No Presumption Without Proof: Nebraska High Court Requires Initial Showing of Seizure Before Return‑of‑Property Presumption Attaches; § 29-820 Inapplicable Once § 29-818 Jurisdiction Invoked

Introduction

In State v. Allen, 318 Neb. 627 (Neb. Mar. 21, 2025), the Nebraska Supreme Court reversed a district court’s partial denial of a postconviction motion to return property allegedly seized from the defendant after his arrest for first degree murder and use of a firearm to commit a felony. The opinion, authored by Chief Justice Funke, clarifies the burden-shifting framework governing the return of seized property and reaffirms the limits of statutory authority when courts exercise exclusive jurisdiction over seized items. It also emphasizes the judiciary’s nondelegable duty to specifically identify what remains “evidence” in the State’s custody.

The case arose after Keith L. Allen—whose convictions and sentences (life plus 20 to 30 years) were affirmed on direct appeal—sought the return of more than 50 items, including approximately 25 firearms, various ammunition and components, and nine “bullet slugs” that corresponded to the projectiles recovered from the victim. A wrongful death action by the victim’s estate (the “Estate”) was pending, and the State offered the civil court’s prejudgment attachment order. The district court, applying Neb. Rev. Stat. § 29-820, ordered some property returned, directed that “per se contraband” and prison-prohibited items be sold, and retained other items as evidence, but it did not specify which particular items were evidence. On appeal, the Supreme Court found multiple plain errors, reversed, and remanded.

The opinion establishes a practical and doctrinally significant rule: the presumption that seized property must be returned to the person from whom it was taken does not arise until the movant first makes an initial showing that the property was in fact seized from him or her. It further confirms that § 29-820 does not govern disposition when the court’s exclusive jurisdiction under § 29-818 has been invoked and insists that trial courts—not law enforcement—must specifically identify which items remain evidence.

Summary of the Opinion

• Waiver and harmlessness:
  • Allen waived his challenge to the admission of the Estate’s prejudgment attachment order (exhibit 300) by stating “no objection” at the hearing; no plain error occurred because the district court did not rely on the attachment as a “legitimate reason” to retain items.
  • Even if the district court erred by excluding third‑party “receipts” (exhibit 301), the error was harmless because Allen himself stated that the firearms belonged to a third party, thereby waiving any presumption of his possessory right to those items.
• Plain errors in the district court’s disposition:
  • The court improperly assumed the items were seized from Allen without requiring an initial evidentiary showing; pleadings are not proof.
  • The court improperly relied on § 29-820 despite the district court’s exclusive jurisdiction under § 29-818 having been invoked.
  • The court failed to identify which specific firearms, ammunition, and components were to be retained as evidence, effectively delegating that determination to law enforcement—contrary to the in custodia legis framework.
• Holding: The order is reversed and remanded for proceedings consistent with these clarifications.

