Motion for Return of Property (Rule 41(g))

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

When federal agents take phones, computers, business records or cash in a search, the property can stay in government hands long after the search is over, sometimes with no charge and no forfeiture notice. Federal Rule of Criminal Procedure 41(g) lets a court order it returned, but only in the right posture, in the right district and on the right showing. Elizabeth Franklin-Best, P.C. handles federal matters nationwide from offices in Columbia and Mount Pleasant, South Carolina.

Quick Answer

The vehicle is a motion under Federal Rule of Criminal Procedure 41(g) in the district where the property was seized, but only while no forfeiture proceeding covers the property; a completed CAFRA administrative forfeiture is challenged only under § 983(e). Before charges, the court weighs equitable factors; after a criminal case ends, the government generally must justify keeping the property.

Key Takeaways

• Rule 41(g) works only outside a forfeiture case. In a pre-CAFRA decision, the Fourth Circuit held that once forfeiture proceedings begin, “the district court is divested of jurisdiction” over a suit for return while they are pending (Ibarra v. United States, 1997).
• Rule 41(g) cannot reopen a completed administrative forfeiture under CAFRA, the Civil Asset Forfeiture Reform Act of 2000. The only route is the notice-based motion in 18 U.S.C. § 983(e), “the exclusive remedy” (§ 983(e)(5)), filed within five years of final publication (§ 983(e)(3)) and explained on the notice of seizure page.
• Before any charge, the motion is a suit in equity. Courts applying Richey weigh callous disregard of constitutional rights, the owner’s need, irreparable injury and the lack of an adequate legal remedy (Ramsden v. United States, 9th Cir. 1993).
• After the criminal case ends, the burden shifts. The government must show “a legitimate reason to retain the property” (United States v. Mills, 9th Cir. 1993; accord United States v. Chambers, 3d Cir. 1999); the Fourth Circuit applies the shift only in unpublished decisions.
• No rule sets a clock for phones and computers. The 2009 Committee Note rejected a “one size fits all” review period and named Rule 41(g) as the owner’s remedy (Rule 41 and Committee Notes).
• Destroyed property does not turn into money. Rule 41(g) does not waive sovereign immunity, so a court cannot award damages (United States v. Jones, 4th Cir. 2000), and the Federal Tort Claims Act carve-back in 28 U.S.C. § 2680(c) is narrow.

What is a motion for return of property?

A motion for return of property asks a federal court to order the government to give back property taken in a search or seizure. Federal Rule of Criminal Procedure 41(g) provides, in full: “A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings” (Fed. R. Crim. P. 41(g)).

The rule gives two grounds. The first is an unlawful search and seizure. The second, “the deprivation of property,” reaches property that may have been lawfully taken but is being kept without justification, including, in the Seventh Circuit’s words, “property held an unreasonable length of time without the institution of proceedings that would justify the seizure and retention of the property” (United States v. Sims, 2004). “Property” includes “documents, books, papers, any other tangible objects, and information” (Rule 41(a)(2)(A)).

The request goes by several names, including a motion to return property, a motion for return of seized property and a petition for return of seized property. The Supreme Court recognized it in a 1983 pre-CAFRA customs case decided under the rule’s former numbering: “If the claimant believes the initial seizure was improper, he could file a motion under Federal Rule of Criminal Procedure 41(e) for a return of the seized property” (United States v. $8,850 in U.S. Currency).

Return is a different remedy from suppression: a motion to suppress asks the trial court to exclude evidence under Rule 41(h), and “Suppression and Rule 41(g) occupy two entirely distinct spheres within the universe of unlawful searches and seizures” (Harbor Healthcare System v. United States, 5th Cir. 2021). For how warrants are issued and executed, see how search warrants work in a federal investigation. Rule 41(g) sits beside, not inside, the forfeiture system explained on the firm’s federal asset forfeiture attorney page, and deciding which system the property is in comes first.

Rule 41(g) or something else? The decision table

Whether Rule 41(g) is the right tool depends on where the property sits procedurally, not on how strong the case for return is. Frozen and seized accounts have their own rules on the bank account seizure page.

