TESTIMONY OF:

Maryanne Kaishian

Senior Policy Counsel

BROOKLYN DEFENDER SERVICES

Presented before the New York City Council

Committee on Public Safety

Oversight Hearing on Property Seizure and Arrest Evidence

My name is Maryanne Kaishian and I am Senior Policy Counsel with the Criminal Defense Practice at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and people-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy to nearly 30,000 people and their families in Brooklyn every year. Many of the people that we serve live in policed and surveilled communities and are regularly subjected to abusive behavior on the part of the New York Police Department (NYPD), including the wrongful seizure of their personal belongings and unreasonable, arbitrary obstacles laid out by the police to prevent their return. I want to thank the Committee on Public Safety, particularly Chair Adrienne Adams, for holding an important discussion on the NYPD’s practices around property seizure and arrest evidence.

In my time at BDS, I have primarily represented young people who are charged with crimes, ranging from misdemeanors to serious felonies. The young people I serve are mostly Black and brown New Yorkers who have had varying levels of contact with the NYPD. Many people are victimized by racist and classist police practices such as constant police presence in their neighborhoods, surveillance, pretextual car stops, and routine stop-and-frisks. An often-overlooked element of these police interactions is the common NYPD practice of seizing property, particularly cell phones, from New Yorkers, oftentimes repeatedly and without legal authorization.

These seizures occur whether or not the owner is ultimately prosecuted for, or even accused of, criminal conduct. We know that phones and other items are routinely taken from victims and witnesses, as well as from people whose arrests were deemed faulty by prosecutors. Property is taken when it has no connection to alleged criminal conduct, and it is kept and sometimes sold by the police after they have stonewalled the rightful owner attempting to secure its return. Furthermore, we have every reason to believe, given the NYPD’s data capabilities and testimony from cell phone and laptop owners about the state of their items after police seizure, that the NYPD is using its unchecked power to seize property as a warrantless, and illegal, intelligence-gathering tool.

We urge the City Council to pursue responses to this harm that do not simply create new rules for the NYPD to decline to follow. As in so many areas of police practice, rules and legal constraints exist1—they are simply disregarded. This is an issue of unchecked police power, unaccountability, and a persistent disregard for rules intended to safeguard the civil rights of people who encounter the police.

Hundreds of thousands of New Yorkers are impacted by property seizure every year, with police depriving nearly half of them of their personal property permanently.

Police disproportionately target Black, Latinx, and low-income people for stops, searches, and arrests.2 The people who are most likely to encounter the police, and thus the most likely to have their property seized, are also the most likely to be subjected to police violence3—making it risky for them to intentionally engage with police, as would be required to retrieve their property—and the least likely to be able to afford legal assistance or replacements for expensive items such as cellphones. The NYPD practice of property seizure compounds the racial and economic inequities inherent to policing in our City and throughout the nation.

Earlier this year, the NYPD released official data on citywide property seizures from 2020 as mandated by Administrative Code 14-169.4 The data, while striking, marked a continuation of trends from prior years for which there is available data. While fewer total items were taken, about the same percentage was returned. For example, in 2020, the NYPD took 55,511 phones and returned only 33,851. They took 99,986 items of clothing and returned less than half. They took 38,602 forms of identification, and about one third were returned. More than 300 vehicles taken for “safekeeping,” having no evidentiary value, were never returned. Roughly $81 million in cash was forfeited through the offices of the city’s five District Attorneys.5 More cash was taken and never returned to the owners. The NYPD netted $425,967.50 in the sale of items other than vehicles on the police auction website Propertyroom.com, the proceeds of which went to the NYPD pension fund.6 Many more items, in our experience, were taken and simply never catalogued.

