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

CA2: Failure to promptly return property lawfully seized isn’t separate 4A claim

Where firearms were lawfully seized, there isn’t a separate Fourth Amendment claim for failure to promptly return them. Bello v. Rockland Cty., 2021 U.S. App. LEXIS 13281 (2d Cir. May 5, 2021). Probable cause is required for administrative subpoenas under … Continue reading

Posted in Nexus, Rule 41(g) / Return of property, Seizure, Standing, Waiver | Comments Off on CA2: Failure to promptly return property lawfully seized isn’t separate 4A claim

MA: Where state CSLI rule was retroactive, obtaining def’s here was harmless error

Defendant’s CSLI was obtained in 2011 in violation of the state constitution [well before Carpenter and state cases]. It is retroactive in this state. But, all things considered, it was harmless byond a reasonable doubt. Commonwealth v. Gumkowski, 2021 Mass. … Continue reading

Posted in Cell site location information, Probable cause, Probation / Parole search, Rule 41(g) / Return of property | Comments Off on MA: Where state CSLI rule was retroactive, obtaining def’s here was harmless error

W.D.N.Y.: 4A ER does not apply to def’s claim records obtained from others were “unreliable”

Defendant’s argument that the records obtained by search warrant from other are unreliable is not a Fourth Amendment exclusionary rule question. United States v. Skinner, 2021 U.S. Dist. LEXIS 84377 (W.D. N.Y. May 3, 2021). A burnt blunt on the … Continue reading

Posted in Admissibility of evidence, Exclusionary rule, Probable cause, Rule 41(g) / Return of property | Comments Off on W.D.N.Y.: 4A ER does not apply to def’s claim records obtained from others were “unreliable”

FL1: Def’s setting up date via cell phone app where he sexually battered victim led to PC for SW for his cell phone

Defendant’s victim claimed to the police she was met through a phone app, sexually battered, and robbed. She identified defendant by his truck. “This information would have been enough to obtain a search warrant of Ferguson’s cell phones, even without … Continue reading

Posted in Cell phones, Ineffective assistance, Probable cause, Probation / Parole search, Reasonable suspicion, Rule 41(g) / Return of property | Comments Off on FL1: Def’s setting up date via cell phone app where he sexually battered victim led to PC for SW for his cell phone

D.Idaho: Def’s available suppression remedy supplants Rule 41(g) motion seeking to quash SW

Defendant filed a Rule 41(g) motion for return of property that also sought to quash a search warrant. He has the remedy in his criminal case. Purbeck v. Wilkinson, 2021 U.S. Dist. LEXIS 76412 (D. Idaho Apr. 21, 2021). The … Continue reading

Posted in Consent, Motion to suppress, Particularity, Rule 41(g) / Return of property | Comments Off on D.Idaho: Def’s available suppression remedy supplants Rule 41(g) motion seeking to quash SW

OH2: Motion for return of firearm seized from def subjected to mental exam should have been granted

Defendant’s motion for return of his firearm should have been granted. It was taken from him when he was held for a mental examination by court order. He was entitled to the processes of the forfeiture statute for return of … Continue reading

Posted in Rule 41(g) / Return of property | Comments Off on OH2: Motion for return of firearm seized from def subjected to mental exam should have been granted

WA: Crime victim stated claim for conversion against state for return of property

A crime victim has a right to return of property pending an investigation if the state doesn’t need it for court. “Our ruling today does not undermine the City’s interest in protecting sensitive records regarding ongoing criminal investigations. Ms. Burton … Continue reading

Posted in Informant hearsay, Rule 41(g) / Return of property | Comments Off on WA: Crime victim stated claim for conversion against state for return of property

FL1: Sheriff’s Office failed to show TV and PlayStation were lawfully seized during drug search

The Bay County SO executed a drug search warrant at claimant’s father’s house and seized a flat screen TV and PlayStation. Claimant sought return, and the state claimed it was lawfully taken and became county property by operation of law. … Continue reading

Posted in Overseizure, Reasonableness, Rule 41(g) / Return of property | Comments Off on FL1: Sheriff’s Office failed to show TV and PlayStation were lawfully seized during drug search

S.D.Ohio: Def not entitled to return of property deemed “classified”

Defendant is not entitled to return of property that the government has deemed “classified.” United States v. Montgomery, 2021 U.S. Dist. LEXIS 29115 (S.D. Ohio Feb. 17, 2021) (“In re Search Warrant for the Person of John F. Gill, 2014 … Continue reading

Posted in Rule 41(g) / Return of property | Comments Off on S.D.Ohio: Def not entitled to return of property deemed “classified”

Orchids of Asia Day Spa unlawfully made videos ordered destroyed

Reason: Cops Must Destroy Illegal Surveillance Videos From Spa Visited by Robert Kraft by Elizabeth Nolan Brown (“Authorities ‘shall destroy the videos unlawfully obtained through the surveillance of the Orchids of Asia Day Spa,’ a federal judge says.”) Techdirt: Federal … Continue reading

Posted in Rule 41(g) / Return of property | Comments Off on Orchids of Asia Day Spa unlawfully made videos ordered destroyed

Reason: Cops Must Destroy Illegal Surveillance Videos From Spa Visited by Robert Kraft

Reason: Cops Must Destroy Illegal Surveillance Videos From Spa Visited by Robert Kraft by Elizabeth Nolan Brown (“Authorities ‘shall destroy the videos unlawfully obtained through the surveillance of the Orchids of Asia Day Spa,’ a federal judge says.”)

