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07/26/2019 08:06 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          303 Nebraska R eports
                                                   STATE v. EBERT
                                                  Cite as 303 Neb. 394




                                        State of Nebraska, appellee, v.
                                         A rthur D. Ebert, appellant.
                                                    ___ N.W.2d ___

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

                 1. Search and Seizure: Appeal and Error. The denial of a motion for
                    return of seized property is reviewed for an abuse of discretion.
                 2. Courts: Jurisdiction: Search and Seizure: Property. Neb. Rev. Stat.
                    § 29-820 (Reissue 2016) applies only where the exclusive jurisdic-
                    tion of a court under Neb. Rev. Stat. § 29-818 (Reissue 2016) has not
                    been invoked.
                 3. ____: ____: ____: ____. The court in which a criminal charge was filed
                    has exclusive jurisdiction to determine the rights to seized property, and
                    the property’s disposition.
                 4. Criminal Law: Search and Seizure: Property. Upon the termination
                    of criminal proceedings, seized property, other than contraband, should
                    be returned to the rightful owner unless the government has a continuing
                    interest in the property.
                 5. Criminal Law: Search and Seizure: Property: Presumptions: Proof.
                    When criminal proceedings have terminated, the person from whom
                    property was seized is presumed to have a right to its return, and the
                    burden is on the government to show that it has a legitimate reason to
                    retain the property.
                 6. Property: Presumptions: Evidence. A presumption of ownership is
                    created by exclusive possession of personal property, and evidence must
                    be offered to overcome that presumption.
                 7. Search and Seizure: Property: Presumptions: Title. Seizure of prop-
                    erty from someone is prima facie evidence of that person’s right to
                    possession of the property, and unless another party presents evidence
                    of superior title, the person from whom the property was taken need not
                    present additional evidence of ownership.
                 8. ____: ____: ____: ____. The presumptive right to possession of seized
                    property may be overcome when superior title in another is shown by a
                    preponderance of the evidence.
                              - 395 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                         STATE v. EBERT
                        Cite as 303 Neb. 394

  Appeal from the District Court for Stanton County: M ark
A. Johnson, Judge. Reversed and remanded for further
proceedings.
  Bradley A. Ewalt, of Ewalt Law Office, P.C., L.L.O., for
appellant.
  Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ.
   Stacy, J.
   As part of a plea agreement with Arthur D. Ebert, the State
dismissed a charge of theft by unlawful taking. Ebert subse-
quently filed a motion for return of the property seized from
him and originally alleged to be stolen. After conducting an
evidentiary hearing, the district court ordered some items of
property returned to Ebert and others were returned to his
former employer. Ebert appeals. Because the burden of proof
was not properly applied, we reverse, and remand for fur-
ther proceedings.
                            FACTS
   In December 2016, an information was filed in the district
court for Stanton County charging Ebert with one count of
theft by unlawful taking. The information alleged Ebert had,
between the dates of June 6 and November 1, 2016, exercised
control over movable property belonging to “3D Metal —
Nucor Steel” (3D Metal) with the intent to deprive “him/her
thereof.” The information listed the movable property as:
      (2) Husky plastic sheeting rolls, (2) DeWalt tool cases
      each containing tools, (1) Red Milwaukee case with
      Milwaukee sawzall, (2) JVC tower speakers SX-F7TH,
      (1) Blue nylon braided rope, (1) Coral blue 1 gallon jug of
      wiper fluid, (12) Foam nitrile gloves, (2) Milwaukee saw
      blades, (4) Abus metal locks, (4) AC100+ gold adhesive
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          Nebraska Supreme Court A dvance Sheets
                  303 Nebraska R eports
                        STATE v. EBERT
                       Cite as 303 Neb. 394

