differently), property like liquor and firearms can be returned under specific circumstances.

The statute provides that no firearm shall be returned except with an order from a trial court judge. To get an order from a judge, the person must file a petition for the Return of the Firearm(s) with the court that includes the type of firearm, and ammunition, as well as serve it to the corresponding law enforcement agency.

If the person is trying to recover any liquor taken, they must prove that the alcoholic beverage was taken from a home. This is because the statute specifically states that no alcohol shall be returned, other than those that are seized from a private dwelling house. Even if the liquor is taken from a house, the petitioner still bears the burden of proof and must attest and show evidence that the liquor was being “held, used or possessed in a lawful manner, and in a lawful place, or by a permit from the proper federal or state authority.”

Where to go to get back your property in Tallahassee

 If you find yourself in a position where the police improperly took some of your property or the items they took were based on a warrant but your case is now over, the Tallahassee Police Department’s Evidence Section is the place responsible for maintaining and storing the evidence in your case.

You can contact their offices at (850) 891-4317 Monday through Friday between 7:00 am and 4:00 pm. Their address is 243 East Seventh Avenue, Tallahassee, FL 32303.

If you are interested in any unclaimed property, the City of Tallahassee does auction any unclaimed items after 60 days. Proceeds from these auctions are then turned over to the City of Tallahassee General Fund.

Real Life Example

In 2021, an issue arose in Leon County when the Florida Department of Law Enforcement (FDLE) seized ex-state Department of Health analyst Rebekah Jones’ computer equipment after a search was conducted at her home. Jones’ attorney moved to force FDLE to return the property as there was another ongoing lawsuit that the search and seizure unlawfully violated Jones’ First Amendment and due process rights. Her attorney argued that “[t]he property at issue [was] plaintiff’s personal property, including audio-visual media protected by the First Amendment and plaintiff’s attorney/client privileged communications … [and] [t]he property [was] not the fruit of any possible criminal activity. It [was] not being held as evidence of any crime. This is so because the crime alleged [was] not a crime at all and there [was] no probable cause linking plaintiff to the alleged activity.”

During the hearing on the issue, Leon County Circuit Judge John Cooper stated, “I’m not granting relief and I’m not denying relief either,” claiming that he needed more information before he could make a decision. Essentially, the judge was not willing to force law enforcement to return Jones’ property until he found out whether Florida planned to file criminal charges against her.

Finding a Defense Attorney in Tallahassee, Florida

If you or a loved one have had property seized by police during the course of a criminal proceeding it is imperative that you reach out to a skilled criminal defense attorney in your area to help fight the charges against you and get your property back. Don Pumphrey and his team at Pumphrey Law Firm have represented clients all across the state of Florida and promise to work tirelessly to ensure your freedom. For a free consultation call (850) 681-7777 or leave an online message on our website.

Written by Gabi D’Esposito

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