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.