Obad v. State

punishment for the two offenses, the lesser DUI offense must
be dismissed.
Finally, we address the State’s argument that the decision of
the Court of Appeals which we affirm today somehow permits
Dragoo to “escape” the enhanced penalties the Legislature pre-
scribed for fourth-offense DUI with an elevated blood alcohol
concentration.28 Had Dragoo been charged only with DUI, as
he was originally, upon conviction, he would have been sub-
ject to the enhanced penalties resulting from his prior DUI
convictions and his elevated blood alcohol concentration. The
double jeopardy issue which has resulted in his receiving a
lesser sentence in this case was the direct consequence of the
prosecutor’s tactical decision to add the charge of DUI causing
serious bodily injury in the amended information. Dragoo has
not “escaped” the enhanced penalty he should have received;
he was relieved of it by the State’s charging decision, which
we cannot undo.
CONCLUSION
For the reasons discussed, we affirm the judgment of the
Nebraska Court of Appeals.
A ffirmed.
28 Brief for appellee in support of petition for further review at 9.
L ouis obAd, AppeLLAnt, v.
stAte of nebrAskA, AppeLLee .
766 N.W.2d 89
Filed May 29, 2009. 	No. S-08-703.
1. Motions to Vacate: Appeal and Error. An appellate court reviews a ruling on a
motion to vacate for abuse of discretion.
2. Appeal and Error. To be considered by an appellate court, an error must be both
specifically assigned and specifically argued in the brief of the party asserting
the error.
3. Search and Seizure: Property. Neb. Rev. Stat. § 28-431(4) (Reissue 2008) sets
forth two avenues by which a purported owner or claimant may prevent forfeiture
and recover his or her property. First, under § 28-431(4), the forfeiture statute
allows the owner of record of such property, at any time after seizure and prior to
866 	277 NeBRASkA RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

court disposition, to petition the district court of the county in which seizure was
made to release such property. Second, § 28-431(4) provides that any person hav-
ing an interest in the property proceeded against or any person against whom civil
or criminal liability would exist if such property is in violation of the Uniform
Controlled Substances Act may, within 30 days after seizure, appear and file an
answer or demurrer to the petition.
4. ____: ____. The alleged owner of cash cannot be an owner of record under Neb.
Rev. Stat. § 28-431(4) (Reissue 2008).
5. ____: ____. A federal agency’s adoption of a seizure has the same effect as if the
federal agency had originally seized the property on the date it was seized by the
local authorities.
6. Search and Seizure: Property: Jurisdiction. Where no state forfeiture proceed-
ings are initiated, once seized property is delivered to the Drug enforcement
Agency and a federal forfeiture proceeding is instituted, state jurisdiction ends.
7. Search and Seizure: Property. Denial of return of property is proper where the
property is subject to forfeiture.
Appeal 	from 	the 	District 	Court 	for 	Cheyenne 	County:
kristine r. C eCAvA, Judge. Affirmed.
Donald J.B. Miller, of Matzke, Mattoon & Miller, L.L.C.,
L.L.O., for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Wright, C onnoLLy, gerrArd, stephAn, mCC ormACk , and
miLLer-L ermAn, JJ.
miLLer-L ermAn, J.
NATURe OF THe CASe
Appellant, Louis Obad, was stopped by a Nebraska State
patrol trooper, and during the stop, the trooper seized cur-
rency and other property from Obad’s vehicle. Obad filed
an “Application for Return of property” in the district court
for Cheyenne County. On March 5, 2008, the district court
ordered that the State return the property to Obad, but later, on
May 20, the court vacated its initial order after the record at a
full hearing established that the currency had been transferred
to the federal government prior to the March 5 order and that
forfeiture proceedings in federal court had thereafter been
commenced. Obad appeals. We conclude that the district court
did not abuse its discretion when it vacated its initial order
OBAD v. STATe 	867
Cite as 277 Neb. 866

