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STATE v. EBERT

Cite as 303 Neb. 394

State of Nebraska, appellee, v.

Arthur D. Ebert, appell

___ N.W.2d ___

Filed June 21, 2019. No. S-18-752.

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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/19/2019 01:06 AM CDT
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STATE v. EBERT

Cite as 303 Neb. 394

Appeal from the District Court for Stanton County: Mar

A. Johnson, Judge. Reversed and remanded for furth

proceedings.

Bradley A. Ewalt, of Ewalt Law Office, P.C., L.L.O., for 

appellant.

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, 

Papik, JJ

Stacy, 

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.

FACTS

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) AC100+ gold adhesive 
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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 
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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 testified that although 

he had used a different brand of sawzall while employed by 

3D Metal, he never used a Milwaukee sawzall during that 

employment.

The State then called Joe Ledford, an onsite supervisor for 

3D Metal. He confirmed that 3D Metal provided work trucks 

to employees and that the trucks were used only during the 

day and returned to 3D Metal in the evening. Ledford testified 

that some tools would remain on the work truck and that others would be locked in a shop overnight. Generally, the trucks 

would contain a DeWalt toolkit like the two seized from Ebert. 

And Ledford testified a sawzall was a common tool used on 

the jobs Ebert did.

Ledford agreed that Ebert purchased a harness from 3D 

Metal when he began working, but testified that at some point, 

Ebert reported it had been stolen. Instead of requiring Ebert 

to buy a new harness, 3D Metal loaned him a spare. Ledford 

stated that all of the harnesses had serial numbers to identify 

them, but that he did not bring the paperwork necessary to 

identify whether the harness seized from Ebert was the one 

purchased by Ebert or the one loaned to him. Ledford did testify that the harness loaned to Ebert had not been returned after 

his employment was terminated.

Ledford explained that 3D Metal’s general practice was 

to mark and number its tools with an inscriber, including its 

DeWalt toolkits. He stated, however, that during the time of 
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Ebert’s employment, 3D Metal was very busy and was purchasing new tools often, and that not all of the new tools were 

properly marked. Ledford testified that after Ebert’s employment ended, he noticed tools were missing from some of his 

trucks. Ledford thought the DeWalt toolkit and the Milwaukee 

sawzall belonged to 3D Metal, “[b]ecause that’s the kind of 

tools that I lost about [the] time [Ebert’s employment ended].” 

He admitted he did not “know specifically” that those items 

belonged to 3D Metal, and he admitted that both were common items that anyone could buy. He also admitted that he lost 

“a lot” of tools during the time period of Ebert’s employment, 

because 3D Metal was busy and some of its tools got intermingled with tools belonging to other companies.

At the conclusion of the hearing, the State argued “this is 

. . . Ebert’s motion to get the property back. I didn’t see any 

written proof of anything that he ever bought anything.” On 

the record, the court found that Ebert “has failed to prove that 

the harness is his.” It found the square and level should be 

returned to Ebert, because “there’s been no indication that that 

was owned by anyone other than” him. It found that Ebert had 

“failed to sustain his burden of proof as to the DeWalt tool 

case” and had “failed to meet [his] burden of proof” for the 

return of the sawzall. The court found the speakers should be 

returned to Ebert, because “there’s no one to dispute” his claim 

of ownership. In all, the court found that Ebert was entitled to 

the return of the speakers and the square and level; all other 

items were ordered returned to 3D Metal. The court entered a 

written order so disposing of the property on July 2, 2018.

Ebert filed this timely appeal, asserting that the district court 

abused its discretion in not returning all five items of property 

to him. We moved the case to our docket on our own motion.

STANDARD OF REVIEW

[1] The denial of a motion for return of seized property is 

reviewed for an abuse of discretion.1

1 State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).
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ANALYSIS

Ebert’s brief challenges the factual findings made by the 

trial court, but after reviewing the record, we find a more fundamental error occurred below. As explained below, the trial 

court incorrectly placed the burden of proof on Ebert. We begin 

our analysis with an overview of the governing statute, after 

which we discuss our cases applying that statute.

§ 29-818 Applie

Neb. Rev. Stat. § 29-818 (Reissue 2016) provides in relevant part:

[P]roperty seized under a search warrant . . . shall be 

safely kept . . . and shall be so kept so long as necessary for the purpose of being produced as evidence in 

any trial. . . . [T]he court in which [a complaint has been 

filed in connection to the property] shall have exclusive 

jurisdiction for disposition of the property . . . and to 

determine rights therein, including questions respecting 

the title, possession, control, and disposition thereof.

For the sake of completeness, we note that another statute, 

Neb. Rev. Stat. § 29-820 (Reissue 2016), also relates to the disposition of seized property. That statute provides that “[u]nless 

other disposition is specifically provided by law, when property 

seized or held is no longer required as evidence, it shall be disposed of by the law enforcement agency on such showing as 

the law enforcement agency may deem adequate . . . .”

[2,3] We recently addressed the interplay between §§ 29-818 

and 29-820 in State v. McGuire.

