United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MARK E. ASPEX, District Judge.
TO THE HONORABLE NEIL V. WAKE:
On December 6, 2013, Plaintiff Gonzalo Tellez-Sanchez, who is confined in the Giles W. Dalby Correctional Facility, filed a pro se Motion for Return of Property pursuant to Rule 41(g) of the Federal Rules of Criminal Procedure (Doc. 1) and an Application to Proceed In Forma Pauperis. In his Motion for Return of Property, Plaintiff seeks the return of his cell phone, which was seized when he was arrested. He claims his phone is not contraband and is not subject to forfeiture.
In an order entered February 5, 2014, the Court noted that, when a motion for return of property under Federal Rule of Criminal Procedure 41(g) is filed and no criminal proceedings are pending, the motion is properly treated as a civil complaint and is governed by the Federal Rules of Civil Procedure. See Doc. 9. In the order at Doc. 9 the Court ordered Defendant to respond to the motion. Defendant filed a response in opposition to the motion on May 8, 2014. See Doc. 13. Plaintiff has not docketed a reply to the response to his motion.
Rule 41(g), Federal Rules of Civil Procedure, provides:
Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.
The government's duty to return seized property has repeatedly been emphasized by the courts.
Prior decisions of this court have made clear that the party from whom materials are seized in the course of a criminal investigation retains a protectible property interest in the seized materials. "(T)he Government's right to seize and retain certain evidence for use at trial, " we have said, "does not in itself entitle the State to its retention' after trial, ...." United States v. Farrell , 606 F.2d 1341, 1347 (D.C. Cir. 1979), quoting Warden v. Hayden , 387 U.S. 294, 307-08, 87 S.Ct. 1642, 1650  (1967).
Rather, as we have declared, "it is fundamental to the integrity of the criminal justice process that property involved in the proceeding, against which no Government claim lies, be returned promptly to its rightful owner." United States v. Wilson , 540 F.2d 1100, 1103 (D.C. Cir. 1976). Lawful seizure of the property, of itself, may affect the timing of the return, but never the owner's right to eventual return. "(T)he district court, once its need for the property has terminated, has both the jurisdiction and the duty to return the... property... regardless and independently of the validity or invalidity of the underlying search and seizure." Wilson , 540 F.2d at 1103-04.
United States v. Hubbard , 650 F.2d 293, 303 (D.C. Cir. 1980) (some internal citations omitted).
A Rule 41(g) movant who asserts a post-conviction claim for the return of seized property must first demonstrate that he has a possessory interest in the property. See, e.g., United States v. Howell , 425 F.3d 971, 974 (11th Cir. 2005). The government bears the burden of establishing the movant is not entitled to relief. See, e.g., United States v. Chambers , 192 F.3d 374, 376 (3d Cir. 1999). The government may rebut the movant's allegations with evidence that "it has a legitimate reason to retain the property, '" that it does not possess the property, or that the property has been destroyed. United States v. Potes Ramirez , 260 F.3d 1310, 1314 (11th Cir. 2001), quoting Chambers , 192 F.3d at 377.
In response to the motion Defendant avers:
In his motion, Plaintiff asserted that a cell phone was seized from him by officers from the United States Border Patrol (Doc. 1). Plaintiff further asserted that the seized cell phone was not contraband and therefore not subject to ...