Clarifying the Burden and Court’s Role in Return-of-Seized-Property Motions under Nebraska Law

Introduction

The Nebraska Supreme Court’s decision in State v. Allen (318 Neb. 627, 2025) addresses important questions about the procedure and burdens governing a defendant’s motion for return of property seized in a criminal case. Keith L. Allen, serving a life sentence plus additional terms for first-degree murder and related firearm offenses, sought the return of over fifty items—among them firearms, ammunition, video recordings, and personal effects—allegedly seized after his arrest. The Lincoln County District Court granted only partial relief, prompting Allen’s appeal. The Supreme Court of Nebraska was asked to decide: (1) what showing a defendant must make to invoke the presumption of right to return, (2) what burdens shift to the State once that presumption arises, and (3) how a court must specifically direct the disposition of seized property in its order.

Summary of the Judgment

The Nebraska Supreme Court unanimously reversed the District Court’s order and remanded for further proceedings. The high court identified three clear errors:

The District Court treated Allen’s unverified motion as sufficient proof that all listed items were seized from him, without requiring him to make an initial evidentiary showing.
The court improperly applied Neb. Rev. Stat. § 29-820 (governing return after a court’s nonexclusive jurisdiction) even though exclusive jurisdiction had been invoked under § 29-818.
The court failed to specify in its order which firearms, ammunition, and other items remained evidence of Allen’s crime versus which could be returned or sold.

Because these errors undermined the Legislature’s burden-shifting scheme and the court’s own duty to direct safekeeping or return of property, the Supreme Court held that the District Court plainly erred and remanded for a corrected disposition.

Analysis

1. Precedents Cited

State v. Agee (274 Neb. 445, 2007): Established the foundational rule that a person from whom property was seized is presumed entitled to its return and that the government bears the burden of showing a legitimate reason to retain it.
State v. McGuire (301 Neb. 895, 2018): Clarified that a defendant must first make a threshold showing that the items were in fact seized from him before shifting the burden to the State.
State v. Assad (317 Neb. 20, 2024): Reaffirmed the “custodia legis” principle that seized evidence must be safely kept by law enforcement unless the court directs otherwise, and that it may remain in evidence until no longer needed—including for postconviction or retrial.
Federal and out-of-state authorities (e.g., U.S. v. Dean, 100 F.3d 19 (5th Cir. 1996)): Echo the two-step presumption and burden-shifting approach in return-of-property proceedings.

2. Legal Reasoning

The Court’s analysis follows a statutory and evidentiary roadmap:

Exclusive Jurisdiction under § 29-818: Once criminal proceedings commence, the court gains exclusive control over seized property. The District Court acknowledged this, yet erroneously consulted § 29-820—applicable only when exclusive jurisdiction has not been invoked.
Two-Step Burden Framework:
- Initial Showing (McGuire): A defendant must submit evidence—such as testimony or documents—demonstrating that particular items were seized from him.
- State’s Burden (Agee): If the initial showing is made, the government must then prove a legitimate reason to retain each item (e.g., it remains evidence, is contraband, or is bound by court order).
Specific Court Directives: Under the “custodia legis” doctrine, law enforcement holds property subject to the court’s directions. The District Court’s generic ordering—to hold all firearms and ammunition “used in the commission” of the crimes—without identifying them by exhibit or description, failed to satisfy this duty.
Plain Error Review: The Supreme Court found the combination of procedural and statutory errors “plainly evident” and destructive of “the fairness of the judicial process,” warranting reversal even in the absence of contemporaneous objections on every point.

3. Impact on Future Cases

This decision reinforces and sharpens Nebraska’s return-of-property framework:

District courts must mechanically follow the two-step burden-shifting analysis: (1) require an initial showing that specific items were seized, and (2) demand that the State justify retention item-by-item.
Courts should not look to § 29-820 when exclusive jurisdiction under § 29-818 applies.
Orders disposing of seized property must identify each item or category (by exhibit number or detailed description) and declare explicitly whether it is to remain in evidence, be returned, be sold, or otherwise handled.
Failure to comply will be treated as plain error, subject to reversal even if not fully raised by the parties at trial.

Complex Concepts Simplified

Custodia legis: Latin for “in the custody of the law” — property seized by police is under court control until returned or otherwise disposed of.
Presumption of Entitlement: If you show an item was seized from you, the law presumes you deserve it back unless the State proves a reason to keep it.
Exclusive vs. Nonexclusive Jurisdiction: § 29-818 gives courts sole authority over seized property once charges are filed. § 29-820 applies only when the court hasn’t yet taken that control.
Plain Error: A legal mistake so obvious that a court must fix it on its own, even if neither side fully objected at trial.

Conclusion

State v. Allen cements Nebraska’s procedural safeguards for defendants seeking the return of seized property. It clarifies that:

A defendant bears an initial burden to prove a particular item was seized from him.
Once that threshold is met, the State must justify retaining each item—solemnly demonstrated through evidence or legal authority.
Court orders must identify items with precision and direct law enforcement how to treat them.

By reversing and remanding, the Nebraska Supreme Court has reaffirmed the Legislature’s intent to balance a defendant’s property rights against the State’s interest in preserving evidence, ensuring full transparency and fairness in return-of-property proceedings.