Police seize property from people never charged and take months to return it

Police seize property all the time, but when the owner is never charged, they can wait months to get the property back

A Buffalo mother of three children sometimes spent upwards of $900 a week for Uber rides to kids' events, the laundromat, college, and work, when police seized her only car and held it for nine months, even though she was never charged with a crime.

In another case, a local business owner had his two work vehicles seized, and ultimately had to shutter his business. He, too, was never charged.

In a third case, a man shot in a chaotic incident dropped his phone while getting away. Police seized it from the ground, and kept it for months, even telling his attorney he would get it back if he provided the password. He was never charged with crimes.

In all three cases, property owners had to hire attorneys to file Article 78 cases against the Erie County District Attorney's Office to try to get their property back. That's the only way they can get in front of a judge when they are not charged with crimes.

According to the Erie County District Attorney's Office, law enforcement can seize and hold property as evidence "for as long as needed as part of an ongoing criminal investigation and/or pending criminal proceeding."

But two local attorneys interviewed by News 4 Investigates view the seizures as a slippery slope and believe that property owners are not getting due process in some instances.

"It's reminiscent of redcoats going into houses and taking what they want and leaving," said attorney Louis Mussari. "It's a bad look."

Acting District Attorney Michael Keane defended the seizures in each case. When seized property may have been used as an instrument in a serious crime, it could take longer to return the items to the rightful owners, even when they are not charged, Keane said.

"The decisions that we make on whether evidence should be seized, whether it should be held until we can get a search warrant, those are really fact-specific situations," Keane said. "And normally, to be safe, we ask a judge for a search warrant and we have to meet a certain standard in order to get a judge to sign an application, and to approve a search warrant.".

Case 1: Mother goes without vehicle

The Buffalo mother, who asked not to be identified because she does not want people to assume she did anything wrong, was without her vehicle for nine months.

Police seized her SUV on Sept. 22, 2023, under the belief that her ex-boyfriend used it as a getaway vehicle for a retail theft ring. A co-defendant was also charged, law enforcement officials said.

The woman said she had no idea her ex-boyfriend used her vehicle to commit crimes. In fact, her petition states that on Sept. 1, 2023, she filed a domestic violence report that stated "she let [her ex-boyfriend] use her vehicle, but he refused to bring it back."

She said police entered her workplace, embarrassed her in front of co-workers, and demanded to search her home without immediately showing her the warrant.

"They had my whole job surrounded," she said.

She realized as police searched her home that her name was not on the warrant.

Keane said her name did not have to be on the warrant, because they had evidence that her ex-boyfriend had stayed at her home. The woman denied her ex-boyfriend lived with her. She has one child with her ex.

"I got a lawyer," she said. "They told me that my vehicle was being seized for all this stuff that I still can't make sense of everything that's going on."

She also alleges a law enforcement official told her she would receive her vehicle back if she provided the password to her ex-boyfriend's phone. She didn't know the password.

Her petition states, "the vehicle should be released back to its rightful owner, who is on record stating the vehicle was used without her continued consent," after the vehicle was searched for items related to her ex-boyfriend's case.

On Dec. 4, 2023, News 4 Investigates inquired with the district attorney's office about her vehicle, when John Flynn was district attorney.

"It appears that our office has not received a request to release the vehicle," the district attorney's office stated in an email. "When you brought the issue to our attention, DA Flynn directed one of our ADAs to work to have the vehicle released to the owner."

But that release did not happen until April, after her ex-boyfriend pleaded guilty to one count of enterprise corruption. The co-defendant pleaded guilty to the same charge.

Keane said the return of her vehicle was also delayed, because her ex-boyfriend posted bail and fled until the spring. In addition, Keane said they asked the suspect's attorney if he'd approve the release of her vehicle, to which he agreed once he got his client's approval. Keane said the approval came a few weeks ago.

"I agreed that we should try to get the car back to her as soon as possible," Keane said. "But we can't do that without getting [the suspect's] attorney to agree to it, and he's got an opportunity to inspect it, and photograph it, and test it if he thinks it's necessary. We did that and it took weeks and weeks for that to take place."

The seizure of her vehicle has had a profound impact on her family. She had to take Ubers all the time. In addition, she had to continue paying her car note and the insurance.

Keane said he is not insensitive to the negative impact the seizure has had on the mother, but there were steps they had to follow to avoid accusations of violating their discovery obligations, which could lead to sanctions.

"But the other side of that also is that what we're concerned about is over $70,000 in goods were stolen from retailers across this county by two guys that were taking advantage of those retailers, and it certainly sounds like they were, at least one of them, was taking advantage of the woman that owned this vehicle."

Case 2: Work truck seized

Police seized a work truck and van from a local general contractor related to an investigation that involved a childhood friend who worked for him. This was a year ago.

The business owner has never been charged.

He had to close his $1 million-a-year business because he did not have his work vehicles and tools, although the acting district attorney said he was allowed to remove his tools.

