Whenever you find lost property of value, you do have an obligation to make a reasonable effort to return it to the rightful owner though your efforts do not have to be extraordinary. The law under Penal Code 485 imposes this legal duty if you have a reason to either know the true owner or there is a reasonable way to ascertain the owner’s identity.
If there are clues available and you fail to follow up or make some effort to find the owner and keep the property, you may be guilty of theft.
The elements of Appropriation of Lost Property are:
- You found lost property and,
- Circumstances existed where you had knowledge of or there existed a means of inquiry regarding the property’s owner,
- But you kept the lost property for your own use or to the use of another person who was not the rightful owner without the owner’s consent,
- And with the intent to permanently deprive the owner of a major portion of the value or the enjoyment of it, and
- Without first making reasonable and just efforts to find and return it to the rightful owner
Intent to Possess Legally or Illegally
A person possesses property in two ways—by actual possession or by constructive possession. You have actual possession when it is on your person. Constructive possession means that while you do not physically possess the property, you retain ownership and control of it.
Losing property does not mean you relinquished ownership or control over it unless you intended to abandon it. When you lose the property, you retain your constructive possession of it while the person who found it physically or actually possesses it either legally or illegally.
Your state of mind indicates whether your possession of the lost property was legal or not. If you found the property and there were means to find the rightful owner and you made such efforts, then your actual possession of the property was legal. If you did not, then your possession is unlawful.
Examples of Knowledge or Means of Inquiry
There are many examples of finding lost property without a clue as to who possessed it. Finding money on the sidewalk and keeping it will not subject you to prosecution. But there are other examples where there was a means to find the owner, imposing a duty on you to follow up with it such as:
- A wallet with identification in it
- You saw the item fall or become separated from the person’s actual possession
- A distinctive piece of jewelry–the media advertised its loss and gave the identity of the owner
- Lost cell phone with phone numbers to call
- Wallet or expensive jewelry lost at a party you attended
- The rightful owner’s identity becomes known at a later time
In this last example, you may have made a concerted effort to find the owner and after failing, kept the lost property. But once the owner’s identity is known, you have a duty to contact the owner to return it or you now possess the intent to unlawfully possess it.
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Prosecution under this law can be as an infraction, misdemeanor or felony, qualifying it as a wobbler. Charges depend on the value of the lost property as determined under the state’s theft laws in PC 487 and PC 488 (petty and grand theft) as well as your criminal history and circumstances of the case.
An infraction may be charged if the value of the property was under $50. Infractions are not criminal offenses and you face only a fine of up to $250.
You can be charged with a misdemeanor if the property’s value was $950 or less. The penalty is up to one year in county jail and a fine of no more than $1000.
For property valued at more than $950, the DA has the discretion to charge you with either a misdemeanor or as a felony. As a felony, you face 16 months, 2 or 3 years in county jail and a maximum fine of $10,000.
Any defenses to a charge under PC 485 turns on the circumstances of the case and your intent.
Lack of Knowledge of the Owner
There must be some signs or indications of the owner’s identity or a means of finding the owner when you found the property or which later became evident. Even if someone saw money fall out of person’s pocket on a busy street, you may not have observed it. It is probably not reasonable to shout out under those circumstances as to who just dropped $200 since there is no distinctive way to determine the owner from the property itself and you will likely have multiple people claiming ownership.
Your efforts to ascertain the owner does not have to be extraordinary such as advertising in the local paper or radio station. If you did find a very valuable piece of jewelry or antique musical instrument with obvious substantial value, then you probably need to turn it over to the police to have them find the owner. If their efforts do not uncover the owner, it will likely be given to you.
If the item was found in a department store or restaurant, these businesses often have lost and found departments. Leaving it with them and then having the item given to you later if no one has claimed the item should be an adequate defense.
Lack of Intent to Permanently Deprive the Owner
You are not guilty of theft if you used the property for a time before returning it to the rightful owner. Your intent must have been to permanently deprive the owner of its value or enjoyment of it. But if you do return it at some point or begin at a later time to undertake efforts to find the rightful owner, you also may not be culpable under PC 485. You could, however, be civilly liable for damaging the property or for depriving the owner of its value or enjoyment of it.
The Property was Abandoned
If you found the property at a dump or in a field, you can reasonably assume that the rightful owner abandoned it and no longer had constructive possession of it.
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Appropriation of lost property is a wobbler offense and any conviction under this code section is eligible for expungement. If you are convicted of felony under PC 485, you can petition the court to reduce it to a misdemeanor before having it expunged pursuant to PC 17(b)(3).
A conviction under PC 485 is not considered a crime of moral turpitude nor is it a deportable offense under 8 US Code Section 1227 even if you are convicted of a felony for appropriation of lost property. Other theft crimes, though, are deportable such as welfare fraud and grand theft auto.