State v. Allen

- 627 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. ALLEN
Cite as 318 Neb. 627
State of Nebraska, appellee, v.
Keith L. Allen, appellant.
___ N.W.3d ___
Filed March 21, 2025. 	No. S-23-957.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
2. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy and admissibility of evidence, and such deter-
minations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
3. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
4. Search and Seizure: Appeal and Error. The denial of a motion for
return of seized property is reviewed for an abuse of discretion.
5. Evidence: Waiver: Appeal and Error. A party who fails to make a
timely objection to evidence waives the right on appeal to assert preju-
dicial error concerning the evidence received without objection.
6. Appeal and Error. Plain error is error plainly evident from the record
and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
7. 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.
8. 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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:18 AM CDT

- 628 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. ALLEN
Cite as 318 Neb. 627
9. 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.
10. Search and Seizure: Property. Upon the termination of criminal pro-
ceedings, seized property, other than contraband, should be returned to
the rightful owner unless the government has a continuing interest in
the property.
11. 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 a new trial.
12. Courts: Jurisdiction: Search and Seizure: Property. Neb. Rev. Stat.
§ 29-820 (Reissue 2016) applies only where the exclusive jurisdiction
of a court under Neb. Rev. Stat. § 29-818 (Reissue 2016) has not been
invoked.
Appeal from the District Court for Lincoln County, Cindy
R. 	Volkmer, 	Judge. 	Reversed 	and 	remanded 	for 	further
proceedings.
Keith L. Allen, pro se.
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Papik, 	and
Freudenberg, JJ.
Funke, C.J.
INTRODUCTION
Keith L. Allen appeals an order of the district court, which
partially denied his motion for return of property allegedly
seized from him after his arrest. Allen argues that the district
court erred in its evidentiary rulings and in failing to return
additional items. The State disputes Allen’s claims but oth-
erwise argues that the district court abused its discretion in
disposing of certain items. Ultimately, we need not reach a
majority of the parties’ arguments because we find that the
district court plainly erred in multiple regards. As such, we
reverse the order of the district court and remand the matter
for further proceedings consistent with this opinion.

- 629 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. ALLEN
Cite as 318 Neb. 627
BACKGROUND
Allen was convicted of first degree murder and use of a
firearm to commit a felony and sentenced to life imprisonment,
plus 20 to 30 years. His convictions were affirmed on direct
appeal, 1 and his petition for a writ of certiorari was denied. 2
After we affirmed his convictions, Allen filed a motion in
the district court for Lincoln County, Nebraska, seeking the
return of over 50 items of personal property allegedly seized
from him after his arrest. Approximately 25 of those items
were firearms. Other items included video recordings from
cameras on a nearby federal building and nine “bullet slugs,”
which apparently correspond to the nine projectiles found in
the victim’s body. 3
Hearing on Allen’s Motion
The district court held a hearing on Allen’s motion. At the
start of the hearing, Allen stated that after he was arrested,
he “kind of gave everything away.” Thereafter, Allen argued
that except for the firearm in his possession at the time of the
offenses, all firearms listed in the motion belonged to other
people, as did certain clothing. Allen also argued that the cell
phone listed in the motion had evidence on it that was not used
at trial, but that was needed for his criminal case and for a
wrongful death suit brought against him by the personal rep-
resentative of the victim’s estate (the Estate). However, Allen
presented no evidence that any of the items had been seized
from him.
The State, in turn, observed that the court hearing the
wrongful death suit had granted the Estate’s motion for pre-
judgment attachment upon Allen’s assets, including “all auto-
mobiles, real estate, firearms/weapons” owned by him or in his
1 See State v. Allen, 314 Neb. 663, 992 N.W.2d 712 (2023), modified on
denial of rehearing 315 Neb. 255, 995 N.W.2d 446.
2 See Allen v. Nebraska, ___ U.S. ___, 144 S. Ct. 1070, 218 L. Ed. 2d 248
(2024).
3 See Allen, supra note 1.

