State v. McGuire

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www.nebraska.gov/apps-courts-epub/
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301 Nebraska R eports
STATE v. McGUIRE
Cite as 301 Neb. 895State of Nebraska, appellee, v.
Charles M. McGuire, A ppellant.
___ N.W.2d ___
Filed December 14, 2018. No. S-17-1181.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
2. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
3. Search and Seizure: Appeal and Error. The denial of a motion for
return of seized property is reviewed for an abuse of discretion.
4. Sentences. An abuse of discretion takes place when the sentencing
court’s reasons or rulings are clearly untenable and unfairly deprive a
litigant of a substantial right and a just result.
5. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
6. ____: ____. When a trial court lacks jurisdiction to adjudicate the merits
of a claim, issue, or question, an appellate court also lacks the power
to determine the merits of the claim, issue, or question presented to the
lower court.
7. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
8. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
9. ____: ____: ____. In order for a court to inquire into a statute’s legisla-
tive history, that statute in question must be open to construction, and a
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STATE v. McGUIRE
Cite as 301 Neb. 895statute is open to construction when its terms require interpretation or
may reasonably be considered ambiguous.
10. Courts: Jurisdiction: Search and Seizure: Property. The court in
which a criminal charge was filed has exclusive jurisdiction to deter-
mine the rights to seized property, and the property’s disposition.
11. Search and Seizure: Property: Proof. Seizure of property from some-
one is prima facie evidence of that person’s right to possession of the
property, and unless another party presents evidence of superior title, the
person from whom the property was taken need not present additional
evidence of ownership.
Appeal from the District Court for Washington County: John
E. Samson, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Michael J. Tasset, of Johnson & Mock, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
Pursuant to a search warrant, law enforcement officers
seized personal property from a residence occupied by several
persons, including Charles M. McGuire. He eventually pled
no contest to attempted possession of a controlled substance
and later moved for return of some seized property. The dis-
trict court partially denied his motion, and he appeals. The
State disputes the district court’s jurisdiction, upon which our
jurisdiction depends. We conclude Neb. Rev. Stat. § 29-818(Reissue 2016) granted exclusive jurisdiction to the district
court to determine the property’s disposition. Because the
court’s partial denial of McGuire’s motion was apparently pre-
mised on an understandable, yet incorrect, reading of our case
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Cite as 301 Neb. 895law, we reverse that part of the court’s order and remand the
cause for further proceedings consistent with this opinion.
BACKGROUND
Prosecution and Motion for R eturn
In August 2015, law enforcement officers, including a
criminal investigator with the Washington County sheriff’s
office, executed a warrant search of McGuire’s home. They
seized several items of personal property, including firearms
and ammunition. The State charged McGuire with numerous
offenses in the district court for Washington County, but the
charges were ultimately reduced to a single count of attempted
possession of a controlled substance, a Class I misdemeanor.
The third amended information, to which McGuire pled no
contest, did not include any allegation of an intent to manufac-
ture, distribute, deliver, or dispense the substance—in effect, it
alleged only attempted simple possession.
After sentencing, McGuire filed a motion in the district
court for return of seized property. Claiming that Neb. Rev.
Stat. § 29-820 (Reissue 2016) divested the district court of
jurisdiction over disposition of the disputed items, the State
moved to dismiss the motion. The district court conducted a
hearing on both motions.
Hearing on Motion for R eturn
Regarding the State’s motion to dismiss, it argued that
§ 29-820 divested the court of jurisdiction to determine the dis-
position of firearms and ammunition used in the commission
of crime. The State contended the firearms and ammunition
should be destroyed by law enforcement because one of the
weapons was allegedly used in a crime.
Regarding McGuire’s motion for return of personal prop-
erty, McGuire first testified that the allegations of his motion
(which stated that he was the lawful and rightful owner of the
property and that the property had not been used in the com-
mission of a crime, was not contraband, and was no longer
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Cite as 301 Neb. 895required as evidence) were true. McGuire’s counsel then stated
that he had “nothing else.” The State did not cross-examine
McGuire.
