{"id":53372,"date":"2022-10-17T07:30:46","date_gmt":"2022-10-17T12:30:46","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=53372"},"modified":"2022-10-20T08:06:26","modified_gmt":"2022-10-20T13:06:26","slug":"d-n-m-there-is-no-exclusionary-rule-under-rule-41g","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=53372","title":{"rendered":"D.N.M.: There is no exclusionary rule under Rule 41(g)"},"content":{"rendered":"\n

An action for return of property under Rule 41(g) is not a motion to suppress and does not invoke any exclusionary rule. Eastman v. United States<\/a>, 2022 U.S. Dist. LEXIS 188438\u00a0<\/a>(D.N.M. Oct. 14, 2022):<\/p>\n\n\n\n\n\n\n\n

While Eastman frames his motion as one for the return of his cell phone under Rule 41(g), the Government contends that Eastman \u201chas filed a motion to suppress a search warrant that masquerades as a Rule 41(g) motion.\u201d (Doc. 15 at 1.) Eastman does not disagree: he admits that he \u201chas not asserted that he is aggrieved by the deprivation of his property \u2026 ; rather, he has asserted that he has been aggrieved by the unlawful search and seizure itself\u201d due to alleged constitutional violations. (Doc. 16 at 6.) Thus, in addition to the return of his cell phone, Eastman seeks an injunction to stop the Government from searching the phone and an order requiring the Government to destroy any copies of information obtained from the phone thus far. (See Docs. 6 at 8, 23; 16 at 1, 28.) The history of Rule 41(g) together with Tenth Circuit precedent, however, support a finding that the rule does not provide the appropriate procedural vehicle for any requested relief outside of the return of Eastman\u2019s property.<\/p>

. . .<\/p>

Following the 1989 amendments, the Tenth Circuit explicitly held that Rule 41(g) motions are now \u201csolely for the return of property.\u201d Kitty\u2019s E., 905 F.2d at 1370 (\u201cIllegality of a search for purposes of Rule 41(e) and the scope of the exclusionary rule have been separated by the 1989 amendments.\u201d) (citing Matter of Search of Premises Known as 6455 S. Yosemite, Englewood, Colo. (hereinafter \u201cBlinder\u201d), 897 F.2d 1549, 1554 (10th Cir. 1990); Fed. R. Crim. P. 41(g) advisory committee\u2019s note to 1989 amendment; 124 F.R.D. at 428). While Rule 41(g) allows a movant to request the return of property, Rule 41(h) provides that \u201c[a] defendant may move to suppress evidence in the court where the trial will occur, as Rule 12 provides.\u201d Fed. R. Civ. P. 41(h). The Fifth Circuit agrees that Rule 41(g) \u201cis concerned solely with the return of property to the Rule 41(g) movant.\u201d Harbor Healthcare Sys., L.P. v. United States, 5 F.4th 593, 600 (5th Cir. 2021). \u201cSuppression and Rule 41(g) occupy two entirely distinct spheres within the universe of unlawful searches and seizures.\u201d Id.; see also In re Search of the Office of Ken Tylman, 245 F.3d 978, 980 (7th Cir. 2001) (noting that \u201c[t]he rule is directed at \u2026 a seizure prior to the return of indictment \u2026 [but] cannot be used to suppress evidence\u201d); but see Bennett, 2013 WL 3821625, at *11 (noting that circuit courts to address the issue of \u201cwhether suppression is still available under Rule 41(g) after the rule\u2019s 1989 amendment \u2026 are divided\u201d and citing cases from the Third, Fourth, Sixth, and Ninth Circuits that have not foreclosed the possibility that Rule 41(g) contemplates a suppression motion).<\/p>

Eastman does not discuss Kitty\u2019s East in any detail but rather argues that the language of the rule allows an individual to move for the return of property if they are \u201c\u2018aggrieved\u2019 either \u2018by an unlawful search and seizure of property or by the deprivation of property.\u2019\u201d (Doc. 16 at 6 (quoting Fed. R. Crim. P. 41(g)).) Eastman\u2019s motion rests on the proposition that he can demonstrate irreparable injury solely on the basis that he was aggrieved by an unlawful seizure of his phone. (See generally Docs. 6; 16.) He does not cite binding authority to support his reading of the rule. (See Docs. 6; 16.) The Court finds that the history of the rule and binding Tenth Circuit authority are fatal to his position.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

An action for return of property under Rule 41(g) is not a motion to suppress and does not invoke any exclusionary rule. Eastman v. United States, 2022 U.S. Dist. LEXIS 188438\u00a0(D.N.M. Oct. 14, 2022):<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[14,67],"tags":[],"class_list":["post-53372","post","type-post","status-publish","format-standard","hentry","category-exclusionary-rule","category-rule-41g-return-of-property"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/53372","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=53372"}],"version-history":[{"count":3,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/53372\/revisions"}],"predecessor-version":[{"id":53398,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/53372\/revisions\/53398"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=53372"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=53372"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=53372"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}