possessions – Homeless Law Blog

May 31, 2012May 14, 2020

When is it legal to take stuff from the trash?

**** The information written here is not legal advice and the author of this blog is not your lawyer. These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

Usually, property that is left for trash collection is considered to be abandoned. It is perfectly legal to take abandoned property, but it isn’t always easy to tell if property is truly abandoned. The picture here shows household furnishings alongside trash cans left on the strip of grass between the sidewalk and the street just hours before the garbage truck is due. Obviously, those household furnishings have been left for trash collection.

But what if the chairs and desk were there without trash cans nearby or not on trash collection day? In those circumstances, it wouldn’t be so clear that this property was being abandoned. The owners might be planning to move it somewhere or to have friends come and get it. A safe way to avoid legal problems is to ask the owner if you can take the stuff.

If the stuff was next to or even inside of trash containers and those trash containers, whether dumpsters or ordinary trash cans, were on private property, then the stuff might not have been abandoned. The owner might still be thinking about taking it back into the house.

If the stuff wasn’t abandoned, then taking it away without the owner’s permission is the crime of theft. If you go onto private property to look through a dumpster or trash can, you can be charged with trespassing. When you go to do legal research about trash ownership and abandonment, you are not likely to find much relevant information in the category of theft. However you can find relevant cases and law journal articles in Google Scholar if you search for the words “dumpster” and “trespassing” in the same search. Reading those cases, you can get an idea of how courts analyze whether property was abandoned and whether looking in a dumpster was a trespass in that particular case. Here is one example in which somebody went hunting for discarded documents in a dumpster at a Walt Disney facility.

Searching for “dumpster” and “abandoned property” in Google Scholar, you will mainly find cases and articles about police conducting searches and seizures by going through trash containers. Even the police cannot look in or take non-abandoned trash without permission of the owner or a judge who has issued a search warrant. Here is one case with a good clear explanation of the law of abandoned trash. Smith v. State 510 P.2d 793 (Supreme Ct. Alaska, 1973). Here is the seminal Supreme Court case on the topic of police access to abandoned trash. California v. Greenwood 486 U.S. 35 (1967).

January 31, 2009March 3, 2021

If you rent a storage facility, what kinds of contractual rights and obligations do you have?

Renting a storage facility for your things involves signing a lease, just like renting an apartment. Leases are supposed to state what rights and obligations the owner of the facility and the renter have and what should happen if either of them doesn’t complete the obligations. Typical terms in this kind of lease include: the cost of rent and when it is due, a description of the space available in the rented storage unit, a list of any items that the owner won’t allow to be stored there (explosives, biological hazards, illegal goods, flammable materials…), an explanation of the security deposit, a disclaimer saying that the storage place is not liable for injuries to people who get hurt while storing or removing their things, and the inevitable declaration about what will happen if the rent is not paid.

A lease is a form of contract which means that it is a legally enforceable agreement. Because it is ordinarily fully written when it is presented to the person wanting to rent storage space, rather than being the type of contract that is written by both parties to the agreement who negotiate the terms before writing them down, the renter has very little room to bargain. It is as if the owner of the storage facility is saying, “You can rent a space if you agree to all of these terms.”

If you are not willing to agree to any particular terms that are written on his lease, you have to write that on the document to be signed. To convey definitely that you do not agree to terms, circle or mark out or underline or otherwise note any terms you cannot agree to and state in the margin near each of them that you do not agree to abide by that requirement. Simply telling the facility owner that you do not accept his terms will not protect your interests. A judge is unlikely to believe that you truly did not agree with the written contract if you read it well enough to discuss unacceptable terms with the owner and then you signed it anyway, without changing the written terms. Remember, of course, that the facility owner does not have to agree to your changes any more than you have to agree to his terms. He has the space you need and he can leave it empty or rent it to someone else if you refuse to use it according to his terms.

Some states have statutes for the sole purpose of backing up self-storage leases. These statutes give the rules for evicting the possessions because there isn’t a human tenant or business to evict from the owner’s premises. One of the standard rules is that the owner of the possessions is supposed to be notified by mail, at the last known address, that the owner of the self-storage place is going to sell the possessions if the owner of those possessions does not pay the past-due rent.

For people without homes, this is a completely ineffective form of notice. In Delaware, the law requires that in addition to mailing that warning, the self-storage place must advertise the warning in the newspaper.[i] This would not be a big expensive embarrassing ad in the social section; it would be a small cheap formulaic ad buried in the classified section. A person who had missed enough rental payments to be at risk of having his or her possessions sold would either have to read all of the legal notices in the classified ads every day or somehow know exactly when the storage facility happened to be advertising.

In Michigan, instead of requiring the newspaper ad, the law says that owners of self-storage places should mail the warning to the last known address of the possession owner and also, if the renter has provided adequate information, to another person who is likely to know how to locate that person.[ii] Some of these laws may seem to be insensitive to the difficulties of people who are homeless, however, if renters have not paid their bill and have not appeared in person or otherwise made themselves available for communication, the law has to protect the other party to the contract who has held up his end of the bargain.

The Self Storage Association lobbies for legislative action on behalf of self storage facility owners. You, as a customer, might like to understand their positions on issues such as safety, cleanliness, online auctions, tenant insurance, and other issues in advance of communicating with a particular facility about any legal issue. As a tenant, you might also seek information and possibly support from your state consumer protection office if you are having trouble dealing with a storage facility.

