State v. Gant

KESSLER, J.

¶ 22 (concurring). I agree with the Majority that the police originally had probable cause to seize Gant's computers at the time of his wife's death. I also agree with the Majority result because I conclude that Gant has not demonstrated that he made a reasonable effort to secure the return of his property (the computers seized on the night of his wife's death) when he went to the Police Administration Building "a week or two" after his wife's death had been ruled a suicide to request the return of his property. I do not join the implied holding of the Majority that Gant's only avenue to retrieve his property was legal action under Wis. Stat. § 968.20. See Majority, ¶¶ 4, 14 n.4.

¶ 23. Wisconsin Stat. § 968.20(1) provides a method for a person to retrieve property in police custody. ("Any person claiming the right to possession of property ... seized without a search warrant may apply for its return to the circuit court for the county in which the property was seized.. . ."). (Emphasis added.) We know that under the rules of statutory construction "may" is generally construed as permissive, not mandatory. See City of Wauwatosa v. Milwaukee Cty., 22 Wis. 2d 184, 191, 125 N.W.2d 386 (1963) ("Generally in construing statutes, 'may' is construed as permissive and 'shall' is construed as mandatory unless a different construction is demanded by the statute in order to carry out the clear intent of the legislature."). Hence, contrary to the implication of the State's argument, Gant was not required to use this method to retrieve his property.

¶ 24. Milwaukee Police Department rules allow for the return of seized property without the necessity of the court proceeding permitted by Wis. Stat. § 968.20. See, e.g., Milwaukee Police Department Standard Operating Procedure, 560-Property, §§ 560.25(A)(2)(c)-(d),¹ 560.50, 560.60.

¶ 25. There is no evidence in the record that there was any ongoing investigation into Gant's wife's death at the time Gant initially sought the return of his computer, which was between "one week" and "a few weeks" of his wife's suicide. There is no evidence that probable cause for the initial seizure of the computer still existed or that police had begun any attempt to search the seized computer before Gant asked for the return of his property.

¶ 26. However, the nature and extent of Gant's request for the return of his computers is problematic. According to Gant's testimony, the only person to whom he made the request was an unnamed "police officer" staffing the metal detectors on the second floor of the Police Administration Building. According to Gant's testimony, this officer did not direct Gant to an office where Gant could speak with a detective, but instead called someone the officer identified as a detective, then told Gant that Gant "couldn't get any of the property yet." Gant did nothing more to retrieve his seized computer until after he had been charged with a criminal offense unrelated to his wife's death.

I 27. Gant did nothing that would give the detectives responsible for the seizure reasonable notice that he wanted his property back promptly. It defies common sense to believe that a person operating a metal detector in the hall has the authority to determine whether seized property can be released to its owner. While I do not doubt the unidentified officer's good faith attempt to be helpful, it is nonetheless impossible to consider the exchange here to be a reasonable effort by Gant to obtain his property, or to be reasonable notice by Gant to the police that he wanted that property back promptly.

¶ 28. For the reasons described above, I concur in the result reached by the Majority.

1 Sections 560.25(A)(2)(c)-(d) of the Milwaukee Police Department's Standard Operating Procedures provide:

(c) If property is released to an owner/claimant, a copy of the PP-32 listing the property that has been returned to the owner/claimant, a Property Receipt (form PP-32) signed by the person (owner) receiving the property, [and] a photocopy of the citizen's identification card .. . shall be faxed to Property Control.

(d) All original paperwork concerning property given back to the owner/claimant shall be forwarded to Property Control.