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Second Circuit Discusses 26 Year History of Arrestee Property Right Violations

The plaintiff complained that he was deprived of his automobile and jewelry without due process because they were not returned to him after his arrest and he was not informed of the procedure to get them back. The arresting officer contacted the title holder of the automobile, who presented him with documentation that the plaintiff had defaulted on the payments, took the car (a Porsche), and immediately resold it to the arresting officer.

Previous litigation yielded an order that the police issue vouchers for seized property, owners request its return within 90 days of termination of the criminal proceeding or issuance by the DA of a release indicating it was not needed as evidence, and the City return the property or initiate judicial action over it within 10 days. The City has now failed for 26 years to amend the Administrative Code to conform, although they printed the proper procedures on the back of the voucher.

The plaintiff had an interest in the possession and use of the car, even though he didn't have title to it. The arresting officer's contacting the title holder was random and unauthorized. However, the actual release of the automobile was done in accordance with the City's published procedures, so the plaintiff is not relegated to post-deprivation remedies. The failure to provide notice before turning the property over to a lienholder denies due process.

The jewelry was retained by the police property clerk in the usual fashion. The Administrative Code still does not reflect the actual procedures in place, and it is "understandable" that a prisoner might argue that the City continues systematically to mislead arrestees about procedures for redeeming property. However, this plaintiff received a voucher. If the right procedures are on the back of the voucher, the plaintiff loses, but the back of the voucher is not in the record. The plaintiff failed to comply with the requirement that is in the City rules that he should make a claim within 90 days of getting a DA's release. However, the constitutionality of this procedure was not addressed below, and should be. See: Alexandre v. Cortes, 140 F.3d 406 (2d Cir. 1998).

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Related legal case

Alexandre v. Cortes