      tubes, (1) Stanley vice grip, (4) Pair of white neoprene
      gloves, (1) Miller brand harness, [and] Miscellaneous
      assorted tools with (1) tape measure[.]
   In a separate case in Stanton County, Ebert was charged with
one count of first degree sexual assault and one count of first
degree false imprisonment. Pursuant to a plea agreement, Ebert
entered guilty pleas to both of those counts and, in exchange,
the State dismissed in its entirety the case charging theft by
unlawful taking.
   Several months after Ebert’s theft case was dismissed, he
moved for the return of “his property seized from his vehicle
by the Stanton County Sheriff’s office.” At the evidentiary
hearing on this motion, an exhibit identifying the seized prop-
erty was offered and received. The exhibit identified the same
items of property that had been listed in the dismissed infor-
mation charging Ebert with theft by unlawful taking.
   Ebert testified that he was employed by 3D Metal from
June 6 to November 1, 2016, as a laborer and welder. Ebert
conceded that many of the items seized from him actually
belonged to 3D Metal. Ultimately, he requested the return of
only five items: (1) the nylon harness, (2) a square and level,
(3) one of the DeWalt tool cases and included tools, (4) the
Milwaukee sawzall, and (5) the JVC speakers. With respect to
these five items, we summarize the evidence adduced.
   Ebert testified the speakers were gifted to him by his work
supervisor, and he claimed to have purchased the other four
items. He did not offer receipts for any of the items, but he
testified as to the circumstances surrounding their purchase.
According to Ebert, he purchased the nylon harness from 3D
Metal by having $25 deducted from his weekly paychecks.
He purchased the square and level at a department store in the
summer of 2016, and he purchased the DeWalt tool case at a
yard sale for $125 the week before his arrest. Ebert testified
he knew one of the two DeWalt tool cases seized belonged
to him, because the other tool case had a serial number
written on it by 3D Metal. Ebert testified he purchased the
Milwaukee sawzall from a store in Norfolk, Nebraska, in
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                         STATE v. EBERT
                        Cite as 303 Neb. 394

early June 2016, because he needed it to do a porch repair job
for a client.
   On cross-examination, Ebert testified he needed tools to do
his job at 3D Metal because he mostly did “demolition and
refabrication.” He testified that he used a truck owned by 3D
Metal while he was employed, but the truck stayed on 3D
Metal’s premises during the evenings. He stated the DeWalt
tool case owned by 3D Metal stayed on the truck. Ebert
admitted that 3D Metal owned and used Milwaukee sawzalls
just like the one seized from him. He stated that 3D Metal
kept its sawzalls locked in a cabinet inside the shop and that
he did not have a key to the cabinet. He testified that although
he had used a different brand of sawzall while employed by
3D Metal, he never used a Milwaukee sawzall during that
employment.
   The State then called Joe Ledford, an onsite supervisor for
3D Metal. He confirmed that 3D Metal provided work trucks
to employees and that the trucks were used only during the
day and returned to 3D Metal in the evening. Ledford testified
that some tools would remain on the work truck and that oth-
ers would be locked in a shop overnight. Generally, the trucks
would contain a DeWalt toolkit like the two seized from Ebert.
And Ledford testified a sawzall was a common tool used on
the jobs Ebert did.
   Ledford agreed that Ebert purchased a harness from 3D
Metal when he began working, but testified that at some point,
Ebert reported it had been stolen. Instead of requiring Ebert
to buy a new harness, 3D Metal loaned him a spare. Ledford
stated that all of the harnesses had serial numbers to identify
them, but that he did not bring the paperwork necessary to
identify whether the harness seized from Ebert was the one
purchased by Ebert or the one loaned to him. Ledford did tes-
tify that the harness loaned to Ebert had not been returned after
his employment was terminated.
   Ledford explained that 3D Metal’s general practice was
to mark and number its tools with an inscriber, including its
DeWalt toolkits. He stated, however, that during the time of
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              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                             STATE v. EBERT
                            Cite as 303 Neb. 394

Ebert’s employment, 3D Metal was very busy and was pur-
chasing new tools often, and that not all of the new tools were
properly marked. Ledford testified that after Ebert’s employ-
ment ended, he noticed tools were missing from some of his
trucks. Ledford thought the DeWalt toolkit and the Milwaukee
sawzall belonged to 3D Metal, “[b]ecause that’s the kind of
tools that I lost about [the] time [Ebert’s employment ended].”
He admitted he did not “know specifically” that those items
belonged to 3D Metal, and he admitted that both were com-
mon items that anyone could buy. He also admitted that he lost
“a lot” of tools during the time period of Ebert’s employment,
because 3D Metal was busy and some of its tools got inter-
mingled with tools belonging to other companies.
   At the conclusion of the hearing, the State argued “this is
. . . Ebert’s motion to get the property back. I didn’t see any
written proof of anything that he ever bought anything.” On
the record, the court found that Ebert “has failed to prove that
the harness is his.” It found the square and level should be
returned to Ebert, because “there’s been no indication that that
was owned by anyone other than” him. It found that Ebert had
“failed to sustain his burden of proof as to the DeWalt tool
case” and had “failed to meet [his] burden of proof” for the
return of the sawzall. The court found the speakers should be
returned to Ebert, because “there’s no one to dispute” his claim
of ownership. In all, the court found that Ebert was entitled to
the return of the speakers and the square and level; all other
items were ordered returned to 3D Metal. The court entered a
written order so disposing of the property on July 2, 2018.
   Ebert filed this timely appeal, asserting that the district court
abused its discretion in not returning all five items of property
to him. We moved the case to our docket on our own motion.
                  STANDARD OF REVIEW
   [1] The denial of a motion for return of seized property is
reviewed for an abuse of discretion.1

