A Rule 41(g) motion for return of property that was really sought to disclose what the grand jury might be looking at. "The question is more fundamental than whether the movant seeks only to suppress evidence. The question is whether a Rule 41(g) motion is being used for strategic gain at a future hearing or trial." Here it was. Movant's preoccupation with disclosure v. return was evident. In re Sealed Case, 2013 U.S. App. LEXIS 9787 (D.C. Cir. March 5, 2013), reissued May 16, 2013):
[redacted] Rule 41(g) motions are not independent. Instead, they are part of a strategy of how best to respond to a grand jury investigation. [redacted] argues [redacted] motions are "solely for return of property" because does not seek the suppression of evidence gathered from the documents. Appellant's Reply Br. 3-4. In so arguing, [redacted] seems to assume that every Rule 41(g) motion falls into one of two categories: motions that seek "solely" return of property, and those that seek return of property and suppression of evidence. But at the time the Court decided DiBella, the dichotomy [redacted] imagines did not exist: granting a Rule 41(g) motion automatically resulted in suppression of the returned evidence. Thus, [redacted] cannot be right that the test for whether a motion is "solely for return of property" turns on whether the motion also seeks suppression. The Court's objective in crafting the first prong was to distinguish some motions from others: those that are inextricably intertwined with issues to be developed at a forthcoming trial from those that are not. If [redacted] were correct about its meaning, then the first prong would not have served the Court's desired culling function because seeking the return of property went hand-in-glove with seeking its suppression. See In re Warrant Dated Dec. 14, 1990, 961 F.2d 1241, 1243-44 (6th Cir. 1992) ("[N]o motion ... could ever literally comply with the [first prong because] any motion for return of property was automatically treated as a suppression motion as well." (internal quotation marks omitted)). Sensitive to this peril, courts of appeals have interpreted DiBella to stand for a broader principle than [redacted] acknowledges, one that requires us to look beyond the mere effect of the motion to ascertain its true purpose. See, e.g., id. ("[W]e must look behind the ... motion and determine whether the motion essentially sought return of seized property or suppression, delay, or some other such purpose apart from the return of the property."); Matter of 949 Erie Street, Racine, Wis., 824 F.2d 538, 541 (7th Cir. 1987); In re Grand Jury Proceedings, 716 F.2d 493,495 (8th Cir. 1983); Imperial Distribs., Inc. v. United States, 617 F.2d 892, 895 (1st Cir. 1980); United States v. Premises Known as 608 Taylor Ave., 584 F.2d 1297, 1300 (3d Cir. 1978).
The question is more fundamental than whether the movant seeks only to suppress evidence. The question is whether a Rule 41(g) motion is being used for strategic gain at a future hearing or trial. Our sister circuits have identified factors probative of purpose. For example, many have considered the movant's need for the property. As such, when the movant has already recovered the property from the government, those courts are reluctant to find that the motion is "solely" for its return. See, e.g., In re Grand Jury, 635 F.3d 101, 104-05 (3d Cir. 2011); Matter of 949 Erie Street, 824 F.2d at 541; Imperial Distribs., 617 F .2d at 895-96. Courts have also considered whether granting the motion would have some effect on the presentation of evidence at a future hearing or trial. See, e.g., In re Grand Jury, 635 F.3d at 104 (holding that a Rule 41 (g) motion was actually a motion to suppress because it "request[ ed] ... any copies of the seized documents and ... an order directing the government to cease inspecting the evidence pending a ruling" (emphasis in original)); In re 3021 6th Ave. North, 237 F.3d 1039, 1041 (9th Cir. 2001); Imperial
Distribs., 617 F .2d at 896.
On both of these counts, [redacted] motions are not "solely for return of no argument that [redacted] has some need for the seized property. We think it the government has already made almost all of [redacted] property available to., and it has expressed a willingness to return at least it retains. It is also telling that the injury [redacted] asserts is not the deprivation of property but the unlawful revelation of [redacted] private information. [redacted] preoccupation with disclosure rather than return underscores that. invocation of Rule 41 (g) is not about securing [redacted] property's return. See United States v. Ryan, 402 U.S. 530, 533 (1971) (describing the interest at stake when a motion is "solely for return of property" as the "right to possession").
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"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
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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
—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
—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
"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]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"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)