E.D.Mo.: Rule 41(g) on return of property doesn’t provide for suppression of evidence

Rule 41(g) on return of property doesn’t provide for suppression of evidence. The evidence seized is presumptively validly retained, and the burden is on the search target to show why it should be returned. Here, they didn’t meet that burden. In re Advanced Pain Ctrs. Poplar Bluff, 2014 U.S. Dist. LEXIS 74557 (E.D. Mo. June 2, 2014):

To the extent Petitioners’ request falls within the scope of Rule 41(g), the Court finds Petitioners are not entitled to relief. Under Rule 41(g) the Government’s retention of the seized documents pending the conclusion of its investigation or a related criminal action is presumed reasonable. Petitioners have offered neither evidence nor argument sufficient to persuade the Court that seizure of the disputed incident reports was unreasonable.
Petitioners also essentially seek suppression, as they seek to require the Government to return all copies of the documents and to prevent their use by the Government for any purpose. It is not entirely clear, however, the extent to which Rule 41(g) provides a basis for suppression pre-indictment. “The Circuit Courts that have addressed the issue are divided, with more Courts finding that the 1989 amendments did not foreclose the possibility that complete suppression can be ordered under the rule.” Bennett, 2013 WL 3821625, at *11 (citing cases). Assuming In re Search of 4801 Fyler Ave. remains good law, and that the Eighth Circuit sides with the majority of Circuits, the question continues to be governed by equitable considerations and the factors cited in Pieper v. United States, 604 F.2d 1131, 1133 (8th Cir. 1979) and Richey v. Smith, 515 F.2d 1239 (5th Cir. 1975). See In re Search of 4801 Fyler Ave., 879 F.2d at 387-88; Bennett, 2013 WL 3821625, at *11-12. Having carefully considered Petitioners’ arguments, as well as the applicable equitable principles, Petitioners’ request to prevent any use of the documents fails.

As discussed below, Petitioners have not demonstrated that the agents acted in callous disregard of Petitioners’ Fourth Amendment rights. Further, Petitioners have not been irreparably harmed. The Government has agreed to return some of the disputed incident reports immediately, Petitioners have been provided copies of all retained documents, and Petitioners may seek the return of the remainder of the documents at the conclusion of the investigation or criminal proceeding. The mere fact that Petitioners may face criminal indictment is not sufficient to constitute irreparable harm. In Re Search of 4801 Fyler, 879 F.2d at 389.

To the extent that Petitioners seek suppression of the seized incident reports solely on the ground that the search and seizure failed to comport with the requirements of the Fourth Amendment, the Court concludes that they are without standing to mount such a challenge. Unlike Rule 41(g), which applies to “person[s] aggrieved,” Rule 41(h) applies only to “defendant[s].” Petitioners who are under investigation but have not been indicted or charged with any criminal wrongdoing related to the investigation, do not therefore satisfy the requirements of the Rule for purposes of suppression.

For the reasons stated above, the Court concludes that the motion to quash lacks merit. The Court believes that Petitioners’ further arguments, regarding the scope of the warrant and lack of particularity, are arguments Petitioners may assert under Fed. R. Crim. P. 12, in any criminal proceeding. However, even if these arguments provided a basis for relief pre-indictment, for the reasons discussed below, the Court finds Petitioners’ contentions lack merit.