Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
A long fact pattern from an officer in California: a beach cruiser stolen from a home, a Nextdoor post, and a bike found tied to a tree beside a tent in a homeless encampment. No receipt, no serial number, no confession. The officer wants to know whether there was probable cause to take the bike back.
All right guys, got another question for you for a roadside chat. This one is a long fact pattern, but I think it’s worth it. The question is determining if a bicycle is stolen based on an alleged victim’s accusation.
This question comes from an officer in California, and he did a very, very good job giving me a lot of background for this case. The essence of this case is, is there probable cause, and is there a Fourth Amendment issue, basically taking an alleged victim’s word at face value that somebody has their bike and it’s stolen, with not much more. I think that’s a great scenario.
What happens when a stolen bike is reported with no serial number?
So let me read the fact pattern and address a few issues. It’s a little long, but again, that’s why we’re here, to see what you would do.
A resident of a neighboring city came to our PD to report that a bicycle was stolen from her home about three days ago. The theft had not been reported to her local PD prior to coming to our PD. Very common. But she did post the theft on a social media app called Nextdoor. The bicycle was an older beach cruiser style bicycle with a child seat attached to the back. The resident did not have any proof of ownership, such as a purchase receipt or a serial number of the stolen bike.
Now at this point, one question I do have for the officer, and I don’t know the answer, is did the resident also have pictures of her with the bike, with her kid on the bike? That would kind of help circumstantially that the bike belonged to her. I’m thinking that she did. I’m going to assume that she did, because it’s going to be pretty hard to ask people to look for a stolen bike with just some words. You’re going to probably want a picture. So let’s assume that the victim here has a picture. That’s all she has, though, is a picture of her riding the bike, or next to the house.
A few days after the victim posted the theft on the app, another user on the app posted a picture showing a male riding the bicycle, and the bike matched the description that the victim said was stolen. So again, I’m assuming there’s a picture here. If no picture, it’s less circumstantial evidence that she owns the bike.
According to the person who posted the picture, the male was last seen riding the bike in our city, behind the shopping center, with the transient encampment nearby. The encampment is along the 405, the freeway. The victim requests that the officers check on this area and see if they can locate her bicycle.
An officer checked the area and saw a bicycle matching the description perfectly. So now I’m almost thinking that there is no picture. But anyway. It was tied to a tree inside the encampment, next to one of the tents, about one foot or so from this particular tent. The officer contacted a male at the camp, so they did not see the other suspect riding the bicycle. The person agreed to talk to the police and he denied knowing anything about the bicycle. After talking with the officer, the person in the tent untied the bicycle and basically handed it over to the officers. Hey look, I don’t know anything about this, it’s all yours. The officer booked it in as found property.
The person originally riding the bike was never located, and then we end up returning the bicycle to the victim.
So the officer that did this concluded that the bicycle was the same bike and that it was a stolen bike. Basically the officer believed that he had probable cause. Now the questions by the officer are this. Number one, do we have a Fourth Amendment issue for seizing the bicycle with what we knew at the time? And number two, generally what has to be established to determine property found is stolen, and who is the lawful owner, when a serial number is not available or on file linking a person to it? How does the victim prove that this is their property?
Is it a Fourth Amendment seizure if the person hands the bike over?
Let’s go with the first question. Is there a Fourth Amendment issue about seizing the bike? The answer is yes, there would be, if there was actually a seizure.
Quite frankly, I’m not sure there was a Fourth Amendment seizure here under the facts given to me, because it seems to me that after this person claimed he had nothing to do with this bike, and it’s right next to his tent. I’d have to see the whole encampment to see if it could reasonably be believed to be another person’s bike. But let’s assume that it seems clear that this bike is associated with that tent. Now, that tent is this person’s home, and there’s nobody else around to claim the bike being potentially mislaid or left there. Since that is kind of his property, he has an expectation of privacy in that tent under these circumstances. It seems to me that he actually gave the property to the police, and that this property was lawfully given over to the cops. So I’m not even sure that the cops actually have a Fourth Amendment seizure under these facts.
Do you have probable cause that the bicycle is stolen?
But even if this was a seizure, do the cops have probable cause? Well, that’s really the meat of the argument here. That’s where it’s thin at best.
