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STATE v. McGUIRE

Cite as 301 Neb. 895

State of Nebraska, appellee, v. 

Charles M. McGuire, Appellant.

___ N.W.2d ___

Filed December 14, 2018. No. S-17-1181.

1. Jurisdiction: Appeal and Error. A jurisdictional question which does 

not involve a factual dispute is determined by an appellate court as a 

matter of law.

2. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

3. Search and Seizure: Appeal and Error. The denial of a motion for 

return of seized property is reviewed for an abuse of discretion.

4. Sentences. An abuse of discretion takes place when the sentencing 

court’s reasons or rulings are clearly untenable and unfairly deprive a 

litigant of a substantial right and a just result.

5. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction over the matter before it.

6. ____: ____. When a trial court lacks jurisdiction to adjudicate the merits 

of a claim, issue, or question, an appellate court also lacks the power 

to determine the merits of the claim, issue, or question presented to the 

lower court.

7. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

8. Statutes: Legislature: Intent. Components of a series or collection of 

statutes pertaining to a certain subject matter are in pari materia and 

should be conjunctively considered and construed to determine the 

intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.

9. ____: ____: ____. In order for a court to inquire into a statute’s legislative history, that statute in question must be open to construction, and a 

Nebraska Supreme Court Online Library

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

01/25/2019 09:14 AM CST
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statute is open to construction when its terms require interpretation or 

may reasonably be considered ambiguous.

10. 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.

11. 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.

Appeal from the District Court for Washington County: John

E. Samson, Judge. Affirmed in part, and in part reversed and 

remanded for further proceedings.

Michael J. Tasset, of Johnson & Mock, 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, Funke, 

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

Pursuant to a search warrant, law enforcement officers 

seized personal property from a residence occupied by several 

persons, including Charles M. McGuire. He eventually pled 

no contest to attempted possession of a controlled substance 

and later moved for return of some seized property. The district court partially denied his motion, and he appeals. The 

State disputes the district court’s jurisdiction, upon which our 

jurisdiction depends. We conclude Neb. Rev. Stat. § 29-818 

(Reissue 2016) granted exclusive jurisdiction to the district 

court to determine the property’s disposition. Because the 

court’s partial denial of McGuire’s motion was apparently premised on an understandable, yet incorrect, reading of our case 
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law, we reverse that part of the court’s order and remand the 

cause for further proceedings consistent with this opinion.

BACKGROUND

Prosecution and Motion for Return

In August 2015, law enforcement officers, including a 

criminal investigator with the Washington County sheriff’s 

office, executed a warrant search of McGuire’s home. They 

seized several items of personal property, including firearms 

and ammunition. The State charged McGuire with numerous 

offenses in the district court for Washington County, but the 

charges were ultimately reduced to a single count of attempted 

possession of a controlled substance, a Class I misdemeanor. 

The third amended information, to which McGuire pled no 

contest, did not include any allegation of an intent to manufacture, distribute, deliver, or dispense the substance—in effect, it 

alleged only attempted simple possession.

After sentencing, McGuire filed a motion in the district 

court for return of seized property. Claiming that Neb. Rev. 

Stat. § 29-820 (Reissue 2016) divested the district court of 

jurisdiction over disposition of the disputed items, the State 

moved to dismiss the motion. The district court conducted a 

hearing on both motions.

Hearing on Motion for Return

Regarding the State’s motion to dismiss, it argued that 

§ 29-820 divested the court of jurisdiction to determine the disposition of firearms and ammunition used in the commission 

of crime. The State contended the firearms and ammunition 

should be destroyed by law enforcement because one of the 

weapons was allegedly used in a crime.

Regarding McGuire’s motion for return of personal property, McGuire first testified that the allegations of his motion 

(which stated that he was the lawful and rightful owner of the 

property and that the property had not been used in the commission of a crime, was not contraband, and was no longer 
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required as evidence) were true. McGuire’s counsel then stated 

that he had “nothing else.” The State did not cross-examine 

McGuire.

In response to McGuire’s testimony, the State adduced 

testimonial and documentary evidence. Notably, the State did 

not present any evidence regarding the other occupants of 

the residence. Other than one name appearing on the inventory from the search, the record is entirely silent regarding 

the identities of those persons and their interests, if any, in 

the seized property. Rather, the State’s evidence seemed to be 

offered in support of three arguments regarding disposition of 

the property.

