IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                    January 2016 Term
                                                       FILED
                                                    March 3, 2016
                                                       released at 3:00 p.m.
                        No. 15-0008                  RORY L. PERRY, II CLERK
                                                   SUPREME COURT OF APPEALS
                                                        OF WEST VIRGINIA




          PRISTINE PRE-OWNED AUTO, INC.,
               Plaintiff Below, Petitioner


                            V.


             JAMES W. COURRIER, JR.,
          PROSECUTING ATTORNEY FOR
         MINERAL COUNTY, WEST VIRGINIA,

                           AND

          TROOPER M. L. TRAVELPIECE,
 INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A

         WEST VIRGINIA STATE TROOPER,

            Defendants Below, Respondents




      Appeal from the Circuit Court of Mineral County

             Honorable Lynn A. Nelson, Judge

                 Civil Action No. 14-C-137

                        AFFIRMED




               Submitted: February 23, 2016

                  Filed: March 3, 2016

James E. Smith, II                    Patrick Morrisey,
Keyser, West Virginia                 Attorney General
Attorney for the Petitioner           Julie Marie Blake,
                                      Assistant Attorney General
                                      Office of the Attorney General
                                      Charleston, West Virginia,
                                      Virginia Grottendieck Lanham,
                                      Assistant Attorney General
                                      John A. Hoyer,
                                      Assistant Attorney General
                                      West Virginia State Police
                                      South Charleston, West Virginia
                                      Attorneys for the Respondent,
                                      Trooper M. L. Travelpiece

                                      F. Cody Pancake, III
                                      Prosecuting Attorney for Mineral County
                                      Keyser, West Virginia
                                      Attorney for the Respondent,
                                      James W. Courrier, Jr.

JUSTICE DAVIS delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT




              1.      When a party against whom no criminal charges have been brought

seeks the return of seized property, such person should file, in the circuit court of the county

in which the property was seized, a complaint seeking the return of such property under West

Virginia Rule of Criminal Procedure 41(e). The circuit court shall treat the complaint as a

civil proceeding.



              2.      A duty to return property seized by the State in the execution of a search

warrant does not arise until a court of competent jurisdiction has entered an order pursuant

to either W. Va. Code § 62-1A-6 (1965) (Repl. Vol. 2014) or West Virginia Rule of Criminal

Procedure 41(e) directing the return of such property. Accordingly, the extraordinary remedy

of mandamus is not cognizable prior to the entry of such an order.




                                               i
Davis, Justice:

              Pristine Pre-Owned Auto, Inc. (“Pristine”), petitioner herein and plaintiff

below, appeals an order of the Circuit Court of Mineral County denying its complaint seeking

a writ of mandamus1 to compel the return of items seized by West Virginia State Police

Trooper M. L. Travelpiece (“Trooper Travelpiece”), respondent herein and defendant below,

in his execution of a search warrant at Pristine’s business premises. Also named as a

defendant below and appearing as a respondent herein is the former Prosecuting Attorney for

Mineral County, Mr. James W. Courrier, Jr. (“Prosecutor Courrier”).2 Although Pristine

challenges the underlying search warrant as being an improper general warrant, and further

argues that the lower court erred by failing to apply the exclusionary rule to preclude the use

of the seized evidence in any future criminal proceeding against Pristine’s corporate officers,

we do not reach these issues. Instead, we resolve this case on the issue of whether an

extraordinary writ of mandamus is a proper remedy under circumstances such as those herein

presented. Because we find that mandamus is not a proper remedy in this instance, we affirm

the order of the circuit court denying Pristine’s complaint seeking a writ of mandamus.

              1
              We pause briefly to point out that, pursuant to Rule 71B of the West Virginia
Rules of Civil Procedure, application to a circuit court for an extraordinary writ such as
mandamus is properly made by complaint. See W. Va. R. Civ. P. 71B(c) (setting out
requirements for complaint seeking extraordinary writ).
              2
               After the filing of this appeal, Governor Earl Ray Tomblin appointed Mr.
James W. Courrier, Jr., to serve as Circuit Court Judge for the 21st Judicial Circuit, thus
filling a vacancy created by the retirement of Judge Philip Jordan. Thereafter, the County
Commission of Mineral County appointed F. Cody Pancake, III, to fill Mr. Courrier’s
unexpired term as Prosecuting Attorney.

