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S.D.N.Y.: History of Rule 41(g) shows motions for return of property is no longer intended for suppression

By John Wesley Hall, Jr.

Where the government does not show that a Rule 41(g) motion for return of property will interfere with a grand jury investigation, it can be granted. A Rule 41(g) motion is not a motion to suppress. The history shows it. Doane v. United States, 2009 U.S. Dist. LEXIS 61908 (S.D. N.Y. June 1, 2009) (USMJ Pitman): As the foregoing language suggests, Rule 41(g) & (h) permit courts to order the return of illegally seized property without granting a motion for suppression. Under the version of Rule 41 in effect from 1944 to 1989, this was not the case, and granting a motion for the return of property required the suppression of that property at any subsequent hearing or trial. 1 As a result, many courts deferred pre-indictment Rule 41(e) motions unless a movant could show (1) the search was illegal, (2) that he is without an adequate remedy at law, and (3) that he would suffer some irreparable injury if relief is not granted...continue to full post

Full post as published by Fourth Amendment on July 23, 2009 (boomark / email).