In response to McGuire’s testimony, the State adduced
testimonial and documentary evidence. Notably, the State did
not present any evidence regarding the other occupants of
the residence. Other than one name appearing on the inven-
tory from the search, the record is entirely silent regarding
the identities of those persons and their interests, if any, in
the seized property. Rather, the State’s evidence seemed to be
offered in support of three arguments regarding disposition of
the property.
First, the criminal investigator testified that in his opin-
ion, the firearms seized were used in the commission of drug
manufacturing and selling. He specified, “we believed that
they were manufacturing enhanced marijuana.” The investiga-
tor explained that in his training and experience, drug dealers
use firearms to protect “their assets for illegal activities.” But
when asked whether he had any reason to believe McGuire was
manufacturing any sort of controlled substance, he responded,
“No more than that I don’t know that he wasn’t.” He also
replied “[c]orrect” when asked, “You think [McGuire] might
have been [manufacturing a controlled substance], but you
don’t know?”
Second, the State contended that McGuire was not the
owner of three of the firearms, because his name was not the
listed owner on the Bureau of Alcohol, Tobacco, Firearms
and Explosives “eTrace” background checks. The investigator
acknowledged that there was nothing about the guns making
them illegal per se. He also admitted that subsequent private-
party sales from the bureau’s registered owner would not show
up on an eTrace search. But there was no evidence connecting
any of the three persons named in the eTrace evidence to the
residence from which the items were seized and no indication
that the State had made any effort to notify those persons of
the property it was holding.
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STATE v. McGUIRE
Cite as 301 Neb. 895Third, during the State’s case, McGuire adduced evidence
regarding the locations within the house and garage where the
items of property were located when they were seized. Exhibit
15 was an inventory made at the time of execution of the
search warrant. It cataloged every item seized and where in the
house it was found. Eight items were seized from the east bed-
room occupied by McGuire. Four items were taken from the
northwest bedroom. Four other items were taken from, respec-
tively, the dining room, the kitchen, the basement stairway, and
the attached garage. The investigator testified that McGuire
lived with four or five roommates and that property was seized
in common areas used by all roommates. But nothing else was
presented regarding any of these roommates.
District Court’s Order
After taking both motions under advisement, the court
disposed of them in a single order. Without elaboration, the
court denied the State’s motion to dismiss. The court partially
granted McGuire’s motion for return of personal property.
The court acknowledged a presumption that McGuire had an
ownership interest in the property, but found McGuire did not
have exclusive possession of the property seized outside his
bedroom. Of the 16 items seized, the court ordered the return
of the 8 items seized from the east bedroom. In effect, the
order denied return of the other items, which were seized from
the other locations.
McGuire filed a timely appeal, which we moved to our
docket.1
ASSIGNMENT OF ERROR
McGuire assigns that the district court erred by overrul-
ing in part McGuire’s motion for return of personal property.
On appeal, the State raises the same jurisdictional argument
asserted below.
1
See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
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STATE v. McGUIRE
Cite as 301 Neb. 895STANDARD OF REVIEW
[1,2] A jurisdictional question which does not involve a
factual dispute is determined by an appellate court as a matter
of law.2 Statutory interpretation presents a question of law.3 An
appellate court independently reviews questions of law decided
by a lower court.4
[3,4] The denial of a motion for return of seized property
is reviewed for an abuse of discretion.5 An abuse of discretion
takes place when the sentencing court’s reasons or rulings are
clearly untenable and unfairly deprive a litigant of a substan-
tial right and a just result.6
ANALYSIS
Jurisdiction
[5] We must first consider the State’s jurisdictional argu-
ment. Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.7 So we begin by examin-
ing our jurisdiction.