                                              1

                                             I.


                     FACTUAL AND PROCEDURAL HISTORY


              On October 23, 2014, Trooper Travelpiece sought a search warrant from

Mineral County Magistrate Sue Roby. Trooper Travelpiece’s affidavit accompanying his

complaint for a search warrant related that, on September 8, 2014, he was contacted by

Shelly Jackson (“Ms. Jackson”), a customer of Pristine who, on advice from the West

Virginia Department of Motor Vehicles (“the DMV”), sought to file a complaint of false

pretenses against Pristine. Ms. Jackson had allegedly purchased an automobile from Pristine,

and Pristine held a lien on the vehicle pending full payment of the purchase price. Pristine

also purportedly financed subsequent repairs to the vehicle, although there appears to be a

dispute over whether a secondary lien on the vehicle to cover the cost of the repairs was

consented to by Ms. Jackson or her co-buyer, Mr. Eric Dorman (“Mr. Dorman”). Ms.

Jackson reported to Trooper Travelpiece that Pristine had asked that she bring the car to the

dealership to resolve a “paperwork discrepancy.” Instead, Ms. Jackson contacted the DMV

and, subsequently, Trooper Travelpiece.



              The following day, Ms. Jackson, who resided in Maryland, reported the vehicle

stolen and again contacted Trooper Travelpiece to apprise him of the missing vehicle.

Trooper Travelpiece then located the vehicle on the lot at Pristine. Pristine claimed that it

repossessed the vehicle due to Ms. Jackson’s failure to make payments on a secondary lien


                                             2

on the vehicle. According to Trooper Travelpiece, however, Ms. Jackson had provided

documentation to show that she had made agreed upon payments. Trooper Travelpiece

further reported that he contacted the DMV and learned that, contrary to Pristine’s assertions,

there was no secondary lien recorded on the Certificate of Title pertaining to Ms. Jackson’s

automobile as of September 9, 2014.3



              Trooper Travelpiece also learned from the DMV that the sale of the vehicle to

Ms. Jackson was being investigated by that agency because the Certificate of Title to the

vehicle on file with the DMV did not properly identify it as a salvage vehicle.4 The DMV

related that a prior owner of the vehicle, who also had purchased the car from Pristine, had

apparently been involved in an accident and, as a result, the vehicle had become a salvage

vehicle. The prior owner’s insurance company had tendered payment to Pristine equal to the

remainder due on a lien Pristine held on the vehicle. Pristine was then to surrender the

automobile’s title to the insurer. Pristine purportedly failed to surrendered the title to the

              3
               It appears that a secondary lien on the subject vehicle was recorded by Pristine
on September 12, 2014, which was four days after the vehicle was repossessed for Ms.
Jackson’s failure to make payments on the secondary lien. As noted above, whether or not
the secondary lien had been agreed to by Ms. Jackson and/or Mr. Dorman appears to be in
dispute.
              4
               While the Certificate of Title failed to properly identify the vehicle as a
salvage vehicle, a bill of sale documenting the transaction between Ms. Jackson, Mr.
Dorman, and Pristine contained a notation stating “Sold Vehicle: Reconstructed Title Salvage
History.” It is claimed, however, that the bill of sale was prepared and executed two days
after Ms. Jackson and Mr. Dorman agreed to purchase the vehicle and tendered a down-
payment on the same without being informed of the vehicle’s salvage history.

                                              3

insurer. Instead, Pristine repaired the vehicle and sold it to Ms. Jackson and Mr. Dorman.

