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

Guam: If no criminal case pending, motion for return of property can be treated as a new civil action

If a criminal case is not pending, a motion for return of property is treated as a new civil action, and should proceed accordingly (following state and federal cases, most recently Pristine Pre-Owned Auto, Inc. v. Courrier, 236 W. Va. … Continue reading

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D.Me.: SW for jail cell produced evidence; USAO ordered to return some stuff, but sheriff not because USAO can’t be ordered to get it from them

There was a search warrant for personal papers in a jail, and some came into the possession of the USAO but two pages did not. They were needed for litigation. The USAO is ordered to return the copies it has, … Continue reading

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E.D.Mich.: Rule 41(g) motion denied for failure to show entitlement to seized property

For Rule 41(g) motion to return property: “Flemming has failed to prove that he is a ‘person aggrieved by an unlawful search and seizure.’ In his motion, Flemming does not challenge the legality of the search and seizure in question. … Continue reading

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M.D.La.: Bench warrant surfacing for def made pat down legal by inevitable discovery even if frisk invalid

Officers responded to a wellness check and found two people passed out in a car. One couldn’t be roused, but defendant could and he was removed from the car and patted down for officer safety. The patdown was reasonable. Even … Continue reading

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M.D.Tenn.: Laches applies to Rule 41(g) motions for return of property

The doctrine of laches applies to Rule 41(g) motions for return of property. The seizure of defendant’s property was 2003. Aside from other difficulties (like forfeiture), defendant just waited too long. United States v. Kimball, 2017 U.S. Dist. LEXIS 136952 … Continue reading

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M.D.Fla.: Def failed to show equitable right to return of property under 41(g) while he’s in jail

Defendant failed to make a showing for equitable relief for return of property under Rule 41(g) while he’s in jail. United States v. Rehaif, 2017 U.S. Dist. LEXIS 61019 (M.D. Fla. April 4, 2017):

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GA: Statute on return of property must be followed; can’t apply to court first

In a juvenile proceeding, recovery of the juvenile’s cell phone required following a statutory procedure which wasn’t. One can’t just apply to the court first. The further claim that retention of the phone violated the Fourth Amendment wasn’t raised below … Continue reading

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NE: Return of property not required until after post-conviction is concluded

As long as post-conviction proceedings or a federal prosecution are possible, the state has the ability to keep the evidence without return to the defendant. The state statute says “may” not shall. State v. Buttercase, 296 Neb. 304, 2017 Neb. … Continue reading

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W.D.Ark.: Def counsel has apparent authority to receive property returned after arrest

In a civil action for return of property: “In the specific context of the disposition of property, district courts have found that the government acts appropriately when it disposes of property in a manner consistent with actions or representations made … Continue reading

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D.Nev.: Govt responds it won’t use evidence seized at trial so motion for return of property or to suppress granted

The government seized defendant’s iPad and but didn’t search it because they didn’t have a password. Finally, they decided not to attempt to use it as evidence, so the motion for return of property is granted. The government didn’t intend … Continue reading

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