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

S.D.Ala.: Failure to timely make SW return under state law not a 4A issue

The fact the search warrant paperwork wasn’t returned on time which made it void under state law isn’t relevant under the Fourth Amendment in federal court. Jackson v. United States, 2024 U.S. Dist. LEXIS 235912 (S.D. Ala. Dec. 4, 2024), … Continue reading

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CA4: Ditching backpack when hiding from police was abandonment

Defendant abandoned his backpack when he ditched it in a motel stairwell when he was fleeing the police. United States v. Mayberry, 2025 U.S. App. LEXIS 300 (4th Cir. Jan. 7, 2025). Leaving one’s backpack and a trashbag in the … Continue reading

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OH3: Going right into pockets was an invalid frisk

The state failed to prove the necessity for a stop and frisk because the video shows the officer going right into defendant’s pockets and not frisking. State v. Barnes, 2024-Ohio-5865, 2024 Ohio App. LEXIS 4519 (3d Dist. Dec. 16, 2024). … Continue reading

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CA6: Pending state court action was place to bring 4A claim under Younger

A state court action was going on involving plaintiff and his wetlands in Michigan, and he was enjoined from certain things. After state inspectors took soil and water samples, he sued in federal court. Younger abstention applies, and the state … Continue reading

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IN: Handswabbing for evidence doesn’t require advice of rights under state constitution

Handswabbing didn’t require advice of Pirtle rights under Indiana Constitution. DNA swabs don’t. Owens v. State, 2024 Ind. App. LEXIS 316 (Nov. 20, 2024).* The false statements in the affidavit for warrant were neither reckless nor intentional nor even material. … Continue reading

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W.D.Ark.: State remedy for return of property bars § 1983 claim for it

Plaintiff’s § 1983 suit for return of property is denied because there is a state law remedy, even if a federal claim was barred by Heck. Owens v. Samuel, 2024 U.S. Dist. LEXIS 189894 (W.D. Ark. Sep. 24, 2024), adopted, … Continue reading

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OH2: Arrest clothes in jail storage can be searched without a warrant

Under established authority from 1993 in this court, defendant’s clothes from his arrest in storage at the jail can be tested for evidence without a warrant. State v. Wells, 2024-Ohio-4813 (2d Dist. Oct. 4, 2024). Defendant pled guilty and only … Continue reading

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S.D.Ohio: City’s mowing unkempt yard wasn’t 4A violatoin

The city’s coming on to a sovereign citizen’s yard to mow it when he refused did not violate the Fourth Amendment. Prows v. City of Oxford, 2024 U.S. Dist. LEXIS 177976 (S.D. Ohio Sep. 30, 2024).* Defendant’s motion for return … Continue reading

Posted in Burden of pleading, Curtilage, Ineffective assistance, Rule 41(g) / Return of property, Trespass | Comments Off on S.D.Ohio: City’s mowing unkempt yard wasn’t 4A violatoin

W.D.Pa.: A state court dispute over return of seized property held by feds heading toward contempt was removable to federal court

Defendant’s property was seized under a state search warrant. Defendant sought return in state court, but it had been transferred to federal officers. They refused return. Contempt was sought against the federal officers in state court and this was removable … Continue reading

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Natl. L. Rev.: The Reasonableness of Retaining Personal Property Post-Seizure and the Ascendancy of Text, History, and Tradition in Fourth Amendment Jurisprudence

Natl. L. Rev.: The Reasonableness of Retaining Personal Property Post-Seizure and the Ascendancy of Text, History, and Tradition in Fourth Amendment Jurisprudence by Ty E. Howard [the case is posted here]:

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OR: Def’s removing a vehicle from impound lot subject to SW supported tampering charge even if the initial seizure was invalid

After a stop, defendant’s truck was seized and he was told that a search warrant would be sought for it. In the impound lot at 3 and 5 am, defendant showed up in the impound lot and was seen on … Continue reading

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CADC: Unreasonable retention of property after a case is resolved can violate 4A

Looking to the common law, unreasonable retention of property after a case is resolved can violate the Fourth Amendment. Asinor v. District of Columbia, 2024 U.S. App. LEXIS 20098 (D.C. Cir. Aug. 9, 2024):

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NE: Return of property denied where post-conviction time hadn’t run

Defendant’s motion for return of property is denied because the time hasn’t run for post-conviction and it still may be needed by the state. State v. Assad, 317 Neb. 20 (July 5, 2024). Defendant did not present a real Franks … Continue reading

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CA11: Denial of 41(g) motion for return of property not appealable while case or investigation is going on

Denial of a Rule 41(g) motion for return of property lacks jurisdiction for an interlocutory appeal when there’s a pending criminal investigation. Burke v. United States, 2024 U.S. App. LEXIS 12590 (11th Cir. May 24, 2024). “Considering the totality of … Continue reading

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CA5: CBP dog sniffing for people was PC even if it couldn’t differentiate between the driver and alleged hidden passengers

A CBP dog trained to sniff for people provided reasonable suspicion even against the argument of how the dog could differentiate between the truck driver and hidden passengers. United States v. Martinez, 2024 U.S. App. LEXIS 12043 (5th Cir. May … Continue reading

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N.D.Okla.: Cell phones possessed by tribal police not subject to return under Rule 41(g)

Motion for return of cell phones is denied. They are in the possession of the Muskogee Creek Nation tribal police, not the federal government. United States v. Smith, 2024 U.S. Dist. LEXIS 87341 (N.D. Okla. May 15, 2024). Motion for … Continue reading

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PA: With PC, moving a car to a police location for a SW was reasonable

Probable cause was developed on the streets for search of defendant’s car for drug evidence when officers saw him take money, return to the car, get something small, and return to the payor, twice. Removing the car to a different … Continue reading

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E.D.Cal.: Motion for return of property can’t be granted while criminal proceedings still pending

A motion for return of property involved in a criminal case can’t be entertained until all proceedings have concluded. Here, the 2255 has neither been filed nor resolved. United States v. Kindley, 2024 U.S. Dist. LEXIS 31431 (E.D. Cal. Feb. … Continue reading

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CA9: Wholesale inventory searches of private safe deposit boxes in SW for business was unreasonable

US Private Vaults case reversed. The search of USPV’s 700 safe deposit boxes for inventory was unreasonable. The FBI obtained a warrant for USPV’s business because of its business practices, and this search of the safe deposit boxes of customers … Continue reading

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OH6: Return of property can’t be by motion to suppress after PG

Defendant’s motion for return of his cell phone after his guilty plea was pled as a motion to suppress. Denied. He can do it over if he gets it right. State v. Cousino, 2024-Ohio-114, 2024 Ohio App. LEXIS 110 (6th … Continue reading

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