DMV records indicate that Pristine filed an affidavit for repossession of the vehicle from the

previous owner after the accident had occurred. Pristine apparently claimed that the previous

owner had defaulted on a lien encumbering the vehicle, notwithstanding the fact that the

insurer had paid the full balance due on the purchase lien.



               The DMV further indicated to Trooper Travelpiece that its internal

investigation suggested that Pristine had engaged in the practice of adding the cost of vehicle

maintenance onto existing liens, and then repossessing vehicles based upon customers’

defaults on the amounts Pristine had added to those existing liens. Trooper Travelpiece

opined to the magistrate court that this practice put into question the legality of Pristine’s past

automobile repossessions from individuals who had allegedly defaulted on their automobile

loan payments. Finally, Trooper Travelpiece advised the magistrate court that, subsequent

to September 8, 2014, he had received several additional complaints from customers of

Pristine who claimed either that they were sold a reconstructed vehicle without proper notice

or that Pristine had refused to transfer title to a vehicle upon completion of all payments due.



               Based upon Trooper Travelpiece’s representations, Magistrate Roby issued the

requested search warrant, which sought all of Pristine’s financial documentation, all records

of vehicles sold by Pristine, all repossession paperwork, all vehicle titles, information


                                                4

pertaining to vehicles present on Pristine’s lot, all paperwork documenting maintenance to

reconstructed vehicles, all computers, and all electronic devices capable of storing business

records.



              When Trooper Travelpiece executed the warrant, corporate officers of Pristine

refused to cooperate or assist in the location of the documents and equipment subject to the

warrant. As a result, law enforcement seized, as described by the circuit court, “a

considerable volume of paperwork, records, computer equipment, and other materials during

the search of the property.” Thereafter, on November 12, 2014, Pristine filed in the Circuit

Court of Mineral County its complaint seeking a writ of mandamus and an injunction.

Following a hearing, by order entered on December 12, 2014, the circuit court denied

Pristine’s complaint. However, instead of addressing the issues raised in the context of

mandamus, the circuit court found that Rule 41(e) of the West Virginia Rules of Criminal

Procedure provided the proper analysis. Addressing the sufficiency of the search warrant on

the merits, the circuit court upheld the search and seizure. Additionally, however, the circuit

court ordered Trooper Travelpiece and Prosecutor Courrier to “coordinate the return [to

Pristine’s counsel] of any items in which the State does not have a continuing interest.” This

appeal followed.




                                              5

               Before delving into our analysis of this case, we note that no criminal actions

were pending against the principal officers of Pristine at the time of the circuit court’s ruling.

This no longer is the case. Prosecutor Courrier and Trooper Travelpiece aver in their briefs

to this Court that, upon completion of the State Police investigation of Pristine, two of

Pristine’s officers were indicted. Fernando Manvel Smith, Pristine’s Chief Operating

Officer, and Jamie Elizabeth Crabtree, have each been indicted on twenty-nine felony counts

of false pretenses in violation of W. Va. Code § 61-3-24(a)(1) (1994) (Repl. Vol. 2014), and

an additional twenty-nine felony counts of conspiracy in violation of W. Va. Code

§ 61-10-31 (1971) (Repl. Vol. 2014). Finally, Prosecutor Courrier and Trooper Travelpiece

explain that, once the items removed from Pristine were more thoroughly examined, some

items that were not relevant to the investigation were returned to Pristine. Upon completion

of the State Police investigation, additional items were ready for return. However, according

to Prosecutor Courrier, Pristine refused to accept the items without a more detailed inventory.

During oral argument, this Court was advised that the items finally were returned in mid-

January 2016. Items which are evidence of the crimes committed have been retained by the

State as evidence in the pending criminal prosecution.




                                                6

                                             II.


                                STANDARD OF REVIEW


              This Court has previously held that “[a] de novo standard of review applies

to a circuit court’s decision to grant or deny a writ of mandamus.” Syl. pt. 1, Harrison

Cty. Comm’n v. Harrison Cty. Assessor, 222 W. Va. 25, 658 S.E.2d 555 (2008).

Accordingly, we engage in a plenary review of this case.



