The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge
Pro se plaintiff Jerry Frith brings this action, pursuant to Fed. R. Crim. P. 41(g), to compel the United States to return personal property that the New York City Police Department ("NYPD") seized during and following his April 10, 2002 arrest. (Dkt. No. 2: Frith Rule 41(g) Mot.; Dkt. No. 6: Gov't Br. at 2-3.) In particular, Frith seeks the return of property listed in NYPD vouchers L335223-24. (Frith Rule 41(g) Mot. at 2 & Ex. 1: NYPD Vouchers L335223-24.)
In opposition, the United States argues that Frith's motion should be denied because:
(1) his motion is "time-barred"; and (2) the property Frith seeks was "never in the possession of the United States Government." (Gov't Br. at 1.)
The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 10.)
For the reasons set forth below, Frith's motion is DENIED.
On April 10, 2002 at approximately one a.m., NYPD officers in Manhattan arrested Frith for disorderly conduct after Frith and another individual refused to obey the officers' instructions to turn down their music and turn off their vehicle (a red 1998 GMC Yukon). (Dkt. No. 6: Gov't Br. Ex. A: Hill Aff. Ex. 1: 02 Mag. 725 Compl. ¶¶ 2-5; Gov't Br. Ex. B: 4/13/07 Frith Rule 41(e) Mot. at 1.) An NYPD officer searched Frith and recovered a necklace, a ring and $329. (4/13/07 Frith Rule 41(e) Mot. at 2.) After arresting Frith and the other individual, the NYPD officers also recovered $1,504, a revolver and crack cocaine from the center console of the vehicle. (Frith Rule 41(g) Mot. at 2; Hill Aff. Ex. 1: 02 Mag. 725 Compl. ¶¶ 6-8; 4/13/07 Frith Rule 41(e) Mot. at 2.) The NYPD conducted an inventory search of the vehicle and recovered more items. (Gov't Br. at 2-3 & Ex. B: 4/13/07 Frith Rule 41(e) Mot. at 3.) The NYPD listed the items recovered from Frith's person and the vehicle on seven NYPD property vouchers (L335215, L335216, L335217, L335218, L335220, L335223, L335224). (Hill Aff. Ex. 2: NYPD Property Vouchers.)
Later in the day, the United States Bureau of Alcohol, Tobacco and Firearms ("ATF") arrested Frith. (Hill Aff. ¶ 3.) ATF Agent Corey Hill "took possession of the following items" that the NYPD had vouchered: a cell phone, a necklace, a ring, two metal detectors, an "envelope with assorted papers" and crack cocaine. (Hill Aff. ¶ 4.) The NYPD "retained custody" of the vehicle, two firearms and all of the money seized. (Hill Aff. ¶ 4.)
On June 6, 2002, a grand jury in this District indicted Frith for cocaine and weapons possession, and on October 17, 2002, Frith pled guilty. (Frith Rule 41(g) Mot. at 2; Gov't Br. at 3-4.)
On February 5, 2003, Judge Rakoff sentenced Frith to 181 months imprisonment. (Frith Rule 41(g) Mot. at 2; Gov't Br. at 4.) On February 10, 2003, Judge Rakoff entered Frith's conviction and sentence on the docket. (02 Cr. 733: Dkt. No. 19: 2/10/03 Judgment.) Frith still is serving the imposed sentence. (Frith Rule 41(g) Mot. at 2-4; Gov't Br. at 4.)
After Frith's sentencing, ATF Agent Hill called Frith's family on four occasions in order to arrange the return of the property (besides the crack cocaine) he had seized. (Hill Aff. ¶ 6.) ATF Agent Hill made his final attempt to contact Frith's family on January 20, 2004 when he left a message on Frith's sister's answering machine. (Hill Aff. ¶ 6.) Frith's family never returned ATF Agent Hill's calls. (Hill Aff. ¶ 6.) On May 25, 2005, Agent Hill destroyed the narcotics and on January 16, 2007, "[p]ursuant to ATF policy," Hill caused the cell phone, necklace, ring, two metal detectors, and the "envelope with assorted papers" to be destroyed. (Hill Aff. ¶¶ 4, 7 & Ex. 3: Reports of Destruction; Frith Rule 41(g) Mot. at 2 n.1.)
On April 13, 2007, Frith filed a motion, pursuant to Fed. R. Crim. P. 41(e),*fn1 docketed as 07 Civ. 5899, seeking to compel the NYPD and the United States to return five items seized on April 10, 2002: a necklace, a ring, a Motorolla/Nextel cell phone, $329 in cash recovered from Frith's person and $1,504 seized from the vehicle. (Dkt. No. 6: Gov't Br. Ex. B: 4/13/07 Frith Rule 41(e) Mot. at 3.)*fn2 On August 7, 2007, the United States filed a response, including an affidavit from ATF Agent Hill stating that the ATF had destroyed the necklace, the ring and the cell phone after Agent Hill attempted on multiple occasions to return the property to Frith's family. ...