State v. Assad

- 20 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE v. ASSAD
Cite as 317 Neb. 20
State of Nebraska, appellee, v.
Jason Assad, appellant.
___ N.W.3d ___
Filed July 5, 2024. 	No. S-23-552.
1. Search and Seizure: Appeal and Error. The denial of a motion for
return of seized property is reviewed for an abuse of discretion.
2. Sentences. An abuse of discretion takes place when the sentencing
court’s reasons or rulings are clearly untenable and unfairly deprive a
litigant of a substantial right and a just result.
3. Criminal Law: Search and Seizure: Property. Property seized in
enforcing a criminal law is said to be “in custodia legis,” or in the cus-
tody of the court.
4. Police Officers and Sheriffs: Search and Seizure: Property. Property
seized and held as evidence is to be safely kept by the officer seizing
it unless otherwise directed by the court, and the officer is to exercise
reasonable care and diligence for the safekeeping of the property.
5. Trial: Search and Seizure: Evidence. Property seized and held as
evidence shall be kept so long as necessary for the purpose of being
produced as evidence at trial.
6. Trial: Evidence. The State has an interest in keeping evidence so long
as necessary for the purpose of being produced as evidence in any trial,
including postconviction proceedings or a new trial following the grant
of a motion for new trial.
Appeal from the District Court for Cheyenne County, Derek
C. Weimer, Judge. Affirmed.
Brian J. Davis, of Davis Law, L.L.C., for appellant.
Michael T. Hilgers, Attorney General, and Nathan A. Liss
for appellee.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:21 AM CDT

- 21 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE v. ASSAD
Cite as 317 Neb. 20
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Heavican, C.J.
INTRODUCTION
Upon 	his 	arrest 	and 	subsequent 	investigation, 	property
allegedly owned by the defendant, Jason Assad, was seized by
law enforcement. Assad was convicted and sentenced; subse-
quent appellate and postconviction relief were denied. Assad
then sought the return of the seized property. The district
court granted his request as to most items but denied Assad’s
request that a digital video recorder (DVR) be returned. Assad
appeals. We affirm.
BACKGROUND
Assad and his wife operated a motel in Sidney, Nebraska,
and lived on the premises. In connection with this enterprise,
there was a security system with cameras located in the
couple’s room. As relevant, that system recorded an incident
between Assad and his wife. The security system was seized,
and video of the incident was shown to the jury. Assad was
then convicted of first degree false imprisonment, terroristic
threats, use of a weapon to commit a felony, and possession
of a weapon by a prohibited person. After being found to be
a habitual criminal, Assad was sentenced to 35 to 60 years’
imprisonment.
Following a direct appeal and an unsuccessful postconvic-
tion action, Assad sought the return of property seized at the
time of his arrest. Assad filed a motion seeking the return of
22 separate items. Multiple hearings followed. As relevant,
the court ruled on Assad’s request for the return of a “hard
drive” for the DVR. The court stated:
As to the hard drive and its contents, the Court is not
persuaded that the item itself is contraband. That said,
the Court does determine that the State has an interest
in preserving necessary evidence should the law change
in the future which would give rise to further appeal

- 22 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE v. ASSAD
Cite as 317 Neb. 20
or post-conviction relief efforts of [Assad]. To manage
these competing interests, the Court orders that a com-
plete copy of the contents of the hard drive for the DVR
be made and provided to [Assad] through counsel.
At that hearing, the county attorney argued that it should not
have to return the DVR because it might need the device in
a later postconviction action by Assad. The county attorney
did acknowledge that Assad had exhausted his appeal and
postconviction options but suggested that new postconviction
relief might become available during the time Assad was serv-
ing his sentences because Assad would remain in prison for a
significant period of time.
Assad filed a motion to alter or amend the court’s order.
A hearing on that motion was held on December 1, 2021. As
relevant, the court ordered that “the State of Nebraska pro-
vide a complete copy of the contents of the hard drive and a
machine/device capable of ‘playing’ or accessing such record-
ing. Otherwise, the Court rejects [Assad’s] request to have the
original Samsung DVR returned to him.” (Emphasis in origi-
nal.) This same holding was reiterated in a third order dated
June 19, 2023. Assad’s motion to alter or amend regarding the
DVR, as relevant, was later denied. Assad appeals.
ASSIGNMENT OF ERROR
Assad assigns that the district court erred in denying his
request to have the DVR returned to him.
STANDARD OF REVIEW
[1,2] The denial of a motion for return of seized property
is reviewed for an abuse of discretion. 1 An abuse of discretion
takes place when the sentencing court’s reasons or rulings are
clearly untenable and unfairly deprive a litigant of a substantial
right and a just result. 2
1 State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).
2 Id.