First, the criminal investigator testified that in his opinion, the firearms seized were used in the commission of drug 

manufacturing and selling. He specified, “we believed that 

they were manufacturing enhanced marijuana.” The investigator explained that in his training and experience, drug dealers 

use firearms to protect “their assets for illegal activities.” But 

when asked whether he had any reason to believe McGuire was 

manufacturing any sort of controlled substance, he responded, 

“No more than that I don’t know that he wasn’t.” He also 

replied “[c]orrect” when asked, “You think [McGuire] might 

have been [manufacturing a controlled substance], but you 

don’t know?”

Second, the State contended that McGuire was not the 

owner of three of the firearms, because his name was not the 

listed owner on the Bureau of Alcohol, Tobacco, Firearms 

and Explosives “eTrace” background checks. The investigator 

acknowledged that there was nothing about the guns making 

them illegal per se. He also admitted that subsequent privateparty sales from the bureau’s registered owner would not show 

up on an eTrace search. But there was no evidence connecting 

any of the three persons named in the eTrace evidence to the 

residence from which the items were seized and no indication 

that the State had made any effort to notify those persons of 

the property it was holding.
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Third, during the State’s case, McGuire adduced evidence 

regarding the locations within the house and garage where the 

items of property were located when they were seized. Exhibit 

15 was an inventory made at the time of execution of the 

search warrant. It cataloged every item seized and where in the 

house it was found. Eight items were seized from the east bedroom occupied by McGuire. Four items were taken from the 

northwest bedroom. Four other items were taken from, respectively, the dining room, the kitchen, the basement stairway, and 

the attached garage. The investigator testified that McGuire 

lived with four or five roommates and that property was seized 

in common areas used by all roommates. But nothing else was 

presented regarding any of these roommates.

District Court’s Order

After taking both motions under advisement, the court 

disposed of them in a single order. Without elaboration, the 

court denied the State’s motion to dismiss. The court partially 

granted McGuire’s motion for return of personal property. 

The court acknowledged a presumption that McGuire had an 

ownership interest in the property, but found McGuire did not 

have exclusive possession of the property seized outside his 

bedroom. Of the 16 items seized, the court ordered the return 

of the 8 items seized from the east bedroom. In effect, the 

order denied return of the other items, which were seized from 

the other locations.

McGuire filed a timely appeal, which we moved to our 

docket.1

ASSIGNMENT OF ERROR

McGuire assigns that the district court erred by overruling in part McGuire’s motion for return of personal property. 

On appeal, the State raises the same jurisdictional argument 

asserted below.

1 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
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STANDARD OF REVIEW

[1,2] A jurisdictional question which does not involve a 

factual dispute is determined by an appellate court as a matter 

of law.2 Statutory interpretation presents a question of law.3 An 

appellate court independently reviews questions of law decided 

by a lower court.4

[3,4] The denial of a motion for return of seized property 

is reviewed for an abuse of discretion.5 An abuse of discretion 

takes place when the sentencing court’s reasons or rulings are 

clearly untenable and unfairly deprive a litigant of a substantial right and a just result.6

ANALYSIS

Jurisdiction

[5] We must first consider the State’s jurisdictional argument. Before reaching the legal issues presented for review, 

it is the duty of an appellate court to determine whether it has 

jurisdiction over the matter before it.7 So we begin by examining our jurisdiction.

[6] The State contends that the district court lacked jurisdiction of McGuire’s motion and that consequently, this court 

also lacks jurisdiction. When a trial court lacks jurisdiction to 

adjudicate the merits of a claim, issue, or question, an appellate court also lacks the power to determine the merits of the 

claim, issue, or question presented to the lower court.8 Thus, 

2 Priesner v. Starry, 300 Neb. 81, 912 N.W.2d 249 (2018). 

3 In re Guardianship of Luis J., 300 Neb. 659, 915 N.W.2d 589 (2018).

4 See Synergy4 Enters. v. Pinnacle Bank, 290 Neb. 241, 859 N.W.2d 552 

(2015).

5 State v. Buttercase, 296 Neb. 304, 893 N.W.2d 430 (2017).

6 Id.

7 Guardian Tax Partners v. Skrupa Invest. Co., 295 Neb. 639, 889 N.W.2d 

825 (2017).