[6] The State contends that the district court lacked juris-
diction of McGuire’s motion and that consequently, this court
also lacks jurisdiction. When a trial court lacks jurisdiction to
adjudicate the merits of a claim, issue, or question, an appel-
late court also lacks the power to determine the merits of the
claim, issue, or question presented to the lower court.8 Thus,
2
Priesner v. Starry, 300 Neb. 81, 912 N.W.2d 249 (2018).
3
In re Guardianship of Luis J., 300 Neb. 659, 915 N.W.2d 589 (2018).
4
See Synergy4 Enters. v. Pinnacle Bank, 290 Neb. 241, 859 N.W.2d 552(2015).
5
State v. Buttercase, 296 Neb. 304, 893 N.W.2d 430 (2017).
6
Id.7
Guardian Tax Partners v. Skrupa Invest. Co., 295 Neb. 639, 889 N.W.2d
825 (2017).
8
In re Guardianship of S.T., 300 Neb. 72, 912 N.W.2d 262 (2018).
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Cite as 301 Neb. 895the existence of our jurisdiction depends upon whether the dis-
trict court had jurisdiction.
The State argues that § 29-820 divested the district court
of jurisdiction to dispose of firearms seized or held and that
it did so by vesting sole authority over disposition of these
items in the law enforcement agency holding them. McGuire
responds that § 29-820 must be read together with § 29-818
and that doing so defeats the State’s argument. We agree with
McGuire’s statutory argument.
[7,8] Two basic principles of statutory interpretation con-
trol. First, statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which
are plain, direct, and unambiguous.9 Second, components of a
series or collection of statutes pertaining to a certain subject
matter are in pari materia and should be conjunctively consid-
ered and construed to determine the intent of the Legislature,
so that different provisions are consistent, harmonious, and
sensible.10
[9] Ordinarily, we look no further than the text. In order for
a court to inquire into a statute’s legislative history, that statute
in question must be open to construction, and a statute is open
to construction when its terms require interpretation or may
reasonably be considered ambiguous.11 So we begin with the
text of the two statutes.
Section 29-818 establishes the basic framework for dealing
with seized property. It states:
Except for animals as provided in section 28-1012.01,
property seized under a search warrant or validly seized
without a warrant shall be safely kept by the officer seiz-
ing the same, unless otherwise directed by the judge or
magistrate, and shall be so kept so long as necessary for
9
Synergy4 Enters., supra note 4.
10
Wisner v. Vandelay Investments, 300 Neb. 825, 916 N.W.2d 698 (2018).
11
Cookson v. Ramge, 299 Neb. 128, 907 N.W.2d 296 (2018).
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Cite as 301 Neb. 895the purpose of being produced as evidence in any trial.
Property seized may not be taken from the officer having
it in custody by replevin or other writ so long as it is or
may be required as evidence in any trial, nor may it be
so taken in any event where a complaint has been filed in
connection with which the property was or may be used as
evidence, and the court in which such complaint was filed
shall have exclusive jurisdiction for disposition of the
property or funds and to determine rights therein, includ-
ing questions respecting the title, possession, control, and
disposition thereof. This section shall not preempt, and
shall not be construed to preempt, any ordinance of a city
of the metropolitan or primary class.12
Several important principles follow from this statutory
framework, including a jurisdictional precept. First, an officer
seizing property pursuant to a warrant must safely keep the
seized property, unless otherwise directed by a judge or mag-
istrate. Second, the seized property is to be kept so long as
necessary to make it available as evidence in any trial. Third,
so long as the seized property may be required as evidence in
a trial, it may not be taken from the officer by means of a writ
of replevin. Fourth, where a complaint has been filed asserting
a charge where the property was or may be used as evidence,
a writ of replevin would not lie to take the property, even if
the property was no longer required in evidence. And most
important to the case before us, a court where a complaint
has been filed and where seized property was or may be used
as evidence has “exclusive jurisdiction for disposition of the
property or funds and to determine rights therein, including
questions respecting the title, possession, control, and disposi-
tion thereof.”13
It is only in the light of these principles that § 29-820
authorizes law enforcement to dispose of certain property
12
§ 29-818.