- 23 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE v. ASSAD
Cite as 317 Neb. 20
ANALYSIS
The only issue raised by this appeal is whether the district
court abused its discretion in denying Assad’s motion seeking
return of the DVR. We find no abuse of discretion and affirm.
This situation is controlled by Neb. Rev. Stat. § 29-818
(Reissue 2016):
[P]roperty seized under a search warrant or validly seized
without a warrant shall be safely kept by the officer seiz-
ing the same, unless otherwise directed by the judge or
magistrate, and shall be so kept so long as necessary for
the purpose of being produced as evidence in any trial.
Property seized may not be taken from the officer having
it in custody by replevin or other writ so long as it is or
may be required as evidence in any trial, nor may it be
so taken in any event where a complaint has been filed
in connection with which the property was or may be
used as evidence, and the court in which such complaint
was filed shall have exclusive jurisdiction for disposition
of the property or funds and to determine rights therein,
including questions respecting the title, possession, con-
trol, and disposition thereof.
[3-5] Property seized in enforcing a criminal law is said
to be “‘in custodia legis,’” or in the custody of the court. 3
As noted in § 29-818, property seized and held as evidence
is to be safely kept by the officer seizing it unless otherwise
directed by the court, and the officer is to exercise reason-
able care and diligence for the safekeeping of the property. 4
Property shall be kept so long as necessary for the purpose of
being produced as evidence at trial. 5 Section 29-818 further
provides that the court in which a criminal charge was filed
3 State v. Agee, 274 Neb. 445, 448, 741 N.W.2d 161, 165 (2007).
4 Id.
5 Id.

- 24 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE v. ASSAD
Cite as 317 Neb. 20
has exclusive jurisdiction to determine the rights to seized
property, and the property’s disposition. 6 The proper procedure
to obtain the return of seized property is to apply to the court
for its return. 7
Here, the State contended, and the district court agreed,
that the State had a continuing interest in the DVR because
it was possible that the law could change “in the future” and
“give rise to further appeal or post-conviction relief efforts
of [Assad].”
[6] We have held that the State has an interest in keeping
evidence “‘so long as necessary for the purpose of being pro-
duced as evidence in any trial.’” 8 Indeed, so long as certain
circumstances are met, a new trial can be sought at any time
after a conviction. 9 We have included postconviction proceed-
ings within the scope of the phrase “any trial.” 10
Our review of this matter is limited to the question of
whether the district court abused its discretion in ruling that
the State has an interest in retaining the DVR and its original
contents. We decline to find any abuse of discretion. While we
recognize that such future actions might be unlikely, it is not
impossible that a defendant in Assad’s position might bring a
postconviction action that is not time barred. We further note
that certain types of motions for new trial are not time barred
in any way, and thus, the potential for such a motion—and in
turn, a possible new trial—exists as well. 11
We find no merit to Assad’s assignment of error.
6 Id.
7 Id.
8 State v. McGuire, supra note 1, 301 Neb. at 901-02, 921 N.W.2d at 83,
quoting § 29-818 (emphasis supplied).
9 See Neb. Rev. Stat. § 29-2103 (Reissue 2016).
10 See State v. Buttercase, 296 Neb. 304, 893 N.W.2d 430 (2017).
11 See, Neb. Rev. Stat. § 29-2101 (Reissue 2016); § 29-2103.

- 25 -
Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE v. ASSAD
Cite as 317 Neb. 20
CONCLUSION
We find that the district court did not abuse its discretion
in allowing the State to retain the DVR and its original con-
tents in the event this evidence was needed for a future trial
or related proceeding. Accordingly, we affirm the decision of
the district court.
Affirmed.
Freudenberg, J., not participating.