And while the business owner recently got the van back, police are keeping the truck for an undetermined amount of time, because it is evidence in the case involving his friend.

"I'm 100% innocent," the man said in a phone call. "They're telling me that I am indirectly involved, but they never brought charges on me. They didn't do anything."

His friend is charged with four sexual assault-related crimes, including rape, unlawful imprisonment and kidnapping.

On June 13, 2023, police noted on the warrant that the investigation involved "stolen property and evidence of human trafficking." This is when police seized his work truck and tools.

On June 23, 2023, police seized his work van registered to his construction business. His Article 78 petition alleges the seizure of the van was illegal because police had not secured a warrant.

"The Buffalo Police Department and the Erie County District Attorney's Office have had over five months to examine, test and determine if the vehicles seized provide any useful evidence in their investigation," the man's Article 78 petition states. "Their continued exercise of dominion and control of Petitioner's vehicles is unreasonable and unconstitutional."

Robert Quinn, Buffalo’s deputy corporation counsel, said no illegal seizure occurred. Rather, he said the owner of the vehicles must have a clear showing of “arbitrary and illegal action, without reasonable explanation or excuse” and a “clear legal right” to what he is requesting.

Quinn stated that property seized by police cannot be returned until a conviction, acquittal or judge's order. 

Case 3: A dropped cell phone

On Dec. 4, 2023, the din of gunshots sent people scurrying. One of them was Milton Jones, after being shot in the leg.

He dropped his phone while leaving. Police later seized his phone off the ground, eventually downloaded all its data, and still kept it for months. Authorities didn't know if the phone would have any evidence to help solve the shooting, therefore his attorney said it should have never been seized.

Jones was never charged.

On Jan. 3, 2024, a judge signed a search warrant to pull data off Jones's phone. Law enforcement had 10 days to execute the search warrant before it expired.

Mussari, Jones's attorney, alleges the deadline passed before the phone was searched.

"The retention of the iPhone is wrongful, because it constitutes a deprivation of plaintiff's property without due process of law," Mussari stated in Jones's petition. "The search warrant has expired, the plaintiff has not been charged with any offense related to the chattel, so there is no legal authority for defendant to continue depriving plaintiff of his property."

Keane said the seizure of Jones's phone "was completely appropriate."

"It could have had evidence on it of the crimes that occurred that day, which are still unsolved," Keane said. "And he didn't want to provide us the passcode. He could have gotten the phone back sooner. I'm sure he had reasons for not providing it, but I don't have any problem with police officers or our office in that situation asking for his passcode. I have no problem, no hesitancy as all with that."

Police told Mussari that Jones abandoned his phone. But Mussari said that's false, because Milton accidentally dropped it, and tried for months to get it back.

"I don't see how this is any more evidence of a crime than the grass that the phone was on top of," Mussari said. "There's no indication that this has any probative value, and there's no particularity listed in the warrant."

Jones got his phone back in April by filing an Article 78 petition.

Attorneys raise constitutional concerns

Nick Texido, a local criminal defense attorney with no association to any of the three cases, said these types of seizures happen everywhere he practices, but are more prevalent in Erie County.

Texido represented a college student who had his phone seized for almost five months. He was with a group of friends, and one brought a roommate.

“Little did they know, he had a gun on him,” Texido said.

The suspect owned up to having the gun, but Texido said police arrested all four occupants and seized all their phones.

"This is a rhetorical question, but do you have photographs of every item you possess on your phone?" Texido said. "An illegal handgun is not going to have a receipt. So, you're not going to find that on the phone. I think a lot of the phones being seized should not be being seized in the first place."

Texido said his client had to provide a DNA sample before police returned the phone.

Texido said if law enforcement seizes personal property, they must promptly file a search warrant to check the items for evidence. Sometimes, search warrants are never filed, he said. Other times, he said a search warrant is not executed within 10 days.

“They’re taking months to even apply for a warrant,” Texido said.

The only way this problem can be fixed, Texido said, is by suing law enforcement.

Texido said in this case, he questions whether police had the right to seize phones from the other three occupants in the vehicle.

“But when you haven’t even applied for or executed a search warrant, and it’s been months, no, I don’t think they should be holding onto those phones,” Texido said.

Seizures require police to have probable cause that the property contains evidence of the crimes they are investigating.

“I think it’s outrageous,” Texido said. “I think that the main issue is seizing the phone in the first place in many cases. The police seem to think, 'oh well, this person committed a crime, or we think he did, so we get to seize his phone.' No. Again, it’s got to be more likely than not that the phone is going to contain evidence of that crime for which you have probable cause. And some crimes just aren’t amenable to that.”

Mussari said if law enforcement wants to seize property, "it's got to be done in a way that passes constitutional muster."

He doesn't believe it always does. He said he gets a lot of calls from people seeking their property back, especially those not charged with crimes.

“One of the most amazing things about this U.S. is due process,” Mussari said. “And these things that govern interactions between the government and the police or government and private citizens. That’s a principle that needs to be upheld.”