While this data is staggering in the cumulative, it is important to remember that behind each data point is the story of an individual who has been deprived of their personal effects by the police. It has always been true that police seizure of personal property such as cars and phones is disruptive and potentially devastating to work, school, childcare, financial stability, and other daily considerations for the deprived person. But in the time of COVID-19, these seizures can be even more impactful. There are the added obstacles and dangers of traveling in person to retrieve property from precincts and NYPD property clerks where, in my experience and that of others, few employees elect to wear masks or socially distance. Cellphones are lifelines more than ever before, as people have no contact with their loved ones apart from FaceTime calls and texts. Many schools and jobs are entirely remote. People have avoided mass transit for health reasons only to have their cars wrongly seized. They have been struggling under an economy where many people have lost their jobs and the City has slashed funding for community initiatives only to have valuable and essential items taken and not returned. In short, police have the same unmitigated power as always, but an even greater likelihood of causing significant harm.

The “process” for property retrieval is unreasonable, arbitrary, and unpredictable.

As defense attorneys, we can attest that we—trained advocates and lawyers—find the NYPD’s property return “process” taxing, time-consuming, frustrating, and ad hoc. Even more dauntingly, this issue affects people who are left to navigate this system without legal counsel. Victims and witnesses of crimes, specifically shootings, have their phones seized by police but are not provided with legal assistance to fight for their return. In an exercise of pure legal fiction, people whose cases district attorneys decline to prosecute—meaning these individuals are never arraigned and thus never connected to a defense attorney, and their cases are never docketed and thus never assigned to a prosecutor—are still required by the NYPD, impossibly, to provide a docket number and receive a release from the prosecutor on their non-existent cases. People who are detained, searched, and released similarly cannot provide required documentation for their belongings. Those who can, usually at the conclusion of their case, are often no better off.

The NYPD also requires that a person come to collect their belongings themselves and will not release property to legal counsel, inviting confrontations with officers who wrongly insist that the items cannot be returned. People who have histories of police-related trauma, including the instances where their property was seized without cause, are required to advocate for themselves with members of the NYPD who create arbitrary, inconsistent, and sometimes impossible requirements for property to be returned.

While much of the NYPD practice related to property seizure is targeted and intentional, people attempting to retrieve their belongings are also subjected to incompetence and capriciousness—sometimes being sent on wild goose chases to various NYPD property clerks before being informed that their property is gone without a trace. Many people are forced to abandon their property after multiple visits, having been sent on a stressful and fruitless quest that proves disruptive to work, childcare, school, and other considerations. As we can attest, the NYPD is not particularly good at keeping track of cash, valuables, and other items that come into their possession. People arrested wearing gold chains or jewelery will be told that their items were never vouchered, and they are never seen again. People whose phones were documented as being seized by police will be told that they are no longer in NYPD possession, with no information as to the items’ whereabouts. Their only recourse is to file suit in small claims court, a time-consuming process where no legal counsel is afforded and where, as in criminal proceedings, the NYPD with its vast resources enjoys a significant advantage.

We have countless stories about the harms of illegitimate and unreasonable property seizures through the course of our representation of people in Brooklyn. For example, I represented a young person who witnessed a police assault. When he attempted to record the assault, his phone was taken “as evidence.” I represented other young people whose arrests were baseless and not pursued by prosecutors, but whose phones were taken during those encounters for “investigatory purposes” in unrelated cases—a workaround to the warrant requirement. I represented another young person whose cell phone was taken as the result of a case that the District Attorney declined to prosecute. He was unable to retrieve the phone, and I was also given the runaround. The NYPD demanded a docket number, proof of the disposition of a case that never existed, a voucher number that had never been provided, approval from a prosecutor that was never assigned to the case, and the consent of the arresting officer whose work had been deemed insufficient. All the while, this young person was unable to attend his virtual school, as his smartphone was the only way he could connect until his family could save for a replacement.

Our office represented a mother whose car was seized as a result of her son’s arrest. After 11 months of the prosecutor refusing to respond to requests for release, and the NYPD holding the car for forfeiture, the criminal case was dismissed. Even after dismissal, it took another month to cut through all the red tape, while represented by counsel, to actually be able to pick up her car. It was then that she learned that a brand new car seat and a toy scooter she had bought for her granddaughter had been removed from the car by the NYPD, vouchered separately, and destroyed by the NYPD only a month earlier. The current rules and regulations as they stand allowed the NYPD to remove her property from inside her car and destroy it, with zero notice to her or her attorney, who had been in conversations with the NYPD regarding her property all along. Another young person represented by our office had their property seized during a “wellness check” after they were the victim of a shooting. Other attorneys have witnessed phones being taken from shooting victims while they are hospitalized, or cars damaged during the commission of a crime unrelated to the car owners being seized permanently.