Posted in Rule 41(g) / Return of property | Comments Off on Reason: Cops Must Destroy Illegal Surveillance Videos From Spa Visited by Robert Kraft

S.D.Ill.: Rule 41(g) doesn’t permit return of property held by state officers

“As this Court has tried to explain several times, the property Turner seeks is held by the Illinois State Police–not the Federal Government. The Court cannot order the Government to return something that it does not have. For these reasons, … Continue reading

Posted in Franks doctrine, Rule 41(g) / Return of property | Comments Off on S.D.Ill.: Rule 41(g) doesn’t permit return of property held by state officers

CA3: A predicate to a 41(g) motion to return property is a prior request

“To the extent Baer complains of the Government’s failure to return his devices, his argument fails because he never sought their return. Defendants who never seek the return of the property cannot argue that delay violated the Fourth Amendment. United … Continue reading

Posted in Qualified immunity, Rule 41(g) / Return of property | Comments Off on CA3: A predicate to a 41(g) motion to return property is a prior request

CA11: Standing required for 41(g) motion for return of property

The district court did not abuse its discretion in declining equitable jurisdiction under Rule 41(g) for lack of a threshold showing of standing and justiciability. United States v. Stoune, 2021 U.S. App. LEXIS 1178 (11th Cir. Jan. 15, 2021). The … Continue reading

Posted in Probable cause, Reasonable suspicion, Rule 41(g) / Return of property, Standing | Comments Off on CA11: Standing required for 41(g) motion for return of property

CA5: Examination of addresses on package was reasonable and led to RS

There was reasonable suspicion for detaining this package based on the lack of veracity of the delivery and return addresses. Examination of the package in the mail sorting system was not a search or seizure. United States v. Jones, 2020 … Continue reading

Posted in Mail and packages, Reasonable suspicion, Rule 41(g) / Return of property | Comments Off on CA5: Examination of addresses on package was reasonable and led to RS

D.Minn.: SW for ion scan of door for presence of drugs was at least subject to GFE

The search warrant here for swabbing defendant’s door for an ion scan to determine presence of drugs didn’t describe what the ion scan would show. The existence of case law from at least 1999 supporting ion scan warrants satisfies good … Continue reading

Posted in Community caretaking function, Good faith exception, Rule 41(g) / Return of property | Comments Off on D.Minn.: SW for ion scan of door for presence of drugs was at least subject to GFE

W.D.Pa.: Intervention for return of A-C privileged information denied as moot because they have the information

Intervention in a criminal case to attempt to recover information obtained in alleged violation of the attorney-client privilege is denied as moot. They already have that information, and there is a fundamental difference between recovery of property under Rule 41(g) … Continue reading

Posted in Rule 41(g) / Return of property, Standing | Comments Off on W.D.Pa.: Intervention for return of A-C privileged information denied as moot because they have the information

D.Ore.: Illegibility of judge’s signature on SW not 4A violation

Just because the state trial judge’s signature was illegible doesn’t violate the Fourth Amendment. The judge’s name was stamped below. United States v. McElroy, 2020 U.S. Dist. LEXIS 132608 (D. Ore. July 24, 2020). Franks challenge fails: “Thus, the bottom … Continue reading

Posted in Franks doctrine, Rule 41(g) / Return of property, Warrant requirement | Comments Off on D.Ore.: Illegibility of judge’s signature on SW not 4A violation

D.Neb.: No return of electronic media that had CP on it because def could possibly recover the contraband after erasure

Defendant is not entitled to return of electronic devices and media containing child pornography because of the mere possibility that the contraband could be recovered from it even after erasure. United States v. Buttercase, 2020 U.S. Dist. LEXIS 125078 (D. … Continue reading

Posted in Consent, Rule 41(g) / Return of property | Comments Off on D.Neb.: No return of electronic media that had CP on it because def could possibly recover the contraband after erasure

N.D.Ohio: Private party, here the owner, can be enlisted to help in computer search

Both the Fourth Amendment and Ohio law permitted law enforcement to seek private assistance in executing a search warrant, here of a computer, and the search was conducted by the company that owned the computer. United States v. Powell, 2020 … Continue reading

Posted in Computer and cloud searches, Franks doctrine, Rule 41(g) / Return of property, Warrant execution | Comments Off on N.D.Ohio: Private party, here the owner, can be enlisted to help in computer search