13
Id.
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Cite as 301 Neb. 895seized or held and no longer required as evidence. Two sub-
sections are pertinent to this appeal—subsections (1)(e) and
(1)(f). Section 29-820(1)(e) states, “[f]irearms, ammunition,
explosives, bombs, and like devices which have been used
in the commission of crime shall be destroyed[.]” Section
29-820(1)(f) allows law enforcement to return firearms to
owners that “(i) have not been used in the commission of
crime, (ii) have not been defaced or altered in any manner
that violates any state or federal law, (iii) may have a lawful
use and be lawfully possessed, and (iv) [were not seized in a
domestic assault].”
The State reads the introductory language of § 29-820 to
confer exclusive authority upon the law enforcement agency
over the items covered by subsections (1)(e) and (1)(f). It relies
upon language stating that “when property seized or held is no
longer required as evidence, it shall be disposed of by the law
enforcement agency on such showing as the law enforcement
agency may deem adequate.”14
But that language is conditioned. Section 29-820(1) begins
this authorization stating, “Unless other disposition is specifi-
cally provided by law . . . .” Reading §§ 29-818 and 29-820
together, § 29-820 applies only where the exclusive jurisdiction
of a court under § 29-818 has not been invoked. The State does
not contend that no charge was brought against McGuire—
undeniably, the State filed charges against McGuire in the
district court.
[10] As we have said before, the court in which a criminal
charge was filed has exclusive jurisdiction to determine the
rights to seized property, and the property’s disposition.15 In the
situation before us, the State filed charges in the district court
against McGuire relating to the seized property. Therefore,
that court had the exclusive jurisdiction to determine the rights
to and disposition of the seized property. Because it did not
14
§ 29-820(1).
15
State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007).
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Cite as 301 Neb. 895lack jurisdiction, neither do we. This disposes of the State’s
jurisdictional argument.
McGuire also argues that the State’s interpretation would
“endorse[] an obviously unconstitutional system whereby the
citizens it represents may be summarily deprived of their
valuable property by unreviewable executive action.”16 Even
when a law is constitutionally suspect, a court will attempt
to interpret it in a manner such that it is consistent with
the constitution.17 Here, we need not resort to this rule of
construction.
Although we do not rely upon the legislative history, we
summarize it for interested readers. The Nebraska Legislature
added §§ 29-818 and 29-820 in 1963,18 in reaction to the
then-recent U.S. Supreme Court decision in Mapp v. Ohio.19
When first enacted, these sections empowered only a court to
dispose of seized or held property.20 The Legislature amended
these statutes several times, but the most significant amend-
ments occurred in 1986 and 2012 to § 29-820. In the 1986
amendment to § 29-820, the Legislature supplemented the
courts’ authority by authorizing law enforcement agencies
to dispose of stolen property, unlawful gambling money,
unclaimed property, contraband, firearms, ammunition, explo-
sives, and like devices used in the commission of crime.21
The intent of the amendment was to “allow the court, if
they wish to give a court order, but at the same time . . .
allow [law enforcement] to use a common sense approach
16
Reply brief for appellant at 1.
17
Schumacher v. Johanns, 272 Neb. 346, 722 N.W.2d 37 (2006).
18
1963 Neb. Laws, ch. 161, §§ 7 and 9, pp. 573-74.
19
Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). See
Committee Statement, L.B. 276, Committee on Judiciary, 73d Sess. Leg.
(Feb. 28, 1963).
20
See §§ 29-818 and 29-820 (Reissue 1964).
21
1986 Neb. Laws., L.B. 543.
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Cite as 301 Neb. 895along with the bill to give people’s property back to them as
quickly as possible.”22 In the 2012 amendment to § 29-820,
the Legislature enhanced this authority to return firearms
that were voluntarily surrendered, safekept, or not used in
the commission of crime.23 The introducer explained, “When
criminal charges are filed, the court decides what happens to
the guns. But if no charges are filed or even considered, there
is inconsistency in how law enforcement agencies throughout
the state apply [§ 29-820].”24 During the floor debate, the
introducer reiterated this purpose.25 But, as we have said, the
plain language is clear. So, we turn to McGuire’s quarrel with
the court’s order.
