W.D.N.Y.: When a state search warrant is used in federal court, state officers retain the evidence pending trial

Suspected explosives shipped to defendant’s address and search finding them in the garage didn’t preclude searching the house as well since the package was shipped to defendant’s home. Because a state search warrant was executed, state officers were charged with custody under state law. “The electronic devices seized during the execution of the state search warrant likely would have fallen to the state court’s legal custody under CPL § 690.55. As far as the Court can tell from the record, the ATF never requested a transfer order from the state court before acquiring the electronic devices. Paying closer attention to the requirements under CPL § 690.55 is the better practice, and the Court might need to take a closer look at the issue during future warrant applications. Nonetheless, and following Mizrahi, raising CPL § 690.55 to the level of a safeguard of substantive rights seems like too much of a stretch without further legislative or appellate guidance as to that statute’s policy objective. See also Virginia v. Moore, 553 U.S. 164, 178 (2008) (‘[I]t is not the province of the Fourth Amendment to enforce state law.’).” United States v. O’Neill, 2016 U.S. Dist. LEXIS 159481 (W.D.N.Y. Nov. 17, 2016). See also CA6: Rule 41(g) motion for return of property doesn’t lie in federal court when state officers seized, even in a federal prosecution posted 11/16.