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

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

Posted in Forfeiture, Ineffective assistance, Rule 41(g) / Return of property | Comments Off on OR: Failure to appeal order denying return of property precludes later relief

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

Posted in Consent, Forfeiture, Rule 41(g) / Return of property | Comments Off on D.Ariz.: Threat to use a Taser vitiates consent

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

Posted in Community caretaking function, Rule 41(g) / Return of property | Comments Off on OH12: No return of storage media holding CP

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

Posted in Rule 41(g) / Return of property | Comments Off on D.Minn.: Ptf was a bombing victim seeking return of property under equitable jurisdiction; 3 of 4 factors weigh against her, so denied

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

Posted in Rule 41(g) / Return of property | Comments Off on NE: Court with jurisdiction over criminal case has jurisdiction to return property seized

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

Posted in Reasonable suspicion, Rule 41(g) / Return of property | Comments Off on CO: Person arrested at MJ grow but not charged can get his seized property back

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

Posted in Reasonable suspicion, Rule 41(g) / Return of property | Comments Off on N.D.Iowa: Reasonable mistaken identity justified stop

MS: No REP in calls from police station

Defendant’s calls from the police station after he was arrested admitted the marijuana in this case was his. The calls were admitted at trial, defense counsel challenging authentication. Defendant pro se argued a Fourth Amendment violation, but that is defaulted … Continue reading

Posted in Automobile exception, Prison and jail searches, Reasonable expectation of privacy, Rule 41(g) / Return of property | Comments Off on MS: No REP in calls from police station

OH2: Towing company couldn’t be ordered to return car without being heard

The trial court doesn’t have the power to order the towing company to return defendant’s car without it being heard. It does, however, have the power to order the police to return what it seized that it does not need … Continue reading

Posted in Informant hearsay, Rule 41(g) / Return of property | Comments Off on OH2: Towing company couldn’t be ordered to return car without being heard

FL5: Error to deny without a hearing a facially sufficient motion for return of property

Defendant’s motion for return of property was facially sufficient for a hearing, and the circuit court erred in denying it without a hearing. Peterson v. State, 2018 Fla. App. LEXIS 8861 (Fla. 5th DCA June 22, 2018). Defense counsel wasn’t … Continue reading

Posted in Ineffective assistance, Rule 41(g) / Return of property | Comments Off on FL5: Error to deny without a hearing a facially sufficient motion for return of property

D.S.C.: One innocently driving a stolen vehicle generally doesn’t have standing in it, but he has to show his innocent status

One innocently driving a stolen vehicle generally doesn’t have standing in it. If, however, he innocently buys a stolen vehicle and then he’s stopped in it, it’s his burden to show that he was an innocent purchaser to acquire standing. … Continue reading

Posted in Rule 41(g) / Return of property, Standing | Comments Off on D.S.C.: One innocently driving a stolen vehicle generally doesn’t have standing in it, but he has to show his innocent status

NY3: No statutory or const’l requirement issuing magistrate’s name be printed on SW papers

Nothing requires the issuing magistrate’s name be printed on the search warrant papers, the affidavit or warrant. People v. Douglas, 2018 NY Slip Op 04388, 2018 N.Y. App. Div. LEXIS 4360 (3d Dept. June 14, 2018). A search warrant was … Continue reading

Posted in Rule 41(g) / Return of property, Warrant requirement | Comments Off on NY3: No statutory or const’l requirement issuing magistrate’s name be printed on SW papers