When people are arrested, they often turn their personal property over to the police as part of the arrest process. Since they will soon be taken to a police station or courthouse, the removal of their personal property, if temporary, seems reasonable, and not necessarily mysterious.
The mystery arises in what the NYPD is doing with the ownership it takes from people. Until recent years, the police disposition of seized property was viewed as a black hole, at least outside the NYPD. In 2017, city council passed a disclosure law requiring the NYPD to keep detailed figures on the types of property it seized during the arrest process.
The law is §14-169 of the Administrative Code. NYPD is now releasing statistics that show the varieties of goods taken from people, and the amounts, by borough and in total.
But annual statistical disclosures only inspire more questions than answers. The seizure of the money of those arrested in 2020 provides several examples.
The NYPD reveals that it had a total of about $ 6.7 million in foreign currency seized for “safekeeping.” But the figure for “returned” change is only $ 4.6 million. This is a difference of approximately $ 2.1 million. Keep in mind that this seized money was held by the NYPD strictly for “safekeeping” purposes.
A similar pattern appears in cash detained as “proof of arrest”, which, unlike “safekeeping”, is likely to have some relevance to criminal prosecutions arising from arrest. The total of the money taken as “proof of arrest” is approximately $ 1.5 million; only $ 151,591 returned. So the NYPD ended up with about $ 1.4 million, or about 90% of the money taken from those arrested, as “proof of arrest.” Keep in mind that seized money, as retention is necessary to prove a crime, can be photographed and returned to its owner. Why is this money hidden from its owner?
This question can also arise for the so-called “investigative” currency. “Investigative” property is a cryptic category used by the NYPD to refer to seized property held for a certain purpose, but apparently not criminal prosecution, for which such seized property would be “evidence of arrest.” As in this category, the NYPD ends up keeping most of the species seized to itself under the designation of “investigation”.
Finally, there is a category of seized property that the NYPD itself calls “forfeiture” money. This presumably refers to the concept of “forfeiture”, which is a legal process that can be argued to formally confiscate the proceeds of a crime. Formal forfeiture would require the NYPD to obtain a legal judgment from a judge under Section 14-140 of the Administrative Code.
A seizing officer writing “forfeiture” on a voucher is not proof that this legal process has actually been completed. NYPD’s statistical disclosures provide no explanation.
The diversion of revenues from the “settlement” to the NYPD
With this in mind, it should be noted that the Administrative Code requires in § 14-140 that any proceeds obtained by NYPD from this section be paid into the General Fund of the City of New York. See §14-140 (6). Apparently, the NYPD custom of arranging a “settlement” to facilitate the return of seized property to the claimant escapes the requirement that the proceeds be returned to the general fund. The NYPD says it isn’t even required to disclose the money it gets from “settlements.”
And in the context of seized cars, NYPD attorneys often seek a “settlement” from the plaintiff. In cases where the basis for the forfeiture is that the driver had drugs in the car, they will often request a NYPD payment of $ 3,000 or more to effect the return of the vehicle. The settlement money paid goes to the NYPD, not the general fund.
Besides the “settlement,” which is a “voluntary” transfer of money to the NYPD, the reason why so much money otherwise ends up “unclaimed” by its owners may be due to the procedural hurdles erected by the NYPD. NYPD Property Clerk facing people. seeking to recover their seized property. See Thomas M. O’Brien, “Police Self-Funding: Money Seized Upon Arrest,” NYLJ (May 28, 2021).
The mystery of the property kept by NYPD
The flaw in the reliance on disclosure is that no part of it reveals what the NYPD actually does with the property it takes from people. We now know how much it takes from people in the respective boroughs, be it coins, cars or other goods. And we can see the purported value of, say, the money seized and the categories that the NYPD uses to characterize the different species. (He called for the seizure of ‘confiscation [sic] currency ”in the amount of $ 7.6 million in 2020; $ 1.3 million has been “returned.”) A recent report from the New York City Comptroller’s Office casts considerable doubt on the reliability and probity of the NYPD’s disclosures of seized property. The audit concluded: “The NYPD does not have adequate controls over the collection, recording and reporting of seized property and related income.”
But no matter how precise and reliable the numbers are, they hide a mystery in their entirety. The NYPD ends up keeping a substantial portion of the money seized from those arrested for itself and is apparently never “returned” to them. The same is true of money obtained as part of a “settlement” paid by someone to recover their property. What is this public agency actually doing with the money, valued in millions each year, that it takes from presumed innocent people when it arrests them, or induces a “settlement” that involves giving money to the NYPD?
Thomas M. O’Brien is a lawyer in the Special Litigation Unit of the Criminal Practice of The Legal Aid Society.