These stories are not aberrations. Rather, they are illustrations of the common manifestations of the NYPD’s unchecked power to confiscate and possess any property they wish. The effects on people who are deprived of their property are significant and lasting.

The NYPD seizes and keeps items regardless of their alleged connection, if any, to criminal conduct by the owner.

As discussed above, the NYPD takes items from people regardless of the reason they are being confronted by the police. Whether or not someone is accused—not to mention convicted—of a crime, their property is often seized by members of the Department. We often speak with people who come to us for help retrieving their property. The circumstances vary widely, but a common thread is the frustration they feel at the lack of responsiveness and responsibility from the NYPD and prosecutors.

While the justification for seizing property incident to arrest is the need to obtain and preserve evidence needed in a criminal prosecution it is the NYPD, not the prosecutors, who determine how property will be vouchered and, as a result, what rules will govern its retention and return.

One might presume that property held as evidence in an ongoing criminal prosecution would be the most difficult for an owner to get back. Yet except for property vouchered for “safekeeping” – returnable as soon as the owner appears with sufficient identification— “arrest evidence” is the least contentious category the NYPD currently uses. While the hoops a defendant must jump through to retrieve property vouchered as “arrest evidence” are still substantial and confusing there are regulations laying out procedures and deadlines governing the process for requesting

and obtaining a district attorney's release and for demanding property’s return from the property clerk. In contrast, a growing number of New Yorkers are struggling to retrieve property vouchered as “investigatory”. This designation, seemingly created out of thin air to circumvent the burdensome due process that accompanies retention of property vouchered as evidence, is alleged to be a justification to retain property indefinitely without court order and without oversight. Phones, clothing, and other property are often held for months without any prosecutorial involvement and the NYPD’s “procedures” dictate that the only remedy is to convince the arresting officer to change the property’s designation to safekeeping manually. No other personnel at the NYPD or the law department will concede anyone else has authority to mark the investigation as concluded or release the property.

We recently worked with a client who was the victim of a shooting. While he was in surgery the NYPD seized his phone and his clothing from the hospital and vouchered it as “investigatory” property. Despite there being no criminal charges against him, his phone and only means of communicating with his family and friends while in the hospital was held without recourse for two months. The NYPD continues to refuse to release his clothes, after one detective bragged to a social worker from our office that there are no limits on how long he can hold property vouchered as “investigatory.”

However, this is not to suggest that simply creating rules around voucher categories will solve this problem, as it is clear that the NYPD’s interest is in creating ways to hold property for as long as possible. It is imperative that any solution focuses

What the NYPD does with technology in their possession is shrouded in secrecy.

Since approximately 2018, the NYPD has had the technological capability to break into electronic devices, particularly cell phones, regardless of the password or encryption status of those devices.7 Two spytech companies—GrayShift and Cellebrite—provide tools that allow law enforcement to crack almost any cell phone.8 Those same companies, amongst others, also sell tools that will create complete digital images (i.e. a precise copy) of a device’s contents. These tools not only copy the direct physical items saved on the device (e.g. photos taken by the cell phone), but also can copy data that is stored in applications or in the cloud (e.g. facebook data, google maps data, or Apple iCloud data).9 The NYPD routinely uses digital forensic tools to image cell phones, laptops, and other digital devices.

As the United States Supreme Court recognized in 2014, “[a cell] phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form.” Riley v. California, 134 S.Ct. 2473, 2491 (2014). That information is available to the NYPD from every seized phone in a matter of minutes. As long as the NYPD does not attempt to directly use seized information in a criminal prosecution, but instead only uses that data for intelligence gathering, database construction, and investigative leads, no court process regulates the NYPD’s digital search capabilities. Even if the NYPD returned digital devices that had been imaged, as long as they did not encounter some form of technical error, it is not as if those devices would display a message (or retain any clear indication) that they had been cracked or imaged.

