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2014-0566, State of New Hampshire v. Christopher Kean
Although t he jacket had been discontinued in 1999, it bore a current Officer Biron walking in front of a Manchester Police Department substation. discontin ued Manchester Police jacket, was observed by Manchester Police On September 4, 2012, the defendant, while wearing an official but The following facts are derived from the trial court’s order or the record.
return of property. See RSA 595 - A:6 (2001). We vacate and remand. Superior Court (Brown, J.) granting in part an d denying in part his motion for HICKS, J. The defendant, Christopher Kean, appeals an order of the
the brief and orally), for the defendant. The La w Offices of Martin & Hipple, P LLC, of Concord (Seth J. Hipple on
attorney general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant
Opinion Issued: August 7, 2015 Argued: June 4, 2015
CHRISTOPHER KEAN
v.
THE STATE OF NEW HAMPSHIRE
No. 2014 - 566 Hillsborough - northern judicial district
___________________________
THE SUPREME COURT OF NEW HAMPSHIRE
page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as 2
Appeal of Local Gov’ t Ctr., 165 N.H. 790, 804 ( 2014) (“We first look to the has no property to be returned, and thus no property to be forfeited. See A plain reading of RSA 595 - A:6 reveals that w ithout ownership, a party
discretion.” State v. Pessetto, 160 N.H. 813, 816 ( 2010) (quotation omitted). the disposition of property under RSA 595 - A:6 for an unsustainable exercise of RSA 595 - A:6 (2001) (emphasis added). “We review the trial court’ s ruling on
justice, and in accordance with due process of law. as the public interest requires, in the discretion of the court or orders, which may include forfeiture and either sale or destruction of the property, or shall be disposed of as the court or justice coming into the hands of the police shall be returned to the owner property seized in execution of a search warrant or otherwise evidential value, not constituting contraband.. . . All other or fraudulently obtained property, or any other property of shown, order returned to the rightful owne rs any stolen, embezzled notice to a defendant and hearing, and except for good cause the court, prior to trial or upon an appeal after trial, shall, upon Upon application by a prosecutor, defendant, or civil claimants,
The relevant statute, RSA 595 - A:6, provides, in pertinent part:
followed. that forfeiture of the patch best served the public interest. This appeal Manchester Police patch be removed from the jacket sleeve. The court found that the jacke t be returned to the defendant, subject to the condition that the times the property of the City of Manchester.” However, t he trial court ordered hearing, the court found that the jacket, and implicitly the patch, were “a t all crime. The defe ndant then moved for the return of the jacket. Following a part because of the State’s inability to produce a material witness to the alleged him proceeded to trial the following May. At trial, the case was dismissed, in polic e officer, see RSA 104: 28 - a (2009) (false personation), and the case against On August 15, 2013, the defendant was indicted for impersonating a
impersonating a police officer. the defendant and Biron, McKenney placed the defendant under arrest for by Manchester Police Officer McKenney. Aware of the prior encounter between observed walking past the Manchester Police Department substation, this time that time. The next day, the defendant, wearing the same jacket, was again arrest for impersonating a police officer. Biron did not arrest the defendant at Biron told him that continued wearing of the jacket would likely subject him to that an attorney had confirmed that it was legal for him to wear the jacket, but that a passerby might mistake him for a police officer. The defendant stated Manchester Police Department patch. Biron stopped the defendant, concerned 3
ownership by demonstrating a “cognizable claim of ownership” o f the jacket in finding that the State adequately rebutted the presumption of defendant’s Applying the Chambers standard, w e hold that the trial court did not err
proof standard for cases arising under RSA 595 - A:6. r easoning of Chambers to be sound, and c onsequently adopt its burden of there are seri ous reasons to doubt” his right to the property). We find the additional evidence of ownership” when property is seized from him “unless (S.D. 198 3) (explaining that a de fendant “need not come forward with by the South Dakota Supreme Court. See State v. Ell, 338 N.W.2d 845, 846 741 N.W.2d 161, 166 (Neb. 2007), and is consistent with the standard applied It has also been adopted by the Nebraska Supreme Court, see State v. Agee, 2001); United States v. Potes Ramirez, 260 F.3d 1310, 1314 (11th Cir. 2001). 974 (9th Cir. 2005); United States v. Clymore, 245 F.3d 1195, 1201 (10th Cir. several federal circuit courts. S ee United States v. Kaczynski, 416 F.3d 971, S uch a rebuttable presu mption of ownership has been adopted by
Id. at 376 - 77 (quotation and citations omitted).
