Caution Urged in Return of Stolen Property by Police

Can you imagine anything more galling to a police officer than to be sued by the thief he helped to put behind bars for violating the crook’s legal rights to the stolen property? Believe it or not, that is the current state of the law.

The Municipal Assurance Group frequently learns that numerous municipal police departments are totally unaware of the existence of state statutes which create this topsy turvy situation. This Risk Alert is intended to guide municipal management and law enforcement on this issue. 
The Tenth Circuit United States Court of Appeals in Lavicky v. Burnett, 758 F. 2d 468 (1985) decided that an Oklahoma law enforcement officer who failed to follow the procedures at Title 22 O.S. § 1321 and 1322 of the Oklahoma statutes concerning the return of allegedly stolen property to the rightful owners was in violation of 42 U.S.C. § 1983. In this particular case the “rightful” owner was the person convicted of a felony for stealing property which was the basis for this action. Oklahoma is subject to the jurisdiction of this federal court. 

Title 22 § 1321 and 1322 of the Oklahoma statutes provide procedures for return property which has been taken into custody by law enforcement personnel. If property is not stolen or embezzled and there is no dispute as to ownership, it can be returned without a hearing. On the other hand, if property is alleged to have been stolen or embezzled, a magistrate must conduct a hearing to determine ownership and direct the disposal thereof. In addition, there is a procedure for disposing of property where there is no dispute concerning ownership, the property is readily identifiable by the owner, and the defendant enters a plea of guilty to nolo contendere and executes a nonownership affidavit.

The facts of this case should prove useful in analyzing the points of law discussed in this case.
In March 1979, Deputy Sheriff Burnett arrested Lavicky while he was working on his pickup truck at home in Enid. Burnett had an arrest warrant issued in Alfalfa County in connection with the larceny of a vehicle owned by Bruce Eckhard in Alfalfa County. Burnett testified at trial that while making the arrest he observed parts from Eckhard’s stolen truck on Lavicky’spickup.

The next morning, without obtaining a warrant, Burnett had Lavicky’s pickup truck towed. The next day the truck was towed to Alfalfa County and stored.

The prosecution for the stolen truck took place in Alfalfa County. Neither the pickup nor any parts of the truck were introduced into evidence at the trial. Lavicky was convicted of larceny of Eckhard’s truck. 

Lavicky tried to reclaim his truck but was told by the prosecutor that he could only have it after Eckhard had claimed his parts from it. Eckhard removed the parts believed to be his and the vehicle was then returned to Lavicky who now claimed that his tires and wheels, engine, transmission, and stereo were gone and that the seats and carpet were torn; essentially the entire truck had been stripped.

Lavicky, now a convicted felon, filed suit under 42 U.S.C. § 1983 alleging that he had been deprived of his vehicle (i.e., property) without due process of law. The county prosecutor testified that he believed as a policy matter he had the duty to turn over the allegedly stolen parts to Eckhard without any type of a hearing. In other words, he was admitting that neither he nor Deputy Sheriff Burnett were familiar with the procedures for return of stolen property found in Title 22. 

The Tenth Circuit said it was not impractical for state officials to hold a hearing to determine the ownership of the truck and its parts before its disposition. “Indeed Oklahoma law already has a framework which the officials ignored for determining the ownership of allegedly stolen property prior to its disposition.” 

The court ruled that “given the existence of the statutory framework and the planned nature of the defendants’ actions, we conclude that plaintiffs procedural due process rights in the disposition of his pickup and its parts were violated.” 

Police departments must take precautions on how they dispose of stolen property which is subject to the procedures found in Title 22 of the Oklahoma statutes. Failure to follow these is resulting in civil rights claims under 42 U.S.C. § 1983 against not only cities and towns in Oklahoma but against police officers in their individual capacities.

Caution Urged in Return of Stolen Property by Police was written by Stephen Reel, OMAG General Counsel. You may contact the author at: The information in this bulletin is intended solely for general informational purposes and should not be construed as or used as a substitute for legal advice or legal opinion with respect to specific situations, since such advice requires an evaluation of precise factual circumstances by an attorney. The Oklahoma Municipal Assurance Group does not represent or endorse any group, site or product mentioned in the article. This publication supersedes the Risk Alert of the same name published in August, 1987.

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