State v. McGuire

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/14/2018 09:12 AM CST

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Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. McGUIRE

Cite as 301 Neb. 895

State 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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statute 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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law, 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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required 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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Third, 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. 895

STANDARD 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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the 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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the 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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seized 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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lack 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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along 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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sought] 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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right 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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even 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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it 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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Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. McGUIRE

Cite as 301 Neb. 895

Recalling 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.

- 911 -

Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. McGUIRE

Cite as 301 Neb. 895

The 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).