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Lawrence Herbert v. the City of New York

August 30, 2012


The opinion of the court was delivered by: John Gleeson, United States District Judge:


Plaintiff Lawrence Herbert commenced this pro se action, asserting a claim pursuant to 42 U.S.C. § 1983 for a violation of his right to due process arising from the seizure of his car. The City of New York has moved to dismiss the complaint, in which it is the sole named defendant. For the reasons stated below, the motion to dismiss is granted. However, Herbert is granted leave to file an amended complaint within 30 days.


On the night of January 28, 2011, police officers stopped Herbert's car as he was driving in Queens. Compl. ¶ 4. The purported reason for the stop was that officers saw Herbert's prescription medication, which they believed to be an illegal substance. See id. ¶ 5. Shortly after midnight on January 29, 2011, the police arrested Herbert and charged him with unlawful possession of a gun. See id. ¶ 3. The outcome of Herbert's criminal case is not indicated in the present record.*fn1

Herbert's car was confiscated at the time of his arrest, and it has not been returned since then. Id. ¶¶ 6--7. The District Attorney has informed the lawyer representing Herbert in his criminal case that the car was being held so that it could be photographed and would be returned to him after the photographs were taken. See id. ¶ 7. Herbert has never received a hearing in connection with the confiscation of his car. Id. ¶ 8.


A. Standard of Review

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (internal quotation marks and citations omitted). In applying this plausibility standard, a court is "obligated to construe a pro se complaint liberally," Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and should not dismiss it without "granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)) (internal quotation marks omitted).

B. Application

It appears from the complaint that the police are holding Hebert's car for its use as evidence in his criminal trial. See Compl. ¶ 7 (noting car is "being held to take photos"). A claim that the retention of evidence seized at the time of a person's arrest deprived him of property without due process is governed by several Second Circuit decisions.

In McClendon v. Rosetti, 460 F.2d 111 (2d Cir. 1972), the Second Circuit held that the New York City ordinance governing the return of property seized as evidence, N.Y. Admin. Code § 14-140,*fn2 was "unconstitutional as applied to persons from whose possession money or property, other than contraband, has been taken or obtained, though such money or property was not related to any criminal proceeding, or, if it was so related, such criminal proceedings had been terminated, or if the money or property had been needed as evidence in a criminal proceeding, it was no longer needed for that purpose, as violative of the due process clauses of the fifth and fourteenth amendments." McClendon, 460 F.2d at 116.

On remand from the Second Circuit's decision in McClendon, the district court, in an opinion by Judge Morris Lasker, set forth procedures that govern the seizure of non-contraband property in connection with an arrest. See Butler v. Castro, 896 F.2d 698, 700--02 & n.1 (2d Cir. 1990). The Second Circuit approved those procedures in Butler. See id. at 703. First, they require that the police provide the property owner with a voucher, which must "give notice of the procedures to be followed to recover such property." Id. at 702. The claimant may demand the return of his property after either the termination of the underlying criminal proceeding or "the issuance by the District Attorney of a release indicating that the property or money is not needed as evidence." Id. The City must then "either return the item or items in question or initiate judicial action to authorize their continued detention." Id.

Thus, McClendon recognized a potential due process claim where property has been seized at the time of arrest and is being held for a reason other than its use during a pending criminal proceeding. Since Herbert's criminal proceeding may have concluded or, if not, his car may no longer be needed as potential evidence, he may have a due process claim.

Herbert may also have a due process claim even if his criminal case remains pending and the District Attorney's office purports to be holding his car as evidence in that case. The Second Circuit held in Krimstock v. Kelly, 464 F.3d 246 (2d Cir. 2006),*fn3 that prosecutors cannot "decide unilaterally that an automobile is material [to a criminal proceeding] and its retention necessary." Id. at 255. Due process requires "review by a neutral fact-finder of a prosecutor's decision to retain a vehicle as potential evidence." Id. Although the initial decision authorizing retention of property as evidence may be made ex parte, see id., a claimant must be given a prompt hearing to challenge a determination ...

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