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

W.D.Pa.: Intervention for return of A-C privileged information denied as moot because they have the information

Intervention in a criminal case to attempt to recover information obtained in alleged violation of the attorney-client privilege is denied as moot. They already have that information, and there is a fundamental difference between recovery of property under Rule 41(g) … Continue reading

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D.Ore.: Illegibility of judge’s signature on SW not 4A violation

Just because the state trial judge’s signature was illegible doesn’t violate the Fourth Amendment. The judge’s name was stamped below. United States v. McElroy, 2020 U.S. Dist. LEXIS 132608 (D. Ore. July 24, 2020). Franks challenge fails: “Thus, the bottom … Continue reading

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D.Neb.: No return of electronic media that had CP on it because def could possibly recover the contraband after erasure

Defendant is not entitled to return of electronic devices and media containing child pornography because of the mere possibility that the contraband could be recovered from it even after erasure. United States v. Buttercase, 2020 U.S. Dist. LEXIS 125078 (D. … Continue reading

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N.D.Ohio: Private party, here the owner, can be enlisted to help in computer search

Both the Fourth Amendment and Ohio law permitted law enforcement to seek private assistance in executing a search warrant, here of a computer, and the search was conducted by the company that owned the computer. United States v. Powell, 2020 … Continue reading

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OH9: Motion for returned property may still be appropriate after conviction

“[W]e find that a motion for the return of seized property may be a viable means to request the return of property even after conviction. Therefore, the trial court erred when it denied Mr. Castagnola’s motion for the return of … Continue reading

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MN: Return of digital copies of attorney’s files seized by SW was only issue and now moot; legality of SW comes later

The attorney here was the target of a search warrant for all her files where the attorney was the suspect, not a client. That distinguishes O’Connor. The parties, the client interveners, and amici have briefed all kinds of constitutional arguments … Continue reading

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W.D.N.Y.: Just because the govt can’t unlock def’s iPhone doesn’t mean he can get return of it under Rule 41(g)

Just because the government hasn’t yet accessed defendant’s iPhone because it can’t crack the code to unlock it doesn’t mean that defendant can get it back under Rule 41(g). It’s still potential evidence. United States v. Morgan, 2020 U.S. Dist. … Continue reading

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ID: Lack of objection to body cam video showing refusal of consent wasn’t plain error

The police properly seized defendant’s home to preserve evidence of murder on exigent circumstances. There was also a reasonable protective sweep. Defendant didn’t object to the body cam video that had a refusal to consent to the house search, and … Continue reading

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S.D.Miss.: Preindictment suppression governed by equitable standards, and GFE still applies

Plaintiff seeks preindictment suppression of evidence and return of evidence of illegal employment of undocumented workers. Preindictment suppression is based on equitable grounds. In the face of the good faith exception, Koch Foods can’t show that it does not apply … Continue reading

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OH6: Checking DMV records involves no 4A intrustion

“[T]he law is clear that a police officer’s check of a person’s Bureau of Motor Vehicles records does not implicate Fourth Amendment rights, as it does not constitute an invasion as it involves no intrusion.” State v. Price, 2020-Ohio-220, 2020 … Continue reading

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S.D.N.Y.: Venue for a motion for return of seized property is where the property was seized

Venue for a motion for return of seized property is where the property was seized, here the E.D. N.Y. United States v. Collado, 2020 U.S. Dist. LEXIS 7873 (S.D. N.Y. Jan. 16, 2020). Defense counsel wasn’t ineffective for not challenging … Continue reading

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D.D.C.: No statute of limitations for equitable actions for return of property not forfeited

Plaintiff pro se and post-conviction filed a pleading for return of property. Some was forfeited, and it was treated as a motion to set aside the forfeitures. Some were not forfeited, and there is no statute of limitations for equitable … Continue reading

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E.D.Cal.: Motion for return of things denied until 2255 resolved

Defendant seeks return of things of potential evidentiary value. The government opposes on the ground that a 2255 has not yet been filed, and the things might still have value. That’s reasonable for the court. United States v. Saldivar, 2019 … Continue reading

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IL: Once def was acquitted, seized computer data should have been returned, not searched again without a warrant

Defendant was a Peoria police officer being accused of sexual assault, and the Illinois State Police obtained a search warrant for his computer and other devices. The hard drives were copied with EnCase software. Defendant was tried on the sexual … Continue reading

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CA5: Use of deadly force against an armed, dangerous, and unpredicable man was subject to QI

Officers were entitled to qualified immunity because plaintiff could not establish that they used excessive force in violation of the Fourth Amendment. The evidence indicated that the use of force was justified under the circumstances. Because the officers thought they … Continue reading

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E.D.Mich.: Giving password to computer and Facebook account waived REP as to that person

Defendant gave his passwords to his computer and Facebook to his victim. Her searches are not Fourth Amendment violations. United States v. Johnson, 2019 U.S. Dist. LEXIS 169622 (E.D. Mich. Oct. 1, 2019). The state’s admission on appeal that they … Continue reading

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