29-820. Seized property; disposition.

782 words·~4 min read·/ne/chapter-29/29-820

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(1)Unless other disposition is specifically provided by law, when property seized or held is no longer required as evidence, it shall be disposed of by the law enforcement agency on such showing as the law enforcement agency may deem adequate, as follows:

(a)Property stolen, embezzled, obtained by false pretenses, or otherwise obtained unlawfully from the rightful owner thereof shall be restored to the owner;

(b)Money shall be restored to the owner unless it was used in unlawful gambling or lotteries or it was used or intended to be used to facilitate a violation of Chapter 28, article 4, in which case the money shall be forfeited and disposed of as required by Article VII, section 7, of the Constitution of Nebraska;

(c)Property which is unclaimed or the ownership of which is unknown shall be sold at a public auction held by the officer having custody thereof and the net proceeds disposed of as provided in subdivision

(b)of this subsection, as shall any money which is unclaimed or the ownership of which is unknown;

(d)Except as provided in subsection

(2)of this section, articles of contraband shall be destroyed;

(e)Firearms, ammunition, explosives, bombs, and like devices which have been used in the commission of crime shall be destroyed; and

(f)Firearms which have come into the law enforcement agency's possession through a seizure or otherwise and

(i)have not been used in the commission of crime,

(ii)have not been defaced or altered in any manner that violates any state or federal law,

(iii)may have a lawful use and be lawfully possessed, and

(iv)are not subject to section 29-440 shall be restored to the owner.

(2)When the following property is seized or held and is no longer required as evidence, such property shall be disposed of on order of the court as the court may deem adequate:

Goods which are declared to be contraband but may reasonably be returned to a condition or state in which such goods may be lawfully used, possessed, or distributed by the public.

(3)When any animal as defined by section 28-1008 is seized or held and is no longer required as evidence, such animal may be disposed of in such manner as the court may direct. The court may consider adoption alternatives through humane societies or comparable institutions and the protection of such animal's welfare. For a humane society or comparable institution to be considered as an adoption alternative under this subsection, it must first be licensed by the Department of Agriculture as having passed the inspection requirements in the Commercial Dog and Cat Operator Inspection Act and paid the fee for inspection under the act. The court may prohibit an adopting or purchasing party from selling such animal for a period not to exceed one year.

(4)Unless otherwise provided by law, all other property shall be disposed of in such manner as the court in its sound discretion shall direct.

Traditional, or per se, contraband is defined as "objects the possession of which, without more, constitutes a crime." A claimant has no right to have per se contraband returned to him or her. Derivative contraband are articles which are not inherently illegal, but are used in an unlawful manner. State v. Zimmer, 311 Neb. 294, 972 N.W.2d 57 (2022).

This section applies only where the exclusive jurisdiction of a court under section 29-818 has not been invoked. State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).

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

Illegal gambling devices forfeited to the State constitute contraband, which this section requires the State to destroy. State v. Dodge City, 238 Neb. 439, 470 N.W.2d 795 (1991).

Under this section, law enforcement is authorized to dispose of certain property seized or held and no longer required as evidence. State v. Riley, 31 Neb. App. 292, 979 N.W.2d 538 (2022).

When reading section 29-818 and this section together, this section applies only where the exclusive jurisdiction of a court under section 29-818 has not been invoked. State v. Riley, 31 Neb. App. 292, 979 N.W.2d 538 (2022).