ownership or right to possession adverse to that of the movant. may meet this b urden by demonstrating a cognizable claim of has a legitimate reason to retain the property. The government right to its return, and the government must demonstrate that it person from whom the property was seized is presumed to have a when the criminal proceedings have terminated. At that point, the or subject to forfeiture. . . . The burden shifts to the government once criminal proceedings have concluded, unless it is contraband investigation and trial, but. . . such property must be returned [T]he government is permitte d to seize evidence for use in
v. Chambers, 192 F. 3d 374 (3d Cir. 1999). Under this standard: The trial court applied the burden of proof standard from United States
595 - A:6. addressed which party bears the burden of proof as to ownership under RSA contraband under RSA 595 - A:6, see Pessetto, 160 N.H. at 817, but we hav e not patch. We have held that the State bears the burden as to whether an item is therefore, erred in finding that the defendant was not the rightful owner of the ownership, that the State did not meet its burden, and that the trial court, The defendant contends that the State has the burden of disproving his
and the patch. 8 3 (2005). Therefore, the threshold issue is the rightful ownership of the jacket to its plain and ordinary meaning.”); s ee also State v. Gero, 152 N.H. 379, 382 language of the statute itself, and, if possible, construe that language according 4
DALIANIS, C.J.
, and CONBOY, LYNN, and BASSETT, JJ., concurred.
Vacated a nd remanded.
proceedings consistent with this opinion. Accord ingly, we vacate the trial court’s order and remand for fu rther
notice as the statutes of the state require.” (quotation omitted)). is final and conclusive upon nonresidents as well as residents, upon such (“The adjudication of New Hamps hire courts as to all property within the state on New Hampshire Civil Practice and Procedure § 2.08, at 2 - 10 ( 4th ed. 2014) Manchester, it erred. Cf. 4 G. MacDonald, New Hampshire Practice: Wiebusch ordere d forfeiture to the State without first providing notice to the City of belonged to the City of Manchester. To the extent that the court may have court then ordered forfeiture of the patch, which the court had implicitly found those worn by active duty police officers in the City of Manchester.” The trial The trial court also found that “the patch is still current and identical to
to the rightful owners.” A:6 provides that, absent a showing of good cause, such property be “returned court erred in ordering that the jacket be returned to the defendant. RSA 595 - H aving found that the jacket was owned by the City, however, the tr ial
ownership of the jacket and patch by the City of Manchester. that the trial court did not err in finding that the State had demonstrated on the motion for return of property. Under these circumstances, we conclude the defendant did not produce any contrary evidence at trial or at the hearing or upon the officer’s retirement. His testimony was not objected to at trial, and that officers ar e to turn in their uniforms upon the garment’s discontinuation developed in prior criminal proceedings against the claimant”). Biron testified of proof in a return of property hearing, that courts “may rely on the record (E.D.N.Y. 2000) (expla i ning, with regard to the government meeting its burden defendant’ s criminal trial. See Green v. United States, 90 F. Supp. 2d 229, 2 30 record. The trial court relied on Officer Biron’s testimony given during the disagree with the defendant that the trial court’s finding is unsupported by the “turned in” upon discontinuation or upon the retirement of an officer. We a Manchester Police Department policy in place that required items to be and the patch by the City of Manchester. The trial court found that there was