Your situation	The right vehicle	The governing text	Who decides	What you must show	The realistic limit
No charge and no forfeiture notice	Rule 41(g) motion, treated as a suit in equity (Richey v. Smith, 5th Cir. 1975)	Rule 41(g), which “plainly applies where no criminal proceeding is pending or even contemplated” (Garcia, 4th Cir. 1995)	District court for the district of seizure, which first decides whether to hear the case at all (Richey)	Callous disregard of constitutional rights (weighed most heavily), need for the property, irreparable injury, no adequate remedy at law (Ramsden)	Callous disregard is an “extraordinarily high hurdle” (Lindell, 8th Cir. 2023); in the Fourth Circuit a denial usually cannot be appealed while a grand jury investigates (In re Search Warrants, 2024)
Criminal case pending	Rule 41(g) motion; suppression is a separate motion in the trial court (Rule 41(h))	Rule 41(g) and its 1989 Committee Note (notes)	District court: the rule names the district of seizure; Garcia read the former rule to allow the district of trial while the case is pending	Entitlement, which is the movant’s burden while the case is pending (Roca, 4th Cir. 2017, unpublished), and that the government’s needs can be met if the property is returned (1989 Note)	Retention “generally is reasonable” while the government needs the property, and documents may be returned while the government keeps a copy (1989 Note)
Criminal case over (property no longer needed)	Rule 41(g) motion, treated as a civil action (Garcia), sometimes on the civil docket (Navarro, 4th Cir. 2024, unpublished)	Rule 41(g); Mills (9th Cir. 1993); Chambers (3d Cir. 1999)	District court for the district of seizure, even if the conviction was entered elsewhere (Garcia)	That the property was seized from you, or your lawful entitlement; the government must then show a legitimate reason to keep it (Chambers; Mills)	Rebuttal by contraband, forfeitability or lack of entitlement (Cannon, 9th Cir. 2026) or a restitution order (Mills); delay is tested by laches in the Fourth Circuit (an unpublished ruling recounted in Jones) and by a six-year limit elsewhere (Bertin, 2d Cir. 2007)
Administrative forfeiture notice received	A claim with the seizing agency, not Rule 41(g) (Price, D.C. Cir. 1990)	CAFRA: 18 U.S.C. § 983(a)(2); 28 C.F.R. § 8.10. Forfeitures under Title 19 (customs), the Internal Revenue Code and the other statutes listed in § 983(i)(2) follow different procedures; the statute cited in the notice decides the track	The seizing agency; on the CAFRA track, a valid claim requires a DOJ seizing agency to return the property or refer the case to the U.S. Attorney for judicial forfeiture (28 C.F.R. § 8.10(e))	A CAFRA claim identifying the property and your interest, made under oath (§ 983(a)(2)(C))	The CAFRA claim deadline is the date in the notice letter, or 30 days after final publication if no letter arrives (§ 983(a)(2)(B)); a remission petition is not a claim, and courts have refused to treat one as a substitute for a timely claim (Troconis-Escovar, 7th Cir. 2023)
Civil forfeiture complaint filed	Claim and answer in the forfeiture case; a pending Rule 41(g) motion is ordinarily dismissed in its favor (Diaz, 2d Cir. 2008)	Supplemental Rule G(5); 18 U.S.C. § 983 (CAFRA civil)	The court where the forfeiture action is pending (Rule G(5)(a)(i))	A claim signed under penalty of perjury, then an answer; the statute allows 20 days after the claim and Rule G allows 21, so calendar the earlier (§ 983(a)(4)(B); Rule G(5)); the government must prove forfeitability by a preponderance (§ 983(c)(1))	The seizure’s legality is tested in the forfeiture case, not a separate Rule 41(g) motion (One 1987 Jeep Wrangler, 2d Cir. 1992)
Forfeiture already declared without notice to you	Motion to set aside under 18 U.S.C. § 983(e), “the exclusive remedy” in CAFRA civil cases (§ 983(e)(5); Troconis-Escovar, 7th Cir. 2023)	§ 983(e)(1), (3), (5); Mesa Valderrama (11th Cir. 2005)	A federal district court, on the notice question only (Mesa Valderrama)	The government knew or should have known of your interest and failed to take reasonable steps to notify you, and you did not learn of the seizure in time to file a claim (§ 983(e)(1))	Five years from final publication (§ 983(e)(3)); no merits review; § 983(e) does not reach forfeitures under Title 19 (customs) or the Internal Revenue Code (§ 983(i)(2))
Property destroyed or sold	Rule 41(g) for anything still held; otherwise a narrow Federal Tort Claims Act (FTCA) claim, or a takings claim for the period after the government’s need ended (Jenkins, Fed. Cir. 2023)	28 U.S.C. § 2680(c); Jones (4th Cir. 2000)	The Rule 41(g) court must find on evidence what happened (Chambers, 3d Cir. 1999); FTCA claims start with the agency (Adeleke, 2d Cir. 2004)	For the FTCA carve-back: seized for forfeiture (solely for forfeiture in the Fourth Circuit, per Myers), not forfeited, remitted or mitigated, and no conviction making it forfeitable (§ 2680(c))	No money damages under Rule 41(g) (Jones); the Ninth Circuit allows return of seized cash the government has recovered and can trace (Cannon)
Seized by state or local police	State procedure under state law; Rule 41(g) only for property in federal possession (Clymore, 10th Cir. 1999); after a federal agency adopts the seizure, the federal routes apply (Madewell, 8th Cir. 1995)	State law; Copeman (10th Cir. 2006); 18 U.S.C. § 981(b)(2)(C)	State courts or agencies; a federal court only once federal possession is shown (Solis, 7th Cir. 1997)	Actual federal possession, constructive possession (held as federal evidence), or seizure by state officers acting as federal agents (Clymore, 10th Cir. 1999)	A federal prosecution alone is not enough (Copeman); a Fourth Amendment delay claim about state-held devices runs against “the wrong sovereign” (Krueger, 4th Cir. 2025)

The firm’s notice of seizure page covers the claim process behind the middle rows.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The first three questions never change. Has any forfeiture process begun: a notice letter, a posting on the government’s forfeiture website, a civil complaint, or a forfeiture allegation in an indictment? Is a criminal case pending, or a grand jury still investigating? In which district were the items physically seized? The answers decide whether Rule 41(g) is available, which court hears it, who carries the burden, and whether a ruling can be appealed early. A motion filed after forfeiture begins, or in the wrong district, can fail without reaching the merits (Price; Garcia).

When does a forfeiture proceeding close the Rule 41(g) route?

Once the government starts a forfeiture proceeding that covers the property, courts ordinarily send the owner there instead of deciding a Rule 41(g) motion. The rule’s “office was to try to recover seized but not forfeited property” (Sims).