                                            III.


                                       DISCUSSION


              Although Pristine sought a writ of mandamus from the circuit court, in its

order resolving this matter, the trial court instead examined W. Va. Code § 62-1A-6

(1965) (Repl. Vol. 2014), a statute providing for the return of property and the

suppression of evidence, and West Virginia Rule of Criminal Procedure 41(e), addressing

a motion for return of property. The trial court concluded that Rule 41(e) provided the

proper analysis for this matter. Therefore, the circuit court assessed the sufficiency of the

search warrant on the merits under Rule 41(e) and upheld the search and seizure. Pristine

argues that the circuit court erred in failing to apply the remedy of mandamus in favor of

Pristine. We disagree.



              It is well established that


                                              7

                     “‘[m]andamus lies to require the discharge by a public officer of a
              nondiscretionary duty.’ Point 3 Syllabus, State ex rel. Greenbrier County
              Airport Authority v. Hanna, 151 W. Va. 479[, 153 S.E.2d 284 (1967)].”
              Syllabus point 1, State ex rel. West Virginia Housing Development Fund v.
              Copenhaver, 153 W. Va. 636, 171 S.E.2d 545 (1969).

Syl. pt. 1, State ex rel. Williams v. Department of Military Affairs & Pub. Safety, Div. of

Corr., 212 W. Va. 407, 573 S.E.2d 1 (2002) (emphasis added). In fact, “[t]o invoke

mandamus the relator must show (1) a clear right to the relief sought; (2) a legal duty on

the part of the respondent to do the thing relator seeks; and (3) the absence of another

adequate remedy.” Syl. pt. 2, Myers v. Barte, 167 W. Va. 194, 279 S.E.2d 406 (1981). In

the case sub judice, there simply existed no duty on the part of Trooper Travelpiece or

Prosecutor Courrier to return Pristine’s property.



              In West Virginia, two methods have been established for seeking the return

of seized property: W. Va. Code § 62-1A-6 and West Virginia Rule of Criminal

Procedure 41(e). As we will demonstrate below, both of these provisions fail to create a

nondiscretionary duty on the part of Trooper Travelpiece or Prosecutor Courrier to return

Pristine’s property.



              We first examine W. Va. Code § 62-1A-6 to ascertain the nature of any duty

to return seized property created therein. At the outset, though, we note that “[t]he

primary object in construing a statute is to ascertain and give effect to the intent of the


                                               8

Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219

S.E.2d 361 (1975). In our endeavor to ascertain legislative intent, we are mindful that

“[a] statutory provision which is clear and unambiguous and plainly expresses the

legislative intent will not be interpreted by the courts but will be given full force and

effect.” Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). Nevertheless,

“[a] statute that is ambiguous must be construed before it can be applied.” Syl. pt. 1,

Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992).



              W. Va. Code § 62-1A-6 provides as follows:

                      A person aggrieved by an unlawful search and seizure
              may move for the return of the property and to suppress for
              use as evidence anything so seized on the ground that (1) the
              property was illegally seized without a warrant, or (2) the
              warrant is insufficient on its face, or (3) the property seized is
              not that described in the warrant, or (4) there was not probable
              cause for believing the existence of the grounds on which the
              warrant was issued, or (5) the warrant was illegally executed.
              If the offense giving rise to the issuance of the warrant be one
              which a magistrate has jurisdiction to hear and determine, the
              motion may be made to him. If the offense is cognizable only
              before a court of record the motion shall be made to the court
              having jurisdiction. The judge or magistrate shall receive
              evidence on any issue of fact necessary to the decision of the
              motion. If the motion is granted the property shall be
              returned unless otherwise subject to lawful detention and it
              shall not be admissible in evidence at any hearing or trial.
              The motion may be made before trial or hearing upon three
              days’ [sic] notice, or, the motion may be made or renewed at
              the trial or hearing.