- 630 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. ALLEN
Cite as 318 Neb. 627
possession. The State offered the order granting that motion
as exhibit 300. Allen stated that he had no objection, and the
exhibit was received into evidence.
The State also objected that any items that were evidence, or
that “could possibly be evidence in the future,” would remain
evidence until Allen dies and “should not be returned ever.”
However, the State did not identify any specific items other
than “the vehicle” as evidence, and exhibit 300 was the only
evidence that the State adduced at the hearing.
The court took the matter under advisement. In so doing,
the court stated that the person whom Allen claimed owned the
bulk of the firearms needed to provide “documentation” to the
court and the State that he had purchased the firearms so that
the documentation could “be reviewed as part of this motion.”
Posthearing Filings
The purported owner of the firearms subsequently produced
documentation that was marked as exhibit 301. However,
exhibit 301 is not part of the record on appeal, and its contents
are known to us solely from the court’s discussion of it as
described below.
Shortly after exhibit 301 was submitted, the Estate objected
to it and to Allen’s motion for return of the property. The Estate
argued that exhibit 301 lacked foundation, contained hearsay,
and was not relevant because the question of whether the
firearms belonged to Allen or the third party was to be deter-
mined in the wrongful death suit and not in the present case.
The Estate also argued, among other things, that Allen lacked
standing to seek the return of property that he claims belongs
to a third party.
District Court’s Order
In an order issued after the hearing, the district court began
by observing that under State v. Agee, 4 “[w]hen criminal pro-
ceedings have terminated, the person from whom property
4 State v. Agee, 274 Neb. 445, 450, 741 N.W.2d 161, 166 (2007).

- 631 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. ALLEN
Cite as 318 Neb. 627
was seized is presumed to have a right to its return, and the
burden is on the government to show that it has a legitimate
reason to retain the property.” However, the court apparently
took at face value Allen’s claim that all items listed in his
motion were seized from him.
The court then sustained the Estate’s objection to exhibit
301 on foundation and hearsay grounds. The court observed
that exhibit 301 consisted of several “receipts,” each of which
had the third party’s name on the “‘from’” line, and all but
one of which had Allen’s name on the “‘by’” line. Because
the court received no information other than those receipts, it
declined to receive exhibit 301 into evidence. However, the
court overruled the Estate’s objection to Allen’s motion for
return of the property, in part because there was no evidence of
superior title to the property insofar as the objection to exhibit
301 was sustained.
The court also overruled the State’s objection that certain
property would always be needed as evidence. In so doing,
the court noted that there were no postconviction proceed-
ings pending and, thus, “no ‘trial’ at which the property may
be needed.” The court also noted that the State “presented
no evidence as to what items of property were used at trial
or may be used at future postconviction proceedings” and
that no exhibit list was filed as part of the criminal trial. The
court explained that it could not “reasonably conclude” that
all items listed in the motion were evidence. But the court
stated that it would take a “conservative approach” in dispos-
ing of the property to preserve any items that might be needed
in future proceedings. Similarly, as to the State’s observation
that certain property was subject to an order of prejudgment
attachment, the court opined that the order showed only that
another party had a lien on the property and not that the gov-
ernment had a legitimate reason to retain the property.
The court next looked to Neb. Rev. Stat. § 29-820 (Reissue
2016) to determine how to dispose of the various items listed
in Allen’s motion. Ultimately, the court determined that each

- 632 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. ALLEN
Cite as 318 Neb. 627
item fell into one of three broad categories: (1) evidence, (2)
per se contraband or items prohibited in Nebraska prisons,
and (3) other items. The court ordered that items that were
evidence be retained as such, that per se contraband and items
not allowed in the prisons be sold, and that the other items be
returned to Allen. Firearms or weapons and ammunition and
ammunition components were among the items categorized as
per se contraband or prohibited in prisons. However, the court
ordered that any firearms and ammunition and ammunition
components used in the commission of the offenses of which
Allen was convicted be retained as evidence, although it did
not identify which specific items those were. The court further
ordered that the items returned to Allen were to be held by
him subject to the order of prejudgment attachment. There
were similar provisions regarding the items to be sold.
Allen’s Objections and Appeal
Several days after the district court issued its order, Allen
objected and moved to strike exhibit 300. In that filing,
Allen alleged that when exhibit 300 was offered at the hear-
ing, he understood it to be the complaint in the wrongful
death suit. Allen also apparently argued that because he was
never served with the order of prejudgment attachment in the
wrongful death suit, its admission into evidence in the present
case violated his due process rights. Allen similarly objected
to the Estate’s objection to exhibit 301 and his motion for
return of seized property. He likewise objected to the district
court’s order.
Allen then appealed, and we moved the matter to our
docket. 5
ASSIGNMENTS OF ERROR
Allen assigns, restated, that the district court erred in (1)
receiving the order of prejudgment attachment in the wrong-
ful death case into evidence, (2) sustaining the objection of
5 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2024).

