Filed: Aug. 27, 2013
Latest Update: Aug. 27, 2013
Summary: ORDER THOMAS B. SMITH, Magistrate Judge. This case came on for hearing on August 27, 2013 on Defendant Kim Rivers' Motion for Order Compelling Government to Return Seized Property. (Doc. 89). Federal Rule of Criminal Procedure 41(g) states that "[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return" by filing a motion in the district court where the property was seized. The Rule also states that "[t]he court must
Summary: ORDER THOMAS B. SMITH, Magistrate Judge. This case came on for hearing on August 27, 2013 on Defendant Kim Rivers' Motion for Order Compelling Government to Return Seized Property. (Doc. 89). Federal Rule of Criminal Procedure 41(g) states that "[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return" by filing a motion in the district court where the property was seized. The Rule also states that "[t]he court must ..
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ORDER
THOMAS B. SMITH, Magistrate Judge.
This case came on for hearing on August 27, 2013 on Defendant Kim Rivers' Motion for Order Compelling Government to Return Seized Property. (Doc. 89). Federal Rule of Criminal Procedure 41(g) states that "[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return" by filing a motion in the district court where the property was seized. The Rule also states that "[t]he court must receive evidence on any factual issue necessary to decide the motion." Id. Rule 41(g) provides recourse to individuals aggrieved by the unlawful seizure of their property and when the Government unreasonably retains lawfully seized property. United States v. Zambrano, 353 Fed.Appx. 227, 228, 2009 WL 3818757 (11th Cir. 2009).1 "`[T]he person from whom the property was seized is presumed to have a right to its return, and the government must demonstrate that it has a legitimate reason to retain the property'" United States v. Melquiades, 394 Fed.Appx. 578, 581, 2010 WL 3314487 (11th Cir. 2010). On a motion to return seized property, the Court sits as a court of equity. United States v. Howell, 425 F.3d 971, 974 (11th Cir. 2005). To invoke Rule 41(g), the owner must show that she had a possessory interest in the property seized by the Government and that she comes into court with clean hands. United States v. Cooper, 485 Fed.Appx. 411, 414, 2012 WL 3104258 (11th Cir. 2012) (unpublished).
For the reasons stated on the record in open court (which proceeding is incorporated by reference in this Order), the motion is GRANTED in part. The Government shall return the following items to Defendant:
#6—Toshiba laptop computer
#15—CD
The Government has agreed to accept the representation of Defendant's lawyer concerning which of the cell telephones in its possession belong to Defendant's children. Based upon counsel's representation, the Government will return the children's cell telephones.
The Government has also agreed to review the Microsoft laptop with blue keyboard included in item #24 and return it to Defendant unless the Government believes it contains evidence of criminal activity.
In all other respects, Defendant's motion is DENIED.
IT IS SO ORDERED.