Despite being required by the Public Oversight of Surveillance Technology (POST) Act, passed this summer and effective this year, to disclose an impact and use policy for its surveillance technologies, the NYPD has flouted public accountability and transparency around its spy tech. Digital forensic access tools are not an exception here. The NYPD’s published impact and use policy for these tools did not include any substantive description of (1) the technologies used in this arena, (2) whether the department routinely uses these tools without court oversight and when, or (3) the actual disparate impact of this facet of the NYPD’s domestic spying program.

Without true accountability and transparency around NYPD’s activities involving seized digital devices, like phones or laptops, we (as defenders) are left only with what is known about the department’s capabilities (as discussed above) and the alarm-raising reality that officers are routinely and unjustifiably seizing digital devices from our clients and communities.

Conclusion

There is no single purpose for the NYPD’s practice. Some items are stolen and sold in a scheme that would be identified as a criminal enterprise by the police were the roles reversed, with police profiteering from theft. Some technology is almost certainly hacked into or ruined by multiple attempts at warrantless entry. Other items are forcibly taken by police as a way to intimidate and frighten those identified for enforcement, depriving people of their personal belongings simply because they can. No matter the motivation, we face the stark reality of a city whose police force takes and keeps people’s property at seemingly every opportunity, exacerbating and exploiting existing racial and economic inequities, emphasizing its power over people, and creating a boon for the Department’s bottom line.

It is essential that the imposition of any new rules be both enforceable against the NYPD and crafted to avoid burden-shifting to the person whose property has been taken, such as by creating avenues of relief where the onus is on the aggrieved party to follow up, show up, and fight an intransigent bureaucracy.

