We executed a search warrant about nine months ago in a complicated white collar case. The target hired a local civil attorney who has filed numerous frivolous motions with the judge who signed the search warrant. The most recent, which I have to deal with this afternoon at 1:30 in an "emergency" hearing, is a motion to return the files we took in the search because the investigation is taking too long and the whole thing is baseless and nothing but a witch hunt.

I don't think the judge is going to do this, but is anyone familiar with any case law that allows a judge (a county court judge in this case) to order the State to return items seized in a search warrant that are still the subject of an ongoing grand jury investigation? I've looked, but I can't find any. That may be because we recently switched from Lexis to Westlaw and I'm still trying to figure it out. Any thoughts? Cases?

I had a similar motion filed last year to return computers seized pursuant to a warrant in a murder case. I couldn't find any case law, Shane.

My argument was, wouldn't that be interference with an investigation by a judge if granted?

Thanks for the response, Greg. Sorry to see that you are working with week. I did stumble on a couple of cases so far. An unpublished opinion out of San Antonio, In Re Reed, 2008 WL 4239504, cites CCP Art. 18.12 for the proposition that a judge who signs a search warrant (or, as is the issue in that case, any other magistrate)can order the return of property seized under the search warrant. It also cites a published case, In Re Cornyn that deals with the same issue. So, I guess the remaining question is what is the standard for a judge to order the return of evidence seized under a search warrant. I'll keep looking.

I remember reading something regarding the seizure of livestock or perishable goods. The issue was that the seized stuff would be ruined or possibly die. I don't remember the details.

Having spent a number of years on the "dark side," I dealt with this issue from the suspect point of view on a number of occasions. In my experience, case law was of no help, but in white-collar cases, there were many legitimate reasons to seek the return of seized documentary evidence: filing tax returns, defending civil claims, responding to civil discovery requests, workman's comp., unemployment, etc. All of these legitimate reasons, however, vaporized the moment the law enforcement agency/prosecutor said "no problem, make an appointment anytime during normal business hours and we will have an officer make the records available to you for copying at your expense." Usually this came in the form of a letter that was later attached to the State's reply to the "motion to return seized property." Plus, as a practical matter, I was never going to put my client (target) on the stand to seek the return of the seized material because I was never going to let my client admit under oath that he/she had any knowledge or control of the content of the records.

[This message was edited by John Greenwood on 12-22-08 at .]

Dallas County dealt with a similar issue in a case where they were prosecuting a doctor for dealing drugs and had seized multitudinous medical files. They did come up with some sort of mechanism to make copies and return records. It was quite an operation that filled up a big chunk of space I wanted for storing appellate files. I don't know what the resolution ever was. The defendant's name was Maynard.