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

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

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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

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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

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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

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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

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Ct.Claims: Motion to dismiss denied: “plaintiffs sufficiently allege actions which are inconsistent with the exercise of police power”

Plaintiffs alleged a Fifth Amendment taking because the government took their truck to do a drug operation. The claim survives a motion to dismiss. “Because plaintiffs do not challenge the legality of the government’s action, we deny the jurisdictional challenge. … Continue reading

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GA: Where no violation of clear statute, no Heien reasonable mistake of law defense for state

Defendant did not violate the traffic statute that the officer stopped him for. Therefore, Heien’s reasonable mistake of law and good faith doesn’t apply. Moreover, there is no good faith exception in Georgia. Harris v. State, 2018 Ga. App. LEXIS … Continue reading

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D.Idaho: Movant failed to show govt had “callous regard” of rights for early return of property seized

The DEA seized unapproved pain relief products by a search warrant, and the company from which it was seized moved for return of the property. The court finds company hasn’t satisfied the requirements for equitable jurisdiction for return of property … Continue reading

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D.Conn.: 2255 isn’t the remedy for return of property; it’s Rule 41(g)

Defense counsel isn’t ineffective for not appealing a conviction when the only real remedy he seeks is for return of property which would be by a Rule 41(g) motion which hasn’t been filed. Dismissed without prejudice. Green v. United States, … Continue reading

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D.Kan.: FPD has standing to join in Rule 41(g) litigation to recover illegally recorded attorney jail calls and meetings

The Federal Public Defender has standing to participate in Rule 41(g) litigation to recover the recordings of attorney-client meetings and telephone calls that were recorded at a private prison used as a federal detention center. The government’s concerns over standing … Continue reading

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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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