            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                             Assigned on Briefs October 6, 2015


                    STATE OF TENNESSEE V. RAY ROWLAND

                    Appeal from the Criminal Court for Shelby County
                       No. 10-03516    James M. Lammey, Judge




                No. W2014-02311-CCA-R3-CD - Filed October 30, 2015
                           _____________________________

Ray Rowland (“the Defendant”) filed a Motion for Return of Property pursuant to Rule
41(g)1 of the Tennessee Rules of Criminal Procedure. The trial court found that it did not
have jurisdiction to hear the case and dismissed the Defendant’s motion. On appeal, we
conclude that the trial court does have jurisdiction. We reverse the judgment of the trial
court and remand the case for a hearing.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
                                  and Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and CAMILLE R. MCMULLEN, J., joined.

M. Haden Lawyer, Memphis, Tennessee, for the appellant, Ray Rowland.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Glen Baity and Billy Bond,
Assistant District Attorneys General, for the appellee, State of Tennessee.




        1
          The Defendant’s motion is entitled “Rule 41(f) Motion/Petition for Return of Property.”
However, it is clear from the motion’s content that it was filed pursuant to Rule 41(g) of the Tennessee
Rules of Criminal Procedure.
                                       OPINION

                         Factual and Procedural Background

       The record on this case is very sparse. The Defendant was indicted with two
counts of aggravated assault. He pleaded guilty to two counts of reckless endangerment,
a Class A misdemeanor, on August 16, 2011. On August 22, 2014, the Defendant filed a
Motion for Return of Property pursuant to Rule 41(g) of the Tennessee Rules of Criminal
Procedure.

       The Defendant’s motion indicates that police arrived at the Defendant’s house in
response to reports that the Defendant fired a gun twice in the direction of Joshua
Mobley. According to the Defendant, the police told him that they would come back
with a search warrant, “tear up his house, and blowtorch his safe” if he did not consent to
the search of his house. The Defendant consented to the search and opened his gun safe
for the officers. The Defendant, a firearms collector, kept several items in that safe, and
the police seized all forty-seven items found therein, including firearms and accessories.
The Defendant’s motion states that many of the items were “new, never used, and could
not have been used in the crime.” According to the Defendant’s motion, the incident
report “stated that the police were not able to determine which weapon was fired at the
scene, despite finding two shell casings.” The State filed no response to the Defendant’s
motion.

       At a hearing on the Defendant’s motion, the State noted that the Defendant had
used a .32-caliber handgun in the commission of the offense. The State also noted that
the police seized several other items from the Defendant’s gun safe, including “rifles,
scopes, ammunition that wasn’t for a thirty-two caliber weapon . . . [and] items that were
unused and still in their original packaging.” However, the State argued that, in order for
the Defendant to move for the return of his property under Rule 41(g), he must have filed
a motion to suppress the evidence and then, “if the court finds it was unlawfully seized,
[the Defendant] can ask the court to return the property.” The State averred that the
proper procedure was for the Defendant to file a writ of replevin for the return of his
firearms from the sheriff’s department. The Defendant argued that Rule 41(g) was the
proper procedure to ask for the return of his property, contending that the search of his
house was not legal because he did not voluntarily consent to the search.

        The trial court stated that “it doesn’t appear that [the property] was taken
illegally.” Further, the trial court commented, “I would think a writ of replevin in civil
court, that could be answered there because that’s where it’s supposed to be. It’s not
supposed to be here.” Additionally, the trial court opined that it could not order the
district attorney’s office to hand over the weapons that were not used in the offense
because the weapons were in the possession of the sheriff’s office, not the district
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attorney. Consequently, the trial court ruled that it did not have jurisdiction to hear the
Defendant’s motion and that Rule 41 did not apply because the items were seized during
a legal search. This timely appeal followed.

                                         Analysis

       On appeal, the Defendant argues that the search of his home and seizure of his
property was “invalid because it was not voluntary.” Additionally, he contends that the
Shelby County Criminal Court has jurisdiction to rule on his motion because the
Advisory Commission Comments to Rule 41(g) state that courts of record of general
criminal trial jurisdiction, such as Circuit and Criminal Courts, have jurisdiction over
motions for the return of property. The State argues that the trial court properly
concluded that it did not have jurisdiction to hear the Defendant’s motion. The State
contends that, in order for the trial court to have jurisdiction to rule on the Defendant’s
motion, the Defendant must have filed a motion to suppress the evidence seized in the
search of his home prior to trial. According to the State, because the Defendant failed to
file a motion to suppress prior to his guilty plea, the trial court has not ruled that his
property was illegally seized, and therefore, the Defendant has no right to seek the return
of his property pursuant to Rule 41(g). Additionally, the State claims that the trial court
did not have jurisdiction to rule on the Defendant’s motion because the judgment against
the Defendant became final thirty days after its entry and the trial court no longer had the
authority to enter additional orders.