R eturn of Seized Property
McGuire argues that the district court erred in partially
denying his motion for return of property. Specifically, he
contends that where no evidence was presented by the State to
rebut his presumption of ownership, the court erred in finding
he did not have exclusive possession of all the property.
We note that on appeal, the State has apparently acquiesced
in the district court’s implicit rejection of two arguments
below—that the seized property was used in the commission
of a crime and that the eTrace evidence established superior
title in another person. In this court, the State does not rely
upon either of those arguments. Rather, the State argues only
that because the residence was occupied by several people
and some items were found outside of McGuire’s bedroom,
he “was not in exclusive possession of the [unsuccessfully
22
Judiciary Committee Hearing, L.B. 543, 89th Leg., 2d Sess. 31 (Feb. 4,
1985).
23
Floor Debate, L.B. 807, 102d Leg., 2d Sess. 56-57 (Apr. 5, 2012).
24
Statement of Intent, L.B. 538, Committee on Judiciary, 102d Leg. 1st Sess.
(Feb. 16, 2011). See, also, Judiciary Committee Hearing, L.B. 538, 102d
Leg., 1st Sess. 1-2 (Feb. 16, 2011).
25
Floor Debate, L.B. 807, supra note 23.
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Cite as 301 Neb. 895sought] items and thus was not entitled to a presumption
of ownership.”26
Nor does the State argue on appeal that any of the items
sought were contraband, subject to forfeiture, or of any con-
tinuing interest to the State. Accordingly, we focus only on
the district court’s reasoning, which the State supports on
appeal—that because some of the items were taken from loca-
tions where other residents had access to them, McGuire was
not entitled to their return.
Both parties argue principles deriving from our seminal
decision in State v. Agee.27 We begin by quoting from Agee at
some length:
[T]he general rule is well established that upon the ter-
mination of criminal proceedings, seized property, other
than contraband, should be returned to the rightful owner
unless the government has a continuing interest in the
property. . . . While the government is permitted to seize
evidence for use in investigation and trial, such property
must be returned once criminal proceedings have con-
cluded, unless it is contraband or subject to forfeiture. .
. . Thus, a motion for the return of property is properly
denied only if the claimant is not entitled to lawful pos-
session of the property, the property is contraband or
subject to forfeiture, or the government has some other
continuing interest in the property.
. . . When criminal proceedings have terminated, the
person from whom property was seized is presumed to
have a right to its return, and the burden is on the gov-
ernment to show that it has a legitimate reason to retain
the property. It is long established that a presumption of
ownership is created by exclusive possession of personal
property and that evidence must be offered to overcome
that presumption. One in possession of property has the
26
Brief for appellee at 12.
27
Agee, supra note 15.
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Cite as 301 Neb. 895right to keep it against all but those with better title, and
the “mere fact of seizure” does not require that “entitle-
ment be established anew.” Seizure of property from
someone is prima facie evidence of that person’s right to
possession of the property, and unless another party pre­
sents evidence of superior title, the person from whom
the property was taken need not present additional evi-
dence of ownership.28
Obviously, in all but one instance, we spoke of a party “in
possession” or one “from whom the property was taken,” or
similar wording.29 In only one instance did we refer to “exclu-
sive possession.”30 Here, we have evidence that several persons
occupied this residence. We also have evidence that McGuire
occupied the east bedroom. From this evidence, the district
court could reasonably infer that other persons shared access
to the locations outside the east bedroom. And the court appar-
ently reasoned that because of that inference, McGuire’s pos-
session was not “exclusive.”
