State v. Riley
| Decision Date | 23 August 2022 |
| Docket Number | A-21-820 |
| Citation | 31 Neb.App. 292 |
| Parties | State of Nebraska, appellee, v. Morgan N. Riley, appellant. |
| Court | Nebraska Court of Appeals |
1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion.
2. Courts: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
4. Appeal and Error. An appellate court independently reviews questions of law in appeals from the county court.
5. Criminal Law: Courts: Appeal and Error. When deciding appeals from criminal convictions in county court an appellate court applies the same standards of review that it applies to decide appeals from criminal convictions in district court.
6. Search and Seizure: Appeal and Error. The denial of a motion for return of seized property is reviewed for an abuse of discretion.
7. Courts: Jurisdiction: Search and Seizure Property. The court in which a criminal charge was filed has exclusive jurisdiction to determine the rights to seized property, and the property's disposition.
8. Search and Seizure: Property. While the government is permitted to seize evidence for use in investigation and trial, such property must be returned once criminal proceedings have concluded, unless it is contraband or subject to forfeiture.
9.___:___.A motion for the return of property is properly denied only if the claimant is not entitled to lawful possession of the property, the property is contraband or subject to forfeiture, or the government has some other continuing interest in the property.
10. Search and Seizure: Property: Proof. 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.
11. ____:___:___. The burden is on the government to show that it has a legitimate reason to retain the property.
12. Search and Seizure: Property: Presumptions Title. The presumptive right to possession of seized property may be overcome when superior title in another is shown by a preponderance of the evidence.
13. Search and Seizure: Property: Statutes: Penalties and Forfeitures. In general, property is subject to forfeiture only if there is a statute that provides this remedy.
14. Statutes: Penalties and Forfeitures. Statutes imposing a forfeiture or penalty are subject to strict construction.
15. Search and Seizure: Property: Penalties and Forfeitures. Although the Legislature has provided for forfeiture in discrete situations, there is no general authorization for the forfeiture of contraband.
16. Search and Seizure: Words and Phrases. Contraband is defined as goods that are unlawful to possess.
17. ___:___. Traditional, or per se, contraband is defined as objects the possession of which, without more, constitutes a crime.
18. Search and Seizure: Property. A claimant has no right to have per se contraband returned to him or her.
19. Search and Seizure: Words and Phrases. Derivative contraband are articles which are not inherently illegal, but are used in an unlawful manner as an instrumentality of crime.
Appeal from the District Court for Cheyenne County, Derek C. Weimer, Judge, on appeal thereto from the County Court for Cheyenne County, Randin R. Roland, Judge.
Donald J.B. Miller, Cheyenne County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent, for appellee.
Morgan N. Riley appeals the order of the district court for Cheyenne County affirming the county court's decision denying in part her motion for return of personal property that was seized at the time of her arrest. Based on the reasons that follow, we conclude that the county court and district court erred, and as a result, we reverse the judgment of the district court and remand the matter to the district court with directions to reverse the judgment of the county court.
Riley was stopped by a Nebraska State Patrol trooper for speeding. A subsequent search of the vehicle revealed a firearm inside a backpack found within the passenger compartment of the vehicle. The backpack also contained a magazine for the firearm, a holster, five rounds of ammunition, and three knives with sheaths or scabbards for each one. These items were seized from Riley's vehicle.
Pursuant to a plea agreement, Riley pled no contest to attempt to carry a concealed weapon, a Class II misdemeanor, and operating a motor vehicle without a valid operator's license, a Class III misdemeanor. As part of the plea agreement, three other charges were dismissed and the State agreed to return noncontraband personal property to Riley. The court accepted her pleas and subsequently sentenced her to serve 2 days in jail with credit for 2 days previously served.
Riley filed a motion for return of personal property, pursuant to Neb. Rev. Stat. § 29-820 (Reissue 2016), requesting the return of her personal property seized at the time of her arrest. The same day Riley filed her motion, the State filed a motion to dispose of Riley's seized property, which stated that the items were no longer needed as evidence. The motion also stated that per the plea agreement, the State had agreed to not oppose the release and return of the firearm.
At the hearing on Riley's motion and the State's motion. Riley testified that she is the owner of the firearm, the magazine, the five rounds of ammunition, and the knives that were seized at the time of her arrest. She also testified that she is a resident of Oregon and that she was not aware she could not transport the firearm and the knives inside her backpack. She testified that she is not a convicted felon and is not prohibited from owning a firearm. Riley further stated that the firearm was not defaced nor was the serial number filed off. It was her understanding that the seized items were no longer needed as evidence.
Following the hearing, the county court found that Riley's firearm was used in the commission of a crime (attempt to carry a concealed weapon). It further stated that it had regularly interpreted § 29-820(1)(e) to require that any firearm and ammunition involved in a carrying concealed weapon case be destroyed. The county court, therefore, denied the motion for the return of the firearm and ammunition, but ordered that the knives be released to Riley.
Riley appealed to the district court, arguing that the county court erred in finding that the firearm "was used to violate the law and therefore not subject to being returned to the owner."
The district court affirmed the county court's decision finding that although it interpreted the statute differently than the county court, it could not find that the county court's interpretation of § 29-820(1)(e) was clearly wrong or legally insufficient.
Riley assigns that the district court erred in (1) failing to find the county court erred by refusing to order the State to return the firearm, magazine, holster, and five rounds of ammunition to Riley; (2) failing to find the county court erred in finding the firearm was used to violate the law and, therefore, could not be returned to Riley; and (3) failing to reverse the county court's decision and ordering the firearm be returned to Riley.
In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion. State v. Valentino, 305 Neb. 96, 939 N.W.2d 345 (2020). Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record. Id. When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id. But an appellate court independently reviews questions of law in appeals from the county court. Id. When deciding appeals from criminal convictions in county court, we apply the same standards of review that we apply to decide appeals from criminal convictions in district court. Id.
The denial of a motion for return of seized property is reviewed for an abuse of discretion. State v. Zimmer, 311 Neb. 294, 972 N.W.2d 57 (2022).
Riley's three assignments of error can be consolidated into one: The district court erred by affirming the county court's order denying her motion to return the firearm, magazine holster, and five rounds of ammunition seized at the time of her arrest. Riley argues that the county court erred in concluding the firearm was used in the commission of the crime and, therefore, should be destroyed. She contends that storing a firearm in a backpack while transporting it is not "use" of the firearm to commit a crime as intended in § 29-820(1)(e). The State agrees that Riley's firearm should be returned rather than destroyed, but contends that Neb. Rev. Stat. § 29-818 (Reissue 2016), rather than § 29-820, controls the outcome of this case.
Sections 29-818 and 29-820 both...
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