Theft by Finding

To secure a conviction the state must prove that the defendant formed the intent to steal at the time of the finding. This is a specific intent crime which means negligence is not enough. We focus on the mindset of the client at the critical moment of discovery.

We argue that the client took possession of the item to protect it from theft by others rather than to steal it themselves. If a client picks up a wallet on a subway platform to stop a stranger from taking it and then gets arrested before they can find a police officer they are not guilty of theft. We present evidence of the chaotic circumstances or the lack of immediate opportunity to report the find. By delaying the formation of the intent we argue that the act was one of stewardship rather than larceny. We emphasize that a delay in returning the item is not evidence of an intent to keep it forever.

Statutes often require the finder to take reasonable measures to return the item. This is a vague standard that we litigate aggressively. What is reasonable for a tech-savvy person might not be reasonable for an elderly client or someone with limited English proficiency.

We demonstrate that the client took steps that a reasonable person would view as an attempt to return the property.

• Checking the device for a contact number or Home address stored in the settings
• Turning the item over to the lost and found department of the venue
• Posting on local community boards and social media
• Bringing the item to a local police precinct

We gather evidence of these attempts. Even a single text message to a friend asking what to do with a found phone can demonstrate a lack of criminal concealment. We argue that the failure to succeed in finding the owner is not the same as the failure to try. If the client made even a minimal effort it negates the presumption of theft.

The fact that a device is in your home does not prove you stole it. It only proves you possess it. We differentiate between possession and theft by focusing on the usability of the device.

We often encounter cases where a client found a phone and took it home to charge it so they could turn it on to find the owner. The police arrive while the phone is charging. We argue that the act of charging the device is evidence of an intent to return it. If the client intended to steal it they would have powered it down or removed the SIM card or attempted to wipe the data. We use the technical behavior of the client to prove their innocence. We also challenge the accuracy of the GPS data to ensure that the police had a valid basis for their intrusion and that the device was actually in the control of our client.

Public spaces are covered by cameras. Police use footage to identify the person who picked up the item. However video often lacks context and audio.

It shows the act of taking but not the intent. It does not show the client looking around for the owner or asking a bystander if they dropped something. We analyze the footage frame by frame. We look for body language that suggests confusion or helpfulness rather than stealth. We also look for what happened after the camera cut away. If the client walked toward a security desk but found it empty that context is critical to the defense against theft by finding. We subpoena additional angles or footage from subsequent locations to show the full course of conduct of the client.

We hire independent appraisers to value the property. If we can prove the item was worth significantly less than the felony threshold we can force a reduction of the charge from a felony to a misdemeanor.

This is particularly relevant for jewelry or luxury goods found in public where the provenance is unknown. We argue that the condition of the item when found reduces its value below the felony threshold. A scratched watch or a phone with a cracked screen is not worth the retail price. We also argue that sentimental value to the owner is irrelevant to the criminal statute. By attacking the math of the prosecution we limit the legal exposure of the client and open the door for diversion programs that are only available for misdemeanor offenses.

The law distinguishes between lost property dropped on the floor and mislaid property placed on a counter and forgotten. Mislaid property is considered to be in the constructive possession of the premises owner which changes the legal analysis.

If you take a wallet left on a bank counter you are stealing from the bank as well as the owner because the bank has a right to hold it for the customer. We litigate this distinction. If the item was on the floor in a public lobby we argue it was lost not mislaid. This technicality can affect the charging decision and the duty of the finder. We force the prosecutor to be precise in their legal theory of the case. If they charge the wrong theory based on the location of the item we move for dismissal.

If a reasonable person would believe the item was thrown away there is no crime. This applies to furniture left on a curb or electronics found in a dumpster or items left in a pile of debris.

We present photos of the location where the item was found. If the environment suggested refuse we argue that the client lacked the criminal intent to steal. We cite case law that protects scavengers and recyclers. We argue that the state cannot criminalize the recycling of discarded goods simply because the original owner later decides they want them back. The subjective intent of the owner to reclaim the item is irrelevant if their objective actions signaled abandonment to the world.

Theft requires an intent to deprive permanently. If you intended to return the item but had not gotten around to it yet you are not guilty. This is often the reality for busy professionals or students.

We use the busy life defense. We show that the client had a chaotic schedule or a family emergency or a medical issue that prevented them from turning the item in immediately. We produce work schedules and phone records to corroborate the delay. We argue that procrastination is a human failing but it is not a felony. By establishing a benign reason for the retention of the property we negate the mens rea of theft by finding. We demonstrate that the client was merely holding the item until they had the time to deal with it properly.

In a bait operation the police place a GPS-tracked laptop on a bench and wait. When someone picks it up they arrest them almost immediately.

We challenge the conduct of the police. We argue that the placement of the item communicated abandonment. If the police put the laptop in a trash can to make it look discarded they cannot then arrest someone for taking it. We analyze the duration of the surveillance. If the client picked up the item and walked toward a police station but was arrested instantly we argue that the police acted prematurely and denied the client the opportunity to do the right thing. We demand the body camera footage to show the exact verbal exchanges during the arrest.

If you have found an item and are contacted by the police do not speak to them without counsel. They are seeking a confession to theft by finding.

We intervene to arrange the return of the property through a third party or attorney. This creates a barrier between the client and the police. We negotiate a no charge resolution in exchange for the return of the goods. We frame the return as a voluntary act of a good Samaritan rather than the capitulation of a thief. By managing the handover we prevent the client from making incriminating statements that could be used to prosecute them. We aim to resolve the matter civilly before it becomes a criminal indictment.