8 In re Guardianship of S.T., 300 Neb. 72, 912 N.W.2d 262 (2018).
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the existence of our jurisdiction depends upon whether the district court had jurisdiction.

The State argues that § 29-820 divested the district court 

of jurisdiction to dispose of firearms seized or held and that 

it did so by vesting sole authority over disposition of these 

items in the law enforcement agency holding them. McGuire 

responds that § 29-820 must be read together with § 29-818 

and that doing so defeats the State’s argument. We agree with 

McGuire’s statutory argument.

[7,8] Two basic principles of statutory interpretation control. First, statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which 

are plain, direct, and unambiguous.9 Second, components of a 

series or collection of statutes pertaining to a certain subject 

matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, 

so that different provisions are consistent, harmonious, and 

sensible.10

[9] Ordinarily, we look no further than the text. In order for 

a court to inquire into a statute’s legislative history, that statute 

in question must be open to construction, and a statute is open 

to construction when its terms require interpretation or may 

reasonably be considered ambiguous.11 So we begin with the 

text of the two statutes.

Section 29-818 establishes the basic framework for dealing 

with seized property. It states:

Except for animals as provided in section 28-1012.01, 

property seized under a search warrant or validly seized 

without a warrant shall be safely kept by the officer seizing the same, unless otherwise directed by the judge or 

magistrate, and shall be so kept so long as necessary for 

9 Synergy4 Enters., supra note 4.

10 Wisner v. Vandelay Investments, 300 Neb. 825, 916 N.W.2d 698 (2018).

11 Cookson v. Ramge, 299 Neb. 128, 907 N.W.2d 296 (2018).
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the purpose of being produced as evidence in any trial. 

Property seized may not be taken from the officer having 

it in custody by replevin or other writ so long as it is or 

may be required as evidence in any trial, nor may it be 

so taken in any event where a complaint has been filed in 

connection with which the property was or may be used as 

evidence, and the court in which such complaint was filed 

shall have exclusive jurisdiction for disposition of the 

property or funds and to determine rights therein, including questions respecting the title, possession, control, and 

disposition thereof. This section shall not preempt, and 

shall not be construed to preempt, any ordinance of a city 

of the metropolitan or primary class.12

Several important principles follow from this statutory 

framework, including a jurisdictional precept. First, an officer 

seizing property pursuant to a warrant must safely keep the 

seized property, unless otherwise directed by a judge or magistrate. Second, the seized property is to be kept so long as 

necessary to make it available as evidence in any trial. Third, 

so long as the seized property may be required as evidence in 

a trial, it may not be taken from the officer by means of a writ 

of replevin. Fourth, where a complaint has been filed asserting 

a charge where the property was or may be used as evidence, 

a writ of replevin would not lie to take the property, even if 

the property was no longer required in evidence. And most 

important to the case before us, a court where a complaint 

has been filed and where seized property was or may be used 

as evidence has “exclusive jurisdiction for disposition of the 

property or funds and to determine rights therein, including 

questions respecting the title, possession, control, and disposition thereof.”13

It is only in the light of these principles that § 29-820 

authorizes law enforcement to dispose of certain property 

12 § 29-818.

13 Id.
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seized or held and no longer required as evidence. Two subsections are pertinent to this appeal—subsections (1)(e) and 

(1)(f). Section 29-820(1)(e) states, “[f]irearms, ammunition, 

explosives, bombs, and like devices which have been used 

in the commission of crime shall be destroyed[.]” Section 

29-820(1)(f) allows law enforcement to return firearms to 

owners that “(i) have not been used in the commission of 

crime, (ii) have not been defaced or altered in any manner 

that violates any state or federal law, (iii) may have a lawful 

use and be lawfully possessed, and (iv) [were not seized in a 

domestic assault].”

The State reads the introductory language of § 29-820 to 

confer exclusive authority upon the law enforcement agency 

over the items covered by subsections (1)(e) and (1)(f). It relies 

upon language stating that “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.”14

But that language is conditioned. Section 29-820(1) begins 

this authorization stating, “Unless other disposition is specifically provided by law . . . .” Reading §§ 29-818 and 29-820 

together, § 29-820 applies only where the exclusive jurisdiction 

of a court under § 29-818 has not been invoked. The State does 

not contend that no charge was brought against McGuire—

undeniably, the State filed charges against McGuire in the 

district court.