1
    State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).
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              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                              STATE v. EBERT
                             Cite as 303 Neb. 394

                            ANALYSIS
   Ebert’s brief challenges the factual findings made by the
trial court, but after reviewing the record, we find a more fun-
damental error occurred below. As explained below, the trial
court incorrectly placed the burden of proof on Ebert. We begin
our analysis with an overview of the governing statute, after
which we discuss our cases applying that statute.
                           § 29-818 A pplies
   Neb. Rev. Stat. § 29-818 (Reissue 2016) provides in rel-
evant part:
      [P]roperty seized under a search warrant . . . shall be
      safely kept . . . and shall be so kept so long as neces-
      sary for the purpose of being produced as evidence in
      any trial. . . . [T]he court in which [a complaint has been
      filed in connection to the property] shall have exclusive
      jurisdiction for disposition of the property . . . and to
      determine rights therein, including questions respecting
      the title, possession, control, and disposition thereof.
For the sake of completeness, we note that another statute,
Neb. Rev. Stat. § 29-820 (Reissue 2016), also relates to the dis-
position of seized property. That statute provides that “[u]nless
other disposition is specifically provided by law, when property
seized or held is no longer required as evidence, it shall be dis-
posed of by the law enforcement agency on such showing as
the law enforcement agency may deem adequate . . . .”
   [2,3] We recently addressed the interplay between §§ 29-818
and 29-820 in State v. McGuire.2 McGuire held that § 29-820
“applies only where the exclusive jurisdiction of a court under
§ 29-818 has not been invoked.”3 And McGuire reiterated that
“the court in which a criminal charge was filed has exclusive
jurisdiction to determine the rights to seized property, and
the property’s disposition.”4 Because a criminal charge was

2
    Id.
3
    Id. at 903, 921 N.W.2d at 84.
4
    Id., citing State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007).
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              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                              STATE v. EBERT
                             Cite as 303 Neb. 394

filed against Ebert, § 29-818 is the statute governing disposi-
tion here.
                      Burden of Proof Under
                       § 29-818 Was on State
   [4-7] Case law applying and interpreting § 29-818 provides
guidance on how proceedings related to a motion for the
return of seized property are to be conducted. In McGuire, we
explained:
      “[T]he general rule is well established that upon the ter-
      mination 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 con-
      cluded, 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 pos-
      session of the property, the property is contraband or
      subject to forfeiture, or the government has some other
      continuing interest in the property.”5
Regarding the burden of proof in such a proceeding, we
explained:
      “When criminal proceedings have terminated, the person
      from whom property was seized is presumed to have a
      right to its return, and the burden is on the government to
      show that it has a legitimate reason to retain the property.
      It is long established that a presumption of ownership is
      created by exclusive possession of personal property and
      that evidence must be offered to overcome that presump-
      tion. One in possession of property has the right to keep it
      against all but those with better title, and the ‘mere fact of
      seizure’ does not require that ‘entitlement be established
      anew.’ Seizure of property from someone is prima facie