Analysis

Precedents Cited and Their Role

• State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007):
  • Core principle: After criminal proceedings terminate, seized property (other than contraband) should be returned to the person from whom it was seized unless the government shows a legitimate, continuing interest in retaining it.
  • Burden shifting: Agee held the person from whom property was seized is presumed entitled to its return, placing the burden on the government. Allen clarifies the threshold condition for that presumption: the movant must first show the property was actually seized from him or her.
• State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018):
  • Confirmed that once the defendant makes the requisite initial showing that items were seized from him, the burden shifts to the State to justify retention or to prove superior title in a third party.
  • Allen relies on McGuire to make explicit that the Agee presumption applies only after the defendant proves seizure.
• State v. Assad, 317 Neb. 20, 8 N.W.3d 729 (2024):
  • Reaffirmed that seized property is in custodia legis, must be safely kept by the seizing officer “unless otherwise directed by the court,” and that the State’s legitimate interest in retention includes use as evidence in postconviction or new-trial proceedings.
  • Allen adopts Assad’s articulation to fault the trial court for failing to give specific court directions about which items must be retained as evidence.
• State v. Ebert, 303 Neb. 394, 929 N.W.2d 478 (2019):
  • Held that § 29-820 applies only where the court’s exclusive jurisdiction under § 29-818 has not been invoked.
  • Allen applies Ebert to conclude the district court erred by using § 29-820 to dispose of items when § 29-818 governed.
• Federal and sister-state authorities (illustrative): U.S. v. Dean, 100 F.3d 19 (5th Cir. 1996); United States v. Martinson, 809 F.2d 1364 (9th Cir. 1987); U.S. v. Duncan, 918 F.2d 647 (6th Cir. 1990); Jackson v. U.S., 526 F.3d 394 (8th Cir. 2008); U.S. v. Maez, 915 F.2d 1466 (10th Cir. 1990); People v. Strock, 931 P.2d 538 (Colo. App. 1996). These cases support:
  • The necessity of an initial evidentiary showing of seizure
  • That “seizure from the person” is prima facie evidence of a right to possess against all but those with superior title
  • Government’s varied, but legitimate, interests in retention
• Evidence and appellate procedure authorities:
  • Contemporaneous objection rule and plain error: State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021); State v. Rush, 317 Neb. 622, 11 N.W.3d 394 (2024); State v. Senteney, 307 Neb. 702, 950 N.W.2d 585 (2020); State v. Vann, 306 Neb. 91, 944 N.W.2d 503 (2020).
  • Pleadings are not evidence: Bortolotti v. Universal Terrazzo & Tile Co., 304 Neb. 219, 933 N.W.2d 851 (2019).
  • Cross-appeal requirement for affirmative relief: Peterson v. Brandon Coverdell Constr., 318 Neb. 342, 15 N.W.3d 698 (2025).
• Additional Nebraska cases: State v. Zimmer, 311 Neb. 294, 972 N.W.2d 57 (2022) (per se contraband analysis in firearm context); State v. Riley, 31 Neb. App. 292, 979 N.W.2d 538 (2022) (similar themes).

Legal Reasoning

The Supreme Court structured its analysis around three central errors in the district court’s approach to Allen’s motion for return of property.

1. Initial showing of seizure is required to trigger Agee’s presumption:
   • Agee’s presumption—that property seized from a person should be returned upon termination of criminal proceedings unless the government shows a legitimate reason to retain it—presupposes that the property was in fact seized from that person. Allen emphasizes that this is not a pleading-level assumption: the movant must make an “initial showing” of actual seizure.
   • Because Allen did not introduce evidence establishing that each item listed in his motion was seized from him—and because the district court simply assumed seizure based on the motion itself (which was not received into evidence)—the court committed plain error. The court’s misstep likely caused it to order disposition of items never seized from Allen.
2. Misapplication of § 29-820 when § 29-818 applies:
   • Seized property in criminal cases falls within the court’s exclusive jurisdiction under § 29-818 (in custodia legis). Ebert holds that § 29-820 is only applicable when § 29-818 has not been invoked. Here, § 29-818’s jurisdiction had indisputably attached (indeed, the district court acknowledged as much), so relying on § 29-820 to order sales or other dispositions was plain error.
3. Nondelegable judicial duty to identify specific evidence:
   • Assad makes clear that seized items are kept by the officer unless otherwise directed by the court. That “direction” must be concrete. The district court’s categorical order—retain the “firearm(s) or weapon(s) used in the commission” of the offenses and “ammunition and ammunition components” used—without identifying which items those were, impermissibly left the decision to law enforcement. Allen holds that the court must itself determine and specify which particular items remain evidence.

The Court also resolved two evidentiary disputes without affecting the ultimate disposition:

• Exhibit 300 (prejudgment attachment order): Allen’s failure to object at the hearing waived his evidentiary challenge. No plain error occurred because the district court did not rely on the attachment as a justification for withholding property; it merely acknowledged that any property returned would remain subject to that civil lien.
• Exhibit 301 (third-party receipts): Even assuming the Estate’s standing to object was debatable and that the receipts were admissible, any error in excluding them was harmless. Allen’s own statement that the firearms belonged to a third party vitiated the presumption that he was entitled to their return.

Impact and Prospective Significance

Allen’s practical effects will be felt most acutely in postconviction return-of-property proceedings, but the decision clarifies basic evidentiary and procedural expectations that resonate across criminal and civil practice where seized property is at issue.

