Getting arrested for any reason is a stressful situation. Not only is your freedom restricted, but your property is taken from you as well. Reclaiming your property from police after being arrested may also lead to some complications. Police may believe the property they seized from you is contraband or essential evidence in a case against you or someone else. If you have been arrested and you believe your property was unlawfully seized by the Salt Lake City Police Department, keep reading to learn more about how to get your property returned to you with the help of Salt Lake City illegal search and seizure lawyer Darwin Overson of Overson Law.
What Property Can Utah Police Keep?
When you are arrested, police may search your person and the immediate area around you to look for dangerous weapons or any other contraband you may have. If you are arrested while driving, the police may also be permitted to search certain areas of your vehicle in addition to your person. In the state of Utah, contraband is considered to be any property, item, or substance that is unlawful to produce or own under state or federal law. Property which may be deemed as contraband includes:
- Concealable switchblade knives;
- Unlicensed firearms or illegal firearms;
- Illegal drugs or drugs which are not prescribed to you;
- Drug paraphernalia designed to make or use drugs;
- Counterfeit currency;
- Other kinds of illegal property.
When police seize contraband from a suspect, it is likely destroyed or kept indefinitely by police. Items that are contraband will not be returned to you. While not exactly contraband, items like alcoholic beverages, ammunition, flammable items, and other consumable items will not be returned to you.
Police may also seize property that is not illegal contraband, but may be treated as evidence nonetheless. For example, blood-stained clothes can be seized as part of a homicide investigation. The police could take tools like crowbars or screwdrivers if you used them to break into someone’s home. Any perfectly legal item that the police believe was used in the commission of a crime could be seized as evidence. The police can even seize your vehicle if it was used as a getaway car or was otherwise involved in the crime. This is the kind of property you should push to have returned to you.
What Happens When Police in Utah Book Me and Seize My Property?
Once you are arrested and taken into custody, an inventory of your items is completed. Items which are typically taken for inventory include things like money, jewelry, wallets/purses, cellphones, and other similar items. These items can be searched and taken without a warrant under the theory that a list of your items is required to ensure that they get all of your stuff back to you. This also ensures officer safety by making sure your bag doesn’t have a bomb in it or anything to that effect. Anything seized this way could legally be used as evidence against you.
If you are charged with certain offenses in Utah, any property considered evidence may be retained by police indefinitely, these offenses include:
- Aggravated assault
- Criminal homicide offenses
- Aggravated kidnapping/kidnapping
- Rape/rape of a child
- Forcible sexual abuse
- Aggravated sexual assault
- Aggravated burglary/burglary
- Aggravated robbery/robbery
Can the Police Seize My Property in Civil Court in Utah?
In certain cases, the police may believe that a piece of property they find was used in a crime or was the result/proceeds of a crime you were arrested for. In these situations, the prosecutor in your case may choose to file a civil suit against you to force you to forfeit the property to the government. This “civil forfeiture” is a complex process, but to keep it short, a prosecutor needs to show that:
- The defendant has engaged in conduct giving rise to forfeiture;
- The property was acquired by the defendant in the commission of an act that gives rise to forfeiture;
- There is no likely source for the purchase or acquisition of the property besides the commission of the act that gave rise to forfeiture.
Property that can be seized in civil forfeiture actions include:
- Cellphones and smartphones used to facilitate the sale of illegal drugs
- Computer equipment used to commit cyber crimes
- Real estate
Utah’s civil forfeiture law allows police to permanently seize property on mere allegations of criminal activity – they don’t even need to file any charges or convict anyone of a crime. These laws disproportionately affect members of the population who generally avoid mainstream banking. Utah police typically seize the following kinds of property:
- Cash (86.4% of all property seizures)
- Property related to a drug offense (97.5% of all forfeitures)
- Property taken during enforcement stops (only one-third of enforcement stops result in an arrest)
Are the Utah Police Required to Return My Property?
The police are not always required to return your property. The police will likely not return your property unless you file a petition with the court to make them do so. This makes getting your property returned to you a long and tiresome process because you may need to get a court order to get your property back. As mentioned above, there are many instances in which the police will never return your property under any circumstances.
