Appeal from the District Court for Cheyenne County: Kristine R. Cecava, Judge. Affirmed.
Hannon, Sievers, and Moore, Judges.
1. Final Orders: Appeal and Error. An appellate court may review a final order affecting a substantial right made on summary application in an action after a judgment is rendered.
2. Criminal Law: Courts: Evidence: Standing. Property seized in enforcing a criminal law is in custody of the court, referenced as in custodia legis, and the proper procedure for the return of property taken is to apply to the court for its return, especially if the property has been offered in evidence. The owner is the person with standing to make such application.
3. Standing: Jurisdiction: Justiciable Issues. Standing requires that a litigant have such a personal stake in the outcome of a controversy as to warrant invocation of a court's jurisdiction and justify the exercise of the court's remedial powers on the litigant's behalf.
4. Search and Seizure: Appeal and Error. The trial court's decision on the return of seized property is reviewed for an abuse of discretion.
The opinion of the court was delivered by: Sievers, Judge.
Tori Maestas, mother of defendant Phillip J. Maestas, filed a motion in the district court for Cheyenne County, under this case caption, for the return of property seized from her residence in connection with a case involving first degree murder charges against Phillip. Phillip ultimately pled guilty to second degree murder in that case, and his time for a direct appeal has passed. Tori appeals the district court's partial denial of her motion.
FACTUAL AND PROCEDURAL BACKGROUND
After Phillip was convicted of second degree murder, Tori filed a motion for the return of seized property in the district court for Cheyenne County. Tori requested that the following property be returned to her: a Ruger "model 10/22" carbine, .22-caliber, serial number 115-54588 (gun No. 1); a Ruger "model 10/22" carbine, .22-caliber, serial number 236-23575 (gun No. 2); four boxes of Winchester "expert" .22-caliber hollow point long rifle ammunition; one brick of .22-caliber "thunderbolt" long rifle ammunition (minus 1 box); one brick of "Dynamit Nobel" .22-caliber long rifle cartridges; one box of 50 rounds of "federal lightning" .22-caliber long rifle ammunition; and one .22-caliber firearm stock with barrel.
The district court heard the motion on May 8, 2001, and Paul Schaub, the Cheyenne County Attorney, represented the State. Investigator John Jenson's affidavit was placed into evidence, and in it, he averred that only the two guns were still needed as evidence. The affidavit noted that the FBI positively identified Phillip's fingerprint on gun No. 1 and that Phillip's co-defendant identified gun No. 2 as the murder weapon. This latter gun, according to Jenson's affidavit, "has features that make it almost identical with the . . . murder weapon."
Schaub argued that the guns should not be released because Phillip could still request post-conviction relief, which could conceivably result in a trial. As to gun No. 1, Schaub argued that "if [Phillip] testifies that he's never handled a weapon before, we can at least bring this up as a rebuttal, there's the weapon, there's the fingerprint." Schaub argued that the State should retain gun No. 2 in case the State needs to show a jury why the co-defendant might have misidentified the murder weapon (because gun No. 1, the murder weapon, and gun No. 2 are nearly identical).
The district court released all of the property listed in Tori's motion except for the two guns. The court did not explain its reasons for denying their return. Tori, the guns' owner, appeals, arguing that "[t]he remote possibility of a [post-conviction] filing . . . sometime in the future is just not enough to ...