• For defendants and defense counsel:
  • Expect to carry an initial evidentiary burden: file (and introduce) competent proof that each item sought was actually seized. Useful materials include police property logs, evidence receipts, search warrant returns and inventories, chain-of-custody forms, or sworn testimony.
  • Concessions matter: statements that items belong to third parties can nullify the Agee presumption as to those items. Coordinate with lawful owners to assert their own claims where appropriate.
• For prosecutors and law enforcement:
  • Maintain, disclose, and be prepared to prove the evidence status of items. The State’s “continuing interest” includes use in any trial, retrial, or postconviction adjudication. But it must be specifically supported on the record, item by item, especially where the trial court must make concrete findings.
  • Do not rely on § 29-820 once § 29-818 jurisdiction is invoked. Instead, seek tailored court orders under § 29-818 that direct retention, return, or other disposition, and ensure the court’s order identifies the items with particularity (e.g., serial numbers, descriptions).
• For trial courts:
  • Hold an evidentiary hearing when the seizure status or identity of items is contested or unclear. Do not assume seizure based solely on motion allegations; pleadings are not evidence.
  • Enter specific findings and orders identifying:
    • Which items were seized from the movant;
    • Which items are “evidence” to be retained, and why;
    • Which items are “per se contraband” (illegal to possess) versus merely prohibited for prison custody (which does not convert them into contraband); and
    • Which items must be returned, to whom, and subject to what liens or claims (e.g., civil attachments).
• For third parties and civil litigants:
  • Prejudgment attachment orders do not create a “legitimate reason” for the State to retain items under the criminal court’s custody; they do, however, remain effective against returned property. Third-party claimants should be ready to prove superior title in the criminal docket or seek appropriate relief in the civil docket, as dictated by jurisdictional rules.
• Systemic improvements:
  • Allen spotlights the need for robust post-trial evidence management: complete exhibit lists, timely filed inventory records, and traceable item identifiers. The Court noted that no exhibit list had been filed in the underlying criminal trial, complicating later disposition decisions.

Complex Concepts Simplified

• In custodia legis:
  • Latin for “in the custody of the law.” Property seized in the enforcement of criminal laws is under the court’s custody, not simply the police’s. The seizing officer must safely keep the property unless the court orders otherwise.
• Presumption of return and the initial showing:
  • After criminal proceedings end, the person from whom property was seized is presumed entitled to its return—unless the State proves a legitimate continuing interest (e.g., evidence for retrial or postconviction) or contraband. Allen clarifies that the presumption exists only if the movant first proves the items were actually seized from him or her.
• “Per se contraband” vs. prison-prohibited property:
  • Per se contraband is unlawful for anyone to possess (e.g., illegal drugs). Items merely prohibited in prison (e.g., firearms, certain electronics) are not automatically contraband in the legal sense; they cannot be returned to a prisoner’s physical custody but may be returned to a lawful owner or otherwise disposed of as directed by the court.
• §§ 29-818 and 29-820:
  • Section 29-818: When invoked, the trial court has exclusive jurisdiction over seized property. The court must direct its disposition.
  • Section 29-820: Governs certain law enforcement dispositions when § 29-818’s exclusive jurisdiction is not in play. Ebert and Allen make clear: do not use § 29-820 once § 29-818 applies.
• Plain error vs. harmless error:
  • Plain error is an obvious error that harms the integrity or fairness of proceedings and may be corrected even without an objection. Harmless error, by contrast, does not affect the outcome (e.g., excluding receipts was harmless where the movant independently conceded the fact those receipts would have proved).
• Prejudgment attachment:
  • A civil remedy that allows a creditor to obtain a lien on a defendant’s assets before judgment. It does not, by itself, supply the criminal State with a “legitimate reason” to retain property in custodia legis; however, property returned by the criminal court may be held subject to the attachment.

Conclusion

State v. Allen is an important refinement of Nebraska’s return-of-property jurisprudence. It cements three guideposts:

1. No presumption without proof: A defendant seeking return of property must first make an evidentiary showing that the item was actually seized from him or her before the Agee presumption applies and the burden shifts to the State.
2. Statutory discipline: Once § 29-818’s exclusive jurisdiction attaches, § 29-820 is off the table; courts must dispose of property by specific orders under § 29-818.
3. Judicial specificity: Trial courts must themselves identify which items remain evidence and cannot delegate that decision to law enforcement.

The opinion also reaffirms fundamental appellate principles (waiver by failure to object; sparing use of plain error) and practical truths about seized property: it is in the court’s custody, must be safeguarded, and should be returned when the State’s legitimate interests end. Going forward, Allen will encourage fuller evidentiary records, clearer item-by-item findings, and more accurate alignment between criminal and civil processes when seized property intersects with third-party claims and attachments. In short, Allen makes the postconviction return-of-property process more rigorous, more transparent, and more faithful to Nebraska’s statutory and common-law framework.