order denying motions to suppress and dismiss - University of Illinois ...

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An officer present during the execution of the warrant
must prepare and verify an inventory of any property
seized. The officer must do so in the presence of
another officer and the person from whom, or from
whose premises, the property was taken. If either one
is not present, the officer must prepare and verify
the inventory in the presence of at least one other
credible person.
The record indicates that Agent Greg Ross, who was not present during the
execution of the warrant on March 29, verified on April 22, 2005, an inventory of
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the items seized. (Ex. 1 to Ct. Rec. 360 at Bates p. 50). To the extent there was
any violation of Rule 41(f)(2), however, it does not require suppression of the
items seized.
Suppression is “rarely the proper remedy for a Rule 41 violation.” U.S. v.
th
Williamson, 439 F.3d 1125, 1132 (9 Cir. 2006), quoting United States v.
Calandra, 414 U.S. 338, 348 n. 6, 94 S.Ct. 613 (1974)(Federal Rules of Criminal
Procedure do “not constitute a statutory expansion of the exclusionary rule”).
“Only a ‘fundamental violation of Rule 41 requires automatic suppression, and a
violation is ‘fundamental’ only where it, in effect, renders the search
unconstitutional under traditional fourth amendment standards.” United States v.
th
Johnson, 660 F.2d 749, 753 (9 Cir. 1981). There are three circumstances under
which evidence obtained in violation of Fed. R. Crim. P. 41 requires suppression:
(1) the violation rises to a “constitutional magnitude;” (2) the defendant was
prejudiced, in the sense that the search would not have occurred or would not have
been so abrasive if law enforcement had followed the Rule; or (3) officers acted in
“intentional and deliberate disregard” of a provision in the Rule. Williamson, 439
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The “inventory” is distinguishable from the “receipt” that was served on
Mr. Guerra on March 29. What Ross signed is titled a “Certification” and it was
signed and subscribed before District of Idaho Magistrate Judge Larry M. Boyle
on April 22, 2005.
ORDER DENYING MOTIONS
TO SUPPRESS AND DISMISS - 12