Return of Seized Property; How Sought

(a) A person aggrieved by an unlawful search and seizure may move the court for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial. A motion for return of property may also be treated as a motion to suppress under § 65.15. (b) Nothing in Subsection (a) shall limit the right of a defendant to make a motion to suppress evidence in the court of trial as provided in Chapter 65 (commencing with § 65.10). COURT DECISIONS: DISTRICT COURT, APP. DIV. 1978. Only the one whose rights have been violated has standing to object to the introduction of illegally obtained evidence. People v. Reyes, D.C. Guam, App. Div., Cr. App. #77-003A. Decided 03/03/78. [Decided under former Penal Code of Guam.] NOTE: Section 35.45 is substantively the same as Subdivisions (e) and (f) of former Rule 41. See also Fed. R. Crim. P. 41(e), (f) (same). Compare Cal. Pen. Code §§ 1538.5-1540. See generally 8A Moore, Federal Practice &41.08 (1974). It supersedes former §§ 1539 and 1540. The basic purpose of Subsection (a) is to afford a person from whom property was wrongfully seized and who is entitled to its possession an expeditious remedy for its return. The procedure provided may also serve as a method of suppressing evidence but Subsection (b) makes clear that the requirements of Subsection (a) do not limit a defendant's separate right to move to suppress evidence where appropriate.