Norman v. Yeager

• Decision Date: 13 January 2016
• Docket Number: No. A15A1990.,A15A1990.
• Parties: NORMAN et al. v. YEAGER.
• Court: Georgia Court of Appeals

335 Ga.App. 470
781 S.E.2d 580

NORMAN et al.
v.
YEAGER.

No. A15A1990.

Court of Appeals of Georgia.

Jan. 13, 2016.

781 S.E.2d 581

Allen W. Bodiford, Stockbridge, for Appellant.

Nathan Thomas Lee, for Appellee.

BARNES, Presiding Judge.

335 Ga.App. 470

Wesley Bernard Norman, Jr. and Rite Brokers Auto Sales, LLC appeal the trial court's order dismissing their complaint that sought the return of personal property seized by the Sheriff of Coweta County. Because the seized property did not constitute contraband per se and no statutory authority supported its continued retention by the Sheriff, the trial court erred in dismissing the complaint and failing to order the Sheriff to return the property. Accordingly, we reverse.

The material facts are undisputed. Norman is one of the managing members of Rite Brokers, a limited liability company that is the title owner of a 2003 Ford truck. At the center of this case are three 100–gallon fuel tanks and a fuel pump that were attached to, or contained in, the truck owned by Rite Brokers (collectively, the "fuel equipment").

In December 2013, Norman was arrested and charged with criminal attempt to commit theft by taking based on his alleged attempt to steal diesel fuel from a business. In January 2014, Norman was charged with theft by taking for allegedly stealing diesel fuel from a second business. Norman allegedly used the Ford truck and

335 Ga.App. 471

fuel equipment in connection with the theft offenses, and the truck and equipment were seized by the Coweta County Sheriff's Office upon Norman's arrest.

In May 2014, while the criminal charges remained pending, Norman and Rite Brokers demanded the return of the truck with the fuel equipment from the Sheriff pursuant to OCGA § 17–5–50, contending that the truck was not contraband or the subject of a forfeiture action, and that photographs or video recordings of the truck would be an adequate substitute for the actual vehicle at trial. See OCGA § 17–5–50(c).¹ When the Sheriff refused to return the truck, Norman and Rite Brokers filed a complaint in the Superior Court of Coweta County seeking the return of the seized property. The Sheriff answered the complaint, denying that he was required to return the truck. The Sheriff did not assert a counterclaim or file an independent forfeiture action.

In December 2014, Norman entered a plea of guilty under the First Offender Act, OCGA § 42–8–60 et seq., to one count of theft by taking. The remaining counts of the indictment were disposed of through entry of a nolle prosequi order. Norman was sentenced to five years probation to be terminated upon the payment of restitution. Norman paid the restitution in full on the date of the plea and was discharged without an adjudication of guilt pursuant to OCGA § 42–8–62(a) of the First Offender Act.

The Sheriff returned the Ford truck to Norman and Rite Brokers after Norman pled guilty under the First Offender Act. However, before returning the truck, the Sheriff removed the fuel equipment and refused to relinquish the equipment to Norman and Rite Brokers.

The trial court subsequently conducted a hearing on Norman and Rite Brokers' complaint seeking return of the seized property. The parties stipulated to the material facts and requested for the trial court to rule on whether the Sheriff had to return the fuel equipment. The Sheriff did not rely upon a specific statute to justify retention of the fuel equipment, but instead argued more generally that the equipment could be retained as contraband because it was a tool used in the commission of a crime.

781 S.E.2d 582

In its final order entered after the hearing, the trial court acknowledged that "there is no clear statutory authority which addresses the present situation before the Court when a criminal defendant seeks the return of fuel tanks and a pump which were used

335 Ga.App. 472

to commit the crime of stealing fuel." But the trial court concluded that the fuel equipment was " personal property that was used by Norman in the commission of the crime of stealing diesel fuel and [was], thus, contraband" that did not have to be returned to Norman and Rite Brokers. Based on this conclusion, the trial court dismissed Norman and Rite Brokers' complaint for return of the seized property.

On appeal, Norman and Rite Brokers contend that the trial court erred by failing to require the Sheriff to return the seized fuel equipment once the criminal prosecution against Norman had been concluded. The appellants argue, and the State concedes, that there is no specific Georgia statute justifying the retention of the fuel equipment by the Sheriff after the completion of the criminal prosecution. Because the fuel equipment is not contraband per se and there is no statutory basis for continued retention of the equipment, the appellants argue that the equipment must be returned to its rightful owner, Rite Brokers. We agree with the appellants.

Following the conclusion of a criminal prosecution, personal property seized for use as evidence at trial must be returned to its rightful owner, unless the property constitutes contraband or is subject to forfeiture. See OCGA § 17–5–54(a)(1), (d) (2013);² Baez v. State, 231 Ga.App. 375, 376, 500 S.E.2d 339 (1998). See also Chappell v. Stapleton, 58 Ga.App. 138, 198 S.E. 109 (1938) ; Padgett v. Sturgis, 6 Ga.App. 544, 65 S.E. 352 (1909). In determining whether the seized

335 Ga.App. 473

property constitutes contraband, Georgia courts distinguish between contraband per se, which is "inherently unlawful," and "contraband which may ordinarily be used in a beneficial and useful manner but which becomes unlawful under certain specific circumstances set forth by law." Balkcom v. Heptinstall, 152 Ga.App. 539, 540, 263 S.E.2d 275 (1979).

A party has no right to the return of objects that are contraband per se, that is, "property, the possession of which, without more, constitutes a crime." One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). See Windham v. Harmon, 50 Ga.App. 322(1), 178 S.E. 160 (1935) ("The courts will not sustain actions for the recovery of property the possession of which is illegal."). A quintessential example of contraband per se is cocaine, the possession of which is unlawful under the Georgia Controlled Substances Act, OCGA § 16–13–30(a). One can "have no property rights" in objects that are contraband

781 S.E.2d 583

per se, Blackmon v. Brotherhood Protective Order of Elks, 232 Ga. 671, 673(1), 208 S.E.2d 483 (1974), and the return of this type of contraband to the purported owner would "frustrate[ ] the express public policy against the possession of such objects." One 1958 Plymouth Sedan, 380 U.S. at 699, 85 S.Ct. 1246.

A different rule applies where the mere possession of the seized personal property is not itself illegal and the property in its ordinary use would be beneficial and useful. In that context, the seized property must be returned to its rightful owner after the conclusion of the criminal prosecution, unless a "statute ... provides for its condemnation or confiscation." (Emphasis omitted.) Balkcom, 152 Ga.App. at 541, 263 S.E.2d 275, quoting Chappell, 58 Ga.App. at 139, 198 S.E. 109. See Seaman v. State, 196 Ga.App. 634, 635, 396 S.E.2d 525 (1990) (owner was entitled to return of seized videocassette recorders because the recorders were not contraband per se and no statute provided for their condemnation or confiscation).³

The fuel equipment at issue in the present case is not contraband per se. Fuel tanks and fuel pumps, when used in the ordinary course of affairs, are legal to possess and are beneficial and useful to society. Accordingly, Rite Brokers, as the undisputed title owner of the fuel equipment, was entitled to the return of the equipment, unless a statute provided for its condemnation or confiscation. See Seaman, 196 Ga.App. at 635, 396 S.E.2d 525 ; Balkcom, 152 Ga.App. at 541, 263 S.E.2d 275 ;

335 Ga.App. 474

Chappell, 58 Ga.App. at 139, 198 S.E. 109. "Forfeiture of property is disfavored and the statutes permitting such are to be strictly construed and limited." Seaman, 196 Ga.App. at 635, 396...