2 McGuire held that § 29-820 

“applies only where the exclusive jurisdiction of a court under 

§ 29-818 has not been invoked.”3 And McGuire reiterated that 

“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 Because a criminal charge was 

2 Id.

3 Id. at 903, 921 N.W.2d at 84.

4 Id., citing State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007).
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filed against Ebert, § 29-818 is the statute governing disposition here.

Burden of Proof 

§ 29-818 Was on Sta

[4-7] Case law applying and interpreting § 29-818 provides 

guidance on how proceedings related to a motion for the 

return of seized property are to be conducted. In McGuire, we 

explained:

“[T]he general rule is well established that 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. . . . 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. . 

. . Thus, 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.”5

Regarding the burden of proof in such a proceeding, we 

explained:

“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. 

It is long established that a presumption of ownership is 

created by exclusive possession of personal property and 

that evidence must be offered to overcome that presumption. One in possession of property has the right to keep it 

against all but those with better title, and the ‘mere fact of 

seizure’ does not require that ‘entitlement be established 

anew.’ Seizure of property from someone is prima facie 

5 Id. at 906, 921 N.W.2d at 85-86, quoting Agee, supra note 4.
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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.”6

Based on the foregoing, once the theft by unlawful taking 

charge against Ebert was dismissed and the State no longer 

needed the evidence, Ebert was “presumptively entitled to the 

return of property seized from him unless the State presented 

evidence justifying its refusal to do so.”7

Here, Ebert waived the presumption of possession with 

respect to all but five of the items seized by conceding on the 

record that such items belonged to 3D Metal. But Ebert sought 

the return of (1) the nylon harness, (2) the square and level, 

(3) one of the DeWalt tool cases and included tools, (4) the 

Milwaukee sawzall, and (5) the JVC speakers, and the State’s 

only reason for opposing return of these items was that they 

too belonged to 3D Metal. And although it was the State’s burden to prove superior title to these items, the record indicates 

that both the State and the trial court misapplied that burden of 

proof to Ebert.

To the extent the trial court’s ruling was based on a misapplication of the law regarding the burden of proof, we are 

not able to review it for an abuse of discretion.8 We therefore 

reverse, and remand for further proceedings applying the correct legal framework. Because we are remanding the matter, we 

take this opportunity to address the quantum of proof the State 

must meet to overcome Ebert’s presumption of ownership.

Preponderanc

Evidence Sta

We have not directly addressed what quantum of proof the 

State must meet to rebut the presumption of ownership and 

6 Id. at 906-07, 921 N.W.2d at 86 (emphasis in original), quoting Agee, 

supra note 4.

7 Agee, supra note 4, 274 Neb. at 453, 741 N.W.2d at 168.

8 See McGuire, supra note 1.
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show another has superior title. In State v. Agee,

9 we held that 

when criminal proceedings have terminated, the person from 

whom the 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.” Agee

also said a “presumption of ownership is created by exclusive 

possession of personal property” so that evidence must be 

offered to overcome that presumption.10 McGuire used similar 

“presumption” language, as noted above. But no case has yet 

described the quantum of proof necessary to overcome or rebut 

the presumption.

The Nebraska Evidence Rules provide that “[i]n all cases 

not otherwise provided for by statute or by these rules a presumption imposes on the party against whom it is directed the 

burden of proving that the nonexistence of the presumed fact 

is more probable than its existence.”11 More probable than not 

is generally a preponderance of the evidence standard,12 commonly used in civil proceedings.13

This description of the quantum of proof necessary to overcome the presumption of ownership is generally consistent 

with that articulated in the case law of other jurisdictions on 

which we have relied in our jurisprudence addressing motions 

for the return of seized property. In the case of State v. Card,

14

cited by Agee, the Washington Court of Appeals explained the 

State had the burden to prove a greater right of possession 

than the one from whom property was seized, and was thus 

required to prove “by a preponderance of the evidence that the 

property is stolen property.”15 Similarly, in the case of DeLoge 

9 Agee, supra note 4, 274 Neb. at 450, 741 N.W.2d at 166. 

10 Id.

11 Neb. Evid. R. 301, Neb. Rev. Stat. § 27-301 (Reissue 2016).

12 State v. Taylor, 286 Neb. 966, 840 N.W.2d 526 (2013).

13 See State v. Bain, 292 Neb. 398, 872 N.W.2d 777 (2016).

14 State v. Card, 48 Wash. App. 781, 741 P.2d 65 (1987).

15 Id. at 790, 741 P.2d at 71.
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v. State,

16 cited by this court in both Agee and McGuire, the 

Wyoming Supreme Court held that postconviction motions for 

the return of seized property are civil proceedings to which a 

preponderance of the evidence standard would apply.

[8] We have consistently said that the seizure of property 

from someone is prima facie evidence of that person’s right 

to possession of the property,17 and we now hold that the presumptive right to possession of seized property may be overcome when superior title in another is shown by a preponderance of the evidence.

CONCLUSION

It was error as a matter of law to require Ebert, as the 

proponent of a motion seeking the return of property seized 

from him, to prove ownership of the property seized. We thus 

reverse the order and remand this matter for further proceedings applying the correct burden of proof.

 Reversed and remanded

further proceeding

Freudenberg, J., not participatin

16 DeLoge v. State, 156 P.3d 1004 (Wyo. 2007).

17 See, McGuire, supra note 1; Agee, supra note 4.