Forfeiture started, even after the motion was filed

In the Fourth Circuit, “once the Government initiates forfeiture proceedings, the district court is divested of jurisdiction” (Ibarra v. United States, 1997). Ibarra, never charged, had to “await the outcome of the administrative process that she has invoked” after the DEA began forfeiting $153,279 seized at an airport. The decision predates CAFRA and describes the old claim-and-cost-bond procedure; CAFRA claims need no bond (28 C.F.R. § 8.10(d)).

Filing first may not help. Price moved for return on April 30, 1987, and the DEA sent administrative forfeiture notices on May 6 and May 12. In that pre-CAFRA case the D.C. Circuit held that “once the Government initiates an administrative forfeiture proceeding and the property is not the subject of an ongoing criminal proceeding, the District Court has no jurisdiction to resolve the issue of return of property,” and defaulting in the forfeiture did not restore jurisdiction (United States v. Price, 1990); Ibarra cited Price with approval. The Second Circuit blends the two framings: commencing a civil or administrative forfeiture “ordinarily deprives the district court of subject matter jurisdiction to review the merits of the forfeiture on a Rule 41(g) motion” (Diaz v. United States, 2008), yet dismissing a Rule 41(g) motion in favor of a forfeiture proceeding is an equitable, discretionary call rather than an automatic one (De Almeida v. United States, 2006, involving a criminal forfeiture’s ancillary proceeding).

Forfeiture finished: § 983(e) is the only door

After an agency declares property forfeited in a CAFRA civil case, Rule 41(g) cannot reopen it: “A motion filed under this subsection shall be the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute” (18 U.S.C. § 983(e)(5)). The Seventh Circuit holds that Rule 41(g) “is not the proper vehicle for challenging an administrative forfeiture” and treats a mislabeled motion as a § 983(e) motion (Troconis-Escovar v. United States, 2023). The Eleventh Circuit confines review to notice: “The only issue this court can consider is whether Mesa received the appropriate notice in sufficient time to contest the agency’s action of summarily forfeiting the check” (Mesa Valderrama v. United States, 2005).

The Fourth Circuit has not applied § 983(e)(5) to a Rule 41(g) motion in a published opinion, but a District of South Carolina decision held that the court “lacks jurisdiction to hear a general challenge to a completed administrative forfeiture” (In re Seizure of 2007 GMC Sierra SLE Truck, D.S.C. 2014). Two cautions apply. Section 983(e) reaches only forfeitures under a “civil forfeiture statute,” which excludes Title 19 customs and Internal Revenue Code forfeitures, among others (§ 983(i)). And property seized but never forfeited stays within Rule 41(g) (Sims).

Criminal forfeiture works differently

When a federal indictment alleges that property is forfeitable, the court decides forfeitability in the criminal case after a guilty verdict or plea (Fed. R. Crim. P. 32.2(b)). Under 21 U.S.C. § 853, except through the third-party petition process in § 853(n), no one claiming an interest in the property may “commence an action at law or equity against the United States concerning the validity of his alleged interest in the property subsequent to the filing of an indictment or information alleging that the property is subject to forfeiture” (§ 853(k)). The defendant’s route is covered on the criminal forfeiture page and a third party’s on the innocent owner defense page. For a charged defendant, property questions are part of the larger defense described on the firm’s federal criminal defense attorney page.

Can you file before any charge? Rule 41(g) as a suit in equity

Yes: the Fourth Circuit has said that the rule, then numbered 41(e), “plainly applies where no criminal proceeding is pending or even contemplated” (United States v. Garcia, 1995). Before any charge, though, courts treat it as a civil action: a motion made “prior to any suggestion of criminal proceedings” is “more properly considered simply as a suit in equity rather than one under the Rules of Criminal Procedure” (Richey v. Smith, 5th Cir. 1975). Equitable jurisdiction, a court’s power to grant relief on grounds of fairness where no statute or ordinary remedy fits, is discretionary: “Whether to exercise that jurisdiction in a given case is subject to the sound discretion of the district court” (Richey).

The four Richey factors

The Fifth, Ninth and Eleventh Circuits screen pre-charge motions with four factors drawn from Richey, an IRS records case. In the Ninth Circuit’s neutral restatement: “1) whether the Government displayed a callous disregard for the constitutional rights of the movant; 2) whether the movant has an individual interest in and need for the property he wants returned; 3) whether the movant would be irreparably injured by denying return of the property; and 4) whether the movant has an adequate remedy at law for the redress of his grievance” (Ramsden v. United States, 1993). Richey framed the first factor around “the taxpayer,” because IRS agents had seized the records, and listed it first, as perhaps the most important. In Ramsden, the court found callous disregard in a warrantless hotel-room search; that finding, the owner’s need for his business documents and the lack of any adequate remedy in the United States supported returning the originals, with the government keeping copies, even though irreparable injury was not shown.

How high the bar is

Most movants cannot show callous disregard. “Only the narrowest of circumstances permit a district court to invoke equitable jurisdiction” (Trump v. United States, 11th Cir. 2022) (per curiam). The Eighth Circuit calls callous disregard an “extraordinarily high hurdle,” yet adds that “absent sufficient justification, the government has no right to hold onto property that is not contraband indefinitely” (Lindell v. United States, 2023).

The bar can be cleared. The Fifth Circuit reversed a refusal to hear a pre-indictment motion where the government had kept privileged documents for more than four years, holding that a future suppression motion was not an adequate remedy (Harbor Healthcare, 2021). The Third Circuit asks whether the government acted reasonably, and has said that “no indictment and no communication with the property owner for more than twenty months would seem to be approaching the limits of reasonableness,” while affirming the denial there because the movants could not lawfully receive a sanctions-blocked domain name (Timofey V v. United States, 3d Cir. 2026).

