E.D.N.Y.: Preindictment litigation of a search under Rule 41 is possible without showing irreparable harm

A search warrant was issued for alleged rioters and served by the Joint Terrorism Task Force. After execution, the court issued a TRO on the petitioners’ motion the next day to prevent the government from looking at what was seized until a hearing because of First Amendment concerns. The TRO had been set aside, and a special master was not appointed. Preindictment litigation of the search is possible under Rule 41(g). In re Madison, 687 F. Supp. 2d 103 (E.D. N.Y. November 10, 2009):

The threshold issue, raised by the government and ignored by petitioners, is whether the court should rule on petitioners’ Rule 41(g) motion prior to indictment absent a showing of irreparable harm. As the government points out, courts have held that, in the absence of a showing of irreparable harm, a decision on a Rule 41(g) motion should be deferred until after an indictment has issued. See, e.g., United States v. Douleh, 220 F.R.D. 391, 397 (W.D.N.Y. 2003).

Under the version of Rule 41 in effect from 1944 to 1989, granting a motion for the return of property required the suppression of that property at any subsequent hearing or trial. See Doane v. United States, No. 08 Mag. 0017 (HBP), 2009 WL 1619642, at *7 (S.D.N.Y. June 5, 2009) (citing FED. R. CRIM. P. 41(e) (1989)). Therefore, under the old version of the Rule, granting the motion pre-indictment would have had the effect of suppressing evidence before the grand jury in derogation of the holding in United States v. Calandra, 414 U.S. 338 (1973). See Doane, 2009 WL 1619642, at *7 (“The principal reason offered by these courts [*11] 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.”). “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.” Id. (citations ommitted).

Rule 41 was amended in 1989 to provide that “[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.” Id. (quoting FED. R. CRIM. P. 41(g)). 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.” Id. Thus, as a result of the new language of Rule 41, granting a pre-indictment motion for the return of property no longer inevitably results in the suppression of the property in subsequent proceedings. Moreover, in light of the reasonable conditions that may be imposed to preserve the use of the property, the government’s conclusory assertion that consideration of this motion at this juncture would interfere with the grand jury investigation is unavailing. Accordingly, petitioners need not establish irreparable harm for the court to consider their motions at this time.