Can the homeless have savings bonds or financial accounts?

**** 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. ****

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 homeless person 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/.

Advertisements

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

 

**** 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. ****

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 6th 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.

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

**** 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. ****

 

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.

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?

**** 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. ****
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 (4th 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. 4th 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).