[i] 25 Delaware Code Section 49.

[ii] Michigan Code 570.523 Section 3(4).

May 2, 2008May 25, 2017

If you lost your home because of a tax lien or other tax matter, and the tax authority collected the debt by selling your home, there might be leftover profit from that sale that you are entitled to. How can you collect that if you don’t have an address?

Property tax sales are generally conducted by the municipal or county governments that collect property taxes. This means that it is necessary to look in the municipal or county code to find the rules about when and how properties will be sold to pay-off a property tax debt.[i] The phrase “tax sale excess proceeds” will likely be the heading for the rules section about money owed to the homeowner after the house is sold to pay the tax debt.

The rules will establish a schedule for property tax sales. Perhaps the town or county only has one property tax sale every quarter. Maybe property tax sales occur on the last Friday of the month. Usually, the schedules establish a short enough time within which to sell the home that the person who lost the home can still be located. Knowing that there is likely to be money coming from the sale of his home, a newly homeless person must remain in contact with the agency (probably the sheriff’s department) selling the house.

Note that even though this question is about losing a house because of a tax debt, the same legal analysis works with any debt in which a house was collateral. If the house is taken away to pay debt and is then sold by the creditor for more than the amount of money owed, the debtor is supposed to get the leftover money. The legal right to collect those proceeds does not always come from any particular law. It is a simple common law principle of debt law that the creditor is only entitled to the amount he is owed.[ii] Some states might have this principle included in their statutes. Some agencies such as state departments of revenue or banking might include it in their separate regulations. Whether it is written in the law or not, this principle still holds true.

In the hassle and confusion of losing the house and trying to get re-established elsewhere while dealing with the financial papers and tumult, anyone might lose track of procedures. It is easy to understand how someone in these circumstances might not recall who to go to for a refund. In most states, the treasurer’s office keeps track of “unclaimed property” – a fancy way of saying money that rightfully belongs to citizens whom the government cannot locate.[iii]

“Unclaimed property” might be these excess proceeds from creditor house sales, unclaimed stocks, old certificates of deposit, neglected bank accounts, money from insurance policies, and more. Anyone who can use the Internet can search the state treasurer’s unclaimed property database. A claimant can write a letter to the state treasurer instead filing a claim online. State agencies do understand that for many people the Internet is hard to use or is not available

In many states, simply finding the unclaimed property listing on the Internet is only the first step toward getting it back. There is usually a form to submit, a signature to be notarized, and that ever challenging proof of identity. As in dealings with the federal agencies, it is generally feasible for a homeless person dealing with the state treasurer’s office of unclaimed property, to either use a street address where he doesn’t live but can receive mail or to prove his identity with the help of social service agencies where he is known as a client.

[i] Here are some examples of tax office notices to homeowners whose houses are sold to pay off tax debts:
– Brazoria County, Texas

The sale of property for delinquent taxes may generate excess funds over and above the amount of judgment. These funds must be turned over to the clerk of the court issuing the order of sale for safekeeping. The retention period is two years from the date of sale.

Once the District Clerk’s Office receives the excess proceeds from a tax sale, a certified letter will be sent to the defendant within 31 days of receipt. To release the money, we must have a court order signed and dated by the presiding judge. The payor’s name, address, the amount of money as well as the person to whom the check is to be made payable must also be provided within the order.
http://www.brazoria-county.com/dclerk/AccountingRegistry.asp–
Sierra County, California
“If the property is sold, lien holders and the former owner may claim proceeds in excess of the taxes and costs of the sale.” http://www.sierracounty.ws/county_docs/collector/faq2012.pdf
Alaska
“If the proceeds of the sale of tax-foreclosed property exceed the total of unpaid and delinquent taxes, penalty, interest, and costs, the municipality shall provide the former owner of the property written notice advising of the amount of the excess and the manner in which a claim for the balance of the proceeds may be submitted. Notice is sufficient under this subsection if mailed to the former record owner at the last address of record of the former record owner.” Title 29 Alaska Statutes Chapter 45 Section 480.
http://touchngo.com/lglcntr/akstats/Statutes/Title29/Chapter45/Section480.htm (Site not published by the state of Alaska.)

[ii] Dan B. Dobbs, LAW OF REMEDIES- DAMAGES, EQUITY, RESTITUTION§4.1 (West, 1995)

[iii] State unclaimed property offices are listed at http://www.unclaimed.org/. (Enter as an “owner.)The federal unclaimed property office (where you can find out about pension funds, mortgage interest refunds, etc…) is at http://fms.treas.gov/faq/unclaimed.html.

May 2, 2008May 25, 2017

If your pets cause damage or injuries, what can the law do to you?

Ordinarily, the civil law punishes pet owners by mandating that they pay for medical expenses and damage caused by a pet’s attack, even when it was a friendly attack with unfortunate consequences. Since those financial payments generally resolve the matter sufficiently, people are not often at risk of going to jail because a pet has ruined someone’s things or hurt someone. Unfortunately for poor people, human nature has a desire for revenge and attack victims who cannot collect any money for their suffering might just go to the police for support.

There is a spectrum of mild to drastic criminal charges that the police can use regarding pet attacks. When the attack was connected to violating the leash law or some other local ordinance, the criminal penalty will probably be a ticket. It would probably be the kind of case that can involve an appearance before a judge, but will not involve a jury trial.