1. See Administrative Code § 14-140 Property clerk.
2. Data from the Legal Aid Society from 2019 showed that nearly all people who were stopped and frisked by the NYPD—a practice that persists despite extensive litigation—were people of color, accounting for 90%. While other states were legalizing cannabis, Black people in New York were 15 times more likely to be charged with marijuana-related offenses in Manhattan than whites, despite accounting for about 17% of residents. In Kings County, where our organization is located, a 2019 report showed that 86% of all people charged with crimes in the borough over a six month period were people of color
3. The New York Times, “Why Was a Grim Report on Police Deaths Never Released?” https://www.nytimes.com/2020/0...
4. New York City Police Department, Report: Seized Property, available at: https://www1.nyc.gov/site/nypd/stats/reports-analysis/seized-property.page.
5. While there is a criminal forfeiture statute in NY (N.Y. Penal Law § 480), most of this is surrendered through plea agreements whereby defendants agree to “forfeit” cash seized at arrest as part of a plea. Without this “voluntary” surrender of cash the DA has a very high burden to meet for criminal forfeiture and it is only applicable to certain felony drug convictions.This $81 million is not to be confused with civil cash forfeiture litigation pursued by the NYPD. The civil forfeiture secured by District Attorneys are often in small amounts recovered by police from an arrested person’s pockets or belongings and are achieved through common cash-for-disposition schemes, where a person will surrender their right to pursue the return of their property or cash in exchange for a more favorable plea or case outcome.
6. New York City Police Department, Report: Seized Property, available at: https://www1.nyc.gov/site/nypd/stats/reports-analysis/seized-property.page.
7. Agreement to Provide Gray Key Device and Licenses for the New York City Police Department, dated Aug. 17, 2018, available at https://www.documentcloud.org/documents/20392994-18s119-executed-agreement-withredactions-accepted_redacted-legal-10897172.
8. Jack Nicas, “The police can probably break into your phone,” NYTimes (Oct. 21, 2020), https://www.nytimes.com/2020/1...
9. Logan Koepke, Emma Weil, Urmila Janardan, Tinuola Dada, and Harlan Yu, “Mass Extraction: The Widespread Power of U.S. Law Enforcement to Search Mobile Phones.” Upturn (Oct. 2020), https:="" www.upturn.org="" reports...<="" a>="" .testimony"="">https://www.upturn.org/reports... OF:
   Maryanne Kaishian
   Senior Policy Counsel
   BROOKLYN DEFENDER SERVICES
   Presented before the New York City Council
   Committee on Public Safety
   Oversight Hearing on Property Seizure and Arrest Evidence
   My name is Maryanne Kaishian and I am Senior Policy Counsel with the Criminal Defense Practice at Brooklyn Defender Services (BDS). BDS provides multi-disciplinary and people-centered criminal, family, and immigration defense, as well as civil legal services, social work support and advocacy to nearly 30,000 people and their families in Brooklyn every year. Many of the people that we serve live in policed and surveilled communities and are regularly subjected to abusive behavior on the part of the New York Police Department (NYPD), including the wrongful seizure of their personal belongings and unreasonable, arbitrary obstacles laid out by the police to prevent their return. I want to thank the Committee on Public Safety, particularly Chair Adrienne Adams, for holding an important discussion on the NYPD’s practices around property seizure and arrest evidence.
   In my time at BDS, I have primarily represented young people who are charged with crimes, ranging from misdemeanors to serious felonies. The young people I serve are mostly Black and brown New Yorkers who have had varying levels of contact with the NYPD. Many people are victimized by racist and classist police practices such as constant police presence in their neighborhoods, surveillance, pretextual car stops, and routine stop-and-frisks. An often-overlooked element of these police interactions is the common NYPD practice of seizing property, particularly cell phones, from New Yorkers, oftentimes repeatedly and without legal authorization.
   These seizures occur whether or not the owner is ultimately prosecuted for, or even accused of, criminal conduct. We know that phones and other items are routinely taken from victims and witnesses, as well as from people whose arrests were deemed faulty by prosecutors. Property is taken when it has no connection to alleged criminal conduct, and it is kept and sometimes sold by the police after they have stonewalled the rightful owner attempting to secure its return. Furthermore, we have every reason to believe, given the NYPD’s data capabilities and testimony from cell phone and laptop owners about the state of their items after police seizure, that the NYPD is using its unchecked power to seize property as a warrantless, and illegal, intelligence-gathering tool.
   We urge the City Council to pursue responses to this harm that do not simply create new rules for the NYPD to decline to follow. As in so many areas of police practice, rules and legal constraints exist1—they are simply disregarded. This is an issue of unchecked police power, unaccountability, and a persistent disregard for rules intended to safeguard the civil rights of people who encounter the police.
   

Hundreds of thousands of New Yorkers are impacted by property seizure every year, with police depriving nearly half of them of their personal property permanently.

Police disproportionately target Black, Latinx, and low-income people for stops, searches, and arrests.2 The people who are most likely to encounter the police, and thus the most likely to have their property seized, are also the most likely to be subjected to police violence3—making it risky for them to intentionally engage with police, as would be required to retrieve their property—and the least likely to be able to afford legal assistance or replacements for expensive items such as cellphones. The NYPD practice of property seizure compounds the racial and economic inequities inherent to policing in our City and throughout the nation.

Earlier this year, the NYPD released official data on citywide property seizures from 2020 as mandated by Administrative Code 14-169.4 The data, while striking, marked a continuation of trends from prior years for which there is available data. While fewer total items were taken, about the same percentage was returned. For example, in 2020, the NYPD took 55,511 phones and returned only 33,851. They took 99,986 items of clothing and returned less than half. They took 38,602 forms of identification, and about one third were returned. More than 300 vehicles taken for “safekeeping,” having no evidentiary value, were never returned. Roughly $81 million in cash was forfeited through the offices of the city’s five District Attorneys.5 More cash was taken and never returned to the owners. The NYPD netted $425,967.50 in the sale of items other than vehicles on the police auction website Propertyroom.com, the proceeds of which went to the NYPD pension fund.6 Many more items, in our experience, were taken and simply never catalogued.

