Category Archives: Rule 41(g) / Return of property

D.Mass.: Plea agreement foreclosed return of property

Defendant’s plea agreement foreclosed his Rule 41(g) motion for return of property. United States v. Spencer, 2023 U.S. Dist. LEXIS 206257 (D. Mass. Nov. 17, 2023). Defendant’s motion to reconsider denial of his motion to suppress the timeliness of his … Continue reading

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S.D.N.Y.: If the SW lacks PC, the remedy is a motion to suppress, not a motion to rescind the SW via 41(g)

Defendant filed a motion for the court to rescind the search warrant for his cell phone under Rule 41(g) because it was allegedly defective. The remedy is a motion to suppress, not to rescind. United States v. Cardenas, 2023 U.S. … Continue reading

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S.D.Cal.: A pending forfeiture action in another district justifies dismissal of Rule 41(g) motion because there is another remedy

This is a Rule 41(g) action for return of property, a superyacht owned by a Russian oligarch seized allegedly in violation of Russian sanctions. The next day, a forfeiture action was filed in the S.D.N.Y., and that provided an adequate … Continue reading

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OH11: Person seeking return of property seized need not provide actual evidence in the petition

In a petition for return of property seized from a business, it was only required to show a possessory interest and likelihood of return. An evidentiary quality response isn’t required. State v. Allen, 2023-Ohio-4032, 2023 Ohio App. LEXIS 3869 (11th … Continue reading

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GA: SW for things that were not controlled substances entitles target to return of the property

The search warrant here was for delta-8,9,10-THC but 8 and 10 are not controlled substances. Lacking probable cause for them, the search target is entitled to return of its property. Elements Distribution v. State, 2023 Ga. App. LEXIS 535 (Nov. … Continue reading

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CA8: Seizure of cell phone off person by SW wasn’t outrageous conduct warranting return

Seizure of plaintiff’s cell phone by search warrant off his person in a Hardee’s drive thru wasn’t outrageous governmental conduct justifying return of the phone under Rule 41(g). Also, the equitable claim that the phone is necessary for business purposes … Continue reading

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E.D.Wis.: Innocent person whose property was seized can petition in criminal case for return of property

The court finds it has ancillary jurisdiction over a return of property question not directly involved in this case. Petitioner owned it and it was at the place searched and does hold evidence of crime. United States v. Solberg, 2023 … Continue reading

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NV: Target of seizure may seek return of privileged documents during investigation

Even when documents are seized during an ongoing investigation, the target can seek return of privileged documents. The trial court erred in not “affording appellants an opportunity to challenge that determination [of lack of privilege] prior to disclosure.” In re … Continue reading

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CA8: Shot fired call from house resulted in protective sweep when door was answered by man matching description

Officers responding to a call about a shot fired from a window found a man answering the door matching the 911 description. A protective sweep was thus permissible. Defendant also consented to the entry. United States v. Williams, 2023 U.S. … Continue reading

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M.D.Ala.: Failure to back up CI made SW lack PC

Relying on a CI without backing him up failed to show probable cause. “With these guiding principles in mind, the undersigned concludes the search warrant affidavit here did not provide a substantial basis for finding probable cause to believe narcotics … Continue reading

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CA10: Govt has to be shown to have property to be ordered to return it under Rule 41(g)

The district court lacked jurisdiction to order return of property under Rule 41(g) because it could not be shown that the government was in possession of the hard drive defendant sought return of. United States v. Toombs, 2023 U.S. App. … Continue reading

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CA8: Exit border search of electronic devices was based on reasonable suspicion

There was reasonable suspicion for defendant’s intensive exit border search of his electronic devices. “The officers and agents had background information, much of it corroborated, that provided a basis for assessing Xiang’s actions in May and June 2017. Their experience … Continue reading

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WY: Inventory policy reasonably permitted opening containers

The inventory policy reasonably permitted opening containers. Beckwith v. State, 2023 WY 39, 2023 Wyo. LEXIS 39 (Apr. 27, 2023). Years after a seizure but still pre-indictment, the plaintiff sought return of property while the government was still investigating. It’s … Continue reading

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OH9: Growing house fire next door was exigency to clear def’s house

Defendant’s next door neighbor’s house caught on fire, and police at the scene acted reasonably in entering his house to clear it when the fire grew and they reasonably feared it would spread to the houses next door. State v. … Continue reading

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NV: A-C privilege reason for return of documents

Attorney-client privilege is reason for return of documents under F.R.Crim.P. 41(g), and Nevada recognizes that, too, regardless of whether there is an open investigation. In re Search Warrants Regarding Seizure of Documents, 2023 Nev. App. Unpub. LEXIS 131 (Apr. 7, … Continue reading

Posted in Arrest or entry on arrest, Automobile exception, Hot pursuit, Probation / Parole search, Reasonable suspicion, Rule 41(g) / Return of property | Comments Off on NV: A-C privilege reason for return of documents

CA3: Rule 41(g) order not appealable when property involved in criminal process

Denial of petitioner’s Rule 41(g) motion for return of property was not appealable when the property is tied up in the criminal process. It is not an exclusionary rule, and it remains available even if the government doesn’t plan on … Continue reading

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OR: For particularity in electronic devices, specify what will be found

In Oregon, “For searches of electronic devices, a warrant is specific enough to satisfy the particularity requirement if it ‘describe[s], with as much specificity as reasonably possible under the circumstances, what investigating officers believe will be found’ on the device, … Continue reading

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D.Idaho: Def can’t get access to his cell phone yet because govt has yet to search it because it’s password protected

Defendant wants return of his cell phone because he asserts, without specifying, that there is exculpatory evidence on it. The government responds that it hasn’t opened the phone yet because it is password protected. The government wants the password to … Continue reading

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M.D.Ala.: Controlled buy 4 days earlier leading to SW comes in under 404(b)

Defendant’s motion in limine about a controlled buy four days before the warrant is denied. It comes in under 404(b). United States v. Neal, 2023 U.S. Dist. LEXIS 37649 (M.D. Ala. Mar. 7, 2023). “As already discussed at the motion … Continue reading

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CA6: Govt completely failed to show nexus or PC thus no GFE

The affidavits supporting the records warrant for defendant’s home did not establish nexus between his alleged drug activity, drug records, and his address. Also, the affidavit did not allege that defendant dealt drugs from the house or that he even … Continue reading

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