Does the rule that a motion for sequestration and return of evidence is by itself sufficient to order the return of the evidence?

Furthermore, the rule that the government's deliberate disregard of the terms of a search warrant is by itself sufficient to order the return of evidence is unnecessarily broad. Under Ramsden v. United States, whether the government acted in willful disregard of the limits of a search warrant is just one factor in a four factor analysis. 2 F.3d 322, 325 (9th Cir.1993). The majority transforms that one factor of the balancing test into a dispositive issue. See Majority Op. at 1174-75. The Ramsden factors have been sufficient to govern motions for the return of property for nearly two decades and the majority does not explain the rationale for modifying that rule in this case.

There may be cases where the government did show willful disregard of the terms of the search warrant, but the motion for the return of evidence should nonetheless be denied. For example, when a movant cannot prove he will be irreparably harmed if the seized property is not returned-the second element of the Ramsden inquiry-then it seems the district court should not return the evidence merely because the government obtained the evidence through intentional wrongdoing. An example would be images of child pornography, which is always contraband, possession of which is criminal. See United States v. Mack, 164 F.3d 467, 473 (9th Cir.1999). Instead, the district court should balance the equities to determine whether sequestration and return of the evidence is necessary, based on the specific facts of the case presented.