- 633 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. ALLEN
Cite as 318 Neb. 627
the “non-party” Estate to the purported receipts for the fire-
arms, and (3) partially denying his motion for return of seized
property.
STANDARD OF REVIEW
[1-3] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such
rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility. 6 A trial court
has the discretion to determine the relevancy and admissibility
of evidence, and such determinations will not be disturbed on
appeal unless they constitute an abuse of that discretion. 7 A
judicial abuse of discretion exists when the reasons or rulings
of a trial judge are clearly untenable, unfairly depriving a liti-
gant of a substantial right and denying just results in matters
submitted for disposition. 8
[4] The denial of a motion for return of seized property is
also reviewed for an abuse of discretion. 9
ANALYSIS
No Abuse of Discretion in
Admitting Exhibit 300
Allen’s first assignment of error concerns exhibit 300, the
order of prejudgment attachment in the wrongful death suit
brought against him by the Estate. Allen argues that exhibit
300 should not have been admitted into evidence, but instead
excluded on foundation, relevance, and hearsay grounds. The
State, in turn, argues that Allen waived his right to assert
prejudicial error on appeal as to the admission of exhibit 300
because he made no objection to it at the hearing. The parties
6 In re Masek Family Trust, ante p. 268, 15 N.W.3d 379 (2025).
7 Id.
8 State v. Haas, 317 Neb. 919, 12 N.W.3d 787 (2024).
9 State v. Assad, 317 Neb. 20, 8 N.W.3d 729 (2024).

- 634 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. ALLEN
Cite as 318 Neb. 627
also dispute whether the district court plainly erred in admit-
ting exhibit 300 into evidence.
[5] As the State argues, a party who fails to make a timely
objection to evidence waives the right on appeal to assert
prejudicial error concerning the evidence received without
objection. 10 The record here shows that Allen failed to object
to exhibit 300 at the hearing. To the contrary, Allen said that
“[he had] no objection” to the exhibit.
On appeal, Allen essentially asks us to disregard his acqui-
escence to the exhibit’s admission because when he said he
had no objection, he believed exhibit 300 was the complaint
in the wrongful death suit. However, that claim is inconsist-
ent with the record on appeal, which shows that immediately
before Allen voiced his agreement, it was repeatedly stated
that the order “grant[ed] a [m]otion for [p]rejudgment [a]ttach-
ment.” Allen did object to exhibit 300 after the district court
issued its order. However, that objection was untimely. 11
Allen is correct in suggesting that we can recognize plain
error even when evidence is received without a timely objec-
tion. 12 However, we have previously explained that “[w]e
are not inclined to readily find plain error” in testimony or
other evidence to which the opposing party did not object. 13
Our rationale for this is twofold. First, because as a general
matter a trial court is not obligated to rule sua sponte on the
admissibility of evidence, it is difficult to say, without an
objection, that a court committed plain error when it allowed
10 State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021). See, also, Neb.
Rev. Stat. § 27-103(1)(a) (Reissue 2016)
11 See, e.g., State v. Rogers, 237 Neb. 506, 466 N.W.2d 537 (1991) (finding
that motion and objection to State’s evidence made by defendant after
evidence was received by trial court was untimely).
12 See State v. Vann, 306 Neb. 91, 944 N.W.2d 503 (2020).
13 State v. Rush, 317 Neb. 622, 665, 11 N.W.3d 394, 430 (2024), modified
on denial of rehearing 317 Neb. 917, 12 N.W.3d 787. See, also, State v.
Senteney, 307 Neb. 702, 950 N.W.2d 585 (2020).