If your property was illegal contraband to begin with, like drugs or illegal firearms, the police will not return it. If it was illegal for you to possess it in the first place, the police will certainly not give it back. If your property was not illegal contraband, the police might return it, but then again, they might not. It depends on the needs of the criminal case your property is involved in. Property will be held for as long as the case or an appeal is pending. In cases involving multiple defendants, your property could be held by the police until all the defendants have been put on trial.
The police are not required to return your property automatically. If you believe the government no longer has a need for your property, it is up to you and your attorney to file a petition to get it back. Even then, the court might deny your petition.
Release of Property Seized by the Police in Utah
Property which is not considered evidence is usually returned after an individual is released from custody and can prove ownership of the property. Property considered evidence is only released in the following instances:
- In compliance with a court order.
- Property not accepted into court at the time of trial can be released when no further prosecution will be sought. This requires a letter from the prosecutor authorizing the release.
- After the final disposition of a case (e.g. dismissal, acquittal, refusal to prosecute). This also requires letter from the prosecutor.
The release of your property will not be automatic. You will very likely have to speak with the court and prosecutors about your property before it is returned. Both the court and the prosecutor may want to hold on to your property, if it is considered evidence, should there ever be a future need for it. If a convicted defendant appeals his case and is granted a retrial, your property will be needed again.
If your property has been taken by Utah police and you wish to have it back, you should consult with an experienced Salt Lake City criminal defense attorney.
How Long Does It Take to Get My Property Back From the Utah Police?
Property is not returned automatically by the police. If your property was seized as evidence, the police have a good reason for holding on to it indefinitely. As such, they are reluctant to return any property they have seized. Property is often returned only after a court orders it so or the prosecutor authorizes it.
Unfortunately, it often takes a while to get your property returned to you. Property can be tied up in police custody for as long as prosecutors believe there may be a question of the court’s judgment. Property can be held until appeals are exhausted and the court’s final judgment is no longer subject to scrutiny. The appeals process can sometimes take years, which means it could be just as long before your property is returned. Prosecutors, much like the police, are not eager to give up property that is important evidence in a criminal case.
A court order to return your property is issued after you petition the court for your property. You must first file the petition with the appropriate court, which is the court where the criminal proceedings involving your property are held. You will also have to serve a copy of your petition on the prosecutor who handled the case. Once your petition is filed and the necessary parties have all been notified, there must be a hearing. Only after completion of the hearing can the judge decide whether or not to return your property. There are numerous steps to take before property can be returned, so be prepared to wait.
What Happens to My Property if It’s Not Returned by the Utah Police?
A court can order property be disposed of in a number of ways. Hopefully, the court will order the property returned to its rightful owner. Unfortunately, this is not always the case. In some cases, the court will order the property be sold and the proceeds used toward restitution for the victim or the payment of fines and fees. This is similar to how impounded vehicles are sometimes auctioned off by the police.
The court could also decide to use the property for a public interest purpose. For example, your property could be sold at a public auction, and the proceeds used for public benefit. Such an auction might help fund a particular state program or charity.
The court can also decide to hold the evidence for future legal action. The evidence may be needed for an appellate proceeding if the evidence is challenged. Additionally, the police or prosecutors might suspect that the evidence is connected to other crimes that have yet to be prosecuted.
What If My Property Was Seized as part of Someone Else’s Crime in Utah?
It is possible that your property could be seized as part of a crime that you had nothing to do with. For example, if your friend asks to borrow your car but then uses that car as a getaway vehicle in a bank robbery without your knowledge, your property could be seized. Under Utah law, the property of an “innocent owner” is not subject to forfeiture. However, that does not mean the property will not be seized as evidence of a crime. If you are an innocent owner, you have a better chance of getting your property returned to you.
Salt Lake City, Utah Criminal Defense Attorney Offering Free Consultations
If you or a loved one has been arrested and had property seized by police, speak with a Utah criminal defense lawyer about your case immediately. The attorneys at Overson Law will fight tirelessly for your property rights. To schedule your free consultation, call our law offices today at (801) 758-2287.