Thus, the question becomes whether this inference was
sufficient to prevent the presumption of ownership from
arising or, if the presumption arose, whether the inference
was sufficient to rebut the presumption. Neither party cites
any particularly helpful authority. And surprisingly, we have
found very little authority on this question. Of course, we
recognize that the State reads the decision of the Nebraska
Court of Appeals in State v. Dubray 31 to require a showing
of exclusive possession before a presumption of ownership
arises regarding seized property. But that court relied upon
our language in Agee. And as our quotation from the Agee
opinion shows, we did not speak with perfect clarity. Indeed,
28
Id. at 449-51, 741 N.W.2d at 166-67 (emphasis supplied).
29
See id. at 450-51, 741 N.W.2d at 166.
30
See id. at 450, 741 N.W.2d at 166.
31
State v. Dubray, 24 Neb. App. 67, 883 N.W.2d 399 (2016).
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Cite as 301 Neb. 895even the cases we cited in Agee for that particular sentence
provide little help.
None of the cases we cited for the “exclusive possession”
principle arose in the context of returning seized property.
The principal case cited was In re Estate of Severns.32 But
that case involved a grandfather’s clock which had been in the
decedent’s sole possession for nearly 28 years. This provides
no help. In re Estate of Severns, in turn, cited two decisions.
In one ancient decision, two parties disputed possession of
a red cow, the plaintiff claiming by purchase from a mar-
ried woman and the defendant pursuant to a chattel mortgage
from the woman’s husband.33 Several witnesses testified that
when the mortgage was given, the cow belonged to the mar-
ried woman. There was no evidence that the husband ever had
title. Consequently, we affirmed a judgment for the plaintiff.
The other decision underlying In re Estate of Severns involved
replevin of an automobile.34 A creditor under a conditional sales
contract sued to recover the automobile from the borrower/
buyer. Later, the buyer obtained a replacement motor from oth-
ers, who retained possession because they had not been paid.
This court determined that the motor suppliers were not in
exclusive possession and had constructive notice of the credi-
tor’s right to possession. Consequently, their claim to posses-
sion failed. Neither of the cases cited in In re Estate of Severns
assists us here.
More helpful is another case we cited in Agee, where a
defendant convicted of burglary but acquitted of larceny alleg-
edly committed during the burglary sought return of jewelry
seized from him when he was arrested.35 There, the govern-
ment had satisfied itself that the jewelry was not taken from the
burglary or a nearby similar event involving the defendant, but
32
In re Estate of Severns, 217 Neb. 803, 352 N.W.2d 865 (1984).
33
Booknau v. Clark, 58 Neb. 610, 79 N.W. 159 (1899).
34
Allied Inv. Co. v. Shaneyfelt, 161 Neb. 840, 74 N.W.2d 723 (1956).
35
Government of Virgin Islands v. Edwards, 903 F.2d 267 (3d Cir. 1990).
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Cite as 301 Neb. 895it still resisted returning the jewelry. The court stated that the
government had had “ample opportunity to locate any persons
who contend that they are the rightful owners” and that the
government was “still unable to posit anyone, other than [the
defendant], to whom the property belonged.”36 The appellate
court reversed the order denying the motion and instructed the
trial court to order the government to return the property. At
the time of arrest, the defendant had “tried to give the jewelry
to his girlfriend,”37 but the appellate court did not consider that
significant. Thus, the girlfriend’s potential claim to the prop-
erty did not justify the government in retaining it. Although
the defendant’s possession may not have been exclusive of his
girlfriend, he was entitled to return of the property.
From the cases addressing return of seized property, a com-
mon theme emerges—when the government’s interests have
ended, it must return the property. The “whole thrust” is that
“when property is seized from a person, the court must return
it to that person.”38 A court is “obligated to restore the status
quo ante.”39 Lawful seizure of property may affect the timing
of return, but never the owner’s right to eventual return.40 The
government may not keep seized property purely for the sake
of keeping it or because it is hopeful it may be relevant to
some future investigation.41 “Unless there are serious reasons
(presented by the government or adverse claimants) to doubt
a person’s right to the property seized from him, he need not
come forward with additional evidence of ownership” and “the
court must return [the property] to that person when it is no
longer needed by the government.”42
36
Id. at 274.