- 635 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. ALLEN
Cite as 318 Neb. 627
specific evidence. 14 Second, even when evidence is arguably
improper, “for strategic reasons the nonproponent may choose
not to raise an objection because to do so would unduly
emphasize” the evidence. 15 In other words, we view the plain-
error exception to the contemporaneous-objection rule as one
to be “used sparingly, solely in those circumstances in which
a miscarriage of justice would otherwise result.” 16
The circumstances here, however, are not such that a mis-
carriage of justice would result from the admission of exhibit
300. 17 The record shows that the district court found the order
of prejudgment attachment was not a “legitimate reason” for
the State to retain the property. Consistent with that ruling,
the court did not cite the lien as a basis for not returning any
items to Allen. Instead, in ruling that specific items should not
be returned to Allen, the court considered whether the items
constituted evidence or per se contraband or were prohibited
in Nebraska prisons. 18 Granted, the court did direct that the
items returned to Allen and the items to be sold were to be
held subject to the order of prejudgment attachment. However,
as the district court observed, Allen’s assets would have been
subject to the order of prejudgment attachment in the wrongful
death suit, insofar as it is effective, even absent such orders by
the court in this case.
We similarly find the district court’s conclusion that the
order of prejudgment attachment was not a “legitimate reason”
for the State to retain the property is dispositive of Allen’s
argument that the order should not have been received into
14 See Senteney, supra note 13.
15 Id. at 711, 950 N.W.2d at 592.
16 Rush, supra note 13, 317 Neb. at 665, 11 N.W.3d at 430 (internal quotation
marks omitted).
17 See, e.g., Senteney, supra note 13.
18 Cf., State v. Zimmer, 311 Neb. 294, 972 N.W.2d 57 (2022) (considering
whether it is crime for defendant to possess seized firearm in determining
whether rule mandating forfeiture of per se contraband applies); State v.
Riley, 31 Neb. App. 292, 979 N.W.2d 538 (2022).

- 636 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. ALLEN
Cite as 318 Neb. 627
evidence because it was never served on him in the wrongful
death suit. Even if the order was not served on Allen in that
case, as he claims, he cannot be seen to have been prejudiced
by its admission in this case because the court did not rely on
the order in declining to return any property to Allen.
No Abuse of Discretion in
Excluding Exhibit 301
Allen’s second assignment of error concerns exhibit 301,
the purported receipts for the firearms that Allen claimed at
the hearing belonged to a third party. The district court granted
the Estate’s motion to exclude exhibit 301 on foundation and
hearsay grounds. Allen argues that the district court erred in so
doing, because the Estate was not a party to this case and, as
such, had no right to object to exhibit 301. Allen also argues
that exhibit 301 was not inadmissible on foundation and hear-
say grounds. The State counters that regardless of whether the
Estate had the right to intervene and did so properly, Allen
failed to produce a record that supports this assignment of error
because exhibit 301 is not part of the record on appeal. The
State also argues that Allen was not prejudiced by the exclu-
sion of exhibit 301 because if the exhibit had been admitted,
it would have shown that Allen did not own the firearms and,
thus, was not entitled to their return.
Even assuming, for the sake of argument, that the Estate
should not have been permitted to object to the admission of
exhibit 301 and that the exhibit was otherwise admissible, any
error here was harmless. Allen himself waived any presump-
tion of possession that he had as to the firearms when he
stated on the record at the hearing that the firearms belonged
to a third party. We have previously found that under such
circumstances, defendants waive any presumption of posses-
sion to which they might otherwise have been entitled. 19 In
other words, Allen made essentially the same point that the
exhibit would have, but he fails to explain how proof that the
19 State v. Ebert, 303 Neb. 394, 929 N.W.2d 478 (2019).