If it appears that the owner ordered the animal to attack the victim, the charge might be something like using the pet as a weapon to commit an assault. That kind of case and the others along this spectrum will be handled with all the formal proceedings of a jury trial. To prove that assault charge, there will have to be eyewitness testimony from people who saw the pet owner give the order or else there has to be background testimony from someone who knows that the animal was trained to attack people. When the prosecutor believes that the pet owner had such a lack of concern for people’s safety that he ignored signs that this kind of attack was likely to happen, the owner can be tried for criminal negligence. In situations when the victim died as a result of the attack, the owner can go on trial for homicide.[i]

[i] A helpful book with chapters about dog bites and dangerous dogs is Mary Randolph, EVERY DOG’S LEGAL GUIDE: A MUST-HAVE BOOK FOR YOUR OWNER, Nolo Press (2007). See also the free pet law material from that book’s publisher. http://www.nolo.com/legal-encyclopedia/dogs-cats-pets/ Summaries of relevant cases and citations to state statutes are in Ward Miller, Modern Status of Rule of Absolute or Strict Liability for Dogbite, 51 American Law Reports 4^th 446 (1987-updated to 2006).

May 2, 2008September 25, 2012

When can the animal control authorities take away your pets?

Municipal ordinances (source 1, source 2) regulate pet licensing as well as pets’ outdoor behavior. In most places, the local animal control authority, a.k.a. “the dogcatcher”, will take away a pet only when it has been found unattended and unleashed walking around on the loose or because it has injured people or other animals. But they can also take pets away if they believe those pets are victims of cruelty or neglect. Keeping pets outside in extreme weather and feeding pets out of garbage cans might both be considered cruel or neglectful treatment.

If you truly are the owner of an animal, as evidenced by a license, you have a constitutional due process right to be informed of where your animal is being held and what you have to do to get that pet released.[i] Ordinarily, cities have ordinances or animal control authorities have internal rules that dictate how that information is to be conveyed to pet owners. To make a successful due process claim, you have to prove that either the process delineated in the rules or ordinances wasn’t followed or else that the lack of such rules or ordinances denies you due process.

The most common way of tracing an animal’s owner is by using the contact information on the animal’s tag. If the pet owner became homeless after that tag was issued and the contact information no longer leads the shelter or animal control office to the right person, there is not always a second way of trying to track the owner down. Similarly, if the animal does not have identification, like a collar tag or microchip, etc… showing how to contact its owners, the animal control authority generally does not have a legal obligation to try to track down an owner; the resources necessary to reach out into the community trying to find out whether anyone is missing that animal just make it too expensive a practice for the law to make it mandatory.

Although the law does not specifically say so, common sense says that if the tag information is no longer correct or it is possible that the animal’s tag came off or someone in animal control doesn’t do a job right, pet owners have to take responsibility for contacting the local animal shelters when a pet is missing. If you don’t find the pet on your own, you might never get it back; the shelter could let someone adopt your pet or, worse, they might destroy it.

Violating some pet behavior laws will result in fines rather than confiscation of the pet. Failure to clean up after a pet or walking it without a leash or not preventing it from incessantly making noise are likely to result in a fine as penalty. Most of the time, pet owners are notified of these legal violations by getting a ticket, like a traffic ticket, in the mail. But, police officers can simply hand that ticket to someone who does not have a known mailing address. Even if you get a ticket (a.k.a. citation) that does not fully identify you by name and address and even if you cannot pay the fine, you still need to communicate with the animal control authority and possibly your local court, depending on how the pet ordinances are enforced in your town.

If you have not found a way to correct the lack of a leash or loud dog or other problem before going to court, it is appropriate to ask the court for help in obtaining a leash or other equipment that might be too expensive for you and which will put your pet in compliance with the law; sometimes animal courts have relationships with charitable organizations that can help with those sorts of matters. If the court is not able to intervene and help you equip for legal compliance, then ask them for the names of agencies that might help and, at the same time, ask if the court will consider dismissing the ticket against you if you return to court in a week or two with the leash or muzzle or pooper scooper that will prevent the offense from occurring again.

[i] Com. v. Gonzales, 588 A2d. 528, 535; 403 Pa. Super 157, 169 (Pa. Super. 1991); Clark v. Draper, 168 F.3d 1185, 1189-90 (Cir. 10, 1999).

May 2, 2008May 25, 2017

Are you allowed to own pets if you don’t have housing for them?

It is a simple fact of American life that while humans are allowed to walk the streets unaccompanied and without identification, animals cannot. Befriending a bird in the park and involving oneself in that bird’s daily schedule might feel like having a pet, but it is not. Having a pet means being responsible for the animal’s care and safety. In the case of large pets like cats and dogs, not only does this mean feeling internal personal responsibility for feeding and walking a pet, but also having actual legal responsibility for licensing and vaccinating the animal. If an unlicensed animal, or even an untagged animal that is licensed, is captured by municipal authorities, it can be put to death.

Licensing a pet makes owning it legal.[i] In order to get that license, a pet owner has to pay a fee and give an address where he and the animal live. This doesn’t always mean that by definition a homeless person cannot legally have pets; it can mean that the pet has to be registered to a legitimate address where mailings relating to the pet will be passed along to the homeless owner. This address can be a private home or an organization where the homeless person is known well and maintains regular enough contact to pick up messages.

