D.N.M.: There is no exclusionary rule under Rule 41(g)

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 (D.N.M. Oct. 14, 2022):

While Eastman frames his motion as one for the return of his cell phone under Rule 41(g), the Government contends that Eastman “has filed a motion to suppress a search warrant that masquerades as a Rule 41(g) motion.” (Doc. 15 at 1.) Eastman does not disagree: he admits that he “has not asserted that he is aggrieved by the deprivation of his property … ; rather, he has asserted that he has been aggrieved by the unlawful search and seizure itself” 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’s property.

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Following the 1989 amendments, the Tenth Circuit explicitly held that Rule 41(g) motions are now “solely for the return of property.” Kitty’s E., 905 F.2d at 1370 (“Illegality of a search for purposes of Rule 41(e) and the scope of the exclusionary rule have been separated by the 1989 amendments.”) (citing Matter of Search of Premises Known as 6455 S. Yosemite, Englewood, Colo. (hereinafter “Blinder”), 897 F.2d 1549, 1554 (10th Cir. 1990); Fed. R. Crim. P. 41(g) advisory committee’s 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 “[a] defendant may move to suppress evidence in the court where the trial will occur, as Rule 12 provides.” Fed. R. Civ. P. 41(h). The Fifth Circuit agrees that Rule 41(g) “is concerned solely with the return of property to the Rule 41(g) movant.” Harbor Healthcare Sys., L.P. v. United States, 5 F.4th 593, 600 (5th Cir. 2021). “Suppression and Rule 41(g) occupy two entirely distinct spheres within the universe of unlawful searches and seizures.” Id.; see also In re Search of the Office of Ken Tylman, 245 F.3d 978, 980 (7th Cir. 2001) (noting that “[t]he rule is directed at … a seizure prior to the return of indictment … [but] cannot be used to suppress evidence”); but see Bennett, 2013 WL 3821625, at *11 (noting that circuit courts to address the issue of “whether suppression is still available under Rule 41(g) after the rule’s 1989 amendment … are divided” 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).

Eastman does not discuss Kitty’s 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 “‘aggrieved’ either ‘by an unlawful search and seizure of property or by the deprivation of property.’” (Doc. 16 at 6 (quoting Fed. R. Crim. P. 41(g)).) Eastman’s 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.

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