and ultimately denied the “Application for Return of property.”
We affirm.
STATeMeNT OF FACTS
Obad was driving an automobile on Interstate 80 in Cheyenne
County, Nebraska, on January 19, 2008, when he was stopped
for speeding by Trooper Aaron Watson. Obad declined Watson’s
request to search his vehicle. Obad was detained approximately
30 minutes while the trooper requested the assistance of another
trooper with a drug detection dog.
During this time, Obad told Watson that he was traveling to
Las Vegas, Nevada, to gamble. Watson asked if Obad had any
cash, and Obad stated that he had $40,000 in cash for gam-
bling. After having the drug detection dog assess the vehicle,
the troopers entered the vehicle and seized U.S. currency total-
ing $43,584, along with other personal property. A marijuana
cigarette was also found in the vehicle. Obad was not arrested
at the time of the stop. The Cheyenne County Attorney filed
criminal charges against Obad, but the charges were later
dropped. After seizing the money, Watson took it to a bank in
Scottsbluff, Nebraska. As discussed below, a check was subse-
quently made out to the U.S. Marshals Service.
On 	January 	24, 	2008, 	Obad 	filed 	a 	pleading 	entitled
“Application for Return of property” in the district court for
Cheyenne County, alleging that the money seized was not con-
traband, evidence, or used in the commission of a crime and
that it should be returned to Obad. Obad did not state the statu-
tory basis for the request in his pleading.
On January 29, 2008, the Nebraska State patrol sent a certi-
fied check for $43,584 to the U.S. Marshals Service because
the U.S. Attorney’s office agreed to seek forfeiture of the
money under federal law. The district court held a hearing
on Obad’s application for return of property on February 4.
At the hearing, Watson testified that he believed the money
had already been transferred to the federal Drug enforcement
Agency and that he believed that agency would go forward
with a forfeiture action.
On March 5, 2008, the district court entered an order direct-
ing the State to return the seized currency and property to
868 	277 NeBRASkA RepORTS

Obad. In its order, the court found that the State had not filed a
forfeiture action within the 10 days allowed by Neb. Rev. Stat.
§ 28-431 (Reissue 2008) and that the cash was not needed as
evidence in any criminal proceeding. The district court further
found that Obad had shown that he had no knowledge of any
violation of the Uniform Controlled Substances Act and that he
had no knowledge that the currency was used in a transaction
violating that act. The district court determined that Obad was
entitled to the return of the currency and property.
On April 1, 2008, the State filed a motion to vacate the
March 5 order. The State noted that the currency had been
transferred to the federal government prior to the court’s March
5 order directing the State to return the currency to Obad. The
State further asserted that because the federal government had
commenced a forfeiture action of the seized money on March
19, the district court did not have jurisdiction over the money.
The district court held a hearing on the matter and, on May 20,
entered an order vacating its March 5 order, thus ultimately
denying the relief sought in Obad’s application for return of
property. Obad appeals.
ASSIGNMeNTS OF eRROR
Obad contends that the district court erred by (1) vacating
its order of March 5, 2008, thus denying Obad the return of
his property under the State’s forfeiture statute, and (2) fail-
ing to find that because the Nebraska state courts had initially
exercised jurisdiction over the matter, the federal forfeiture
action should not be permitted to circumvent procedures under
state law.
STANDARD OF ReVIeW
[1] We review a ruling on a motion to vacate for abuse of
discretion. State on behalf of A.E. v. Buckhalter, 273 Neb. 443,
730 N.W.2d 340 (2007).
ANALYSIS
Obad contends that the district court erred when it vacated
its prior order which had directed the State to return Obad’s
property. Obad claims that he was entitled to the property
under the Nebraska forfeiture statute. Obad further reasons that
OBAD v. STATe 	869
Cite as 277 Neb. 866