[10] As we have said before, the court in which a criminal 

charge was filed has exclusive jurisdiction to determine the 

rights to seized property, and the property’s disposition.15 In the 

situation before us, the State filed charges in the district court 

against McGuire relating to the seized property. Therefore, 

that court had the exclusive jurisdiction to determine the rights 

to and disposition of the seized property. Because it did not 

14 § 29-820(1).

15 State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007).
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lack jurisdiction, neither do we. This disposes of the State’s 

jurisdictional argument.

McGuire also argues that the State’s interpretation would 

“endorse[] an obviously unconstitutional system whereby the 

citizens it represents may be summarily deprived of their 

valuable property by unreviewable executive action.”16 Even 

when a law is constitutionally suspect, a court will attempt 

to interpret it in a manner such that it is consistent with 

the constitution.17 Here, we need not resort to this rule of 

construction.

Although we do not rely upon the legislative history, we 

summarize it for interested readers. The Nebraska Legislature 

added §§ 29-818 and 29-820 in 1963,18 in reaction to the 

then-recent U.S. Supreme Court decision in Mapp v. Ohio.

19

When first enacted, these sections empowered only a court to 

dispose of seized or held property.20 The Legislature amended 

these statutes several times, but the most significant amendments occurred in 1986 and 2012 to § 29-820. In the 1986 

amendment to § 29-820, the Legislature supplemented the 

courts’ authority by authorizing law enforcement agencies 

to dispose of stolen property, unlawful gambling money, 

unclaimed property, contraband, firearms, ammunition, explosives, and like devices used in the commission of crime.21

The intent of the amendment was to “allow the court, if 

they wish to give a court order, but at the same time . . . 

allow [law enforcement] to use a common sense approach 

16 Reply brief for appellant at 1.

17 Schumacher v. Johanns, 272 Neb. 346, 722 N.W.2d 37 (2006).

18 1963 Neb. Laws, ch. 161, §§ 7 and 9, pp. 573-74.

19 Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). See 

Committee Statement, L.B. 276, Committee on Judiciary, 73d Sess. Leg. 

(Feb. 28, 1963).

20 See §§ 29-818 and 29-820 (Reissue 1964).

21 1986 Neb. Laws., L.B. 543.
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along with the bill to give people’s property back to them as 

quickly as possible.”22 In the 2012 amendment to § 29-820, 

the Legislature enhanced this authority to return firearms 

that were voluntarily surrendered, safekept, or not used in 

the commission of crime.23 The introducer explained, “When 

criminal charges are filed, the court decides what happens to 

the guns. But if no charges are filed or even considered, there 

is inconsistency in how law enforcement agencies throughout 

the state apply [§ 29-820].”24 During the floor debate, the 

introducer reiterated this purpose.25 But, as we have said, the 

plain language is clear. So, we turn to McGuire’s quarrel with 

the court’s order.

Return of Seized Property

McGuire argues that the district court erred in partially 

denying his motion for return of property. Specifically, he 

contends that where no evidence was presented by the State to 

rebut his presumption of ownership, the court erred in finding 

he did not have exclusive possession of all the property.

We note that on appeal, the State has apparently acquiesced 

in the district court’s implicit rejection of two arguments 

below—that the seized property was used in the commission 

of a crime and that the eTrace evidence established superior 

title in another person. In this court, the State does not rely 

upon either of those arguments. Rather, the State argues only 

that because the residence was occupied by several people 

and some items were found outside of McGuire’s bedroom, 

he “was not in exclusive possession of the [unsuccessfully 

22 Judiciary Committee Hearing, L.B. 543, 89th Leg., 2d Sess. 31 (Feb. 4, 

1985).

23 Floor Debate, L.B. 807, 102d Leg., 2d Sess. 56-57 (Apr. 5, 2012).

24 Statement of Intent, L.B. 538, Committee on Judiciary, 102d Leg. 1st Sess. 

(Feb. 16, 2011). See, also, Judiciary Committee Hearing, L.B. 538, 102d 

Leg., 1st Sess. 1-2 (Feb. 16, 2011).

25 Floor Debate, L.B. 807, supra note 23.
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sought] items and thus was not entitled to a presumption 

of ownership.”26

Nor does the State argue on appeal that any of the items 

sought were contraband, subject to forfeiture, or of any continuing interest to the State. Accordingly, we focus only on 

the district court’s reasoning, which the State supports on 

appeal—that because some of the items were taken from locations where other residents had access to them, McGuire was 

not entitled to their return.

