The Eighth Circuit On How To Get Your Stuff Back After The Government Takes It Using A Search Warrant

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There's little judicial attention paid to folks who have their stuff taken by the police executing a search warrant - and who want it back later.

Thankfully, just in time for Christmas, the Eighth Circuit breaks out with United States v. Bailey.

1382778_old_brick_cell_phone.jpgNot George Bailey And Perhaps Not A Wonderful Life

In 2003 Mr. Bailey was arrested in Minneapolis on prostitution-related charges. Some of his personal items - a wallet, a cell phone, and $2,000 in cash - were taken pursuant to a search warrant.

He was prosecuted - and convicted - in federal court in Minnesota of transporting someone across state lines for the purpose of engaging in prostitution.

He filed an appeal and lost.

It's hard out there for a pimp.

He still wanted his stuff back.

Mr. Bailey Goes (back) To Court

He filed a motion under Rule 41. As the Eighth Circuit explains,

Rule 41 provides that a person "aggrieved by an unlawful search and seizure" or "deprivation of property" may seek the return of the property by filing a motion in the district where the property was seized. Fed. R. Crim. P. 41(g). The court must receive evidence on "any factual issue necessary to decide the motion," and if it grants the motion it must order the government to return the property.

The government told the judge that Mr. Bailey's stuff was returned to the Minneapolis police department - the federal government didn't have Mr. Bailey's things any more.

Mr. Bailey appealed, saying that he had a right to a hearing.

The Eighth Circuit agreed and sent the case back. If a man has a right to a hearing, said the Eighth Circuit, then the man ought to get a hearing.

That was not this case.

Mr. Bailey Gets A Hearing

On remand, Mr. Bailey got his hearing - he didn't get one witness, the AUSA who presided over the trial is now a state judge in Minnesota. Mr. Bailey wanted to subpoena her but the district court refused. She sent a letter saying she didn't know anything about where Mr. Bailey's wallet, cash, and cell phone went.

But a number of other folks did testify. They said that Mr. Bailey's things went back to the Minneapolis police department.

The supervisor of the Minneapolis police department said that they searched the Minneapolis police property room and didn't find Mr. Bailey's things.

Mr. Bailey Wants To Be Made Whole

After the testimony ended, the government asked the court to dismiss the proceeding. There was no evidence the government had anything that they could return, so the government argued the motion had to be dismissed.

Mr. Bailey asked that the district court convert his case to a claim for damages. The government lost his stuff, and he wanted to be paid for it.

The district court said no, saying that it had "completed its assigned responsibility by the remand."

One has the sense that the district court was not enthusiastic about this case.

Every Time A Defendant Wins An Appeal An Angel Gets Its Wings

Mr. Bailey appealed.

The Eighth Circuit held that

We have previously considered whether compensatory damages are available under Rule 41 when the government has lost or destroyed a defendant's property. See United States v. Hall, 269 F.3d 940 (8th Cir. 2001). In Hall, the federal government had improperly disposed of a pickup truck and a waterbed which had been seized from the defendant. Id. at 941. Since the property could no longer be returned, the district court granted damages equal to the fair market value of the items. Id. Although such an award was not authorized under Rule 41 itself, "the court should grant the movant . . . an opportunity to assert an alternative claim" under a statute which authorizes money damages against the government. Id. at 943.

So the law in the Eighth Circuit is clear - if the government loses your stuff you get to ask for the fair market value of it.

The district court was, apparently, not familiar with Hall.

The case was remanded to figure out what Mr. Bailey's damages would be.

I assume the next appeal in this case will be over the value of a cell phone purchased in 2003. Stay tuned!