                                              9

(Emphasis added). In plain language, the foregoing statute does establish a duty to return

seized property; however, the duty arises only after the motion seeking such return has

been granted. In its sole reference to the return of property, W. Va. Code § 62-1A-6

expressly provides: “If the motion is granted the property shall be returned unless

otherwise subject to lawful detention and it shall not be admissible in evidence at any

hearing or trial.” (Emphasis added). The Legislature’s use of the word “shall” in

declaring that “the property shall be returned” unmistakably creates a duty to return the

seized property. “‘It is well established that the word “shall,” in the absence of language

in the statute showing a contrary intent on the part of the Legislature, should be afforded a

mandatory connotation.’ Syllabus Point 1, Nelson v. West Virginia Public Employees

Insurance Board, 171 W. Va. 445, 300 S.E.2d 86 (1982).” Syl. pt. 1, E.H. v. Matin, 201

W. Va. 463, 498 S.E.2d 35 (1997). But the directive that “the property shall be returned”

arises only “[i]f the motion is granted.” W. Va. Code § 62-1A-6. Thus, only after a

motion made pursuant to W. Va. Code § 62-1A-6 has been granted does there arise a

mandatory duty on the part of the custodian of said property to return the same, so long as

the property is not “otherwise subject to lawful detention.” Because no duty to return

property arises under W. Va. Code § 62-1A-6 without an order directing the return of

seized property, W. Va. Code § 62-1A-6 does not support the use of the extraordinary

writ of mandamus to compel the return of seized property prior to the entry of an order

directing that such property be returned.


                                             10

              Before concluding our discussion of W. Va. Code § 62-1A-6, we

additionally point out that the circuit court determined that the foregoing statute was not

applicable in this instance insofar as it contemplates a motion being filed after criminal

charges are brought. In this case, no charges were pending against Pristine’s corporate

officers at the time they sought to have the circuit court direct the return of their property.

We agree with the circuit court’s conclusion. In discussing which court has jurisdiction

to decide a motion for the return of property, W. Va. Code § 62-1A-6 provides that,

              [i]f the offense giving rise to the issuance of the warrant be
              one which a magistrate has jurisdiction to hear and determine,
              the motion may be made to him. If the offense is cognizable
              only before a court of record the motion shall be made to the
              court having jurisdiction.

(Emphasis added). In addition, the statute states that “[t]he motion may be made before

trial or hearing upon three days’ [sic] notice, or, the motion may be made or renewed at

the trial or hearing.” (Emphasis added). The statute’s references to “the offense,” and

the additional declarations referring to the “trial or hearing,” plainly contemplate that a

motion under W. Va. Code § 62-1A-6 will be made in connection with a criminal

proceeding. Accordingly, we find that the circuit court was correct in determining that

W. Va. Code § 62-1A-6 was not applicable in this particular instance insofar as no

criminal charges were pending against Pristine’s corporate officers at the time Pristine

sought the return of its seized property.




                                              11

              Having determined that W. Va. Code § 62-1A-6 does not establish a

nondiscretionary duty to return property in the absence of an order directing such a return,

we next examine West Virginia Rule of Criminal Procedure 41(e). Rule 41(e) is titled

“Motion for return of property,” and provides that

                      [a] person aggrieved by an unlawful search and seizure
              may move the circuit court for the county in which the
              property was seized for the return of the property on the
              ground that he or she is entitled to lawful possession of the
              property. The judge shall receive evidence on any issue of
              fact necessary to the decision of the motion. If the motion is
              granted, the property shall be returned to the movant,
              although reasonable conditions may be imposed to protect
              access and use of the property in subsequent proceedings. If a
              motion for return of property is made or comes on for hearing
              in the circuit court of trial after an indictment or information
              is filed, it shall be treated also as a motion to suppress under
              Rule 12.

(Emphasis added). The circuit court determined that, unlike W. Va. Code § 62-1A-6,

which applies only after criminal charges have been brought, Rule 41(e) allows for a

motion to be filed by any person aggrieved by an unlawful search and seizure regardless

of whether charges have been filed. We agree. Before discussing the particular language

that directs our conclusion, we pause to note that “[c]ourt rules are interpreted using the

same principles and canons of construction that govern the interpretation of statutes.”

