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FED. R. CRIM. P. Rule 41(f) specifically provides for the filing of a Motion to Suppress and a pretrial hearing thereon as the appropriate remedy for enforcing a defendant’s Fourth Amendment protection against unreasonable search and seizure. In Texas, Article 28.01 of the Code of Criminal Procedure provides for the filing of a Motion to Suppress and further provides for the court to decide a motion based on the contents of the motion, affidavits and/or a hearing. Thus, courts may resolve suppression issues using one or multiple methods. See Bishop v. State, 85 S.W.3d 819 (Tex.Crim.App.  2002).

FED. R. CRIM. P. Rule 12(I) provides for the disclosure of witness statements under FED. R. CRIM. P. Rule 26.2 [reciprocal Jencks] at suppression hearings.

“(I) PRODUCTION OF STATEMENTS AT SUPPRESSION HEARING. Except as herein provided, rule 26.2 shall apply at a hearing on a motion to suppress evidence under subdivision (b)(3) of this rule. For purposes of this subdivision, a law enforcement officer shall be deemed a witness called by the government, and upon a claim of privilege the court shall excise the portions of the statement containing privilege matter.” FED. R. CRIM. P. 12(I).

And “law enforcement” officers are “deemed” to have been called by the government even if subpoenaed and put on the stand by the defendant.

The Advisory Committee Notes to FED. R. CRIM. P. Rule 12(I) expressly provide that when “a federal, state or local officer has testified at a suppression hearing, the defendant will be entitled to any statement of the officer in the possession of the government and relating to the subject matter concerning which the witness has testified, without regard to whether the officer was in fact called by the government or the defendant.”

But see FED. R. CRIM. P. 41(e) (effective December 1, 1989, deleting the language which provided for automatic suppression of evidence determined to have been illegally seized in a pre-indictment motion for return of property).

See also U.S. v. Viers, 637 F. Supp. 1343 (W.D. Ky. 1986) [failure to describe some items seized with particularity does not result in invalidation of warrant but only suppression of those items not adequately described].


 Where Government agents act in “callous disregard for the constitutional rights” of the individual, Courts have “anomalous jurisdiction,” supervisory power, equitable jurisdiction, and authority under Rule 41(e) of the Rules of Criminal Procedure to return items seized in a search pre-indictment. See Hunsucker v. Phinney, 497 F.2d 29,34-5 (5th Cir. 1974); Richey v. Smith, 515 F.2d 1239, 1243-4 (5th Cir. 1975); In re Grand Jury Proceedings, 115 F.3d 1240, 1245 (5th Cir. 1997); Pena v. U.S., 122 F.3d 3, 4 (5th Cir. 1997); Ramsden v. U.S., 2 F.3d 322, 324 (9th Cir. 1993).

Rule 41 of the Federal Rules of Criminal Procedure, provides in part:

“Motion for Return of Property. A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the district court for the district in which the property was seized for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings.” See: Fed. R. Crim. P. 41(e) [emphasis supplied].

This new wording of Rule 41(e) requires the Court to consider not only the lawfulness of the search and seizure but also separately whether Movant is aggrieved by a deprivation of his property, apart from any inquiry regarding the legality of the search. In re the Matter of the Search of Kitty’s East v. U.S., 905 F.2d 1367, 1375 (10th Cir. 1990). In order to show the retention of his property by the Government is unreasonable, Movant need only show that the United States’ legitimate interests can be satisfied even if the property is returned. Under such circumstances, the Government’s continued retention of the property becomes unreasonable. In re Search of Kitty’s, 905 F.2d at 1375.

“A substantial body of precedent establishes that federal district courts have power to order the suppression or return of unlawfully seized property even though no indictment has been returned and thus no criminal prosecution is yet in existence. Though firmly established, this jurisdiction is an exceptional one. Judge Friendly has observed that one may search the jurisdictional statutes…in vain for a grant of such power…Grant v. United States, 282 F.2d 165, 168 (CA2, 1960), and Judge Wyzanski has referred to the power as ‘the anomalous jurisdiction,’ Lord v. Kelley, 223 F.Supp. 684 (D.Mass. 1963), appeal dismissed, 334 F.2d 742 (CA1, 1964), cert. denied, 379 U.S. 961…(1965). The theory articulated by most of the cases is that jurisdiction to order suppression or return prior to indictment exists not by virtue of any statute but rather derives from the inherent authority of the court over those who are its officers.” (footnotes omitted) Hunsucker v. Phinney, 497 F.2d, at p. 32.

A District Court in this Division recently had occasion to exercise this supervisory power noting that although “the Supreme Court permits the government to present even illegally seized evidence to a grand jury,” See: U.S. Calandra, 414 U.S. 338, 348 (1978), courts retain supervisory power over the conduct of their agents sufficient to warrant suppression of evidence, even before indictment, where those agents’ conduct is sufficiently egregious.


Where the Motion to Suppress is denied defense counsel need not renew his motion at trial.


975, 980 (7th Cir. 1968); Waldon v. U.S., 219 F.2d 37, 41 (D.C. Cir. 1955);

Williams v. U.S., 263 F.2d 487 (D.C. Cir. 1959); Gurteski v. U.S., 405 F.2d 253, 261 (5th. Cir. 1968), cert. denied, 395 U.S. 977.

However, care should be taken to be certain that the record reflects that the evidence sought to be suppressed prior to trial is the same as that offered by the Government during trial or the error will not be preserved. As to the admissibility of evidence tainted by an illegal search at any subsequent trial or hearing.

See MOORE’S FEDERAL PRACTICE section 41.08[5], at 41-94;U.S. v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49

L.Ed.2d 1046 (1976) [suggesting exclusionary rule not applicable to civil proceeding].

However, after reversal of a conviction and the grant of a new trial, the case is returned to the same position it would have been in, had the Defendant not been tried. Suppression issues may, therefore, be litigated again at the Defendant’s option.

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