37
Id. at 272.
38
United States v. Wright, 610 F.2d 930, 939 (D.C. Cir. 1979).
39
Id.40
State v. Card, 48 Wash. App. 781, 741 P.2d 65 (1987).
41
DeLoge v. State, 156 P.3d 1004 (Wyo. 2007).
42
United States v. Wright, supra note 36, 610 F.2d at 939.
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STATE v. McGUIRE
Cite as 301 Neb. 895Recalling our extended quotation above from our Agee
opinion, we believe that inserting the property law principle
regarding “exclusive possession” led to the confusion here.43
McGuire’s initial showing certainly made no reference to
any roommates. So, clearly, at that point, there was nothing
from which the court could draw any inference adverse to
McGuire.
[11] Thus, the burden shifted to the State. “‘The burden on
the government is heavy because there is a presumption that
the person from whom the property was taken has a right to its
return.’”44 As we ultimately said in Agee, seizure of property
from someone is prima facie evidence of that person’s right to
possession of the property, and unless another party presents
evidence of superior title, the person from whom the property
was taken need not present additional evidence of ownership.45
The State does not argue that McGuire was not a person from
whom the property was seized.
If the State had a serious concern that one or more of
McGuire’s roommates had superior title to the property, it
failed to make any such concern apparent in our record. It
seems inconceivable that the State’s investigation in connection
with execution of the search warrant did not uncover the names
of McGuire’s roommates. But the State presented no evidence
of their names or of any claims of ownership on their behalf.
The record contains no indication that the State made any
effort to notify any of them of McGuire’s motion. The State’s
concerns were directed elsewhere.
But most important, the burden on the State was not merely
to raise the possibility of other claimants; it was required to
establish that another party had superior title to the property. It
failed to meet that burden.
43
State v. Agee, supra note 15, 274 Neb. at 450, 741 N.W.2d at 166.
44
DeLoge v. State, supra note 41, 156 P.3d at 1011 (quoting U.S. v. Albinson,
356 F.3d 278 (3d Cir. 2004)).
45
State v. Agee, supra note 15.
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. McGUIRE
Cite as 301 Neb. 895The confusion below may have flowed from an incorrect,
but understandable, reading of Agee. To the extent that the
court’s ruling was based upon an incorrect understanding of
the law, it is not possible for us to review it for an abuse of
discretion.46 Therefore, we have crafted a disposition to enable
the parties to conclude the proceeding utilizing a correct
legal framework. Our aim is to return the proceedings to the
point at which the incorrect understanding introduced error.
McGuire made a sufficient showing to establish a presump-
tion of ownership. The State failed to establish that the seized
property is contraband or subject to forfeiture, or that the
State has some other continuing interest in the property. Thus,
on remand, the issue will be limited to any claim of superior
title which may be asserted by the State on behalf of any of
McGuire’s roommates or by any other third-party claimant
adverse to McGuire.
CONCLUSION
The State filed charges in the district court against McGuire
relating to the seized property. Therefore, that court had the
exclusive jurisdiction to determine the rights to and disposition
of the seized property. Because the district court had jurisdic-
tion of McGuire’s motion, we have jurisdiction of this appeal.
The portion of the district court’s order requiring the State to
return items to McGuire is affirmed. The portion of the order
denying return of other items is reversed, and the cause is
remanded for further proceedings consistent with this opinion.
In carrying out our mandate, the district court may permit the
record to be opened for additional evidence on the limited issue
set forth above. If additional evidence is allowed, those claim-
ing superior title adverse to McGuire shall have the burden
of first going forward and McGuire shall be entitled to offer
evidence in rebuttal.
A ffirmed in part, and in part reversed and
remanded for further proceedings.
46
See State v. Myers, ante p. 756, ___ N.W.2d ___ (2018).