Rule 41(g) motion for return of property filed by a lawyer whose files were seized was tantamount to a pre-indictment motion to suppress, and the court declined to exercise jurisdiction over it after the MJ recommended it be denied. Trezza v. United States, 2006 U.S. Dist. LEXIS 75991 (D. Ariz. October 16, 2006):<\/p>\n
First and foremost, entertaining Mr. Trezza’s motion is an exercise of the Court’s equitable jurisdiction which it undertakes with caution and restraint, and according to equitable principles. Ramsden v. United States,<\/em> 2 F.3d 322. 324 (9th Cir. 1993) (citing Kitty’s East v. United States,<\/em> 905 F.2d 1367, 1370 (10th Cir. 1990)). The equities must be balanced between the Plaintiff and Government’s needs for the seized property. There must be a danger of irreparable injury to the movant, stemming from waiting for a remedy rather than from the original seizure, and the movant must have no adequate remedy at law. In the Ninth Circuit the following factors are considered: 1) whether the Government displayed a callous disregard for the constitutional rights of the movant; 2) whether the movant has an individual interest in and need for the property he wants returned, 3) whether the movant would be irreparably injured by denying return of the property, and 4) whether the movant has an adequate remedy at law for the redress of his grievance. Id.<\/em> at 325 (citing Richey v. Smith,<\/em> 515 F.2d 1239, 1243-44 (5th Cir. 1975)).<\/p>\n
1. Callous Disregard<\/em><\/p>\n
Here, Mr. Trezza alleges that the Government displayed a callous disregard for his constitutional rights. According to Mr. Trezza, 18 exhibits, including seven declarations from former employees of Trezza and his law firm, reflect that Agent Watson knowingly or recklessly submitted false information to Magistrate Judge Pyle as part of Agent Watson’s application for the search warrants. …<\/p>\n
The evidence put forward by Mr. Trezza does not support his allegations that the Government acted with callous disregard for his constitutional rights when it secured the search warrant, which authorized the search and seizure of documents at Mr. Trezza’s law offices.<\/p>\n
2. Individual Interest in and Need for the Property<\/em><\/p>\n
The Plaintiff does not express a need for access to any of the seized documents. “Trezza concedes that documents the taint team determined to be privileged have been returned to him and presumably no copies of those documents have been retained by the Government. The remaining documents have been copied with Trezza being supplied the copies and the Government retaining the originals.” (Report and Recommendation at 2.) He does not argue that he needs to possess the originals nor that the copies will not suffice.<\/p>\n
3. Irreparable Injury<\/em><\/p>\n
Stigma resulting from being a target of a criminal investigation does not constitute irreparable harm. Ramsden,<\/em> 2 F.3d at 326; In re Search of Law Office,<\/em> 341 F.3d 404, 415 (5th Cir. 2003). Plaintiff makes no argument of irreparable harm related to not possessing the original documents.<\/p>\n
4. Adequate Remedy at Law<\/em><\/p>\n
When a plaintiff faces criminal charges in the near future, he has an adequate remedy at law. Angel-Torres v. United States, <\/em>712 F.2d 717, 718-19 (1st Cir. 1983). If criminal charges are filed against the Plaintiff, he may challenge the constitutionality of the search warrant during those proceedings; if charges are not forthcoming, he may reapply to this Court for the return of his property. Id. The Court notes that the Government argued for the speedy disposition of these pre-indictment motions because until resolved they impede the investigation n2 and the statute of limitation runs for one of the tax years under investigation on April 15, 2007. See (Government’s Response to Motion for Extension of Time, filed August 9, 2006, at 2.) Accordingly, charges should be forthcoming.<\/p><\/blockquote>\n
Plaintiff stated a claim for excessive force during his arrest under the Fourth Amendment and the officers involved in both doing it and those standing by not stopping it. Kimbrough v. City of Cocoa, 2006 U.S. Dist. LEXIS 76087 (M.D. Fla. October 19, 2006).*<\/p>\n
Plaintiffs stated a claim for a forced strip search without justification after a consensual entry into the home. They were told to consent to a strip search there or they would be taken in to have it done by a female state trooper. Defendants denied making such statements, but a fact question is presented for trial. DeBlaay v. Smith, 2006 U.S. Dist. LEXIS 75937 (E.D. Mich. October 19, 2006).*<\/p>\n","protected":false},"excerpt":{"rendered":"
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