Roy B. Oser, Esq.

“Are we our brother’s keeper, legally speaking?” was the question in the February 2008 Eldercountry Lawyer column, and the answer was, “No, not generally, in the United States.” But if you come upon a wallet full of money lying on the ground, the law certainly encourages you to try to do the right thing.

So, no obligation to be a Good Samaritan, but no “finder’s, keeper’s,” either. In most instances, you have no obligation to go to the aid of a stranger in distress, and if you do, you might be sued. If, however, in the course of your travels you find a wallet stuffed with money and make no effort to get it back to its owner, you might be jailed.

This was surely surprising news to many readers of the New York Times when they read about a decoy operation by the New York City Police Department (“A Dragnet That Can Ensnare the Good Samaritan, Too,” by Jim Dwyer, November 29, 2007). According to the article, three people who had picked up purses that had been planted earlier by plainclothes police officers in a Macy’s department store and a McDonald’s were arrested.

The purses contained real American Express cards issued under pseudonyms to the Police Department. Typically, theft of a credit card qualifies under state statutes as “grand theft” or “grand larceny.” Under the New York State Penal Law it is grand larceny, a “class E felony,” and the three people arrested were facing indictment on charges that could land them in state prison for terms of up to four years.

Under the original rule of the "common law,” which is judge-made law, accumulated legal precedent from earlier court decisions, a finder of lost property had a duty to look for the owner and was absolutely liable (that is, liable even if not at fault) if he delivered it to anyone other than the true owner. Most states now have statutes that have reduced the finder’s obligation.

Typically, in state statutes governing a finder’s obligations and rights, the finder is required to turn the item over to the local police department, the find is then advertised, and the true owner has a specified period, ranging from 90 days to a year, in which to file a claim. If no claim is made within this period, the item belongs to the finder. In some jurisdictions, the true owner who makes a timely claim is required to pay a reward to the finder.

The Times article noted that a previous decoy operation by the New York City Police Department, “Operation Lucky Bag,” had been pretty much shut down by prosecutors and judges who were concerned that it was sweeping up civic-minded citizens along with those with larcenous intentions.

In “Operation Lucky Bag,” shopping bags, backpacks and purses were left around the subway system and watched by undercover officers. The officers arrested people who picked up the items and walked past a uniformed police officer without reporting their find. But under New York State’s Personal Property Law, a finder of lost property has ten days either to return the property to the owner or report the find and deposit the property with the police.

Ten days or no, however, finding lost property and intending to keep it constitutes the crime of larceny under New York State’s Penal Law. A subsequent article in the New York Times on the New York City Police Department’s decoy program (“Officials See 'Better Arrests' in Revamped Decoy Program,” by Christine Hauser, December 25, 2007), described an emphasis on training police officers to determine “larcenous intent.”

Jumping on a subway train with a purse you have found when the train arrived while you were searching the purse for the owner’s identification would not demonstrate larcenous intent. Or so the court found in the case of a man who was arrested under these circumstances in “Operation Lucky Bag.” But opening the purse, removing valuables from it, and then discarding it, for example, would be a sign of larcenous intent to a watching police officer.

Arguably, decoy operations such as those described in the Times articles border on “entrapment,” a possible defense to otherwise criminal conduct. Still, best to keep in mind that, in contrast to rules governing Good Samaritan behavior, when it comes to finding lost valuables, doing the right thing morally, by attempting to get the property back to its owner, is also the legally required thing.