Both parties argue principles deriving from our seminal 

decision in State v. Agee.

27 We begin by quoting from Agee at 

some length:

[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.

. . . 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 

26 Brief for appellee at 12.

27 Agee, supra note 15.
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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 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.28

Obviously, in all but one instance, we spoke of a party “in 

possession” or one “from whom the property was taken,” or 

similar wording.29 In only one instance did we refer to “exclusive possession.”30 Here, we have evidence that several persons 

occupied this residence. We also have evidence that McGuire 

occupied the east bedroom. From this evidence, the district 

court could reasonably infer that other persons shared access 

to the locations outside the east bedroom. And the court apparently reasoned that because of that inference, McGuire’s possession was not “exclusive.”

Thus, the question becomes whether this inference was 

sufficient to prevent the presumption of ownership from 

arising or, if the presumption arose, whether the inference 

was sufficient to rebut the presumption. Neither party cites 

any particularly helpful authority. And surprisingly, we have 

found very little authority on this question. Of course, we 

recognize that the State reads the decision of the Nebraska 

Court of Appeals in State v. Dubray 31 to require a showing 

of exclusive possession before a presumption of ownership 

arises regarding seized property. But that court relied upon 

our language in Agee. And as our quotation from the Agee

opinion shows, we did not speak with perfect clarity. Indeed, 

28 Id. at 449-51, 741 N.W.2d at 166-67 (emphasis supplied).

29 See id. at 450-51, 741 N.W.2d at 166.

30 See id. at 450, 741 N.W.2d at 166.

31 State v. Dubray, 24 Neb. App. 67, 883 N.W.2d 399 (2016).
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even the cases we cited in Agee for that particular sentence 

provide little help.

None of the cases we cited for the “exclusive possession” 

principle arose in the context of returning seized property. 

The principal case cited was In re Estate of Severns.

32 But 

that case involved a grandfather’s clock which had been in the 

decedent’s sole possession for nearly 28 years. This provides 

no help. In re Estate of Severns, in turn, cited two decisions. 

In one ancient decision, two parties disputed possession of 

a red cow, the plaintiff claiming by purchase from a married woman and the defendant pursuant to a chattel mortgage 

from the woman’s husband.33 Several witnesses testified that 

when the mortgage was given, the cow belonged to the married woman. There was no evidence that the husband ever had 

title. Consequently, we affirmed a judgment for the plaintiff. 

The other decision underlying In re Estate of Severns involved 

replevin of an automobile.34 A creditor under a conditional sales 

contract sued to recover the automobile from the borrower/

buyer. Later, the buyer obtained a replacement motor from others, who retained possession because they had not been paid. 

This court determined that the motor suppliers were not in 

exclusive possession and had constructive notice of the creditor’s right to possession. Consequently, their claim to possession failed. Neither of the cases cited in In re Estate of Severns

assists us here.

More helpful is another case we cited in Agee, where a 

defendant convicted of burglary but acquitted of larceny allegedly committed during the burglary sought return of jewelry 

seized from him when he was arrested.35 There, the government had satisfied itself that the jewelry was not taken from the 

burglary or a nearby similar event involving the defendant, but 

32 In re Estate of Severns, 217 Neb. 803, 352 N.W.2d 865 (1984).

33 Booknau v. Clark, 58 Neb. 610, 79 N.W. 159 (1899).

34 Allied Inv. Co. v. Shaneyfelt, 161 Neb. 840, 74 N.W.2d 723 (1956).

35 Government of Virgin Islands v. Edwards, 903 F.2d 267 (3d Cir. 1990).
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it still resisted returning the jewelry. The court stated that the 

government had had “ample opportunity to locate any persons 

who contend that they are the rightful owners” and that the 

government was “still unable to posit anyone, other than [the 

defendant], to whom the property belonged.”36 The appellate 

court reversed the order denying the motion and instructed the 

trial court to order the government to return the property. At 

the time of arrest, the defendant had “tried to give the jewelry 

to his girlfriend,”37 but the appellate court did not consider that 

significant. Thus, the girlfriend’s potential claim to the property did not justify the government in retaining it. Although 

the defendant’s possession may not have been exclusive of his 

girlfriend, he was entitled to return of the property.

