If police seize property that is not on a warrant are they basically stealing from you? What is your recourse if this is to happen? Can you make a case of theft against the police or is there nothing else to do but to start a section 1983 suit?
Police liability under state law has meaningful variation from state to state.
Most prominently, one could seek to regain possession of property unlawfully taken that belongs to the person bringing suit by some means or another, although the procedural framework for doing so varies quite a bit from state to state and can be quite arcane. This can't be done, however, of course, in the case of contraband (e.g. if cocaine is seized in a search made without a search warrant where a search warrant should have been required).
It is also generally in almost every jurisdiction in the U.S. some sort of state law crime for law enforcement officers to take property for personal use from a private citizen.
There are three main theories under federal law:
A suit under Section 1983 for an intentional violation of a well established constitution right by a state and local government official.
A Bivens lawsuit for an intentional violation of selected well established constitutional rights by federal government officials.
A reverse takings clause lawsuit (also called an inverse condemnation action) against the entity that employs a government official alleging that property was taken without due process of law and without justice compensation - but this is limited by a police power exception in most cases where the action can be colorable tied to a legitimate use of police powers.
It depends on what the property is, and why the police seized it.
In addition to any power granted by a warrant, the police have what's colloquially termed the general power of seizure under section 19 Police and Criminal Evidence Act 1984:
(1) The powers conferred by subsections (2), (3) and (4) below are exercisable by a constable who is lawfully on any premises.
(2) The constable may seize anything which is on the premises if he has reasonable grounds for believing—
(a) that it has been obtained in consequence of the commission of an offence; and
(b) that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed.
(3) The constable may seize anything which is on the premises if he has reasonable grounds for believing—
(a) that it is evidence in relation to an offence which he is investigating or any other offence; and
(b) that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed.
(4) The constable may require any information which is stored in any electronic form and is accessible from the premises to be produced in a form in which it can be taken away and in which it is visible and legible or from which it can readily be produced in a visible and legible form if he has reasonable grounds for believing—
- (a) that—
(i) it is evidence in relation to an offence which he is investigating or any other offence; or
(ii) it has been obtained in consequence of the commission of an offence; and
- (b) that it is necessary to do so in order to prevent it being concealed, lost, tampered with or destroyed.
(5) The powers conferred by this section are in addition to any power otherwise conferred.
So, if the warrant was to search for drugs and the police happen across, say, stolen items and if the above s.19 criteria are met, it would lawful to seize them.
that there was no power to make the seizure;