1. Search and Seizure: Appeal and
Error. The denial of a motion for return of seized
property is reviewed for an abuse of discretion.
Courts: Jurisdiction: Search and Seizure:
Property. Neb. Rev. Stat. § 29-820 (Reissue
2016) applies only where the exclusive jurisdiction of a
court under Neb. Rev. Stat. § 29-818 (Reissue 2016) has
not been invoked.
____: ____: ____: ____. The court in which a criminal charge
was filed has exclusive jurisdiction to determine the rights
to seized property, and the property's disposition.
Criminal Law: Search and Seizure: Property.
Upon the termination 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.
Criminal Law: Search and Seizure: Property:
Presumptions: Proof. 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 government to show that it has a legitimate reason to
retain the property.
Property: Presumptions: Evidence. A
presumption of ownership is created by exclusive possession
of personal property, and evidence must be offered to
overcome that presumption.
Search and Seizure: Property: Presumptions:
Title. 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.
____: ____: ____: ____. The presumptive right to possession
of seized property may be overcome when superior title in
another is shown by a preponderance of the evidence.
Neb. 395] Appeal from the District Court for Stanton County:
Mark A. Johnson, Judge. Reversed and remanded for further
Bradley A. Ewalt, of Ewalt Law Office, PC, L.L.O., for
Douglas J. Peterson, Attorney General, and Melissa R. Vincent
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
of a plea agreement with Arthur D. Ebert, the State dismissed
a charge of theft by unlawful taking. Ebert subsequently
filed a motion for return of the property seized from him and
originally alleged to be stolen. After conducting an
evidentiary hearing, the district court ordered some items of
property returned to Ebert and others were returned to his
former employer. Ebert appeals. Because the burden of proof
was not properly applied, we reverse, and remand for further
December 2016, an information was filed in the district court
for Stanton County charging Ebert with one count of theft by
unlawful taking. The information alleged Ebert had, between
the dates of June 6 and November 1, 2016, exercised control
over movable property belonging to "3D Metal - Nucor
Steel" (3D Metal) with the intent to deprive
"him/her thereof." The information listed the
movable property as:
(2) Husky plastic sheeting rolls, (2) DeWalt tool cases each
containing tools, (1) Red Milwaukee case with Milwaukee
sawzall, (2) JVC tower speakers SX-F7TH, (1) Blue nylon
braided rope, (1) Coral blue 1 gallon jug of wiper fluid,
(12) Foam nitrile gloves, (2) Milwaukee saw blades, (4) Abus
metal locks, (4) AC 100 gold adhesive [303 Neb. 396] tubes,
(1) Stanley vice grip, (4) Pair of white neoprene gloves, (1)
Miller brand harness, [and] Miscellaneous assorted tools with
(1) tape measure[.]
separate case in Stanton County, Ebert was charged with one
count of first degree sexual assault and one count of first
degree false imprisonment. Pursuant to a plea agreement,
Ebert entered guilty pleas to both of those counts and, in
exchange, the State dismissed in its entirety the case
charging theft by unlawful taking.
months after Ebert's theft case was dismissed, he moved
for the return of "his property seized from his vehicle
by the Stanton County Sheriff's office." At the
evidentiary hearing on this motion, an exhibit identifying
the seized property was offered and received. The exhibit
identified the same items of property that had been listed in
the dismissed information charging Ebert with theft by
testified that he was employed by 3D Metal from June 6 to
November 1, 2016, as a laborer and welder. Ebert conceded
that many of the items seized from him actually belonged to
3D Metal. Ultimately, he requested the return of only five
items: (1) the nylon harness, (2) a square and level, (3) one
of the DeWalt tool cases and included tools, (4) the
Milwaukee sawzall, and (5) the JVC speakers. With respect to
these five items, we summarize the evidence adduced.
testified the speakers were gifted to him by his work
supervisor, and he claimed to have purchased the other four
items. He did not offer receipts for any of the items, but he
testified as to the circumstances surrounding their purchase.
According to Ebert, he purchased the nylon harness from 3D
Metal by having $25 deducted from his weekly paychecks. He
purchased the square and level at a department store in the
summer of 2016, and he purchased the DeWalt tool case at a
yard sale for $125 the week before his arrest. Ebert
testified he knew one of the two DeWalt tool cases seized
belonged to him, because the other tool case had a serial
number written on it by 3D Metal. Ebert testified he
purchased the Milwaukee sawzall from a store in Norfolk,
Nebraska, in [303 Neb. 397] early June 2016, because he
needed it to do a porch repair job for a client.
cross-examination, Ebert testified he needed tools to do his
job at 3D Metal because he mostly did "demolition and
refabrication." He testified that he used a truck owned
by 3D Metal while he was employed, but the truck stayed on 3D
Metal's premises during the evenings. He stated the
DeWalt tool case owned by 3D Metal stayed on the truck. Ebert
admitted that 3D Metal owned and used Milwaukee sawzalls just
like the one seized from him. He stated that 3D Metal kept
its sawzalls locked in a cabinet inside the shop and that he
did not have a key to the cabinet. He ...