                                                                                         November 25 2009




                                           DA 09-0117

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2009 MT 402



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

LIN TORGERSON,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Ninth Judicial District,
                        In and For the County of Toole, Cause No. DC-04-041
                        Honorable David G. Rice, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Maxwell G. Battle, Jr., Battle & Edenfield, Kalispell, Montana


                For Appellee:

                        Hon. Steve Bullock, Montana Attorney General; Barbara C. Harris, Assistant
                        Attorney General, Helena, Montana



                                                     Submitted on Briefs: August 5, 2009

                                                                 Decided: November 24, 2009



Filed:

                        __________________________________________
                                          Clerk
Justice John Warner delivered the Opinion of the Court.

¶1     Lin Torgerson was convicted of the Possession of Unlawfully Taken Wildlife, a

misdemeanor, and Unlawful Possession of Bird Parts, a misdemeanor. After the trial,

Torgerson filed a motion for return of items seized during the investigation, which was

denied. Torgerson now appeals the District Court’s decision.

¶2     We reverse and remand for further proceedings consistent with this Opinion.

¶3     The issue on appeal is whether the District Court erred in ordering that items seized

upon execution of a search warrant be released to the State of Montana, Department of Fish,

Wildlife & Parks.

¶4     Game wardens of the Montana Department of Fish, Wildlife & Parks (FWP) received

information that Lin Torgerson had violated Montana hunting laws and regulations by

illegally taking two whitetail deer and a black bear. FWP began an investigation which led

to the issuance of search warrants. Pursuant to the search warrants, numerous items were

seized from Lin Torgerson’s residence, place of employment (Lloyd Torgerson, Inc.), and a

Quonset hut. These items included four deer heads and some bird parts.

¶5     Torgerson was ultimately charged in district court with unlawful possession of

wildlife, a felony, and unlawful possession of bird parts, a misdemeanor. On July 14, 2006,

the jury found Torgerson guilty of two misdemeanors, one for possession of illegally taken

wildlife worth $500, and the other for possession of wild bird parts.

¶6     On July 26, 2006, after the trial was completed, Torgerson moved the District Court to

return the items seized during the investigation. The District Court ordered that the items
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which had been seized but not introduced into evidence at trial be returned to Torgerson, and

that those items introduced into evidence at trial were to be held by the clerk of court until

further order of the Montana Supreme Court.

¶7     On November 9, 2006, Torgerson was sentenced. Torgerson appealed the judgment

and sentence. This Court affirmed the judgment on August 26, 2008. State v. Torgerson

(Torgerson 1), 2008 MT 303, 345 Mont. 532, 192 P.3d 695.

¶8     On October 6, 2008, the State moved the District Court for an order releasing to FWP

trial Exhibits 31 through 36. In its motion, the State claimed that Exhibits 31 through 36

were illegally taken and thus should be released to FWP. Exhibit 31 consists of deer antlers

in velvet; Exhibits 32, 33, and 34 are whitetail deer mounts; Exhibit 35 is eagle feathers; and

Exhibit 36 is an eagle skull. Exhibits 31 through 34 are the items at issue in this appeal.

¶9     On October 9, 2008, the District Court ordered Exhibits 31 through 36 released to the

State. FWP took possession of them on October 22, 2008. On December 16, 2008,

Torgerson, believing his motion for return of the items in controversy here had not been

ruled on, filed a notice of pending motion. In his notice, Torgerson asked for the return of

the deer antlers and the three whitetail deer mounts that were admitted into evidence at trial.

On December 24, 2008, the State responded to the notice of pending motion stating that the

District Court had already ruled on the disposition of the items at issue. In reply, Torgerson

argued that his counsel had not received a copy of the State’s petition for release of the

exhibits and that there had been no hearing on whether the exhibits should be released to

FWP.
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¶10    On February 10, 2009, the District Court, without a further hearing, denied

Torgerson’s motion for the return of the antler and three whitetail deer mounts, Exhibits 31-

34. The District Court reached the merits of the controversy and held that because the

Supreme Court held in Torgerson 1 that there was sufficient evidence to convict Torgerson

of unlawfully taking any of the four deer, Exhibits 31-34, he could not establish his right to

possession of any of them. Torgerson 1, ¶ 55. Torgerson now appeals this order.

¶11    Items seized by the State upon execution of a search warrant are to be returned or

disposed of according to statute. Section 46-5-307, MCA, states in pertinent part:

       (1) The prosecutor may file a petition with the court alleging that there exist
       certain items held as evidence either by the law enforcement agency or the
       court and that the items no longer have any evidentiary value.

                                              ...

       (2) If the petition requests the destruction or use of contraband, it must
       describe how destruction is to be accomplished or how the contraband has
       training or law enforcement value and its contemplated use by a law
       enforcement agency.

       (3) The county attorney shall provide a victim of the offense with a copy of the
       petition and shall advise the court whether the victim wishes to be heard on the
       petition.

Section 46-5-307, MCA. Montana law further provides that:

        (1) A person claiming the right to possession of property seized as evidence
       may apply to the judge for its return. The judge shall give written notice as the
       judge considers adequate to the prosecutor and all persons who have or may
       have an interest in the property and shall hold a hearing to determine the right
       to possession.

       (2) If the right to possession is established, the judge shall order the property,
       other than contraband, returned if:
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           (a) the property is not needed as evidence;

           (b) the property is needed and satisfactory arrangements can be made for
           its return for subsequent use as evidence; or

           (c) all proceedings in which the property might be required have been
           completed.

Section 46-5-312, MCA.

¶12    Torgerson claims that since he was only convicted of illegally taking one deer, he can

lawfully claim ownership of at least three of the four exhibits in question. He also claims

that Lloyd Torgerson and Aron Torgerson are both other persons who have or may have an

interest in these exhibits, and thus the District Court erred in not giving adequate notice and

holding a hearing.

¶13    Section 46-5-312(1), MCA, clearly provides that if a person claiming a right to seized

property claims an interest in such property, the District Court is to hold a hearing to

determine if such person has a right to such possession. Notice of the hearing is to be given

to all persons who have or may have an interest in the property. In this instance, Torgerson

claims an interest in at least three of the four exhibits in question. A hearing at which

Torgerson has an opportunity to establish his right to possession of the seized property has

not been held as required by statute. This Court’s opinion in Torgerson 1 did not concern,

nor did it establish, whether Torgerson has the right to possession of the exhibits in question.

This case must be remanded for a hearing as required by § 46-5-312(1), MCA, followed by

entry of appropriate findings of fact and conclusions of law.


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¶14    The record does not reflect whether anyone other than Lin Torgerson has claimed the

right to possession of Exhibits 31 through 34. Thus, we render no opinion on whether notice

of the hearing must be given to anyone other than Lin Torgerson and the State.

¶15    The District Court’s order of February 10, 2009, is vacated, and this case is remanded

for further proceedings not inconsistent with this Opinion.


                                                 /S/ JOHN WARNER

We Concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ BRIAN MORRIS




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