Syl. pt. 2, Casaccio v. Curtiss, 228 W. Va. 156, 718 S.E.2d 506 (2011). Thus, “where the

language of a rule is clear and unambiguous, it should not be construed but applied




                                             12

according to its terms.” Syl. pt. 3, in part, State v. Mason, 157 W. Va. 923, 205 S.E.2d

819 (1974).



               Turning now to the language of Rule 41(e), we observe that the last

sentence of Rule 41(e) states: “If a motion for return of property is made or comes on for

hearing in the circuit court of trial after an indictment or information is filed, it shall be

treated also as a motion to suppress under Rule 12.” (Emphasis added). By setting out

how the motion is to be treated if it is made after an indictment or information is filed, the

Rule plainly contemplates that the motion also could be filed in the absence of an

indictment or information. Thus, Rule 41(e) provides a means for a person to challenge

an allegedly unlawful seizure whether or not criminal charges have been filed.



               Our conclusion is in accord with how federal courts have interpreted Rule

41 of the Federal Rules of Criminal Procedure.5 We are persuaded by the federal courts’


               5
               The current version of Rule 41(e) of the West Virginia Rules of Criminal
Procedure, which was adopted by this Court in 1995, was patterned after an older version of
Federal Rule of Criminal Procedure 41(e). See F. R. Crim. P. 41(e) as adopted in 1993.
Therefore, we find older cases interpreting Federal Rule of Criminal Procedure 41(e) to be
persuasive in guiding our interpretation of West Virginia Rule of Criminal Procedure 41(e).
The federal provision pertaining to the return of property is now located at Rule 41(g). Rule
41(g) of the Federal Rules remains similar to our Rule 41(e), and also has been interpreted
as providing for a civil proceeding when a motion for the return of property is filed in the
absence of criminal charges. See United States v. Comprehensive Drug Testing, Inc., 621
F.3d 1162, 1172 (9th Cir. 2010) (discussing Rule 41(g) and explaining that, “[t]hough styled
                                                                                (continued...)

                                               13

interpretation of procedural rules insofar as “[t]he decisions of this Court have indicated

that, ‘[t]o aid in defining the meaning and scope of this state’s individual . . . rules of

procedure, this Court often gives substantial weight to federal cases interpreting virtually

identical federal rules.’” State ex rel. J.C. v. Mazzone, 233 W. Va. 457, 463, 759 S.E.2d

200, 206 (2014) (quoting State ex rel. Erie Ins. Prop. & Cas. Co. v. Mazzone, 220 W. Va.

525, 533 n.6, 648 S.E.2d 31, 39 n.6 (2007)). See also State v. Sutphin, 195 W. Va. 551,

563, 466 S.E.2d 402, 414 (1995) (“[W]e have repeatedly recognized that when codified

procedural rules . . . of West Virginia are patterned after the corresponding federal rules,

federal decisions interpreting those rules are persuasive guides in the interpretation of our

rules.” (citations omitted)).



              The federal courts have recognized that, when no criminal charges are

pending against the person whose property was seized, a motion under Rule 41(e) should

actually be treated as a civil, rather than a criminal, matter. See, e.g., United States v.

Ritchie, 342 F.3d 903, 905 (9th Cir. 2003) (interpreting old version of Federal Rule of

Criminal Procedure Rule 41(e) and holding that a motion thereunder should be treated as

a complaint filed under the Federal Rules of Civil Procedure when no criminal


              5
                (...continued)
as a motion under a Federal Rule of Criminal Procedure, when the motion [seeking the return
of property] is made by a party against whom no criminal charges have been brought, such
a motion is in fact a petition that the district court invoke its civil equitable jurisdiction”
(citation omitted)).