Your local pet licensing requirements are in your city code. Find the city code at http://www.municode.com/library/library.aspx or, if your city is not included there, by linking through the federal government’s roster of cities. http://www.usa.gov/Agencies/Local_Government/Cities.shtml. Looking at your city’s website, you will not only find the code containing ordinances about pet ownership, you will also find the form to submit for that license.

[i] For more information about pet licensing laws, see Margaret C. Jasper, PET LAW, Oceana Press (2007).

May 2, 2008June 1, 2012

If you don’t own or rent a place in which to store your possessions, but store them in somebody else’s home, do the homeowners have the right to move or use your things? Do they have the right to throw them away if you are gone for any particular period of time?

There are two areas of law to look at in answering these questions: contracts and torts. A contracts analysis would consider whether the homeowner had agreed to take care of your things or at least store them for a particular amount of time and whether you had any obligations in return. Torts is the area of law that is known more casually as “personal injury.” A torts analysis would look at the act of “conversion” which means taking unauthorized control over someone else’s possession. A milder tort claim that might apply but would be harder to prove is “trespass against chattels” which is a claim against someone for unauthorized use of possessions.[i] Both a contract claim and a tort claim would be made in civil court, probably small claims court depending on the monetary damage that has been suffered.

In the contract dispute, the person whose possessions were taken or discarded seeks to show that the homeowner stopped protecting or storing the possessions. In other words, the terms of the storage bargain were violated. (A contract claim would probably apply to a situation involving the homeowner’s use of the stored possessions only if he used them so much that they wore out; only in that extreme kind of situation would it be likely to say that using the stuff breached an agreement to store and care for it.)

Since contract law comes from past cases, rather than statutes, the facts of each dispute are compared to previous cases with similar facts. Those facts have to be backed with good proof. If the possessions were in a church locker because that church had a policy that poor people could store things there for up to thirty days, then the court claim would have to include a copy of that written policy or admissions from church officials about the existence of the policy.[ii]

If the possessions were suddenly gone from a friend’s basement, the claim would have to demonstrate where and for how long the friend agreed to keep the stuff. Relatives of the homeowner might serve as witnesses to the agreement. Perhaps the homeless person can convince the court that he had another place where he would have moved his things had he not relied on this friend to keep them.

Clearly, there will be different facts involved with each situation, but the person trying to prove that an agreement existed always has to show as much detail as possible about the content of the agreement and the way both of the parties to the agreement knew those terms. Then, conveying that the terms were not followed will convince a court that the contract was breached.

To make the conversion claim, it is necessary to prove that even though the homeless owner of the possessions put them in the custody of the homeowner:
1. the homeowner took control over the stuff and
2. the homeless owner of the stuff could not get it back after asking for it or was not even able to ask for it.

Under the common law, and still in many states, the court claim to sue someone who has converted someone else’s possessions to his own is called “trover.” In filing that kind of lawsuit, it is proper to say something like, “the plaintiff is suing the defendant in trover to recover money damages for the television that plaintiff stored in defendant’s house and which defendant converted to his own possession by installing it in his den and subsequently refusing to return it to the plaintiff.” Although this example, which was only intended to show how the words “trover” and “conversion” relate to each other, makes a claim for money damages, that is not the only remedy for conversion. It is also proper to sue for return of the possessions, especially if they have sentimental value.

Note that a conversion claim is not only used when someone appropriates another person’s stuff. It is also correct to make a claim for conversion if someone storing things threw them away or gave them to someone else or otherwise made them unavailable to the owner.[iii]

See the Homeless Law Blog posts about court for information about bringing a contracts and/or torts case in civil court.

[i] It has been said that both of these tort claims are really the same when somebody takes and carries away another person’s possession. Wint. V. Alabama Eye and Tissue Bank, 675 So. 2d 383 (Ala. 1996).

[ii] This example is used to demonstrate that even though the word “homeowner” is generally being used in this section, the legal reasoning applies to any private favor-type of arrangement that is not as formal as having a fee-based storage deal.

[iii] To find cases involving conversions in the state where you live, look in a West case digest or a legal encyclopedia published by West using the topic “trover and conversion.” The digests and encyclopedias will show dozens of ways that people take control over other people’s things. They will also have lots of real-life examples of how people tried to get their stuff back or tried to prevent the person who was only supposed to store it from using it.

April 29, 2008March 17, 2021

Can people who are homeless have savings bonds or financial accounts?

The short answer to this question is that you do not have to be poor to be homeless. A person may have any number of reasons for not living in a private or permanent home. So, being homeless does not automatically mean that a person cannot have financial accounts or bonds.

Homeless or not, however, everyone has to pay taxes on the interest or dividends earned on financial accounts. Banks and investment houses are required to report their customer earnings to the Internal Revenue Service. Even when people without their own homes do not receive the tax forms or interest and dividend statements mailed by financial institutions, they are still obligated to pay their taxes because those financial assets are their property.

Having assets such as savings bonds or trusts can make a person who is homeless ineligible for federal benefits including housing programs.[i] It might be necessary to spend those assets before applying for federal assistance.[ii]

Eligibility guidelines for Medicaid are available at http://www.cms.hhs.gov/home/medicaid.asp; housing eligibility is at http://www.hud.gov/; disability is at https://www.ssa.gov/disabilityssi/. See also the interactive benefits eligibility form at http://www.govbenefits.gov/govbenefits_en.portal.