Where the Fourth Circuit stands

The Fourth Circuit has applied Richey to Rule 41(g) motions only in an unpublished decision, which said that “Richey applies when no indictment exists” and left open the standard for an indicted defendant who needs allegedly untainted funds, seized in a separate investigation, to pay counsel (United States v. Johnson, 683 F. App’x 241, 4th Cir. 2017, unpublished and not binding). That open question meets the counsel-of-choice cases discussed on the firm’s main forfeiture page. The circuit’s published law confirms that Rule 41 reaches pre-charge seizures (Garcia) and that if no indictment follows, the owners “may then institute an independent action for the return of their property” (United States v. Regional Consulting Services, 1985). The investigation stage itself is covered on the firm’s federal investigation attorney page and its guide to the federal target letter.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: A letter asking the case agent or prosecutor to return property can be a sensible first step, but it is not a motion. It puts nothing before a judge, triggers none of the evidence-taking Rule 41(g) requires when facts are disputed, and produces no reviewable ruling. Time also counts: after a criminal case ends, delay can defeat the motion if it prejudiced the government (laches, applied in an unpublished 1998 Fourth Circuit ruling recounted in Jones). If the government neither returns the property nor starts a forfeiture case, a motion is what brings the question to court.

What must a Rule 41(g) motion show? A checklist

This is the substance a court looks for, keyed to the rule’s text and the cases applying it. It is not a form and contains nothing to file.

1. Standing and entitlement. The movant must be “aggrieved by an unlawful search and seizure of property or by the deprivation of property” (Rule 41(g)); lawful entitlement to the property, a merits question separate from standing, is measured as of the filing date in the Third Circuit (Timofey V).
2. The property, item by item. The officer must give or leave “a copy of the warrant and a receipt for the property taken,” and the judge “must, on request, give a copy of the inventory” to the person whose property was taken (Rule 41(f)(1)(C)–(D)). For digital evidence the inventory “may be limited to describing the physical storage media that were seized or copied” (Rule 41(f)(1)(B)), so the data may need describing too.
3. The right court. The district where the property was seized (Rule 41(g)) or, for seizures under § 981, the district where the seizure warrant issued (18 U.S.C. § 981(b)(3)).
4. No forfeiture proceeding covering the property. No administrative forfeiture notice or civil forfeiture complaint (Ibarra, pre-CAFRA; Price); if an indictment alleges the property is forfeitable, forfeitability is decided in the criminal case (Rule 32.2(b); 21 U.S.C. § 853(k)).
5. The showing that fits the stage. Before charges, the four equitable factors (Ramsden). While a case is pending, why the government’s “legitimate interests can be satisfied even if the property is returned” (1989 Committee Note). After the case ends, that the property was taken from the movant or is lawfully the movant’s, which triggers the presumption of return (Chambers, 3d Cir.; Mills, 9th Cir.).
6. The facts genuinely in dispute. “The court must receive evidence on any factual issue necessary to decide the motion” (Rule 41(g)), but no hearing is needed when the record settles the motion (Timofey V, 3d Cir. 2026).
7. Acceptable conditions. The court “may impose reasonable conditions to protect access to the property and its use in later proceedings” (Rule 41(g)); originals back, copies kept, is the familiar compromise (Ramsden).
8. Timeliness. The Seventh Circuit sees no time limit before charges or forfeiture proceedings (Sims); after a case ends, the Fourth Circuit has applied laches in an unpublished ruling (Jones) and other circuits a six-year limit (Bertin).
9. An account of anything gone. The government “can not defeat a properly filed motion for return of property merely by stating that it has destroyed the property or given the property to third parties” (Chambers, 3d Cir. 1999).

Rule 41(g), clause by clause

From former Rule 41(e) to Rule 41(g)

Older cases call the same motion a Rule 41(e) motion. The restyling effective December 1, 2002 reorganized Rule 41, a change the Advisory Committee called “intended to be stylistic only, except as otherwise noted below” (Rule 41 and notes); as an unpublished Fourth Circuit decision put it, quoting the D.C. Circuit, “Rule 41(e) now appears with minor stylistic changes as Rule 41(g)” (United States v. Soza, 599 F. App’x 69, 4th Cir. 2015). The rule was last amended effective December 1, 2016, and no Criminal Rule 41 amendment is pending through December 1, 2028 (Pending Rules and Forms Amendments).

Venue: “must be filed in the district where the property was seized”

The Fourth Circuit enforces district-of-seizure venue even after a conviction elsewhere. The DEA seized Garcia’s property in Fort Lauderdale; he was convicted in the Eastern District of North Carolina and filed there, and the dismissal was affirmed because “Rule 41(e), with its district-of-seizure venue provision, applies to all actions to recover property seized in connection with a criminal investigation, notwithstanding their ‘civil’ nature” (Garcia, 1995, over a partial dissent). The Second and Eighth Circuits had allowed post-conviction motions in the district of trial (United States v. Giovanelli, 1993; Thompson v. Covington, 1995).

