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

LA1: Technical defect in oath for SW not ground to suppress

Technical defect in the oath in the search warrant application doesn’t warrant suppression of evidence. State v. Parker, 2018 La. App. LEXIS 2256 (La. App. 1 Cir. Nov. 10, 2018). A Rule 41(g) motion from pre-2000 seizure wasn’t timely in … Continue reading

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W.D.Wash.: Govt showed cause to deny return of property until 2255 was over in case of retrial

Motion for return of cell phones is denied. The government intends to keep them pending the outcome of defendant’s 2255 or the running of the statute of limitations, which ever occurs first. That’s sufficient need to deny the motion. United … Continue reading

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S.D.N.Y.: Court can’t return property under Rule 41(g) after civil forfeiture starts

Once a civil forfeiture proceeding has started, the court loses jurisdiction to consider a Rule 41(g) motion for return of property. United States v. Paulino, 2018 U.S. Dist. LEXIS 176893 (S.D. N.Y. Oct. 16, 2018). The seizure of defendant’s cell … Continue reading

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CA9: Casual conversation with a motorist isn’t barred by Rodriguez despite officer’s motive

Casual conversation with a motorist during a traffic stop isn’t prohibited by Rodriguez even though the officer is hoping to pick up on something supporting reasonable suspicion. United States v. Kash, 2018 U.S. App. LEXIS 29057 (9th Cir. Oct. 16, … Continue reading

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OH2: Motion for return of property after a forfeiture order is final is moot

A motion for return of property after a forfeiture order is final is moot. State v. Housley, 2018-Ohio-4140, 2018 Ohio App. LEXIS 4467 (2d Dist. Oct. 12, 2018). There was no Franks violation. Officers got permission from a child to … Continue reading

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OR: Failure to appeal order denying return of property precludes later relief

Defendant’s denial of his motion for return of property was a final appealable order, and his failure to appeal foreclosed later recovery. State v. Fenton, 294 Ore. App. 48, 2018 Ore. App. LEXIS 1091 (Sep. 13, 2018). Defense counsel made … Continue reading

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D.Ariz.: Threat to use a Taser vitiates consent

Defendant’s alleged consent at the I-19 checkpoint in Arizona was involuntary. She was on a bus that was stopped, she was seized, she could not leave the secondary checkpoint, the CBP agent followed her, “when Ms. Rodriguez hesitated or became … Continue reading

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OH12: No return of storage media holding CP

Defendant sought return of the electronic storage media containing child pornography. Denied. State v. Van Tielen, 2018-Ohio-3421, 2018 Ohio App. LEXIS 3715 (12th Dist. Aug. 27, 2018). The officer opened defendant’s van door because he was justifiably looking for a … Continue reading

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D.Minn.: Ptf was a bombing victim seeking return of property under equitable jurisdiction; 3 of 4 factors weigh against her, so denied

Plaintiff was a bombing victim and property was taken from her by consent. She wanted some of it back and brought an action under equitable jurisdiction for return of the property. “A district court’s exercise of equitable jurisdiction over a … Continue reading

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NE: Court with jurisdiction over criminal case has jurisdiction to return property seized

When a criminal case is over, the defendant is entitled to return of non-contraband seized property from the court with jurisdiction over the criminal case. In an IFP case, the court declines to say that he pled wrong in seeking … Continue reading

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CO: Person arrested at MJ grow but not charged can get his seized property back

An uncharged person originally arrested at an alleged illegal marijuana grow has standing to recover his own property seized from him. Boudette v. State, 2018 COA 109, 2018 Colo. App. LEXIS 1036 (July 26, 2018). Defendant’s bicycle rack on the … Continue reading

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N.D.Iowa: Reasonable mistaken identity justified stop

Defendant’s stop was based on reasonable suspicion he was in the country illegally, but it was a case of mistaken identity. “Defendant was observed emerging from the vicinity of the target’s residence. Defendant closely resembled the target. Any discrepancy between … Continue reading

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