Category Archives: Rule 41(g) / Return of property

MA: Trial court erred in ordering cell phone purged of potential evidence as a condition of returning it after it was suppressed

Defendant succeeded in suppressing his cell phone, and the trial court erred in ordering defendant’s phone erased of the evidence suppressed before returning it. It was his property. Commonwealth v. Salmons, 2019 Mass. App. LEXIS 119 (Sept. 11, 2019):

Posted in Rule 41(g) / Return of property | Comments Off on MA: Trial court erred in ordering cell phone purged of potential evidence as a condition of returning it after it was suppressed

OH8: Cell phone not ordered returned because of its potential use in evidence

Defendant’s cell phone was still potential evidence in his retrial, so it won’t be ordered returned to him. State v. Metz, 2019-Ohio-3370, 2019 Ohio App. LEXIS 3440 (8th Dist. Aug. 22, 2019). Officers approached defendant’s house for a welfare check, … Continue reading

Posted in Reasonable suspicion, Rule 41(g) / Return of property | Comments Off on OH8: Cell phone not ordered returned because of its potential use in evidence

Cal.: Probation search condition of electronic devices not related to underlying offense and quashed

The juvenile here was adjudicated guilty of burglary. A probation search condition of his electronic devices wasn’t reasonably related to the offense and it is ordered removed. In re Ricardo P., 2019 Cal. LEXIS 5949 (Aug. 16, 2019). The seizure … Continue reading

Posted in Probation / Parole search, Rule 41(g) / Return of property | Comments Off on Cal.: Probation search condition of electronic devices not related to underlying offense and quashed

M.D.Pa.: Lack of standing cuts off a Franks challenge

Defendant lacked standing in the place searched, so he’s denied a Franks hearing to challenge that omission from the affidavit for search warrant. “The only connection between Defendant and 10 H Hall Manor reflected in the Affidavit of Probable Cause … Continue reading

Posted in Abandonment, Cell phones, Rule 41(g) / Return of property | Comments Off on M.D.Pa.: Lack of standing cuts off a Franks challenge

S.D.Fla.: Search incident and community caretaking exceptions can’t support govt’s search of def’s messenger bag days later

The government’s search incident theory to sustain a search of defendant’s messenger bag days after his arrest is rejected. “The fundamental purpose of the search incident to arrest exception is to ensure safety and safeguard evidence. Neither of these concerns … Continue reading

Posted in Community caretaking function, Plain view, feel, smell, Rule 41(g) / Return of property, Search incident | Comments Off on S.D.Fla.: Search incident and community caretaking exceptions can’t support govt’s search of def’s messenger bag days later

S.D.Miss.: Govt plans to file forfeiture so motion for return of cash denied

Claimant business’s motion for return of $895k from its bank account under Rule 41(g) is denied for lack of irreparable harm, based also on the government’s representation it’s going to attempt forfeiture. “Turning to the fourth factor, the Court finds … Continue reading

Posted in § 1983 / Bivens, Forfeiture, Rule 41(g) / Return of property | Comments Off on S.D.Miss.: Govt plans to file forfeiture so motion for return of cash denied

PA: Motions for return of property seized by SW are addressed to judge supervising the GJ that sought them

Motions for return of property seized by search warrant issued for a Statewide Investigating Grand Jury are to be addressed to the judge supervising the grand jury. In re Return of Seized Property, 2019 Pa. LEXIS 3845 (July 17, 2019). … Continue reading

Posted in Franks doctrine, Rule 41(g) / Return of property | Comments Off on PA: Motions for return of property seized by SW are addressed to judge supervising the GJ that sought them

C.D.Ill.: Evidence used at trial not subject to return under Rule 41(g)

That which was used as evidence at trial is not yet subject to return under Rule 41(g). The government responded by affidavit. United States v. Hathaway, 2019 U.S. Dist. LEXIS 104035 (C.D. Ill. June 21, 2019). “It was error as … Continue reading

Posted in Rule 41(g) / Return of property | Comments Off on C.D.Ill.: Evidence used at trial not subject to return under Rule 41(g)

CA11: “Rule 41(g) is not an appropriate vehicle for the return of property seized by civil forfeiture.”

“Rule 41(g) is not an appropriate vehicle for the return of property seized by civil forfeiture.” United States v. Bynum, 2019 U.S. App. LEXIS 17510 (11th Cir. June 12, 2019). Defendant’s claim there was a reasonable expectation of privacy as … Continue reading

Posted in Reasonable suspicion, Rule 41(g) / Return of property | Comments Off on CA11: “Rule 41(g) is not an appropriate vehicle for the return of property seized by civil forfeiture.”

N.D.Ga.: IP information is not governed by Carpenter

IP information is not governed by Carpenter. “Obtaining information from Kik, Sprint, and Comcast did not allow law enforcement to track Defendant Jenkins’s physical location over an extended period. At most, it allowed them a lead in identifying him — … Continue reading

Posted in Reasonable suspicion, Rule 41(g) / Return of property, Third Party Doctrine | Comments Off on N.D.Ga.: IP information is not governed by Carpenter

D.Neb.: SW for cell phone defeats motion for return of phone for time being

Defendant’s cell phone was seized when he was arrested. Five days later, the government sought a search warrant for the phone. Defendant isn’t yet entitled to return of the phone. United States v. Gonzalez, 2019 U.S. Dist. LEXIS 61279 (D. … Continue reading

Posted in Dog sniff, Rule 41(g) / Return of property | Comments Off on D.Neb.: SW for cell phone defeats motion for return of phone for time being

OH2: Denial of motion for return of property affirmed on appeal for lack of a hearing transcript

Defendant’s motion for return of property was properly denied, but it’s because he failed to bring up a record of the hearing in the trial court. State v. White, 2019-Ohio-1264, 2019 Ohio App. LEXIS 1342 (2d Cir. Apr. 5, 2019).* … Continue reading

Posted in Rule 41(g) / Return of property | Comments Off on OH2: Denial of motion for return of property affirmed on appeal for lack of a hearing transcript