In 2002 the text changed from “may move the district court for the district in which the property was seized” (as quoted in Minor) to “must be filed in the district where the property was seized.” An unpublished Eleventh Circuit decision reads that change as resolving “any debate relating to the proper venue for a post-conviction Rule 41(g) motion,” and it affirmed the denial, not the transfer, of a motion filed in the wrong district (United States v. Sabatino, 11th Cir. June 1, 2026, unpublished; see 28 U.S.C. § 1406(a)). For property seized under § 981, a motion may also be filed “in the district court in which the seizure warrant was issued” (18 U.S.C. § 981(b)(3)). While a prosecution is pending, the Fourth Circuit also allows the motion in the district of trial: “a person may move for return of property in the district of trial while the proceeding is pending,” under the trial court’s ancillary jurisdiction (Garcia, 1995). District courts in the circuit still apply that rule after the 2002 amendment, and only while the case is pending (Aigbekaen v. United States, D. Md. 2023, aff’d, 4th Cir. 2024, unpublished). Because Garcia read the pre-2002 text, filing in the district of seizure avoids the question when the trial and seizure districts differ; once the case ends, only the district of seizure is proper.

Hearings: “must receive evidence on any factual issue”

Disputed facts, such as ownership, continued need or whether the property still exists, require evidence rather than a ruling on the papers: “The District Court must hold an evidentiary hearing on any disputed issue of fact necessary to the resolution of the motion” (Chambers, 3d Cir. 1999). No hearing is required when no material fact is disputed (Timofey V, 3d Cir. 2026), and in the Eleventh Circuit the government must submit “at least some evidence of the property’s destruction” before a court accepts that it is gone (United States v. Potes Ramirez, 11th Cir. 2001).

Conditions on return: copies, access and later use

A court that grants the motion “must return the property to the movant” but may attach conditions (Rule 41(g)). The 1989 Committee Note, written for former Rule 41(e), frames the analysis for investigations and pending cases: “If the United States has a need for the property in an investigation or prosecution, its retention of the property generally is reasonable. But, if the United States’ legitimate interests can be satisfied even if the property is returned, continued retention of the property would become unreasonable.” Documents “may be returned to their owner as long as the government preserves a copy for future use,” though “In some circumstances, however, equitable considerations might justify an order requiring the government to return or destroy all copies of records that it has seized” (Rule 41 Committee Notes). In the Ninth Circuit’s words, “The spirit of Rule 41(e) is one of compromise” (Ramsden).

What happens to property after the criminal case ends?

Once the criminal proceedings are over and the property is no longer needed as evidence, the Third and Ninth Circuits shift the burden to the government. “A criminal defendant is presumed to have the right to the return of his property once it is no longer needed as evidence, and the burden of proof is on the government to show ‘that it has a legitimate reason to retain the property'” (United States v. Mills, 9th Cir. 1993). The Third Circuit lets the government meet that burden with a cognizable claim of ownership or right to possession adverse to the movant (Chambers). An acquittal ends a criminal forfeiture, which follows only “a verdict or finding of guilty” or a guilty plea (Rule 32.2(b)(1)(A)), but not a civil forfeiture, which operates “other than as a sentence imposed upon conviction” (§ 983(i)(1)). Where no forfeiture proceeding covers the property, this presumption is the owner’s route back.

In the Fourth Circuit the Rule 41(g) burden shift appears only in unpublished decisions: during a prosecution “the movant bears the burden,” but “at the conclusion of the criminal proceedings, the burden shifts to the government to demonstrate a legitimate reason for retaining the property” (United States v. Roca, 676 F. App’x 194, 4th Cir. 2017, unpublished and not binding). An earlier unpublished decision, citing Mills, first requires “a prima facie case of lawful entitlement,” an initial showing, and treats seizure from the movant as evidence of it (United States v. Bautista, No. 98-7614, 4th Cir. June 7, 1999, unpublished and not binding). Garcia, the circuit’s published post-conviction decision, does not address the burden (Garcia).

How the government rebuts the presumption

“We have recognized three ways the government can rebut a defendant’s presumptive entitlement to return of the property and demonstrate a legitimate reason to retain the property,” the Ninth Circuit wrote in 2026: the property is contraband, it is subject to forfeiture, or the movant is not lawfully entitled to it (Cannon v. United States, amended September 23, 2026). A valid restitution order can also defeat the motion “if that property is needed to satisfy the terms of the restitution order” (Mills), and a defendant who consented to forfeiture in a plea agreement and stipulated that the property was forfeitable could not recover it (Soza, 4th Cir. 2015, unpublished). The limit runs both ways: “The government cannot use Rule 41(g) to circumvent the statutory protections of forfeiture proceedings” (Cannon).

Cannon also addressed missing cash. An FBI agent stole $218,200 from cash seized from Cannon’s safe, and some of it was recovered in forfeiture proceedings. The court held that “when the government has recovered money traceable to the funds it lost, the person from whom it was seized may seek its return under Rule 41(g),” with the government bearing the burden to justify keeping it; for money not recovered or not traceable, the owner “cannot seek money damages in its place.” The panel divided 2–1. The Second Circuit treats disbursed cash as barred by sovereign immunity (Diaz). The Fourth Circuit has not addressed recovered cash, though in a pre-CAFRA notice case it treated a claim for seized currency as one for “the very thing” claimed rather than damages (United States v. Minor, 2000).

How long can the government keep a phone or computer?

No rule sets a number of days or months. The government may keep a device while it legitimately needs it (1989 Committee Note), must, under the Fourth Amendment, seek a warrant diligently if it seized the device without one (Pratt), and must justify continued retention once its needs can be met another way. Rule 41(g) is how an owner puts the question to a judge.

