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Evidentiary Seizures Let Police Take Your Smartphone. They Don’t Have to Give It Back.

5 March 2021


An attorney recounts how her client, the victim of a shooting, had his smartphone taken while he was unconscious in the hospital. An activist describes how his smartphone “vanished” during the Occupy Wall Street protests. The perpetrator in these cases? The New York City Police Department. The NYPD seized 55,511 cellphones last year, according to a disclosure report released yesterday. Most likely due to the pandemic, this number is actually markedly lower than the roughly 92,000 phones they seized in 2019. But another apparent consequence of the COVID era is that far fewer people jumped through the regulatory hoops necessary to get their phones back, meaning police kept nearly 40 percent of the phones taken in 2020. What’s going on? Well, many police can legally take your personal belongings during the course of an interaction, and they don’t have to return them. I don’t mean “police can take your belongings if you are charged with a crime .” In New York, 85 percent of seizures aren’t related to any criminal charge at all. The NYPD is required to cite one of five justifications for taking your property, and, predictably, civil forfeiture and contraband are among the most common. But New York police also have the authority to take property under the pretense of seizing evidence pursuant to an investigation or arrest, and that property stays in the city’s possession even if no charges are ever brought. This is the pretext the NYPD has used to take phones from shooting victims, activists, and thousands of others within their jurisdiction. Of course, this practice isn’t just limited to New York. For example, during the height of the Black Lives Matter movement last year, police in Richmond, VA conducted targeted seizures of smartphones from activists. But what makes New York’s system so interesting is that, following a class action lawsuit from the Bronx Defenders settled in 2018, we now know more about how the NYPD’s convoluted process of property seizures works—and how, ostensibly, people are supposed to get their property returned. While the settlement agreement didn’t end the NYPD’s practice of seizing smartphones, it did curb a few of its worst excesses. For instance, the city previously required claimants to present two forms of ID in order to get their property back—even if police had seized the owner’s driver’s license. The settlement agreement puts strict limitations on seizure of driver’s licenses and cuts the ID requirement down to one. Despite these changes, the process to get your property back once it’s been seized as evidence is still maddeningly difficult. First, you’ll need to hang on to the property voucher the NYPD is now required to provide you when they take your property. Then you’ll need to obtain a letter from the District Attorney authorizing the release of your items. And getting this letter isn’t easy: you’ll have to fill out a form from the DA’s office, which then has 15 days to respond. It’s only at this point that the DA has to identify some corresponding investigation or criminal proceeding in order to continue holding your property – but this still doesn’t require an actual charge. If the DA says no, you can request a review of the decision from another DA, or try again later. But if the DA says yes, then you can reclaim your property by presenting your voucher, the release form, and a valid ID to the NYPD property clerk. The ease with which police can take your smartphone and the difficulties imposed to get it back are emblematic of why people are so mad at police: it’s one more way in which the state can inflict disproportionate harm on citizens while making a mockery of due process. As political philosophers from Locke to Rawls have recognized, citizens of a free society don’t willingly submit themselves to institutions that are inherently unfair and unjust. Allowing police to take people’s personal property subject only to the barest of restrictions undermines faith in a central pillar of government at a time when it’s already in decline. Contrast our system to Germany’s, where evidentiary seizures are governed by the “principle of proportionality.” The more serious the offense, the more leverage German police have to seize a person’s property. But such seizures always require weighing the worth of property as evidence against its worth to the owner. Some items, like medical records or family correspondence, can almost never be seized. Germany also has a streamlined process for returning seized property. Unless the item in question was used to commit the crime itself, it’s the responsibility of the public prosecutor’s office to ensure its return to the last person in custody at the end of the relevant criminal proceedings. Yet appallingly, the 21,660 unclaimed phones that New York City took from citizens last year will wind up being auctioned. It’s not like the NYPD needs that money: those proceeds wouldn’t even put a dent in the 10.9 billion dollars the city spent that year to fund their police force. But police require little motivation to take smartphones when there’s little consequence for doing so, and the rampant seizures appear to be yet another symptom of America’s near‐​zero‐​accountability policy for law enforcement. In Germany, the state bears the burden of ensuring seized items are returned undamaged. But New York places the responsibility for property returns on the person whose items were taken, and of course, any lawsuit against individual officers for unlawfully seized property faces the high hurdle of qualified immunity. If we are going to allow police to seize personal property at all, we should insist that the government be fully responsible for its safekeeping and return. Taking someone’s property without the intent to return it is usually called theft—isn’t that what we pay police to prevent? Lachlan Mersky contributed to the development of this article. Lachlan is a student at the University of Pennsylvania, where he is President of Penn for Liberty. He is currently interning with the Cato Institute’s Project on Criminal Justice.