5
    Id. at 906, 921 N.W.2d at 85-86, quoting Agee, supra note 4.
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             Nebraska Supreme Court A dvance Sheets
                     303 Nebraska R eports
                             STATE v. EBERT
                            Cite as 303 Neb. 394

      evidence of that person’s right to possession of the prop-
      erty, and unless another party presents evidence of supe-
      rior title, the person from whom the property was taken
      need not present additional evidence of ownership.”6
   Based on the foregoing, once the theft by unlawful taking
charge against Ebert was dismissed and the State no longer
needed the evidence, Ebert was “presumptively entitled to the
return of property seized from him unless the State presented
evidence justifying its refusal to do so.”7
   Here, Ebert waived the presumption of possession with
respect to all but five of the items seized by conceding on the
record that such items belonged to 3D Metal. But Ebert sought
the return of (1) the nylon harness, (2) the square and level,
(3) one of the DeWalt tool cases and included tools, (4) the
Milwaukee sawzall, and (5) the JVC speakers, and the State’s
only reason for opposing return of these items was that they
too belonged to 3D Metal. And although it was the State’s bur-
den to prove superior title to these items, the record indicates
that both the State and the trial court misapplied that burden of
proof to Ebert.
   To the extent the trial court’s ruling was based on a mis-
application of the law regarding the burden of proof, we are
not able to review it for an abuse of discretion.8 We therefore
reverse, and remand for further proceedings applying the cor-
rect legal framework. Because we are remanding the matter, we
take this opportunity to address the quantum of proof the State
must meet to overcome Ebert’s presumption of ownership.
                      Preponderance of
                     Evidence Standard
   We have not directly addressed what quantum of proof the
State must meet to rebut the presumption of ownership and

6
    Id. at 906-07, 921 N.W.2d at 86 (emphasis in original), quoting Agee,
    supra note 4.
7
    Agee, supra note 4, 274 Neb. at 453, 741 N.W.2d at 168.
8
    See McGuire, supra note 1.
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               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                               STATE v. EBERT
                              Cite as 303 Neb. 394

show another has superior title. In State v. Agee,9 we held that
when criminal proceedings have terminated, the person from
whom the property was seized is “presumed to have a right
to its return, and the burden is on the government to show
that it has a legitimate reason to retain the property.” Agee
also said a “presumption of ownership is created by exclusive
possession of personal property” so that evidence must be
offered to overcome that presumption.10 McGuire used similar
“presumption” language, as noted above. But no case has yet
described the quantum of proof necessary to overcome or rebut
the presumption.
   The Nebraska Evidence Rules provide that “[i]n all cases
not otherwise provided for by statute or by these rules a pre-
sumption imposes on the party against whom it is directed the
burden of proving that the nonexistence of the presumed fact
is more probable than its existence.”11 More probable than not
is generally a preponderance of the evidence standard,12 com-
monly used in civil proceedings.13
   This description of the quantum of proof necessary to over-
come the presumption of ownership is generally consistent
with that articulated in the case law of other jurisdictions on
which we have relied in our jurisprudence addressing motions
for the return of seized property. In the case of State v. Card,14
cited by Agee, the Washington Court of Appeals explained the
State had the burden to prove a greater right of possession
than the one from whom property was seized, and was thus
required to prove “by a preponderance of the evidence that the
property is stolen property.”15 Similarly, in the case of DeLoge

 9
     Agee, supra note 4, 274 Neb. at 450, 741 N.W.2d at 166.
10
     Id.
11
     Neb. Evid. R. 301, Neb. Rev. Stat. § 27-301 (Reissue 2016).
12
     State v. Taylor, 286 Neb. 966, 840 N.W.2d 526 (2013).
13
     See State v. Bain, 292 Neb. 398, 872 N.W.2d 777 (2016).
14
     State v. Card, 48 Wash. App. 781, 741 P.2d 65 (1987).
15
     Id. at 790, 741 P.2d at 71.
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               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                               STATE v. EBERT
                              Cite as 303 Neb. 394

v. State,16 cited by this court in both Agee and McGuire, the
Wyoming Supreme Court held that postconviction motions for
the return of seized property are civil proceedings to which a
preponderance of the evidence standard would apply.
   [8] We have consistently said that the seizure of property
from someone is prima facie evidence of that person’s right
to possession of the property,17 and we now hold that the pre-
sumptive right to possession of seized property may be over-
come when superior title in another is shown by a preponder-
ance of the evidence.
                        CONCLUSION
   It was error as a matter of law to require Ebert, as the
proponent of a motion seeking the return of property seized
from him, to prove ownership of the property seized. We thus
reverse the order and remand this matter for further proceed-
ings applying the correct burden of proof.
	R eversed and remanded for
                                  further proceedings.
   Freudenberg, J., not participating.

16
     DeLoge v. State, 156 P.3d 1004 (Wyo. 2007).
17
     See, McGuire, supra note 1; Agee, supra note 4.