- 637 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. ALLEN
Cite as 318 Neb. 627
property belonged to another would have shown his entitle-
ment to its return.
District Court Plainly Erred
in Disposing of Property
Allen’s third assignment of error concerns the disposition
of the property by the district court. Allen argues that addi-
tional items should have been “returned and released to [a
third party] who can lawfully possess all the items listed in
his motion.” 20 In support of that claim, Allen renews the argu-
ments about the admission of exhibit 300 and the exclusion of
exhibit 301 discussed above. Allen also claims that the State
failed to meet its burden to show that it had a legitimate inter-
est in the property and that the district court erred in basing its
decision in part on § 29-820.
The State disagrees with Allen’s arguments but takes issue
with the disposition of the property on different grounds. The
State argues that several of the items listed in Allen’s motion
“were not seized from him or his residence” 21 and that the
district court “guess[ed]” as to what items were evidence. 22
As such, the State contends that the district court should
have “h[e]ld a full evidentiary hearing to establish” which
items were actually seized from Allen and which items were
evidence. 23 Absent such a hearing, the State argues that the
court ordered the victim’s wallet and identification cards
be released to Allen and that the “murder weapon and the
nine bullet slugs that killed the victim” be sold. 24 The State
claims that such “untenable outcome[s]” constitute an abuse
of discretion, 25 and it asks us to reverse the decision of the
20 Brief for appellant at 9.
21 Brief for appellee at 13.
22 Id. at 11.
23 Id.
24 Id. at 12.
25 Id.

- 638 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. ALLEN
Cite as 318 Neb. 627
district court and remand the matter for further proceedings
to remedy these issues. However, despite seeking this affirma-
tive relief, the State failed to file a cross-appeal.26 Instead, it
apparently proceeds under the theory that an alleged abuse of
discretion can be raised by an appellee absent a cross-appeal,
in the same manner in which plain error may be raised.
[6] We have reservations about the State’s approach. But
ultimately, we do not need to rule on its merits. Nor do we
need to resolve the majority of the parties’ arguments here,
because the district court plainly erred in several regards when
disposing of the property. Plain error is error plainly evident
from the record and of such a nature that to leave it uncor-
rected would result in damage to the integrity, reputation, or
fairness of the judicial process. 26 Before turning to our reasons
for concluding that the district court plainly erred, we first
review the legal framework governing return of seized property
in cases such as this.
[7,8] Property seized in enforcing a criminal law is said to
be “in custodia legis,” or in the custody of the court. 27 Such
property is to be safely kept by the officer seizing it unless
otherwise directed by the court, and the officer is to exer-
cise reasonable care and diligence for the safekeeping of the
property. 28
[9-11] Property seized and held as evidence shall be kept
so long as necessary for the purpose of being produced as
evidence at trial. 29 As a general rule, upon the termination of
criminal proceedings, seized property, other than contraband,
should be returned to the rightful owner unless the government
has a continuing interest in the property. 30 “The government’s
26 Peterson v. Brandon Coverdell Constr., ante p. 342, 15 N.W.3d 698
(2025).
27 Assad, supra note 9.
28 Id.
29 Agee, supra note 4.
30 Id.

- 639 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. ALLEN
Cite as 318 Neb. 627
interest may take different forms as long as it is a legitimate
interest.” 31 Among other things, 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
a new trial. 32
In our seminal opinion in Agee, we further explained:
[T]he person from whom property was seized is presumed
to have a right to its return, and the burden is on the gov-
ernment to show that it has a legitimate reason to retain
the property. It is long established that a presumption of
ownership is created by exclusive possession of personal
property and that evidence must be offered to overcome
that presumption. One in possession of property has the
right to keep it against all but those with better title, and
the “mere fact of seizure” does not require that “entitle-
ment be established anew.” Seizure of property from
someone is prima facie evidence of that person’s right to
possession of the property, and unless another party pre-
sents evidence of superior title, the person from whom the
property was taken need not present additional evidence
of ownership. 33
Agee concerned items that were indisputably seized from
the defendant. As such, it did not expressly address the defend-
ant’s initial burden to show that the items in question were
actually seized from him. However, the opinions upon which
Agee relied make clear that the defendant must make an initial
showing that the items were seized from him or her before the
State has the burden to establish a legitimate reason to retain
31 U.S. v. Duncan, 918 F.2d 647, 654 (6th Cir. 1990).
32 Assad, supra note 9.
33 Agee, supra note 4, 274 Neb. at 450-51, 741 N.W.2d at 166-67. But
see State v. McGuire, 301 Neb. 895, 907, 921 N.W.2d 77, 86 (2018)
(explaining that in referring to “exclusive possession,” Agee “did not
speak with perfect clarity” and that possession need not be exclusive).

