In the
United States Court of Appeals
For the Seventh Circuit

Nos. 00-3028, 00-3029 & 00-3030


IN RE:

   THE SEARCH OF THE OFFICE OF KEN TYLMAN,
   WORLDWIDE FINANCIAL SERVICES, 913 17TH
   STREET, CHARLESTON, IL 61920.


Appeals   from the United States District
Court
for the   Central District of Illinois.
Nos. 00   U 13, 00 U 14 and 00 U 15--
Michael   P. McCuskey, Judge.


Argued February 13, 2001--Decided April 5,
2001




  Before MANION, KANNE, and EVANS, Circuit
Judges.


  EVANS, Circuit Judge. After the office
of WorldWide Financial Services was
searched and various items seized
pursuant to a federal search warrant,
Ken Tylman, Harry Woolen, Debra Hills,
and James McNutt filed a petition,
pursuant to Rule 41(e) of the Federal
Rules of Criminal Procedure, seeking the
return of the items and the suppression
of evidence. The district court, after
an evidentiary hearing, declined to
suppress the seized materials but
ordered the government to provide the
appellants with copies of all items
seized; further, any items appellants
identified as being urgently needed were
to be provided as soon as possible.
Despite the fact that the law does not
allow the appellants any additional
relief beyond what the district court
has ordered, this appeal was taken.


  Tylman and the others contend that
Rule 41(e) is unconstitutional as
applied, that the search warrant was
facially invalid and improperly served,
and that the original documents seized,
not just copies of them, must be
returned.


  Agents of the Criminal Investigation
Division of the Internal Revenue Service
entered WorldWide’s office in
Charleston, Illinois, at 10:30 in the
morning on March 31, 2000, to execute
the search warrant. To get a warrant, it
must be recalled, the government must
present evidence which convinces a judge
that there is probable cause that
criminal activity is afoot.


  Once the agents entered the office,
they encountered Brent Winters and
appellants Ken Tylman, Harry Woolen, and
Debra Hills in a conference room. Upon
entry, they noticed a problem: although
an affidavit listing items to be seized
had been attached to the application for
the warrant, and was referenced in the
warrant itself, no list of items to be
seized was included in, or attached to,
the search warrant. Mr. Tylman, quick on
his feet, objected to the omission and,
after consulting with a supervisory IRS
agent, the agents decided to obtain a
new search warrant before going any
further.


  The agents secured the office but did
not search it until the second warrant
was obtained. They did, however,
videotape and diagram the offices and
label items such as file cabinets while
they were waiting. The people within the
building were told they were free to
leave, and at different times Ms. Hills
and Mr. Woolen both left.


  The second warrant arrived and it
contained an attachment listing items to
be seized, but, in what must have been a
Keystone Cops moment, the agents saw
that the list referred to items to be
seized in a related search at a
different location. The agents realized
the error and again consulted with a
supervisory agent. Again, agents went
back to court for yet another warrant.


  The third warrant was the charm, and
the search of the premises began around
6 p.m. The warrant called for the search
of the entire business premises. All of
the items seized were listed in one
inventory which was left at the site
with Mr. Tylman and Mr. Winters, an
attorney.


  The search was carried out at a time
when the government was conducting a
criminal tax investigation of Tylman
(and perhaps others) and his business
dealings. No indictment, to date, has
been returned.


  The appellants’ motion was filed under
Rule 41 (e) of the Federal Rules of
Criminal Procedure, which provides:

Motion for Return of Property. A
person aggrieved by an unlawful
search and seizure or by the
deprivation of property may move
the district court for the
district in which the property was
seized for the return of the
property on the ground that such
person is entitled to lawful
possession of the property. The
court shall receive evidence on
any issue of fact necessary to the
decision of the motion. If the
motion is granted, the property
shall be returned to the movant,
although reasonable conditions may
be imposed to protect access and
use of the property in subsequent
proceedings. If a motion for
return of property is made or
comes on for hearing in the
district of trial after an
indictment or information is
filed, it shall be treated also as
a motion to suppress under Rule
12.

