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Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. ASSAD

Cite as 317 Neb. 20

State of Nebraska, appellee, v.

Jason Assad, appellant.

___ N.W.3d ___

Filed July 5, 2024. No. S-23-552.

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. 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.

3. Criminal Law: Search and Seizure: Property. Property seized in 

enforcing a criminal law is said to be “in custodia legis,” or in the custody of the court.

4. Police Officers and Sheriffs: Search and Seizure: Property. Property 

seized and held as evidence is to be safely kept by the officer seizing 

it unless otherwise directed by the court, and the officer is to exercise 

reasonable care and diligence for the safekeeping of the property.

5. Trial: Search and Seizure: Evidence. Property seized and held as 

evidence shall be kept so long as necessary for the purpose of being 

produced as evidence at trial.

6. Trial: Evidence. The State has an interest in keeping evidence so long 

as necessary for the purpose of being produced as evidence in any trial, 

including postconviction proceedings or a new trial following the grant 

of a motion for new trial.

Appeal from the District Court for Cheyenne County, Derek 

C. Weimer, Judge. Affirmed.

Brian J. Davis, of Davis Law, L.L.C., for appellant.

Michael T. Hilgers, Attorney General, and Nathan A. Liss 

for appellee.

Nebraska Supreme Court Online Library

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

07/10/2024 06:07 PM CDT
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Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. ASSAD

Cite as 317 Neb. 20

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

and Papik, JJ.

Heavican, C.J.

INTRODUCTION

Upon his arrest and subsequent investigation, property 

allegedly owned by the defendant, Jason Assad, was seized by 

law enforcement. Assad was convicted and sentenced; subsequent appellate and postconviction relief were denied. Assad 

then sought the return of the seized property. The district 

court granted his request as to most items but denied Assad’s 

request that a digital video recorder (DVR) be returned. Assad 

appeals. We affirm.

BACKGROUND

Assad and his wife operated a motel in Sidney, Nebraska, 

and lived on the premises. In connection with this enterprise, 

there was a security system with cameras located in the 

couple’s room. As relevant, that system recorded an incident 

between Assad and his wife. The security system was seized, 

and video of the incident was shown to the jury. Assad was 

then convicted of first degree false imprisonment, terroristic 

threats, use of a weapon to commit a felony, and possession 

of a weapon by a prohibited person. After being found to be 

a habitual criminal, Assad was sentenced to 35 to 60 years’ 

imprisonment.

Following a direct appeal and an unsuccessful postconviction action, Assad sought the return of property seized at the 

time of his arrest. Assad filed a motion seeking the return of 

22 separate items. Multiple hearings followed. As relevant, 

the court ruled on Assad’s request for the return of a “hard 

drive” for the DVR. The court stated:

As to the hard drive and its contents, the Court is not 

persuaded that the item itself is contraband. That said, 

the Court does determine that the State has an interest 

in preserving necessary evidence should the law change 

in the future which would give rise to further appeal 
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Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. ASSAD

Cite as 317 Neb. 20

or post-conviction relief efforts of [Assad]. To manage 

these competing interests, the Court orders that a complete copy of the contents of the hard drive for the DVR 

be made and provided to [Assad] through counsel.

At that hearing, the county attorney argued that it should not 

have to return the DVR because it might need the device in 

a later postconviction action by Assad. The county attorney 

did acknowledge that Assad had exhausted his appeal and 

postconviction options but suggested that new postconviction 

relief might become available during the time Assad was serving his sentences because Assad would remain in prison for a 

significant period of time.

Assad filed a motion to alter or amend the court’s order. 

A hearing on that motion was held on December 1, 2021. As 

relevant, the court ordered that “the State of Nebraska provide a complete copy of the contents of the hard drive and a 

machine/device capable of ‘playing’ or accessing such recording. Otherwise, the Court rejects [Assad’s] request to have the 

original Samsung DVR returned to him.” (Emphasis in original.) This same holding was reiterated in a third order dated 

June 19, 2023. Assad’s motion to alter or amend regarding the 

DVR, as relevant, was later denied. Assad appeals.

ASSIGNMENT OF ERROR

Assad assigns that the district court erred in denying his 

request to have the DVR returned to him.

STANDARD OF REVIEW

[1,2] The denial of a motion for return of seized property 

is reviewed for an abuse of discretion. 1 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. 2

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

2 Id.
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Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. ASSAD

Cite as 317 Neb. 20

ANALYSIS

The only issue raised by this appeal is whether the district 

court abused its discretion in denying Assad’s motion seeking 

return of the DVR. We find no abuse of discretion and affirm.

This situation is controlled by Neb. Rev. Stat. § 29-818 

(Reissue 2016):

[P]roperty 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 

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.

[3-5] Property seized in enforcing a criminal law is said 

to be “‘in custodia legis,’” or in the custody of the court. 3

As noted in § 29-818, property seized and held as evidence 

is to be safely kept by the officer seizing it unless otherwise 

directed by the court, and the officer is to exercise reasonable care and diligence for the safekeeping of the property. 4

Property shall be kept so long as necessary for the purpose of 

being produced as evidence at trial. 5 Section 29-818 further 

provides that the court in which a criminal charge was filed 

3 State v. Agee, 274 Neb. 445, 448, 741 N.W.2d 161, 165 (2007).

4 Id.

5 Id.
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Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. ASSAD

Cite as 317 Neb. 20

has exclusive jurisdiction to determine the rights to seized 

property, and the property’s disposition. 6 The proper procedure 

to obtain the return of seized property is to apply to the court 

for its return. 7

Here, the State contended, and the district court agreed, 

that the State had a continuing interest in the DVR because 

it was possible that the law could change “in the future” and 

“give rise to further appeal or post-conviction relief efforts 

of [Assad].”

[6] We have held that the State has an interest in keeping 

evidence “‘so long as necessary for the purpose of being produced as evidence in any trial.’” 8 Indeed, so long as certain 

circumstances are met, a new trial can be sought at any time 

after a conviction. 9 We have included postconviction proceedings within the scope of the phrase “any trial.” 10

Our review of this matter is limited to the question of 

whether the district court abused its discretion in ruling that 

the State has an interest in retaining the DVR and its original 

contents. We decline to find any abuse of discretion. While we 

recognize that such future actions might be unlikely, it is not 

impossible that a defendant in Assad’s position might bring a 

postconviction action that is not time barred. We further note 

that certain types of motions for new trial are not time barred 

in any way, and thus, the potential for such a motion—and in 

turn, a possible new trial—exists as well. 11

We find no merit to Assad’s assignment of error.

6 Id.

7 Id.

8 State v. McGuire, supra note 1, 301 Neb. at 901-02, 921 N.W.2d at 83, 

quoting § 29-818 (emphasis supplied).

9 See Neb. Rev. Stat. § 29-2103 (Reissue 2016).

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

11 See, Neb. Rev. Stat. § 29-2101 (Reissue 2016); § 29-2103.
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Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. ASSAD

Cite as 317 Neb. 20

CONCLUSION

We find that the district court did not abuse its discretion 

in allowing the State to retain the DVR and its original contents in the event this evidence was needed for a future trial 

or related proceeding. Accordingly, we affirm the decision of 

the district court.

Affirmed.

Freudenberg, J., not participating.