Trusts

Trusts only make payments at certain times under circumstances that are written in that particular trust document. So it may not be necessary or even possible to spend them before applying for federal housing or food stamps, etc… The terms of the trust document might say that the beneficiary can only collect if someone dies or other things happen beyond the beneficiary’s control. If the trust pays out one big lump sum every year, that annual payout can disrupt federal benefits by temporarily making the recipient too wealthy for the program. And if a trust beneficiary just applying for federal benefits still has funds that were previously paid out from the trust, then that paid out trust money might be a high enough amount to prevent him from getting the federal benefits (housing, medical assistance, temporary aid to needy families, etc…)

People deemed by the Social Security Administration to be disabled, can benefit from a “special needs” trust.[iii] This kind of trust can be established by an agency or a parent or guardian and the funds can come from various sources (including money awarded in a court case). The funds in the trust can only be used for disability related expenses such as equipment, therapy, and medication and will not affect federal program applications. An existing trust can be changed to a special needs trust.

Savings Bonds

Savings bonds are long-term investments identified by serial numbers. Because they can be redeemed for cash almost immediately, savings bonds count as assets in federal program applications. If they are worth more than the current asset threshold for benefits they have to be redeemed and spent before federal benefits will be granted.

Even though the owner’s address is included in an application to get a savings bond, the Treasury Department certainly would not expect that people are still at the same address years later when their bonds mature. Redeeming bonds is done in person by presenting the bonds at a major bank.

If the bonds are lost or destroyed, the owner can still cash them in by completing a form for the U.S. Treasury Department that will then be used to make sure that the bonds have not already been cashed. The information that has to go on that form is mainly for identifying the bond. You have to know the serial number, the date the bond was issued, the name and address you had when you got the bond, and your social security number.

The form, which is Treasury form PD-F-1048, also asks for explanations of when and where the bond was last seen and who else might have had access to it.[iv] Because a replacement bond will be issued so that the owner can cash it in at the desired time, it is necessary to provide an address on that Treasury form so that you can receive it somewhere. That address does not have to be for a place where you live, only a place where you can pick up mail.

[i] Income determines whether a family is eligible for federal housing programs. According to 24 CFR §5.609(a)(4) “annual income also means amounts derived…from assets to which any member of the family has access.”

[ii] Spending down too quickly or transferring it to someone might make an agency suspect that you still have access to the money and are trying to pretend that you no longer have it. When you read the law about a federal benefit program, see if there is a section about “spending down”. Here is an example: 42 USC §1396p(c) is the section of the Social Security Act that tells how that agency will determine when asset transfers affect eligibility for medical assistance benefits.

[iii] 42 USC §1396P(d)(4)(a)&(c). See also, Daryl L. Gordon, Special Needs Trust, 15 Quinnipiac Probate L. J. 121-131 (July-Dec. 2000) and the following books: Stephen Elias, SPECIAL NEEDS TRUSTS (Nolo, 2005); Barbara D. Jackins, et al, SPECIAL NEEDS TRUST ADMINISTRATION MANUAL: A GUIDE FOR TRUSTEES (IUniverse, 2005).

[iv] The form for redeeming savings bonds and other related information is at http://www.savingsbonds.gov/.

March 31, 2008May 25, 2017

Is the City allowed to throw away possessions that you leave temporarily in public places?

This question considers situations much different from what was covered in the post about the possibility that the police or other government employees might find possessions and assume that they are garbage or have been abandoned. Here, we will look at what happens when the government purposely empties out places where homeless people live.

Many cities in the United States have launched clean-up efforts around holidays and major sports events to rid urban areas of the homeless. Some cities have undertaken these “homeless sweeps” not in connection with big events, but instead on the grounds that general city sanitation and beautification require it.

They say that some people are intimidated by the homeless or else don’t want to do business in a place that looks unpleasant and that homeless people and their possessions look bad. Sometimes they say the homeless cause health hazards. They take away homeless people’s possessions to prevent the homeless from staying where they have been.

Clearly, when government workers are required to separate homeless people from what they own there is no credible way for police or sanitation workers to claim that they merely mistook the stuff to be garbage. So a legal claim against a homeless sweep is not so much a matter of demonstrating what the public employees should have known, as in the situations when police or park employees simply found possessions and thought they were abandoned or garbage. Instead, this kind of dispute will emphasize what the government did know about who owned the stuff and why it was outside and how the government exploited that information to victimize citizens.

ACLU offices, homeless advocacy services, and other legal support agencies have fought against these homeless sweeps with a variety of Constitutional arguments.[1] Even though the U.S. Constitution does not specifically say that the government can’t take homeless people’s things, it has broad civil rights declarations that can be understood to mean that taking away the possessions of homeless people is unjust.

Some have argued that the Eighth Amendment prohibition against cruel and unusual punishment was violated. Others have asserted that the Fifth Amendment right to compensation for government takings of property (also known as “eminent domain”) applied to the situation. Many groups have successfully used the same law that was discussed in the Lost and Found part of this chapter, the Fourth Amendment to the United States Constitution which prohibits unjust searches and seizures.

Always, these arguments are accompanied by the Fourteenth Amendment. That amendment is useful for two reasons:
1. it makes these other Amendments apply to acts done by local and state governments because on their own those Bill of Rights protections in the Fourth, Fifth, and Eighth Amendments only apply to the Federal government and
2. The Fourteenth Amendment affords the victims due process in their dealings with the government.

