Opinion
CRIMINAL CASE NO. 1:09-cr-00052-MR
08-17-2016
UNITED STATES OF AMERICA, Plaintiff, v. DARRELL EUGENE BANKS, Defendant.
ORDER
THIS MATTER is before the Court on the Defendant's Motion for Return of Property [Doc. 84].
The Defendant seeks the return of certain property allegedly seized by investigators with the Buncombe County Sheriff's Office (BCSO) in connection with this case. Specifically, the Defendant seeks the return of: (1) one laptop computer (ACER black in color); (2) one hard drive from "Banks Kids computer"; and (3) several flash drives on a key ring. [Doc. 84].
In response to the Defendant's motion, the Government states that none of the requested items are in the possession of the Federal Government. The Government notes, however, that an HP computer (presumably the "Banks Kids computer") and the ACER computer are in the possession of the BCSO and are available to be returned to the Defendant. The Government further states that the flash drives "are not or [are] no longer in the possession of the BCSO." Additionally, after filing its Response, the Government further advised the undersigned's chambers that a search was conducted of the U.S. Attorney's case file of this matter and that no flash drives were located.
Courts have recognized that a motion for return of property is proper only if the property is in the possession of the United States. See United States v. Marshall, 338 F.3d 990, 995 (9th Cir. 2003) ("the government cannot be forced to return property that it never possessed."); see also Lowrie v. United States, 824 F.2d 827, 829 (10th Cir. 1987); United States v. White, 718 F.2d 260, 261 (8th Cir. 1983); United States v. Rodriguez, No. 1:06-cr-00004-MR, 2009 WL 3698408, at *1 (W.D.N.C. Nov. 2, 2009). As there is no indication in the record that the Defendant's property is or was ever in the possession of federal authorities, his motion for the return of this property must be denied. As noted by the Government, however, the Defendant may retrieve the aforementioned computers from the Buncombe County Sheriff's Office. Because the Defendant is currently incarcerated, the Defendant should identify a person who is willing to go to the Buncombe County Sheriff's Office and retrieve the computers and send that person's name to the following persons:
Benjamin Bain-Creed
Assistant United States Attorney
United States Attorney's Office
227 W. Trade Street
Suite 1650, Carillon Building
Charlotte, NC 28202
Lt. Jeffrey Eaton
Buncombe County Sheriff's Office
339 New Leicester Highway
Suite 110
Asheville, North Carolina 28806
IT IS, THEREFORE, ORDERED that the Defendant's Motion for Return of Property [Doc. 84] is DENIED.
IT IS SO ORDERED.
Signed: August 17, 2016
/s/_________
Martin Reidinger
United States District Judge