- 640 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. ALLEN
Cite as 318 Neb. 627
the property. 34 In other words, the presumption of a right to
return of property applies only to property actually seized
from the defendant. 35 We said as much over a decade after
Agee in State v. McGuire. 36 In McGuire, we pointed to the fact
that the defendant had made the requisite “initial showing”
that the items were seized from him when concluding that the
“burden [had] shifted to the State” to establish that another
claimant had superior title to the property. 37
In this case, contrary to the framework set forth above and,
in particular, our decision in McGuire, the district court did
not require Allen to make any initial showing that the property
had been seized from him. Instead, the district court appar-
ently took at face value Allen’s suggestion in his motion that
the items were his “seized personal property.” However, Allen
did not introduce his motion into evidence at the hearing, 38
and the pleadings alone are not proof. 39 This constituted plain
error and, as the State argued on appeal, apparently resulted
in the district court’s ordering items that were not seized from
Allen to be returned to him.
[12] The district court also plainly erred in basing its order
disposing of the property in part on § 29-820. That is incon-
sistent with our prior decisions holding that § 29-820 applies
only where the exclusive jurisdiction of a court under Neb.
34 See U.S. v. Dean, 100 F.3d 19 (5th Cir. 1996); United States v. Martinson,
809 F.2d 1364 (9th Cir. 1987); People v. Strock, 931 P.2d 538 (Colo. App.
1996).
35 See, e.g., Jackson v. U.S., 526 F.3d 394 (8th Cir. 2008); U.S. v. Maez, 915
F.2d 1466 (10th Cir. 1990).
36 McGuire, supra note 33.
37 Id. at 910, 921 N.W.2d at 88.
38 See, e.g., Com. v. Johnson, 931 A.2d 781 (Pa. Commw. 2007) (factual
averments in defendant’s motion for return of property can suffice to
meet defendant’s initial burden, provided that motion is introduced into
evidence before trial court).
39 Bortolotti v. Universal Terrazzo & Tile Co., 304 Neb. 219, 933 N.W.2d
851 (2019).

- 641 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. ALLEN
Cite as 318 Neb. 627
Rev. Stat. § 29-818 (Reissue 2016) has not been invoked. 40 In
this case, there is no dispute that the district court’s exclusive
jurisdiction under § 29-818 had been invoked; the district
court itself recognized as much in its order. As such, the dis-
trict court should not have looked to § 29-820 in determining
how to dispose of the property. In so finding, we note that
Allen raised this argument in support of his claim that addi-
tional property should have been returned. However, while we
agree with Allen that this was error, it does not necessarily
follow from this error that any additional items should have
been returned, as he claims.
Further, the district court plainly erred in failing to determine
which firearms or weapons and which ammunition and ammu-
nition components were evidence of the offenses for which
Allen was convicted. The court stated that “[a]ny firearm(s) or
weapon(s) which were used in the commission of the crimes
of which Allen has been convicted are ordered to not be sold
and shall be maintained by the law enforcement agency as
evidence.” There were similar provisions as to ammunition
and ammunition components and potentially also as to weapon
parts and accessories, although the court mistakenly referred
to “ammunition and ammunition components” in that portion
of the order. However, the district court did not identify which
specific firearms or weapons and ammunition and ammuni-
tion components were evidence. Instead, it seemingly left law
enforcement to make that determination. That is inconsistent
with the framework set forth above, which calls for property
seized and held as evidence to be safely kept by the officer
seizing it “unless otherwise directed by the court.” 41
40 Ebert, supra note 19.
41 Assad, supra note 9, 317 Neb. at 23, 8 N.W.3d at 732. See, also, Agee,
supra note 4 (State’s return of allegedly stolen items, apparently without
direction from court, was contrary to court’s exclusive jurisdiction over
seized property).

- 642 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE v. ALLEN
Cite as 318 Neb. 627
CONCLUSION
The district court plainly erred in presuming that personal
items were Allen’s when he failed to make an initial showing
that they were seized from him, in basing its order in part on
§ 29-820, and in failing to identify which firearms and ammu-
nition and ammunition components are evidence. As such, we
reverse the order of the district court and remand the matter
for further proceedings consistent with this opinion.
Reversed and remanded for
further proceedings.
Stacy, J., participating on briefs.