Cops Have to Pay for Losing Your Stuff

Posted January 14, 2013 in Crime Your Personal Rights by

Cell phone on a background of $100


There’s no upside to having your property confiscated by the police, but you should at least be able to trust them to keep track of your belongings. And thanks to a recent decision from the 8th U.S. Circuit Court of Appeals, if the cops lose your stuff, you’re allowed to file a claim for the fair market value of the items.

The appeals court decision is a victory for Robert Lee Bailey, who has been to court numerous times in pursuit of a wallet, cell phone and wad of cash that were confiscated by Minneapolis police nearly a decade ago.

Minneapolis cops seized the items when they arrested Bailey on prostitution charges in 2003. The next year, Bailey was convicted in federal court on two counts of transporting a person across state lines for prostitution and one count of possessing a firearm as a felon. After he lost his appeal, he filed a motion to have his wallet, cash and phone returned under Rule 41 of the Federal Rules of Criminal Procedure.

Under Rule 41, a person “aggrieved by an unlawful search and seizure” or “deprivation of property” has the right to ask for the property to be returned, and the court is required to “receive evidence on any factual issue necessary to decide the motion.”


No, No, No

Bailey’s evidentiary hearing wouldn’t come quickly. The district court denied his first motion, arguing that he hadn’t exhausted his post-conviction remedies. So after all of his claims for relief were finally denied, he filed the motion again. And again the district court denied it, this time citing a statement from federal authorities that the property had already been returned to the Minneapolis police.

Matthew G. Kaiser

Bailey appealed, and the appeals court decided that the district court should have ordered a hearing to track down the property’s whereabouts. When that hearing finally took place, no one could account for Bailey’s property; staff from the U.S. Attorney’s office said they handed everything over to Minneapolis detective Andrew Schmidt, and Schmidt said he couldn’t remember ever picking it up. The Minneapolis police conducted a search of their evidence locker and Bailey’s stuff didn’t turn up.

At the end of the hearing, federal attorneys moved to dismiss the motion, saying they couldn’t return what they didn’t have. Bailey’s attorney asked the court to convert the motion into a civil damages claim against the government, but the court dismissed the motion yet again, finding that it had “completed [its] assigned responsibility by the remand” from the appeals court, in essence washing its hands of the matter.

“One has the sense that the district court was not enthusiastic about this case,” wrote Washington D.C. attorney Matthew G. Kaiser in a blog post about the decision.


Just One More Appeal

Keeping this courtroom volley in play, Bailey appealed again, and again the 8th Circuit reversed the district court. This time, it cited a 2001 case in which the federal government accidentally threw away a defendant’s pickup truck and waterbed, and the defendant was granted a claim for the fair market value of the items. It found that the district court abused its discretion in denying Bailey’s request to convert the motion to a damages claim. The court’s decision means that Bailey can bring a civil suit against the government for repayment of the $2000 he had on him when he was arrested, as well as the current market value of his other property. It’s doubtful that his now 10-year-old cell phone will garner much in the way of reparations.

Though the question of where Bailey’s belongings went may never be answered, his case may help make sure that a defendant’s property can’t simply fall between the cracks of the criminal justice system.

“It’ll encourage police to keep better track of criminal property while it’s in police custody and prevent loss and theft, which maintains the integrity of the system,” said New York City attorney Allison Hobbs.

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