because the State first exercised jurisdiction over the currency,
the federal courts could not properly obtain jurisdiction over
the currency, and that requiring him to litigate this matter in
federal court creates wasteful litigation. Appellee, the State,
responds by arguing that the district court properly vacated its
initial order because Obad did not use the proper statutory pro-
cedure for requesting the return of his money. The State further
argues that at the time of the hearing on the application for
return of property, the money was already in the jurisdiction
of the federal court, and that therefore, by virtue of “adoptive
seizure,” the district court could not order the money returned.
The State also notes that the State did not bring a forfeiture
action, but that the federal government had commenced forfei-
ture proceedings prior to the court’s consideration of the State’s
motion to vacate.
[2] As an initial matter, we note that Obad’s application
for return of property, and the district court’s March 5, 2008,
order directing the State to return Obad’s property, related to
both the cash seized and other property seized from Obad’s
vehicle, including primarily a digital camera and a cellular
telephone. However, in the instant appeal, Obad’s arguments
that the district court abused its discretion in vacating its
order are limited to the validity of the Nebraska State patrol’s
transfer of the money to the federal government. Obad does
not address how the district court erred in vacating its order
as it related to the other property. To be considered by an
appellate court, an error must be both specifically assigned
and specifically argued in the brief of the party asserting
the error. Malchow v. Doyle, 275 Neb. 530, 748 N.W.2d 28
(2008). Therefore, this opinion will address Obad’s assigned
and argued error, which is limited to the claim that the district
court erred by vacating its initial order directing the State to
return the seized currency.
Obad’s first assigned error implicates the State’s forfeiture
statute. In an effort to recover his currency, Obad filed a plead-
ing titled “Application for Return of property.” The plead-
ing itself did not indicate on what statutory basis Obad was
requesting the return of his currency. However, in his brief to
this court, Obad states that he filed the application for return
870 	277 NeBRASkA RepORTS

of property pursuant to the State’s forfeiture statute, § 28-431.
Further, in the district court’s initial March 5, 2008, order, that
was later vacated, the court based its reasoning and determina-
tion that the currency should be returned to Obad on the State’s
purported failure to comply with the requirements of the State’s
forfeiture statute.
[3] Given the posture of this case, we must examine what
authority is afforded a claimant seeking to recover his or her
property under the forfeiture statute. Section 28-431(4) sets
forth two avenues by which a purported owner or claimant
may prevent forfeiture and recover his or her property. First,
under § 28-431(4), the forfeiture statute allows the owner of
record of such property, at any time after seizure and prior to
court disposition, to petition the district court of the county
in which seizure was made to release such property. Second,
§ 28-431(4) provides that “[a]ny person having an interest in
the property proceeded against or any person against whom
civil or criminal liability would exist if such property is in vio-
lation of the [Uniform Controlled Substances Act] may, within
thirty days after seizure, appear and file an answer or demurrer
to the petition.”
[4] With respect to Obad’s recovering the currency through
the first avenue, § 28-431(4) states that this method can be
used at “any time after seizure and prior to court disposi-
tion” by the “owner of record.” This appeal is limited to the
seized cash. We have held that the alleged owner of cash can-
not be an “owner of record.” See State v. $1,947, 255 Neb.
290, 583 N.W.2d 611 (1998). See, also, State v. $3,067.65
in U.S. Currency, 4 Neb. App. 443, 545 N.W.2d 129 (1996).
Therefore, because Obad is not an “owner of record,” he can-
not successfully seek recovery of the seized currency under
this statutory authority.
With respect to Obad’s recovering the currency through the
second avenue, the State forfeiture statute clearly anticipates
the filing of forfeiture proceedings by the State before the
claimant may seek recovery of property. The relevant language
of the statute states that “[a]ny person having an interest in
the property . . . may, within thirty days after seizure, appear
and file an answer or demurrer to the petition.” § 28-431(4)
OBAD v. STATe 	871
Cite as 277 Neb. 866