The rule is directed at the precise
situation before us--a seizure prior to
the return of an indictment. Had an
indictment been filed, a motion to
suppress evidence, pursuant to Rule 12
of the Federal Rules of Criminal
Procedure, would be the appropriate
vehicle to not only secure the return of
seized property, but also to challenge
the constitutionality of the search
itself. Rule 41(e), however, cannot be
used to suppress evidence. The rule does
allow for the return of property if the
owner is "aggrieved by an unlawful
search and seizure or by the deprivation
of property." In other words, the motion
may be made whether or not the search
was lawful. See Advisory Committee
Notes; Matter of Search of Kitty’s East,

 (10th Cir. 1990).


  According to the Advisory Committee
Notes, the test of whether property
should be returned is whether the
government’s retention of it is
reasonable: "If the United States has a
need for the property in an
investigation or prosecution, its
retention of the property generally is
reasonable. But, if the United States’
legitimate interests can be satisfied
even if the property is returned,
continued retention of the property
would become unreasonable." See also
Kitty’s East.

  In this case, the district court
ordered the government to return copies
of the seized documents. That was done.
We have been given no compelling reason
to think that this solution is not an
adequate remedy for the appellants. The
procedures involved in Rule 41(e) are
not intended to deny the government the
use of evidence it needs during its
investigations and prosecutions, and
here the government is continuing to
conduct an investigation into, if true,
serious violations of federal law.


  Appellants argue, though, that Rule
41(e) is unconstitutional. The argument
seems to be that if all the government
has to do to comply with Rule 41(e) is
to return copies of items seized, rather
than the originals, then Rule 41(e)
amounts to a grant to the government of
the power to execute a general warrant;
if that is the case, then Rule 41(e)
should be ruled unconstitutional. We
disagree.


  The rule was enacted pursuant to the
Supreme Court’s authority under 28
U.S.C. sec. 2072. In addition, Congress
has codified Rule 41(e) into the
statutes at 18 U.S.C. sec. 3114, and
federal statutes enjoy a strong
presumption of constitutionality. See
United States v. National Dairy Prods.
Corp., 

 (1963). The
appellants have not overcome the
presumption. The rule is also not out of
line with the exclusionary rule, which
is itself not an absolute ban on the use
of illegally seized evidence. The
exclusionary rule does not proscribe the
use of illegally seized evidence in all
proceedings or against all persons.
United States v. Calandra, 

(1974). Appellants’ further argument
that the rule allows searches to be done
arbitrarily is belied by the fact, as we
noted before, that agents initiating a
search must first apply for a warrant to
a judicial officer who must be satisfied
that probable cause exists. In this
case, it looks to us that the agents
acted reasonably when they declined to
conduct the search until they had
satisfied themselves that they had a
valid warrant.


  The appellants also contend that the
agents violated subsection (d) of Rule
41. The argument seems to be either (or
both) (1) that the warrant was invalid
because the fact that there was an
attachment setting out items to be
seized was not mentioned on the face of
the warrant, or (2) that the agents
conducted the inventory outside Mr.
Tylman’s presence. For both
propositions, they rely on United States
v. Stefonek, 

 (7th Cir.
1999), which in fact helps them not at
all. Stefonek involved, in part, the
denial of a motion to suppress evidence,
and we went to some lengths to point out
the exclusion of evidence must not be a
sanction, which is disproportionate to
the violation. There is no requirement
in Stefonek that items to be seized must
be set out on the face of the warrant
as opposed to in an attached list. As to
the other point, the rule states that
the inventory must be made in the
presence of the person from whose
possession or premises the property was
taken or in the presence of "at least
one credible person other than the
applicant for the warrant or the person
from whose possession or premises the
property was taken . . . ." The
inventory in this case was conducted in
the presence of someone who was not the
applicant. Mr. Tylman’s absence does not
prevent the government from retaining
the items for its investigation. In
Stefonek, we pointed out that a search
can, in fact, be conducted in the
absence of the person who occupies the
premises. Furthermore, given the posture
of the case, even if there were a
violation of the rule, that would not
mean that the seized evidence would
necessarily have to be returned pursuant
to Rule 41.


  Accordingly, the decision of the
district court is AFFIRMED.