While this data is staggering in the cumulative, it is important to remember that behind each data point is the story of an individual who has been deprived of their personal effects by the police. It has always been true that police seizure of personal property such as cars and phones is disruptive and potentially devastating to work, school, childcare, financial stability, and other daily considerations for the deprived person. But in the time of COVID-19, these seizures can be even more impactful. There are the added obstacles and dangers of traveling in person to retrieve property from precincts and NYPD property clerks where, in my experience and that of others, few employees elect to wear masks or socially distance. Cellphones are lifelines more than ever before, as people have no contact with their loved ones apart from FaceTime calls and texts. Many schools and jobs are entirely remote. People have avoided mass transit for health reasons only to have their cars wrongly seized. They have been struggling under an economy where many people have lost their jobs and the City has slashed funding for community initiatives only to have valuable and essential items taken and not returned. In short, police have the same unmitigated power as always, but an even greater likelihood of causing significant harm.

The “process” for property retrieval is unreasonable, arbitrary, and unpredictable.

As defense attorneys, we can attest that we—trained advocates and lawyers—find the NYPD’s property return “process” taxing, time-consuming, frustrating, and ad hoc. Even more dauntingly, this issue affects people who are left to navigate this system without legal counsel. Victims and witnesses of crimes, specifically shootings, have their phones seized by police but are not provided with legal assistance to fight for their return. In an exercise of pure legal fiction, people whose cases district attorneys decline to prosecute—meaning these individuals are never arraigned and thus never connected to a defense attorney, and their cases are never docketed and thus never assigned to a prosecutor—are still required by the NYPD, impossibly, to provide a docket number and receive a release from the prosecutor on their non-existent cases. People who are detained, searched, and released similarly cannot provide required documentation for their belongings. Those who can, usually at the conclusion of their case, are often no better off.

The NYPD also requires that a person come to collect their belongings themselves and will not release property to legal counsel, inviting confrontations with officers who wrongly insist that the items cannot be returned. People who have histories of police-related trauma, including the instances where their property was seized without cause, are required to advocate for themselves with members of the NYPD who create arbitrary, inconsistent, and sometimes impossible requirements for property to be returned.

While much of the NYPD practice related to property seizure is targeted and intentional, people attempting to retrieve their belongings are also subjected to incompetence and capriciousness—sometimes being sent on wild goose chases to various NYPD property clerks before being informed that their property is gone without a trace. Many people are forced to abandon their property after multiple visits, having been sent on a stressful and fruitless quest that proves disruptive to work, childcare, school, and other considerations. As we can attest, the NYPD is not particularly good at keeping track of cash, valuables, and other items that come into their possession. People arrested wearing gold chains or jewelery will be told that their items were never vouchered, and they are never seen again. People whose phones were documented as being seized by police will be told that they are no longer in NYPD possession, with no information as to the items’ whereabouts. Their only recourse is to file suit in small claims court, a time-consuming process where no legal counsel is afforded and where, as in criminal proceedings, the NYPD with its vast resources enjoys a significant advantage.

We have countless stories about the harms of illegitimate and unreasonable property seizures through the course of our representation of people in Brooklyn. For example, I represented a young person who witnessed a police assault. When he attempted to record the assault, his phone was taken “as evidence.” I represented other young people whose arrests were baseless and not pursued by prosecutors, but whose phones were taken during those encounters for “investigatory purposes” in unrelated cases—a workaround to the warrant requirement. I represented another young person whose cell phone was taken as the result of a case that the District Attorney declined to prosecute. He was unable to retrieve the phone, and I was also given the runaround. The NYPD demanded a docket number, proof of the disposition of a case that never existed, a voucher number that had never been provided, approval from a prosecutor that was never assigned to the case, and the consent of the arresting officer whose work had been deemed insufficient. All the while, this young person was unable to attend his virtual school, as his smartphone was the only way he could connect until his family could save for a replacement.