                                               14

proceeding is pending); Mora v. United States, 955 F.2d 156, 158 (2d Cir. 1992)

(construing old version of Federal Rule of Criminal Procedure 41(e) and explaining that

“where no criminal proceedings against the movant are pending or have transpired, a

motion for the return of property is ‘treated as [a] civil equitable proceeding[ ] even if

styled as being pursuant to Fed. R. Crim. P. 41(e)’” (quoting United States v. Martinson,

809 F.2d 1364, 1367 (9th Cir.1987))). See also Thomas M. Bradshaw & Dianne M.

Hansen, Search Warrants for Business Records: Challenges and Defenses, 49 J. Mo. B.

23, 28 (1993) (“When the [Rule 41(e)] motion is made prior to initiation of criminal

prosecution, the motion is more properly considered as a suit in equity, since it is

technically not a proceeding in a criminal case.” (footnote omitted)). Cf. Appeals, 40

Geo. L.J. Ann. Rev. Crim. Proc. 871, 880 (2011) (commenting that “if a defendant files a

motion for return of property under Rule 41(e) of the Federal Rules of Criminal

Procedure, and if the motion is entirely unrelated to an existing criminal prosecution, the

denial of that motion is immediately appealable” (footnote omitted)).



              Based upon the foregoing discussion, we now expressly hold that, when a

party against whom no criminal charges have been brought seeks the return of seized

property, such person should file, in the circuit court of the county in which the property

was seized, a complaint seeking the return of such property under West Virginia Rule of




                                              15

Criminal Procedure 41(e). The circuit court shall treat the complaint as a civil

proceeding.6



               Having clarified the proper application of Rule 41(e), we now consider, for

purposes of our determination of the propriety of utilizing a writ of mandamus to seek the

return of seized property, whether this Rule creates a nondiscretionary duty to return such

property. We glean no duty to return property under Rule 41(e) until such time as a court

has granted relief thereunder. Under the plain language of Rule 41(e), a duty to return

property arises only after a motion or complaint made pursuant to the rule has been

granted: “If the motion is granted, the property shall be returned to the movant, although

reasonable conditions may be imposed to protect access and use of the property in

subsequent proceedings.” W. Va. R. Crim. P. 41(e) (emphasis added). See Syl. pt. 1,

E.H. v. Matin, 201 W. Va. 463, 498 S.E.2d 35 (“It is well established that the word

‘shall,’ in the absence of language . . . showing a contrary intent . . ., should be afforded a

mandatory connotation.” (internal quotations and citations omitted)). Because no duty to

return property arises under Rule 41(e) prior to the granting of a request made thereunder,

Rule 41(e) does not support the use of the extraordinary writ of mandamus to compel the

return of property prior to the entry of an order directing such property’s return.



               6
              We note that Rule 41(e) refers to a “motion” being filed. However, when no
criminal charge is pending, relief under Rule 41(e) should be sought by filing a complaint.

                                              16

              Pristine relies on State ex rel. White v. Melton, 166 W. Va. 249, 273 S.E.2d

81 (1980), to support its claim that mandamus provided a proper remedy. We find that

White is both factually and legally distinguishable from the case at bar. Factually, in

White, officers seized cash from the home of Mr. and Mrs. White during the execution of

a search warrant issued in relation to their son’s illegal sale of controlled substances. A

county magistrate issued arrest warrants for Mr. and Mrs. White, but, following a

preliminary hearing, the magistrate found no probable cause to hold them for grand jury

action. Notably, Mr. and Mrs. White filed a motion in the magistrate court seeking the

return of their money, which motion was granted. In response, the county prosecutor

petitioned the circuit court to prohibit the magistrate from returning the currency. Mr.

and Mrs. White then petitioned this Court for a writ of mandamus ordering the return of

their money pursuant to the magistrate court’s order. This Court concluded that the

magistrate lacked jurisdiction to return the property because it had been seized pursuant to

felony warrants against the Whites’ son. Because the charges against the Whites’ son

were pending in the circuit court, it was determined that the circuit court, not the

magistrate court, had jurisdiction to order the return of the seized money. Rather than

remand the matter to the circuit court, this Court granted the requested writ and ordered

the return of Mr. & Mrs. White’s property.




