Where the government does not show that a Rule 41(g) motion for return of property will interfere with a grand jury investigation, it can be granted. A Rule 41(g) motion is not a motion to suppress. The history shows it. Doane v. United States, 2009 U.S. Dist. LEXIS 61908 (S.D. N.Y. June 1, 2009) (USMJ Pitman):
As the foregoing language suggests, Rule 41(g) & (h) permit courts to order the return of illegally seized property without granting a motion for suppression. Under the version of Rule 41 in effect from 1944 to 1989, this was not the case, and granting a motion for the return of property required the suppression of that property at any subsequent hearing or trial. 1 As a result, many courts deferred pre-indictment Rule 41(e) motions unless a movant could show (1) the search was illegal, (2) that he is without an adequate remedy at law, and (3) that he would suffer some irreparable injury if relief is not granted. Premises Known & Described as 55 West 47th Street, Suites 620 & 650 v. United States, 712 F. Supp. 437, 440-41 (S.D.N.Y. 1989); Matter of Search of Premises Known & Described as 6600 Long Island Expressway, Suites 104 and 105, Maspeth, N.Y., 88-0906 M (CBA), 1988 WL 142662 at *2 (E.D.N.Y. Dec 28, 1988); In re Two Search Warrants Issued March 14, 1986, 110 F.R.D. 354, 356 (E.D.N.Y. 1986); Jordache Enters., Inc. v. United States, 86 Cr. 1 (LLS), 1987 WL 9705 at *2 (S.D.N.Y. April 14, 1987); In the Matter of the Application of John Campola, 543 F. Supp. 115, 117 (S.D.N.Y. 1982); Application of Sentinel Gov’t Sec., 530 F. Supp. 793, 796 (S.D.N.Y. 1982). The principal reason offered by these courts for engrafting an irreparable harm requirement onto the language of Rule 41(e) was that a pre-indictment suppression motion would unduly interfere with the function of the grand jury. See e.g. Matter of Search of Premises Known and Described as 6600 Long Island Expressway, Suites 104 and 105, Maspeth, NY, supra, 1988 WL 142662 at *1 (“the cases reason that to grant the motion pre-indictment would have the effect of suppressing evidence before the grand jury in derogation of the holding in United States v. Calandra, 414 U.S. 338 (1974) …”); Jordache Enters., Inc. v. United States, supra, 1987 WL 9705 at *2 (the minimal deterrence gained by allowing pre-indictment suppression motions would be outweighed by the interference that such motions would cause with the role of the grand jury).
In 1989, Rule 41 was amended and the provision that “if the motion (for the return of property) is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial” was replaced with the language “[i]f the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings.” See Fed.R. Civ.P. 41(e) (1989). The Advisory Committee Note explained that this change was intended to (1) keep pace with new developments in the exclusionary rule allowing the Government to retain and utilize unlawfully seized evidence in certain circumstances (i.e. grand jury proceedings) and (2) achieve a more equitable balance between the Government’s law enforcement interest and the property rights of owners.
Rule 41(e) is not intended to deny the United States the use of evidence permitted by the Fourth Amendment and federal statutes, even if the evidence might have been unlawfully seized. See e.g. United States v. Calandra, 414 U.S. 338, 349 n.6 (1978); United States v. Roberts, 852 F.2d 671 (2d Cir. 1988) (exceptions to exclusionary rule applicable to Rule 41(e)).
* * *
As amended, Rule 41(e) avoids an all or nothing approach whereby the government must either return records and make no copies or keep originals notwithstanding the hardship to their owner. The amended rule recognizes that reasonable accommodations might protect both the law enforcement interests of the United States and the property rights of property owners and holders. In many instances documents and records that are relevant to ongoing or contemplated investigations and prosecutions may be returned to their owner as long as the government preserves a copy for future use.
Advisory Committee Notes to the 1989 Amendments to Rule 41. As a result of the new language of Rule 41, granting a motion for the return of property does not inevitably result in the suppression of that property in subsequent proceedings. See 3A Charles A. Wright, Nancy J. King, Susan R. Klein, Sarah N. Welling, Federal Practice and Procedure § 673 at 753 n.10 (3d ed. 2009).
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
