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State v. Ebert

Supreme Court of Nebraska

June 21, 2019

State of Nebraska, appellee,
Arthur D. Ebert, appellant.

          1. Search and Seizure: Appeal and Error. The denial of a motion for return of seized property is reviewed for an abuse of discretion.

         2. 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.

         3. ____: ____: ____: ____. The court in which a criminal charge was filed has exclusive jurisdiction to determine the rights to seized property, and the property's disposition.

         4. 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.

         5. 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.

         6. Property: Presumptions: Evidence. A presumption of ownership is created by exclusive possession of personal property, and evidence must be offered to overcome that presumption.

         7. 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.

         8. ____: ____: ____: ____. The presumptive right to possession of seized property may be overcome when superior title in another is shown by a preponderance of the evidence.

          [303 Neb. 395] Appeal from the District Court for Stanton County: Mark A. Johnson, Judge. Reversed and remanded for further proceedings.

          Bradley A. Ewalt, of Ewalt Law Office, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

          STACY, J.

         As part 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 proceedings.


         In 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[.]

         In a 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.

         Several 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 unlawful taking.

         Ebert 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.

         Ebert 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.

         On 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 ...

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