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 under Rule 41(g) this early in the investigation. There is no showing the government acted with callous disregard to the company’s rights during the search and seizure. In re Specialty Fulfillment Ctr., 2018 U.S. Dist. LEXIS 21781 (D. Idaho Feb. 8, 2018):
2. Application of the Ramsden Factors
The Court first will consider the Ramsden factors to determine if they weigh in favor of invoking equitable jurisdiction. Ramsden, 2 F.3d 322 (factors must be considered before district court can reach merits of pre-indictment Rule 41(e) (now (g)) motion).
A. Whether the Government Displayed a Callous Disregard for the Constitutional Rights of The Movant
Nordic argues the property was improperly seized because it did not fall within the parameters of the warrant, citing paragraph (a)(1) and (2) in Attachment B. See p. 4, supra. Nordic contends the listing of Nordic as a brand of dermal fillers did not authorize the seizure of Nordic’s products that were not dermal fillers. Further, the “unapproved new drugs” were described as including, but not limited to, products labeled as botulinum toxin or similar. Nordic argues its products are not dermal fillers or botulinum toxin, and thus not covered by the warrant.
A callous disregard for Nordic’s constitutional rights is a higher threshold than a mere violation of its constitutional rights. Burum, 2014 U.S. Dist. LEXIS 191646, 2014 WL 12596719, at *4. For instance, if the Government sought to comply with the search warrant in good faith, such conduct would not constitute a “callous disregard” for a movant’s constitutional rights. See Cox v. United States, No. CV 07-1200 SMM, 2008 U.S. Dist. LEXIS 121388, 2008 WL 477877, at * 4 (D. Ariz. Feb. 19, 2008) (“[A] callous disregard for Petitioner’s constitutional rights would not have been established unless the agents deliberately disregarded the requirements of Fed. R. Crim. P. 41 or the plaintiff was prejudiced.”) (citing United States v. Mann, 389 F. 3d 869, 874-76 (9th Cir. 2004)); United States v. Gantt, 194 F. 3d 987, 994-95 (9th Cir. 1999)).
Here, the undersigned Magistrate Judge had two occasions to review the affidavit submitted in support of the application for the search warrant, both prospectively and upon consideration of Nordic’s motion. The Affidavit specifically identifies the products to be seized (Neurocet, ActaFLEX4, and BloodBoost), as well as the labeling and other records relating to those products. The affiant, EF, explained the basis for his belief that the products were “unapproved new drugs”. The Affidavit provided the particularized information necessary for the Magistrate Judge to find probable cause for the issuance of the warrant and for seizing the property that was in fact seized. Probable cause was found to seize not only the botulinum products, but also the three analgesic products identified as being sold via a website operated by Nordic and distributed by Nordic from a physical address matching the address of Specialty Fulfillment. The Government was therefore authorized to seize the Nordic products and related records and information, as they fell within the scope of the search warrant.
Attachment B, when read together with the Affidavit, described “any other misbranded and/or adulterated medical devices,” as well as “all unapproved new drugs.” Although Exhibit B included botulinum toxin, the reference was not limited to such products. Probable cause was found to search the premises of Specialty Fulfillment Center and to seize the products referenced in the Affidavit that fell within the scope of Exhibit B, including “other” misbranded medical devices and “all unapproved new drugs,” as stated in Exhibit B. The Affidavit specifically identified the association of Nordic with these products, and they appear to be among the products seized.
The Government followed proper procedure, obtained a warrant, and executed the warrant approved by the Magistrate Judge. In contrast, the court in Ramsden found against the government because no warrant was obtained. 2 F.3d at 325. Clearly, the conduct of the Government here does not rise to the level of callous disregard for Nordic’s Fourth Amendment rights. Therefore, the Court needs not reach the argument raised by the Government that the products seized are contraband and therefore should not be returned. Such goes to the merits of the matter or would be the subject of a post-conviction Rule 41 motion. It will be up to the Government to prove the products’ illegality in the event criminal charges are filed. Here, upon review of the search warrant affidavit, the Court need only have found probable cause for the search and seizure of items at Specialty Fulfillment Center that may be evidence of a crime, contraband, or property designed for use, intended for use, or used in committing a crime. See Fed. Crim. Rule 41(c).
Under these circumstances, the Court cannot find that the Government acted with “callous disregard” for Nordic’s rights. Accordingly, the first factor of the Ramsden analysis weighs against the Court’s exercise of equitable jurisdiction over the Rule 41(g) motion.