What Rule 41 says about devices and data

Rule 41(e)(2)(B) authorizes seizing first and searching later: “A warrant under Rule 41(e)(2)(A) may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review” (Fed. R. Crim. P. 41(e)(2)(B)).

The 2009 Committee Note explains the missing clock: “there is no basis for a ‘one size fits all’ presumptive period,” because “A substantial amount of time can be involved in the forensic imaging and review of information.” A judge may still set “a deadline for the return of the storage media or access to the electronically stored information at the time the warrant is issued,” and Rule 41(g) “already provides a process for the ‘person aggrieved’ to seek an order from the court for a return of the property, including storage media or electronically stored information, under reasonable circumstances” (Rule 41 Committee Notes). After the search, “The officer may retain a copy of the electronically stored information that was seized or copied” (Rule 41(f)(1)(B)).

How long is too long?

Courts balance rather than count: “we balance the government’s interest in the seizure against the individual’s possessory interest in the object seized” (United States v. Pratt, 4th Cir. 2019).

• Seized without a warrant. In Pratt, a 31-day delay in seeking a warrant for a phone seized without one was unreasonable, and the phone evidence was suppressed. The Fourth Circuit has since observed that courts generally cabin reasonable delays in seeking a warrant “to days, not months or years” (United States v. Krueger, 2025).
• Held under a warrant during an active case. Retention is generally reasonable while the government needs the device (1989 Committee Note), and a district court within the Fourth Circuit found a six-year forensic review, slowed by encryption and a laboratory backlog, “lengthy, but it was not unreasonable” (United States v. Banwari, W.D.N.C. Jan. 6, 2025, denying a motion to suppress).
• Need met another way. Continued retention becomes unreasonable once the government’s interests can be satisfied without the device (1989 Committee Note); the Eighth Circuit remanded for a hearing on continued retention of a phone and its data (Lindell).
• Contraband and forfeited devices. The 2009 note’s expectation of return excludes “contraband or instrumentalities of crime” (Rule 41 Committee Notes). Criminal forfeiture under 18 U.S.C. § 2253, the child-pornography forfeiture statute, takes “the entire device used to commit the offense, including the image files stored on it,” and a Rule 41(g) request to copy family photos and business files failed because any right of access “must, in the first instance, be authorized by Congress” (United States v. Sanders, 4th Cir. 2024), a holding confined to § 2253.

Copies after the device comes back

Whether the government may keep forensic copies indefinitely is unresolved. Reviewing about two and a half years of retained, non-responsive mirrored files, the en banc Second Circuit held only that agents relied on their warrant in good faith, so it “need not decide whether retention of the forensic mirrors violated the Fourth Amendment,” and it called Rule 41(g) “a potential mechanism, in at least some contexts, for dealing with the question of retention” (United States v. Ganias, 2016).

No published Fourth Circuit decision resolves the question. In a 2024 case where “the Government has already returned all the seized hardware to Doe and has only retained copies,” the court decided only that the owner could not appeal immediately (In re Search Warrants Issued February 18, 2022). Courts can order copies returned or destroyed in appropriate cases (1989 Committee Note), and privilege is the strongest setting: “A taint team serves no practical effect if the government refuses to destroy or return the copies of documents that the taint team has identified as privileged” (Harbor Healthcare). The same issues arise when a business’s records are imaged in a white-collar investigation, such as a healthcare fraud or securities fraud inquiry, the subject of the firm’s white collar crime lawyer page.

Can police keep your phone?

If state or local police seized the phone and still hold it, state law governs; the Seventh and Tenth Circuits allow a Rule 41(g) motion only if the phone is in federal actual or constructive possession, as when it is held for potential use in a federal prosecution (United States v. Copeman, 10th Cir. 2006; Solis, 7th Cir. 1997). In Krueger, a suppression appeal, Virginia seized and held the devices and the federal warrant covered only copies, and the Fourth Circuit concluded that Krueger “has asserted his claim against the wrong sovereign” (Krueger).

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: In device cases the hardware is often the easier half. Because officers may keep copies and the inventory may list only physical media (Rule 41(f)(1)(B)), a returned phone says nothing about what the government still holds. The firm asks early what was imaged, whether a filter protocol governs privileged material, whether the warrant set a review deadline, and which conditions a court could reasonably impose: return or destruction of copies, or limits on access. Silence has a cost: a district court within the Fourth Circuit held that an owner who never moved under Rule 41(g) could not claim the government’s retention of his phone violated Rule 41 (Banwari, W.D.N.C. 2025).

Lost, destroyed or sold: is money available instead?

Not in a Rule 41(g) proceeding. “Rule 41(e) does not contain a waiver of sovereign immunity,” the Fourth Circuit held, so “courts lack jurisdiction to award damages under Rule 41(e)” (United States v. Jones, 2000). Sovereign immunity means the United States cannot be sued for money without its consent, which “can be waived only by an unequivocal and express act of Congress” (Jones). Jones recovered his papers and $266 but nothing for destroyed guns, pagers and jewelry, and the court expressed “no view as to whether alternative legal avenues may afford Jones and others in his situation some relief.” The Second (Adeleke, 2004), Third (Bein, 2000), Fifth (Pena, 1998), Seventh (Okoro, 2003), Eighth (Hall, 2001) and Eleventh (Potes Ramirez, 2001) Circuits agree, and the Ninth “agree[d] with the eight other circuits that have considered the issue” (Ordonez v. United States, 2012).