                                             17

              More important to the instant matter, however, is the Court’s holding in

White: “A party aggrieved by an unlawful seizure of property by a law officer may seek

the property’s return by a Code, 62-1A-6 motion in the proper forum or by mandamus.”

Syl. pt. 4, White, 166 W. Va. 249, 273 S.E.2d 81 (emphasis added). In determining that

mandamus provided a proper remedy to the Whites’, the Court discussed only the absence

of another remedy:

              “Though the writ of mandamus will be denied where another
              and sufficient remedy exists, if such other remedy is not
              equally as beneficial, convenient and effective, mandamus
              will lie.” Syl. pt. 5, State ex rel. Vance v. Arthur, 142 W. Va.
              737, 98 S.E.2d 418 (1957)[, overruled on other grounds by
              Stalnaker v. Roberts, 168 W. Va. 593, 287 S.E.2d 166
              (1981)]. State ex rel. Lemley v. Roberts, W. Va., 260 S.E.2d
              850 (1979), Syl. pt. 1.[, overruled on other grounds by
              Stalnaker].

White, 166 W. Va. at 254, 273 S.E.2d at 84. Notably, at the time White was decided in

1980, the West Virginia Rules of Criminal Procedure had not yet been adopted.

Therefore, Rule 41(e) was not available at that time to provide a remedy for individuals

seeking the return of seized property when no criminal charges had been filed against

them. Accordingly, White does not provide authority for utilizing mandamus to provide a

remedy to Pristine in the instant matter, because Pristine had another adequate remedy

available to it. Pristine could have filed a complaint pursuant to Rule 41(e) of the West

Virginia Rules of Criminal Procedure.




                                             18

              Based upon our analysis of W. Va. Code § 62-1A-6 and West Virginia Rule

of Criminal Procedure 41(e) set out above, we now hold that a duty to return property

seized by the State in the execution of a search warrant does not arise until a court of

competent jurisdiction has entered an order pursuant to either W. Va. Code § 62-1A-6

(1965) (Repl. Vol. 2014) or West Virginia Rule of Criminal Procedure 41(e) directing the

return of such property. Accordingly, the extraordinary remedy of mandamus is not

cognizable prior to the entry of such an order.



              Pristine has failed to secure an order directing the return of its seized

property. In the absence of such an order, there is no duty obligating Trooper Travelpiece

or Prosecutor Courrier to return said property. In the absence of such a duty, mandamus

simply is not proper. Thus, we affirm the circuit court’s denial of Pristine’s complaint

seeking a writ of mandamus, although the basis for our decision differs from the grounds

relied upon by the circuit court.7 See Curry v. West Virginia Consol. Pub. Ret. Bd., 236

W. Va. 188, ___, 778 S.E.2d 637, 643 (2015) (“[T]his Court affirms the order of the

Circuit Court of Kanawha County; we do so, however, on different grounds than those

identified by the circuit court.” (footnote omitted)); Murphy v. Smallridge, 196 W. Va. 35,



              7
               As noted earlier in this opinion, the circuit court did not address Pristine’s
complaint in the context of mandamus. Instead, the circuit court assessed the sufficiency of
the search warrant on the merits under Rule 41(e) and, on those grounds, upheld the search
and seizure.

                                             19

36-7, 468 S.E.2d 167, 168-69 (1996) (“An appellate court is not limited to the legal

grounds relied upon by the circuit court, but it may affirm or reverse a decision on any

independently sufficient ground that has adequate support.”); Longwell v. Hodge, 171

W. Va. 45, 47, 297 S.E.2d 820, 822 (1982) (“We agree with the Circuit Court, and affirm

its decision, although for different reasons than those expressed by the lower court.”).



                                            IV.


                                     CONCLUSION


              For the reasons stated in the body of this opinion, the December 12, 2014,

order of the Circuit Court of Mineral County is affirmed.



                                                                                  Affirmed.




                                             20

