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Federal Search and Seizure: Motion for Return of Seized Property: Jurisdiction and Procedure

Jurisdiction

In which Court do I file my Motion?

Generally, you will file your Motion in the US District Court of the jurisdiction in which your property was seized.  See Federal Rule of Criminal Procedure Rule 41 (g).

San Diego is in the Southern District of California of the Federal Court System.

Filing a Claim: What You Must Prove

Standing: The moving party must have "standing" to file a claim for return of seized property. To have standing, the party must have at least a "colorable claim" that they owned, possessed, or had a security interest in at least a portion of the property seized.  See Federal Procedural Forms, Lawyers Edition, Vol 7, §20:576 (KF 8836.F4) for a list of persons who may be entitled to request the return of property under the law, as well as cases you may want to cite for each. See also: Federal Procedure: A Problem-Solving Textual Analysis of Federal Judicial and Administrative Procedure (Federal Procedure, Lawyers Edition), Vol 9B, § 22:2167 (KF 8835.F43).

Burden: The moving party has the burden of showing that:

  • They are entitled to lawful possession of the property seized if there is a pending criminal proceeding. To defeat the Rule 41(g) motion once criminal proceedings end, the government has the burden of showing that the moving party's possession was unlawful or that the government has a right to retain the property. See Federal Procedure: A Problem-Solving Textual Analysis of Federal Judicial and Administrative Procedure (Federal Procedure, Lawyers Edition), Vol 8A, § 22:240 for how to plead this in your motion.
  • They will sustain irreparable injury because of the loss of seized property. See Federal Procedure: A Problem-Solving Textual Analysis of Federal Judicial and Administrative Procedure (Federal Procedure, Lawyers Edition), Vol 8A, § 22:245 for how to plead this in your motion.

Not all property can be returned. See Federal Procedure: A Problem-Solving Textual Analysis of Federal Judicial and Administrative Procedure (Federal Procedure, Lawyers Edition), Vol 8A, § 22:242. 

General Procedure

1. Prepare your own motion papers using information in the referenced resources as a guide. You will need to tailor the suggested language to fit your own facts and circumstances. You can find examples of various forms and pleadings on the District Court website here, and on the Federal Administrative Office of the Court website here. You will however need to draft your own pleadings. Be sure to observe Local Rules.

Each motion is generally supported by several parts:

  • Notice of Motion
  • Memorandum of Points and Authorities
  • Declaration in Support of Motion/Separate Statement of Material Facts upon which you are basing your motion.

See also Federal Procedure: A Problem-Solving Textual Analysis of Federal Judicial and Administrative Procedure (Federal Procedure, Lawyers Edition), Vol 8A, § 22:243.

2. After you have prepared your pleadings, make two copies. You should have a total of three copies: an original and two duplicates. The original is filed with the court clerk; one copy is for your records; and the third copy is served on the opposing party.  For further guidance on formatting your paperwork see Federal Procedural Forms, Lawyers Edition § 20:581.

3. The court clerk will take all three copies and file stamp them. This shows they were received by the court. The clerk will hand you back the two copies. The clerk puts the original in the court's file.

5. Keep one of the file-stamped copies for yourself.

6. Serve the opposing side with a copy.

7. Attend the hearing