The court must still find what happened, because a motion “is not rendered moot merely because the government no longer possesses the seized property” (Chambers, 3d Cir. 1999). For sold property, the Seventh Circuit treats a claim to the proceeds as restitution rather than damages, yet still bars relief requiring payment from the Treasury, since “No one supposes that Rule 41(g) was intended to waive the sovereign immunity of the federal government” (Okoro). Money claims have to travel other routes: the FTCA’s narrow carve-back, or a takings claim. A takings claim under the Tucker Act, heard in the Court of Federal Claims, may reach “the period after seized property is no longer needed for criminal proceedings,” but not “the government’s temporary seizure and holding of property in conjunction with, and during the pendency of, a criminal case or civil forfeiture” (Jenkins v. United States, Fed. Cir. 2023; see AmeriSource Corp. v. United States, Fed. Cir. 2008), and Tucker Act claims above $10,000 cannot be brought in district court (Adeleke).

The Federal Tort Claims Act and its forfeiture carve-back

The Federal Tort Claims Act (FTCA) allows certain money claims against the United States, but 28 U.S.C. § 2680(c) excludes “Any claim arising in respect of … the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” CAFRA added a carve-back, restoring FTCA coverage “to any claim based on injury or loss of goods, merchandise, or other property, while in the possession of any officer of customs or excise or any other law enforcement officer, if— (1) the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of a criminal offense; (2) the interest of the claimant was not forfeited; (3) the interest of the claimant was not remitted or mitigated (if the property was subject to forfeiture); and (4) the claimant was not convicted of a crime for which the interest of the claimant in the property was subject to forfeiture under a Federal criminal forfeiture law” (§ 2680(c)).

Three limits narrow it. The Supreme Court held that “the broad phrase ‘any other law enforcement officer’ covers all law enforcement officers,” and that property not “seized for the purpose of forfeiture” falls outside the carve-back (Ali v. Federal Bureau of Prisons, 2008, 5–4). In the Fourth Circuit the carve-back “can apply only when the property is seized solely for the purpose of forfeiture,” so property seized under both a criminal search warrant and a civil seizure warrant does not qualify (Myers v. Mayorkas, 2023). And a conviction that made the property forfeitable bars the claim, while any FTCA suit requires an administrative claim to the agency first (Adeleke).

Can a Rule 41(g) ruling be appealed right away?

Usually not while a prosecution is under way, and in the Fourth Circuit not while a grand jury is investigating. The Supreme Court’s test: “Only if the motion is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant can the proceedings be regarded as independent” (DiBella v. United States, 1962). In the Fourth Circuit a prosecution in esse (“in being”) need not involve a charge; an ongoing grand jury investigation, often signaled by a grand jury subpoena, is enough: “we hold that there is a ‘criminal prosecution in esse’ against appellants because a grand jury investigation is presently ongoing” (Regional Consulting, 1985). That decision expressly rejected the contrary view the Sixth, Seventh, Eighth and Tenth Circuits then held.

The court reaffirmed the rule in 2024 for a grand jury target whose 23 devices had been seized, with hardware returned and copies kept, and who challenged the filter protocol. The motion “fails both prongs of the DiBella test,” and “DiBella thus extends to all motions and suits, couched in law and equity alike, that resemble Rule 41(g) motions.” The appeal was dismissed for lack of jurisdiction under 28 U.S.C. § 1291 and § 1292(a)(1) (In re Search Warrants Issued February 18, 2022); a concurring judge saw “no vehicle permitting interlocutory review” under current law. The Fifth Circuit, by contrast, heard an immediate appeal where the government “cannot even say” a grand jury proceeding exists (Harbor Healthcare). In the Fourth Circuit, review of a pre-charge ruling generally comes after any conviction, or in an independent action if no indictment follows (Regional Consulting). The firm’s interlocutory appeal page explains when orders can be appealed early, and its federal appeals lawyer page covers appeals generally.

What if state or local police seized the property?

State law governs property seized and held by state or local police in state proceedings. Rule 41(g) reaches such property only in limited circumstances, which the Tenth Circuit lists as “actual federal possession of the property forfeited by the state, constructive federal possession where the property was considered evidence in the federal prosecution, or instances where property was seized by state officials acting at the direction of federal authorities in an agency capacity” (Clymore v. United States, 10th Cir. 1999). Federal involvement in the investigation, “without more,” is not enough (Clymore). State-held property is not in federal constructive possession “unless it is being held for potential use as evidence in a federal prosecution” (Copeman, 2006), and a motion fails without evidence of federal “actual or constructive possession” (United States v. Solis, 7th Cir. 1997). The Fourth Circuit has not decided the point in a published Rule 41(g) opinion.

Adoption changes the analysis: “a federal agency’s adoption of a seizure has the same effect as if the federal agency had originally seized the property on the date it was seized by the local authorities,” although a late adoption cannot override a state court’s earlier in rem jurisdiction (Madewell v. Downs, 8th Cir. 1995). For civil forfeiture under § 981, federal law authorizes a warrantless federal seizure where “the property was lawfully seized by a State or local law enforcement agency and transferred to a Federal agency” (18 U.S.C. § 981(b)(2)(C)). Once the property is in federal hands, the federal routes apply, including, for CAFRA-track seizures, the notice-and-claim process covered on the notice of seizure page.

Is there a deadline to file a motion for return of property?

It depends on the stage, and parts of the law are unsettled, including in the Fourth Circuit. None of these periods yields a date without knowing when a proceeding ended, when notice was published, or when the owner knew or should have known of a declaration.

