Wednesday, August 16, 2006

Another Essay Question

This one from my Criminal Procedure text:

Suppose the police unlawfully search Jane's home and seize contraband, such as illegal narcotics. Should Jane be able to see its return under the Federal Rule of Criminal Procedure 41(g), which 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."

Remember the Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

3 comments:

Michelle said...

In a nutshell, if it happened here....NO!

Matthew said...

The Fourth Amendment only affords protection against unreasonable searches and seizures. The remedy is to suppress the search and seizure. One is not entitled to the return of contraband. "Property seized for the purposes of a trial that is neither contraband nor subject to forfeiture should ordinarily be returned to the defendant once trial has concluded." United States v. Van Cauwenberghe, 934 F.2d 1048, 1060-61 (9th Cir.1991), United States v. Kaczynski, 416 F.3d 971, 974 (9th Cir. 2005)

papa houch said...

I say return it to the individual. Now that you know they have it, get a valid warrant and arrest them.