The cruel and unusual punishment arguments have not been successful. Courts tend to hold that cruel and unusual punishment can only be a component of criminal punishment.[2] Still, there is a strategic reason for putting it into claims; it reminds the court to think about how mean, how downright insensitive, it is to take away the last few things that people own.

The Fifth Amendment claim about compensation for property taken by the government tends to work well combined with a due process claim raised under the Fourteenth Amendment. The Fifth Amendment authorizes the government to take over private property when necessary for some government purpose. It is easy to see why a local or county government could believe that encouraging tourism or alleviating public health problems would be the kinds of government purposes that might necessitate getting street dwellers out of a particular area. However, that same constitutional amendment “prohibits the exercise of the power of eminent domain without just compensation to the owners of the property which is taken[3]

The due process claims assert that the people whose things were taken are entitled to be alerted about sweeps in advance so they can move away voluntarily instead of losing their stuff. The due process claims also demand that people get the opportunity to reclaim their things. Combined, the Fifth Amendment claim about compensation for taken property and the due process claim for communication and cooperation say, “You took my things and so now I am entitled to have an opportunity to either get them back or be paid for them.”

Cases proving that the Fourth Amendment is violated by intentional removal of homeless people’s possessions have emphasized that even if they don’t live within walls people are entitled to have a reasonable expectation of privacy in their belongings.[4] To reach that conclusion, the courts do acknowledge that the things picked up in the sweep were simply on the ground outside in public places. But they recognize that “the interior of the bedrolls and bags or boxes of personal effects belonging to homeless individuals … is perhaps the last trace of privacy they have.” [5]

By demonstrating that the homeless sweep caused “some meaningful interference with an individual’s possessory interests in that property,” [6] lawyers for the homeless have convinced courts that taking away the stuff belonging to homeless people was against the Fourth Amendment’s protection from unreasonable seizures.

Making assertions about what makes something private or who owned the items in the first place, etc… is really only one part of succeeding in a case against a homeless sweep. Besides establishing those kinds of points that connect to the Constitution, it is necessary to prove that government seizure of possessions is more harmful to the homeless owners of those possessions than the sanitation problems (or other underlying reasons for enacting the sweeps) are to the cities.

This comparison, weighing the extent of the harm caused by the government’s action against the government’s need to take that particular action to solve a problem, is the formula for proving any claim that constitutional rights have been violated. When police or other government officials plan to roust the homeless by gathering up all of their possessions, they are acting with legal authority. Either an ordinance has been passed or a special order has been issued or some other legal action has authorized taking those possessions. So, whether the legal claim against a “homeless sweep” is about due process, government taking, search and seizure, or any other Constitutional right, it has to show that the law authorizing the sweep was itself illegal.

When they have been successful in these cases, lawsuits have usually not been able to stop the city from conducting sweeps, but they have managed to arrange for the protections identified above: advance warnings to give the homeless an opportunity to move their things away from the area to be “cleaned up” and, sometimes, safe storage of the possessions as well as a claims process for returning possessions belonging to the homeless. [7]

[i] Kevin Bundy, Officer, Where’s My Stuff? The Constitutional Implications of a De Facto Property Disability for Homeless People, 1 Hastings Race and Poverty Law Journal 57 (Fall 2003). One of the exemplary homeless sweep cases was argued by the Pittsburgh ACLU. It is described and accompanied by copies of the legal pleadings and the settlement agreement at http://www.aclu.org/rightsofthepoor/gen/13454prs20030513.html.[ii] Johnson v. City of Dallas, 860 F.Supp. 344, 355 (N.D.Tex. Aug 18, 1994). In 2009 the National Law Center on Homelessness and Poverty put forth a model order for police departments to implement as a foundation for police interactions with homeless people. That order, which is only valid in cities that adopt it, declares that police cannot damage or destroy homeless people’s possessions unless they are known to be health hazards and that in arrest situations the police have to handle homeless people’s possessions in the same way that they would handle any other arrestee’s possessions (which typically means that they are listed on an inventory, stored by the police, and returned to the arrestee upon release). That model order is online at page 31 of Criminalizing Crisis: Advocacy Manual. http://www.nlchp.org/Criminalizing_Crisis_Advocacy_Manual Note that because this post is about property rights, the arrests that might go along with this kind of sweep are not addressed here. See the posts about involvement with the police and courts to read about arrests.

[iii] Black’s Law Dictionary 6^th Ed., “eminent domain”

[iv] Pottinger v. City of Miami, 810 F. Supp. 1551, 1572 (S.D. Fla. 1992).

[v] Id. at 1572.

[vi] United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984).

[vii] Kincaid v. Fresno No. 1:06-cv-1445 (E.D. Cal. 2006); Justin v. Los Angeles No. CV 0012352 (C.D. Cal. 2000); Love v. Chicago 96-C-0396 (N.D. Ill. 1996); Sager v. Pittsburgh CA-03-0635 (W.D. Pa 2003)–settlement agreement available at http://www.aclu.org/FilesPDFs/sager.pdf. Annual “Illegal to be Homeless” reports from the National Coalition for the Homeless http://nationalhomeless.org/references/publications/ summarize effective advocacy work such as arranging for advance notice of homeless sweeps.

March 31, 2008April 21, 2011

If the police or other government workers find your possessions in a place that doesn’t belong to you, what are your legal rights?