(emphasis supplied). Given the plain language of the statute,
we understand “petition” to refer to a petition to forfeit filed
by the State and an “answer or demurrer” to be a pleading filed
in response thereto. Therefore, under this statutory authority,
Obad could not recover the seized currency prior to the State’s
initiating forfeiture proceedings by way of a “petition.”
Because Obad was not an “owner of record,” he could not
successfully seek return of the currency under § 28-431, and
in any event, because he was without statutory authority to
initiate and seek recovery of the currency prior to the State’s
filing a petition for forfeiture, we conclude that the district
court erred when it granted his application for return on March
5, 2008. Therefore, the court did not abuse its discretion when
it vacated such order, which had instructed the State to return
Obad’s money and was based on erroneous reasoning regard-
ing the State’s purported failure to comply with the forfei-
ture statute.
[5] In his second assignment of error, Obad focuses on the
propriety of the federal government’s exercise of authority over
the currency. In this regard, we note that in this case, at the
time the district court held the first hearing on Obad’s appli-
cation for return of property, the seized currency had already
been transferred to the federal government, which adopted
the seizure in anticipation of filing federal forfeiture proceed-
ings, and the State had not commenced—and it did not later
commence—a forfeiture action. The Court of Appeals for the
eighth Circuit has explained that a federal agency’s adoption
of a seizure has the same effect as if the federal agency had
originally seized the property on the date it was seized by the
local authorities. Madewell v. Downs, 68 F.3d 1030 (8th Cir.
1995). In this case, the federal government proceeded to initi-
ate forfeiture proceedings on March 19, 2008.
[6] Other courts dealing with similar facts have acknowl-
edged that where no state forfeiture proceedings are initiated,
once the property was delivered to the Drug enforcement
Agency and a federal forfeiture proceeding was instituted, state
jurisdiction ended. See, e.g., U.S. v. $12,390.00, 956 F.2d 801
(8th Cir. 1992); Cavaliere v. Town of North Beach, 101 Md.
App. 319, 646 A.2d 1058 (1994); Morgan v. Property Clerk,
872 	277 NeBRASkA RepORTS

184 Misc. 2d 406, 708 N.Y.S.2d 262 (2000); State v. Hill, 153
N.C. App. 716, 570 S.e.2d 768 (2002) (stating that once fed-
eral agency has adopted local seizure, party may not attempt to
thwart forfeiture by collateral attack in state courts, for at that
point, exclusive original jurisdiction is vested in federal court
by virtue of 28 U.S.C. § 1355 (2006)).
As noted above, the court’s initial order of March 5, 2008,
was in error. Here, the State had not initiated forfeiture pro-
ceedings at the time the court held its initial hearing on the
application for return of property, the federal government had
already adopted the seizure of the currency, and the currency
was in the jurisdiction of the federal court. We find no impro-
priety in the transfer of the currency and the adoptive seizure
by the federal government.
[7] The federal government commenced forfeiture proceed-
ings on March 19, 2008, and thus, the currency was subject to
forfeiture at the time the court conducted the hearing on the
State’s motion to vacate. We have stated that denial of return of
property is proper where the property is subject to forfeiture.
See State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007). In
this case, because the currency was subject to forfeiture, the
court correctly vacated its earlier order directing return. We
reject Obad’s second assignment of error challenging the pro-
priety of the federal government’s exercise of jurisdiction and
the cessation of the State’s exercise of jurisdiction over the
matter as reflected in its order of May 20.
CONCLUSION
As discussed above, Obad had no statutory authority to
bring or successfully request the return of the seized currency
under § 28-431. Although our reasoning differs from that of the
district court, see Tyson Fresh Meats v. State, 270 Neb. 535,
704 N.W.2d 788 (2005), we nevertheless affirm the district
court’s order of May 20, 2008, which vacated its initial order
of March 5 and ultimately denied Obad’s application for the
return of property.
A ffirmed.
heAviCAn, C.J., not participating.
OBAD v. STATe 	873
Cite as 277 Neb. 866