Let’s assume that the person said, yes, this is my bike, or this is my friend’s bike, and the cops said, well look, we believe that bike is stolen, we’re going to take it. I think that’s a problem. I think that’s a problem with the facts of this case, because in order to determine ownership of property when it’s a he said she said, typically it’s circumstantial evidence. What evidence does the cop have to reasonably conclude, or at least a fair probability, that the property is stolen?
When you don’t have original ownership documents and serial numbers, the pictures will certainly help, because the alleged thief has some explaining to do when the victim comes forward with all these pictures. Hey look, this is a picture of two years ago with me and this bike. And they can say, well, I bought it from this person, and of course that might dilute the argument. But the point is, what circumstantial evidence do you have?
What circumstantial evidence shows a bicycle is stolen?
Is the person riding the bike compatible with the bike? For example, if the person riding it is a male and it’s a girl’s bike and it has a child seat and there’s no child, that’s something. Or the bike is a kid’s bike and the person riding it is an adult. Look for stuff like that.
Also look for recent spray paint, that they’re changing the color of the bike, and you can still smell the recent fumes of a rattle can paint job. Look for that.
Is the alleged thief abnormally nervous? Why should a person be abnormally nervous when they lawfully possess the bicycle?
Look for history of theft. Are they in paper? Are they under parole or probation supervision for some crime associated with stolen property? Prior convictions and arrests and so forth.
Are they lying to you about anything? Why would somebody who’s truthful and on the up and up lie to you about stuff about the bicycle and where they got it from?
So the point is that you’re going to have to look for circumstantial evidence.
What do you do when ownership of the property is contested?
Now if this is all we have, and we are dealing with a seizure issue, we are looking at taking the bike from contested ownership. I personally would not take the bike if it was contested. If the alleged thief under these facts is saying, no, this is my bike, I bought it, it’s legit, and there was no other circumstantial evidence, the nervousness, the deception, the rattle can paint job, the prior histories of theft, if none of those facts existed, I would basically tell the victim that you’re going to have to go to civil court on this one. You’re going to have to go to small claims court, or hire an attorney, to sort this out, because I don’t have enough for criminal conduct.
And that’s what police are. Remember, when you’re talking to these victims, say look, I’m a criminal investigator. In order for me to take enforcement action, I have to have at least probable cause. And if I don’t have probable cause, I cannot take enforcement action. It could also be a civil issue at the same time, but your next remedy is civil.
Can the department get sued if you took the wrong bike?
So that answers the second question. If we have not effectively established ownership here, at least by fair probability for probable cause purposes, could there be some liability? The answer is, if the person comes back to the PD and claims that it’s their bike, and that person sues civilly, and there is no probable cause, then of course the PD owes this person a bicycle with a child seat.
Now some of you guys are probably thinking, hey, cops are usually right in these situations, there’s a lot of intuition going on and sixth sense. And I certainly agree with that. So maybe this guy never shows up, because let’s say he did steal the bike. So no harm no foul. But don’t forget, at the end of the day, if the cop was incorrect, we don’t want to be on the wrong side of the law either.
Long fact pattern, but I can tell you that you have been in situations like this, and I have been in situations like this.
The short version
- “When you’re dealing with stolen property and it’s contested ownership, you’re going to pick a side.”
- “There’s a fair probability that this is a victim and he or she is correct. I believe the property is stolen. Tell me why. What circumstantial evidence do you have that helps prove your case?”
- “If there’s not enough circumstantial evidence, you should probably stay neutral and send them to civil court.”
- “I’m not even sure that the cops actually have a Fourth Amendment seizure under these facts,” because the man beside the tent untied the bike and handed it over.
- “In order for me to take enforcement action, I have to have at least probable cause. And if I don’t have probable cause, I cannot take enforcement action.”
- “If there is no probable cause, then of course the PD owes this person a bicycle with a child seat.”
Related from Blue to Gold
- Can a Witness Provide Sufficient RS to Stop and Detain?
- Seizing a Victim’s Cellphone
- Searching a Person Without an Arrest
This article is an edited transcript of Roadside Chat Ep. #147. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