Because the finding has been done by a government employee, the law that applies is the Constitution rather than theft laws. If a police officer, park gardener or other public worker comes upon bags full of objects, bedding, cooking supplies, or anything else, looks through those possessions, and then takes them away, it might be an illegal search and seizure under the Fourth Amendment of the U.S. Constitution. [1]

The Fourth Amendment declares that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” [2] Because it goes on to state that “no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” this clause has long been understood to mean that when they are investigating a crime, the police have to obtain a warrant from a judge before searching through people’s property and seizing any of it to use as evidence in a criminal trial. But it also applies when police are not investigating crimes. As the U.S. Supreme Court said in the case of U.S. v. Jacobsen

“[t]his text protects two types of expectations, one involving ‘searches,’ the other ‘seizures.’ A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A ‘seizure’ of property occurs where there is some meaningful interference with an individual’s possessory interests in that property.” [3]Homeless people, living outside, are likely to have their possessions searched and seized for reasons other than crime investigations. Maybe a public maintenance worker comes across the stuff and looks through it to see if it’s garbage. Perhaps a police officer goes through it or destroys it because he thinks it might be dangerous. Possibly, the mayor’s office has ordered crews to clean-up the streets.

If the public worker did think the found stuff was garbage, the first thing a court will consider in the search and seizure case is whether the owner expected that his stuff was in a private place. Usually, when police have searched through garbage left for municipal collection at a curb, in an outside garbage can (even up against a house or in a permanent location somewhere), [4] or in a shared trash receptacle for a business or apartment, [5] the courts believe that the person who put out that garbage would not have had a reasonable expectation of privacy in it.

So, when people probably don’t expect that their things were in a private place, searching those things does not violate the Constitution. An owner must show that he did expect that those possessions were private if he is going to prove that the search and seizure were illegal. [6]

Even though the stuff might have been stored outside or inside a property where the owner of the stuff does not even rent space, there are ways to demonstrate an expectation of privacy. That expectation of privacy must be considered in light of what the police have to prove for their defense; in court the police perspective will be heard right alongside the perspective of the person whose things the police went through or took away.

The police have to show that what they found was equivalent to garbage. In order to successfully prove that the things found outside were like garbage, the police or other government employees have to show that they believed those things to have been unwanted like garbage. The legal term for that status is “abandoned”. [7] Proving that property was abandoned means showing that the owner relinquished control over it.

The owner of the possessions, trying to show that he or she did not abandon those possessions, is likely to explain the situation that led to leaving those items in that place. That explanation might say that effort was made to hide the stuff or that it was arranged to clearly serve as a sleeping area or that it was located in an area well-known to be inhabited by homeless people, etc…

If that explanation is sufficiently detailed and sensible, the court is more likely to find that the owner truly did have an expectation of privacy regarding those possessions. That court decision would mean that the search and seizure of those possessions was in violation of the federal Constitution’s Fourth Amendment or the comparable state constitutional provision. [8]
This may raise another question, what if some ordinary citizen who is not a police officer takes something that has been left out for garbage collection? Does that result in an illegal possession? The argument that applies to the police also applies to everyone else: anything that is put out for garbage collection is presumed to be abandoned by its previous owner.

Taking it away is not stealing it. The Model Penal Code (Section 223.5) definition of larceny relating to found items even says that the finder has to know that the item was “lost, mislaid, or mistakenly delivered” in order to be guilty of theft. Even when things have not been properly put in trash receptacles, a person who takes a found item honestly believing that it was discarded has a good argument against a theft charge. [9]

[i] U.S. Const. amend. IV.[ii] Id.[iii] U.S. v. Jacobsen, 466 U.S. 109, 113 (1984).

[iv] California v. Greenwood, 486 U.S. 35, 37 (1988).

[v] U.S. v. Michaels, 726 F.2d 1307, 1312 (8th Cir. 1984).

[vi] Commonwealth v. Krisco Corp., 653 N.E. 2d 579, 582-583 (Mass. 1995).

[vii] 1 Am. Jur. 2d Abandoned, Lost, and Unclaimed Property§ 3 (2006).

[viii] Since the first ten amendments to the Constitution were written to control the behavior of the federal government, a Fourth Amendment claim cannot be used alone to charge that local, county, or state police have searched and seized illegally. It is necessary to also identify the Fourteenth Amendment which makes the provisions in the Bill of Rights applicable to state governments. The state constitutions also have search and seizure clauses enabling someone to bring the same kind of case in state court instead of federal court. The great value of bringing it in federal court is that, if necessary, it can be appealed all the way to the U.S. Supreme Court.

[ix] Courts are not all consistent about this.

March 31, 2008May 25, 2017

What if you find something that is not labeled with the owner’s name, the way shopping carts are? Does that count as theft? Suppose you find something that seems impossible to trace, is it still illegal to have that item?

Having possession of lost property can count as theft. The basic definition of theft has three components:
1. possessing something that belongs to someone else
2. without the owner’s permission and
3. intending to deprive the owner of it[1]

If police believe that these three components are true, they can charge theft. Most state codes have a broad theft statute like this[2] as well as specialized varieties of theft such as burglary, robbery, and grand theft auto. In some states, the basic theft law might have an additional component: taking the item. This does not have to mean that someone took an item away from the owner while the owner was actually holding it; it can mean that he took it away from where he found it. [3] (Note that state codes might use the words “larceny” or “theft” instead of “stealing”.)