Our office represented a mother whose car was seized as a result of her son’s arrest. After 11 months of the prosecutor refusing to respond to requests for release, and the NYPD holding the car for forfeiture, the criminal case was dismissed. Even after dismissal, it took another month to cut through all the red tape, while represented by counsel, to actually be able to pick up her car. It was then that she learned that a brand new car seat and a toy scooter she had bought for her granddaughter had been removed from the car by the NYPD, vouchered separately, and destroyed by the NYPD only a month earlier. The current rules and regulations as they stand allowed the NYPD to remove her property from inside her car and destroy it, with zero notice to her or her attorney, who had been in conversations with the NYPD regarding her property all along. Another young person represented by our office had their property seized during a “wellness check” after they were the victim of a shooting. Other attorneys have witnessed phones being taken from shooting victims while they are hospitalized, or cars damaged during the commission of a crime unrelated to the car owners being seized permanently.

These stories are not aberrations. Rather, they are illustrations of the common manifestations of the NYPD’s unchecked power to confiscate and possess any property they wish. The effects on people who are deprived of their property are significant and lasting.

The NYPD seizes and keeps items regardless of their alleged connection, if any, to criminal conduct by the owner.

As discussed above, the NYPD takes items from people regardless of the reason they are being confronted by the police. Whether or not someone is accused—not to mention convicted—of a crime, their property is often seized by members of the Department. We often speak with people who come to us for help retrieving their property. The circumstances vary widely, but a common thread is the frustration they feel at the lack of responsiveness and responsibility from the NYPD and prosecutors.

While the justification for seizing property incident to arrest is the need to obtain and preserve evidence needed in a criminal prosecution it is the NYPD, not the prosecutors, who determine how property will be vouchered and, as a result, what rules will govern its retention and return.

One might presume that property held as evidence in an ongoing criminal prosecution would be the most difficult for an owner to get back. Yet except for property vouchered for “safekeeping” – returnable as soon as the owner appears with sufficient identification— “arrest evidence” is the least contentious category the NYPD currently uses. While the hoops a defendant must jump through to retrieve property vouchered as “arrest evidence” are still substantial and confusing there are regulations laying out procedures and deadlines governing the process for requesting

and obtaining a district attorney's release and for demanding property’s return from the property clerk. In contrast, a growing number of New Yorkers are struggling to retrieve property vouchered as “investigatory”. This designation, seemingly created out of thin air to circumvent the burdensome due process that accompanies retention of property vouchered as evidence, is alleged to be a justification to retain property indefinitely without court order and without oversight. Phones, clothing, and other property are often held for months without any prosecutorial involvement and the NYPD’s “procedures” dictate that the only remedy is to convince the arresting officer to change the property’s designation to safekeeping manually. No other personnel at the NYPD or the law department will concede anyone else has authority to mark the investigation as concluded or release the property.

We recently worked with a client who was the victim of a shooting. While he was in surgery the NYPD seized his phone and his clothing from the hospital and vouchered it as “investigatory” property. Despite there being no criminal charges against him, his phone and only means of communicating with his family and friends while in the hospital was held without recourse for two months. The NYPD continues to refuse to release his clothes, after one detective bragged to a social worker from our office that there are no limits on how long he can hold property vouchered as “investigatory.”

However, this is not to suggest that simply creating rules around voucher categories will solve this problem, as it is clear that the NYPD’s interest is in creating ways to hold property for as long as possible. It is imperative that any solution focuses

What the NYPD does with technology in their possession is shrouded in secrecy.

Since approximately 2018, the NYPD has had the technological capability to break into electronic devices, particularly cell phones, regardless of the password or encryption status of those devices.7 Two spytech companies—GrayShift and Cellebrite—provide tools that allow law enforcement to crack almost any cell phone.8 Those same companies, amongst others, also sell tools that will create complete digital images (i.e. a precise copy) of a device’s contents. These tools not only copy the direct physical items saved on the device (e.g. photos taken by the cell phone), but also can copy data that is stored in applications or in the cloud (e.g. facebook data, google maps data, or Apple iCloud data).9 The NYPD routinely uses digital forensic tools to image cell phones, laptops, and other digital devices.