       Rule 41(g) of the Tennessee Rules of Criminal Procedure states:

       (g) Motion for Return or Suppression of Property. A person aggrieved
       by an unlawful or invalid search or seizure may move the court pursuant
       to Rule 12(b) to suppress any evidence obtained in the unlawful search or
       seizure. If property was unlawfully seized, the aggrieved person may move
       for the return of the property. The motion shall be granted--except as to the
       return of contraband--if the evidence in support of the motion shows that:

       (1) the search or seizure was made illegally without a search warrant or
       illegally with an invalid search warrant, or in any other way in violation of
       the constitutional protection against unreasonable searches and seizures;

       (2) a search warrant was relied on, but the search warrant or supporting
       affidavit is legally insufficient on its face and hence invalid;

       (3) the search warrant relied on was issued on evidence consisting in
       material part of willful or reckless misrepresentations of the applicant to the
       issuing magistrate, resulting in a fraudulent procurement;
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      (4) the search warrant does not describe the property seized, and the seized
      property is not of such a character as to be subject to lawful seizure without
      a warrant;

      (5) the magistrate did not:

      (A) make an original and two copies of the search warrant; or

      (B) did not endorse on the warrant the date and time of issuance and the
      name of the officer to whom the warrant was issued; or

      (6) the serving officer--where possible--did not leave a copy of the warrant
      with the person or persons on whom the search warrant was served.

A Rule 41(g) motion “is meant to apply only to courts of record of general criminal trial
jurisdiction such as Circuit and Criminal Courts.” Tenn. R. Crim. P. 41, Advisory
Comm’n Comments.

        Tennessee Code Annotated section 39-17-1317 states, “Any weapon that is
possessed, used, or sold in violation of the law shall be confiscated by a law enforcement
officer and declared to be contraband by a court of record exercising criminal
jurisdiction.” Tenn. Code Ann. § 39-17-1317(a). However, if there is no showing that
the seized guns were used in the commission of an offense, their confiscation is unlawful.
State v. Tony Alan Garretson, No. M2002-01262-CCA-R3-CD, 2003 WL 21077991, at
*2 (Tenn. Crim. App. May 13, 2003).

      The State’s contention that the Defendant must first have filed a pre-trial motion to
suppress before he may request the return of his property is without merit. This court has
previously addressed a situation where the defendant pleaded guilty and then
subsequently filed a motion for the return of his property. Our court stated:

      Since the property seized from the appellant, even though seized as the
      result of a lawful search, was not contraband, was not linked to the crime
      for which he was convicted, and was not shown to be of a stolen character,
      then the retention of the property by the law enforcement authorities would
      constitute an unlawful seizure sufficient to allow the appellant the right to
      seek the return of his property.

State v. Leon Mayberry, No. 35, 1987 WL 5324, at *1 (Tenn. Crim. App. Jan. 14, 1987)
(emphasis added); see also State v. Andre Wrister, No. 02C01-9212-CR-00293, 1993 WL
492701, at *2 (Tenn. Crim. App. Dec. 1, 1993) (stating that law enforcement authorities’
retention of appellant’s property constituted an unlawful seizure when there was no
evidence that linked the property to the crime for which the appellant was convicted,
                                          -4-
showed that the property was of a stolen nature, or involved in the crime in any way).
Accordingly, it does not matter whether the search of the Defendant’s home was valid. If
the property that remains in the State’s custody was not connected to the crime for which
the Defendant was convicted and was not of a stolen nature, the State’s continued
retention of that property constitutes an illegal seizure, and the Defendant may be entitled
to the return of his property under Rule 41(g).

        Additionally, the State’s argument that the trial court lacks jurisdiction because the
judgment has become final is misplaced. The Defendant is not seeking to challenge his
conviction or to reopen the proceedings against him. This court has granted relief to
defendants who file a Rule 41(g) motion after they entered guilty pleas. See generally
Tony Alan Garretson, 2003 WL 21077991; Andre Wrister, 1993 WL 492701; Leon
Mayberry, 1987 WL 5324. The State attempts to distinguish these cases because “it is
unclear how much time had passed between the defendant[s’] guilty plea and [their]
filing of the motion.” However, based on our reasons for granting relief in those cases, it
does not matter when the defendants filed their motions. The State’s continued retention
of their property after their convictions constituted an unlawful seizure. Under the
language of Rule 41(g), the defendants were entitled to move the court for the return of
their property. The Defendant in this case enjoys the same right, even though he filed his
motion three years after the judgment of conviction was entered. Accordingly, the trial
court had jurisdiction to hear and enter a judgment on this motion.

       Under the facts presented in the record, it certainly appears that some of the items
that were seized in the search of the Defendant’s gun safe were not involved in the
offense for which the Defendant was convicted. However, we are unable to determine
what items of the Defendant’s property the State has in its possession and which, if any,
were involved in the commission of the offense for which the Defendant was convicted.
Therefore, we reverse the trial court’s judgment and remand the case to the trial court for
a hearing to determine whether the Defendant is entitled to the return of his property.

                                        Conclusion

      The judgment of the trial court is reversed, and the case is remanded for further
proceedings consistent with this opinion.



                                                  _________________________________
                                                  ROBERT L. HOLLOWAY, JR., JUDGE



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