Alternatively, under the right circumstances, police can charge a finder of lost goods with possessing or receiving stolen property. The basic components of those crimes are: 1. that the accused knew the item was stolen, 2. that the accused had control over the item, 3. that the accused intended to keep the item from the owner and, 4. that the item really was stolen.<[4]

The Model Penal Code, a set of criminal law examples that most states have incorporated or adapted for their own criminal codes, has category of larceny specifically about keeping lost property. It has three components:
1. the finder knows that the item was mistakenly dropped or left behind
2. the finder has the opportunity to return the item, but does not return it and
3. the finder intends to deprive the owner of it[5]
Some of the states that have codified this law are New York[6], Montana[7][8],Idaho, and Oregon[9] There are hundreds of cases, from all over the country, analyzing the circumstances under which keeping found property can count as theft. To find these cases in case indexes published by West, look under the topic of Larceny key 10.

Some states, rather than punishing finders of lost items, have laws establishing incentives for returning found property. In Iowa, a long-time law requires that people whose lost property is returned pay ten percent of its value as a reward to the finder.[10] In Alabama and California, a finder is entitled to be repaid for money spent to protect or return lost property.[11] In Illinois and New Jersey, a finder is entitled to keep the lost property if the person who lost it has not claimed it within six months.[12] In Wisconsin, the wait is only ninety days. [13] In Massachusetts, Iowa, and New York, it is a full year.[14] In Oregon, a finder only has to report the finding to authorities if it is worth more than $100 and then wait three months to be named the legitimate owner.[15] Iowa has even taken the step of legislating that finders are not financially responsible for accidental damage done to found goods. [16]

After the police charge someone with a crime, a court determines whether the accused defendant is guilty of the crime. As you can see from the previous paragraphs, all of the possible theft charges against finders of lost property included two hard-to-prove facts: what the finder knew and what he intended.

Failure to return found property requires proof that the finder knew that the item was lost while theft requires proof that he knew the item still belonged to another person and receiving stolen property requires that he knew that the item was stolen. Intent is the same in all three charges; he intended to deprive the owner of the item. Since knowledge and intent both happen inside the head, a finder can defend himself by disproving the accusations about what he knew or intended when he found the item.

Here is an example to consider:
Suppose a homeless person finds a coat on a bench in the park where he sleeps and, because the evening is getting cold, he puts the coat on and plans to keep it for the winter. A month later, the police catch him with the coat and arrest him.

To show that he did not know the coat was lost or stolen when he found it, he can say and demonstrate that he believed the coat was abandoned or even donated. He might cross examine a police officer to get testimony about the known presence of homeless people in the park. He might bring other homeless people as witnesses to testify that people bring clothing and food donations to them in the park. He might be able to prove that there was often garbage near this bench which led him to believe that this coat may also have been tossed there as garbage.

To show that he did not intend to deprive the owner of the coat, he might ask witnesses to testify that they continued to see him residing in the park after finding the coat which was a way of making the coat visible to the owner if he came back looking for it. He might say that he wore the coat intending to protect it from being blown away or discarded before the owner came back for it.

There are many ways of defending against a charge that by keeping a found item someone has broken the law. But if a found item seems valuable or can be traced to an owner, a finder should know that the item was lost or stolen and a prosecutor will likely accuse him of knowing that if he is caught with the item. Finders can avoid criminal charges by taking valuables and labeled items to the police before assuming that they can keep them.

[i] Black’s Law Dictionary 1516 (8th ed. 1999).[ii] 50 Am. Jur. 2d. Larceny § 2 (2006).[iii] 50 Am. Jur. 2d. Larceny § 14 (2006).[iv] Model Penal Code §223.6 (1962). See also, Wayne R. LaFave, Criminal Law §20.2 (4^th Ed. 2003); Carroll J. Miller, What Constitutes “Constructive” Possession of Stolen Property to Establish the Requisite Element of Possession Supporting an Offense of Receiving Stolen Property” 30 A.L.R. 4^th 488 (1984).[v] Model Penal Code §223.5 declares that “A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the amount of the property or the identity of the recipient is guilty of theft if, with purpose to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it.” Model Penal Code § 2235 (1962).

[vi] N.Y. Penal Law § 155.05 (McKinney 2007); N.Y. Penal Law § 165.40 (McKinney 2007).

[vii] Mont. Code Ann. § 45-6-302 (2005).

[viii] Idaho Code §18-2403(2)(c) (Michie 2007).

[ix] OR. REV. STAT. § 164.065 (2006).

[x] Iowa Code § 556F.13 (2004); Flood v. City Nat’l. Bank, 253 N.W. 509 (Iowa 1934); State v. Couch, 92 N.W. 2d 580, 582 (Iowa 1958).

[xi] Auto. Ins. Co. v. Kirby, 144 So. 123 (Ala. Ct. App. 1932); Cal. Civ. Code § 2080 (West 2007).

[xii] 765 Ill. Comp. Stat. Ann. 1020/28 (West 2006); N.J. Stat. Ann. § 40A:14-157 (West 2007).

[xiii] Wis. Stat. § 170.10 (2006).

[xiv] Mass. Gen. Laws Ann. ch. 134, § 4 (West 2007); Iowa Code § 556F.11 (2005); N.Y. Pers. Prop. § 257 (McKinney 2007).

[xv] Or. Rev. Stat. § 98.005 (2006).

[xvi] Iowa Code § 556F.16 (2005).