As the United States Supreme Court recognized in 2014, “[a cell] phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form.” Riley v. California, 134 S.Ct. 2473, 2491 (2014). That information is available to the NYPD from every seized phone in a matter of minutes. As long as the NYPD does not attempt to directly use seized information in a criminal prosecution, but instead only uses that data for intelligence gathering, database construction, and investigative leads, no court process regulates the NYPD’s digital search capabilities. Even if the NYPD returned digital devices that had been imaged, as long as they did not encounter some form of technical error, it is not as if those devices would display a message (or retain any clear indication) that they had been cracked or imaged.

Despite being required by the Public Oversight of Surveillance Technology (POST) Act, passed this summer and effective this year, to disclose an impact and use policy for its surveillance technologies, the NYPD has flouted public accountability and transparency around its spy tech. Digital forensic access tools are not an exception here. The NYPD’s published impact and use policy for these tools did not include any substantive description of (1) the technologies used in this arena, (2) whether the department routinely uses these tools without court oversight and when, or (3) the actual disparate impact of this facet of the NYPD’s domestic spying program.

Without true accountability and transparency around NYPD’s activities involving seized digital devices, like phones or laptops, we (as defenders) are left only with what is known about the department’s capabilities (as discussed above) and the alarm-raising reality that officers are routinely and unjustifiably seizing digital devices from our clients and communities.Conclusion

There is no single purpose for the NYPD’s practice. Some items are stolen and sold in a scheme that would be identified as a criminal enterprise by the police were the roles reversed, with police profiteering from theft. Some technology is almost certainly hacked into or ruined by multiple attempts at warrantless entry. Other items are forcibly taken by police as a way to intimidate and frighten those identified for enforcement, depriving people of their personal belongings simply because they can. No matter the motivation, we face the stark reality of a city whose police force takes and keeps people’s property at seemingly every opportunity, exacerbating and exploiting existing racial and economic inequities, emphasizing its power over people, and creating a boon for the Department’s bottom line.

It is essential that the imposition of any new rules be both enforceable against the NYPD and crafted to avoid burden-shifting to the person whose property has been taken, such as by creating avenues of relief where the onus is on the aggrieved party to follow up, show up, and fight an intransigent bureaucracy.

1. See Administrative Code § 14-140 Property clerk.
2. Data from the Legal Aid Society from 2019 showed that nearly all people who were stopped and frisked by the NYPD—a practice that persists despite extensive litigation—were people of color, accounting for 90%. While other states were legalizing cannabis, Black people in New York were 15 times more likely to be charged with marijuana-related offenses in Manhattan than whites, despite accounting for about 17% of residents. In Kings County, where our organization is located, a 2019 report showed that 86% of all people charged with crimes in the borough over a six month period were people of color
3. The New York Times, “Why Was a Grim Report on Police Deaths Never Released?” https://www.nytimes.com/2020/0...
4. New York City Police Department, Report: Seized Property, available at: https://www1.nyc.gov/site/nypd....
5. While there is a criminal forfeiture statute in NY (N.Y. Penal Law § 480), most of this is surrendered through plea agreements whereby defendants agree to “forfeit” cash seized at arrest as part of a plea. Without this “voluntary” surrender of cash the DA has a very high burden to meet for criminal forfeiture and it is only applicable to certain felony drug convictions.This $81 million is not to be confused with civil cash forfeiture litigation pursued by the NYPD. The civil forfeiture secured by District Attorneys are often in small amounts recovered by police from an arrested person’s pockets or belongings and are achieved through common cash-for-disposition schemes, where a person will surrender their right to pursue the return of their property or cash in exchange for a more favorable plea or case outcome.
6. New York City Police Department, Report: Seized Property, available at: https://www1.nyc.gov/site/nypd....Agreement to Provide Gray Key Device and
7. Licenses for the New York City Police Department, dated Aug. 17, 2018, available at https://www.documentcloud.org/....
8. Jack Nicas, “The police can probably break into your phone,” NYTimes (Oct. 21, 2020), https://www.nytimes.com/2020/1...
9. Logan Koepke, Emma Weil, Urmila Janardan, Tinuola Dada, and Harlan Yu, “Mass Extraction: The Widespread Power of U.S. Law Enforcement to Search Mobile Phones.” Upturn (Oct. 2020), https://www.upturn.org/reports...