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. LEXIS 14235 (10th Cir. June 8, 2023).*

“Even assuming that the defendant made the required ‘substantial preliminary showing,’ the defendant did not prove by a preponderance of the evidence that—in either the July 23, 2021 affidavit or the September 15, 2021 affidavit—Agent Stanton made a false statement or omitted information, either knowingly and intentionally or with reckless disregard for the truth, that was necessary to the finding of probable cause supporting the relevant search warrant. Consequently, the court should deny the defendant’s motion to suppress.” United States v. Sledge, 2023 U.S. Dist. LEXIS 100036 (N.D. Ala. May 8, 2023) (R&R).*

The officer here had reasonable suspicion defendant might be armed to have him put his hands on the car for a frisk, and a gun was found in his pocket. State v. Wishon, 2023-Ohio-1915 (2d Dist. June 9, 2023).*

Defendant’s first statement was sufficiently divorced from the unreasonable search, and it was not fruit of the poisonous tree. State v. Crebo, 2023 Fla. App. LEXIS 3855 (Fla. 2d DCA June 9, 2023).*