From the cases addressing return of seized property, a common theme emerges—when the government’s interests have 

ended, it must return the property. The “whole thrust” is that 

“when property is seized from a person, the court must return 

it to that person.”38 A court is “obligated to restore the status 

quo ante.”39 Lawful seizure of property may affect the timing 

of return, but never the owner’s right to eventual return.40 The 

government may not keep seized property purely for the sake 

of keeping it or because it is hopeful it may be relevant to 

some future investigation.41 “Unless there are serious reasons 

(presented by the government or adverse claimants) to doubt 

a person’s right to the property seized from him, he need not 

come forward with additional evidence of ownership” and “the 

court must return [the property] to that person when it is no 

longer needed by the government.”42

36 Id. at 274.

37 Id. at 272.

38 United States v. Wright, 610 F.2d 930, 939 (D.C. Cir. 1979).

39 Id.

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

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

42 United States v. Wright, supra note 36, 610 F.2d at 939.
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Recalling our extended quotation above from our Agee

opinion, we believe that inserting the property law principle 

regarding “exclusive possession” led to the confusion here.43

McGuire’s initial showing certainly made no reference to 

any roommates. So, clearly, at that point, there was nothing 

from which the court could draw any inference adverse to 

McGuire.

[11] Thus, the burden shifted to the State. “‘The burden on 

the government is heavy because there is a presumption that 

the person from whom the property was taken has a right to its 

return.’”44 As we ultimately said in Agee, 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.45

The State does not argue that McGuire was not a person from 

whom the property was seized.

If the State had a serious concern that one or more of 

McGuire’s roommates had superior title to the property, it 

failed to make any such concern apparent in our record. It 

seems inconceivable that the State’s investigation in connection 

with execution of the search warrant did not uncover the names 

of McGuire’s roommates. But the State presented no evidence 

of their names or of any claims of ownership on their behalf. 

The record contains no indication that the State made any 

effort to notify any of them of McGuire’s motion. The State’s 

concerns were directed elsewhere.

But most important, the burden on the State was not merely 

to raise the possibility of other claimants; it was required to 

establish that another party had superior title to the property. It 

failed to meet that burden.

43 State v. Agee, supra note 15, 274 Neb. at 450, 741 N.W.2d at 166.

44 DeLoge v. State, supra note 41, 156 P.3d at 1011 (quoting U.S. v. Albinson, 

356 F.3d 278 (3d Cir. 2004)).

45 State v. Agee, supra note 15.
- 911 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. McGUIRE

Cite as 301 Neb. 895

The confusion below may have flowed from an incorrect, 

but understandable, reading of Agee. To the extent that the 

court’s ruling was based upon an incorrect understanding of 

the law, it is not possible for us to review it for an abuse of 

discretion.46 Therefore, we have crafted a disposition to enable 

the parties to conclude the proceeding utilizing a correct 

legal framework. Our aim is to return the proceedings to the 

point at which the incorrect understanding introduced error. 

McGuire made a sufficient showing to establish a presumption of ownership. The State failed to establish that the seized 

property is contraband or subject to forfeiture, or that the 

State has some other continuing interest in the property. Thus, 

on remand, the issue will be limited to any claim of superior 

title which may be asserted by the State on behalf of any of 

McGuire’s roommates or by any other third-party claimant 

adverse to McGuire.

CONCLUSION

The State filed charges in the district court against McGuire 

relating to the seized property. Therefore, that court had the 

exclusive jurisdiction to determine the rights to and disposition 

of the seized property. Because the district court had jurisdiction of McGuire’s motion, we have jurisdiction of this appeal.

The portion of the district court’s order requiring the State to 

return items to McGuire is affirmed. The portion of the order 

denying return of other items is reversed, and the cause is 

remanded for further proceedings consistent with this opinion. 

In carrying out our mandate, the district court may permit the 

record to be opened for additional evidence on the limited issue 

set forth above. If additional evidence is allowed, those claiming superior title adverse to McGuire shall have the burden 

of first going forward and McGuire shall be entitled to offer 

evidence in rebuttal.

 Affirmed in part, and in part reversed and

remanded for further proceedings.

46 See State v. Myers, ante p. 756, ___ N.W.2d ___ (2018).