• Before charges or forfeiture proceedings. The Seventh Circuit sees no time limit, because “the date of accrual—the point at which the government’s retention of the property can no longer be justified—is too indefinite” (Sims).
• After the criminal case ends. The Second, Seventh and Tenth Circuits apply the six-year limit for suits against the United States: “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues” (28 U.S.C. § 2401(a); Bertin v. United States, 2d Cir. 2007). The claim accrues at the end of the criminal proceeding in which return could have been sought (Bertin); the Tenth Circuit left open whether that means sentencing or the end of appeals (Rodriguez-Aguirre, 2001).
• In the Fourth Circuit. No published decision adopts § 2401(a) for these motions. The court has applied laches, an equitable defense that bars a claim only when delay materially prejudiced the other side, in an unpublished 1998 ruling recounted in Jones (2000), and it has found no abuse of discretion in moving a post-judgment motion to the civil docket (United States v. Navarro, No. 24-6609, 4th Cir. Nov. 22, 2024, unpublished).
• A completed CAFRA administrative forfeiture. A § 983(e) motion “may be filed not later than 5 years after the date of final publication of notice of seizure of the property” (§ 983(e)(3)), a rule the Seventh Circuit describes as exclusive by its terms (Sims).
• A completed pre-CAFRA forfeiture. The Fourth Circuit applied § 2401(a)’s six years to an equitable notice challenge, running from when reasonable inquiry “would have led to notice of the forfeiture declaration itself” (Minor, 2000). Minor is not a general Rule 41(g) limitations rule.

What has changed recently

The newest decisions, three of them from the Fourth Circuit, and the rule’s current status:

• September 23, 2026: the Ninth Circuit amended Cannon, which lets an owner seek seized cash the government has recovered and can trace (Cannon).
• August 25, 2026: the Third Circuit’s precedential Timofey V decision applied a pre-indictment reasonableness test and measured entitlement at filing (Timofey V).
• June 1, 2026: an unpublished Eleventh Circuit decision, Sabatino, read the 2002 “must” as settling post-conviction venue in the district of seizure (Rule 41(g)).
• July 25, 2025: the Fourth Circuit’s Krueger decision described reasonable warrant delays as “days, not months or years” (Krueger).
• August 2, 2024: the Fourth Circuit barred an immediate appeal over retained copies and a filter protocol (In re Search Warrants).
• July 9, 2024: the Fourth Circuit’s Sanders decision held that criminal forfeiture under § 2253 takes the entire device (Sanders).
• Rule 41 itself: unchanged since December 1, 2016, with no amendment pending through December 1, 2028 (Pending Rules and Forms Amendments).

Related Pages

These pages take up the neighboring questions in more depth:

• federal asset forfeiture attorney: the main forfeiture page, covering civil and criminal forfeiture, their deadlines, burdens and defenses.
• notice of seizure: what a seizure letter means, which track applies (CAFRA, or a non-CAFRA statute such as Title 19 customs law), the choice between a claim and a petition for remission, and how each deadline is set.
• bank account seizure: frozen and seized accounts, seizure warrants, restraining orders and hardship release.
• criminal forfeiture: forfeiture as part of a sentence, from the indictment’s notice through money judgments, substitute assets and appeal.
• innocent owner defense: the rights of spouses, co-owners and lenders when property is caught up in someone else’s case.
• how search warrants work in a federal investigation: the search-warrant stage of a federal case.
• federal investigation attorney: representation while agents and a grand jury are still investigating.
• interlocutory appeal: when an order can be appealed before final judgment.

Why Work With Elizabeth Franklin-Best, P.C.

Return-of-property disputes turn on jurisdiction, venue and appellate timing. Elizabeth Franklin-Best, P.C. is a boutique federal criminal defense and appellate firm founded in 2019, with a national federal practice run on an intentionally small caseload and offices in Columbia and Mount Pleasant, South Carolina, serving clients nationwide.

• Experience: more than 20 years of federal and appellate criminal defense experience, including more than 330 federal proceedings, over 100 of them appeals, and sixteen published decisions as counsel of record.
• Admissions: Elizabeth Franklin-Best is admitted to the U.S. Supreme Court and twelve of the thirteen U.S. Courts of Appeals — every regional circuit (1st–11th) plus the D.C. Circuit. She has been admitted pro hac vice in federal courts from Montana to Florida.
• Independent recognition: Chambers USA 2026, Litigation: White-Collar Crime & Government Investigations (Band 2, South Carolina); Best Lawyers in America 2027 in Appellate Practice, Criminal Defense: White Collar, and Criminal Defense: General Practice.
• Service and writing: Co-Vice Chair, NACDL Amicus Curiae Committee (Fourth Circuit); “Harjo v. City of Albuquerque: A Road Map for Challenging Government Forfeiture Programs” (with David B. Smith), The Champion (NACDL), May 2019; and Reversing Your Criminal Conviction: Develop Your Winning Strategy (2023).

Schedule a Consultation

Whether Rule 41(g) fits, or whether a forfeiture claim, a § 983(e) motion or a money claim is the right vehicle, is best decided before anything is filed, because the wrong vehicle or the wrong district can end a request without a ruling on the merits. To discuss your situation with Elizabeth Franklin-Best, schedule a consultation or call (843) 620-1100. Reading this page does not create an attorney-client relationship; it is general information, not legal advice for your case.

Frequently Asked Questions About Motions for Return of Property

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·October 2026