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October 5, 1983



Dunn, Justice (On Reassignment) wrote the opinion. Morgan, Justice, concurs. Fosheim, Chief Justice, concurs specially. Wollman and Henderson, Justices, Dissent.

The opinion of the court was delivered by: Dunn

DUNN, Justice (On Reassignment). This is an appeal from an order denying appellant Ronald R. Ell's claim to $559.00 in small bills seized from a dresser in his apartment by Sioux Falls police in 1974 pursuant to a valid search warrant.We reverse and remand.

On April 19, 1974, two men robbed Getten's Food Store in Sioux Falls, South Dakota. The robbers forced the assistant manager to give them approximately $900.00 in small bills. The robbers then fled in a red Ford automobile.

On April 23, 1974, police noticed a red Ford fitting the description of the Getten's robbery vehicle parked in front of appellant's apartment. The automobile had license plates registered to appellant. Police, pursuant to a search warrant, searched appellant's apartment and seized $559.00 in small bills from appellant's dresser. On April 29, 1974, appellant was charged with first degree robbery in the Getten's holdup. Appellant received court-appointed counsel after advising the court that he had $15.00, was in jail and had no other money anywhere.

While free on bail, appellant took part in an armed robbery in Omaha, Nebraska. A Nebraska court sentenced appellant to life in prison for murder in connection with the robbery. Based upon this sentence, the Minnehaha County states attorney moved to dismiss charges against appellant in the Getten robbery. The motion was granted by the circuit court.

In 1981, the manager of Getten's petitioned the circuit court for the $559.00 seized during the search of appellant's apartment. Despite appellant's claim that he was the sole owner of the money, the circuit court awarded exclusive title to the $559.00 to the manager of Getten's Food Store.

At issue in this appeal is whether money legally seized by police from the apartment of an individual subsequently charged with first degree robbery should be returned to him following the dismissal of the robbery charge against him.

The circuit court in this case acted pursuant to SDCL 23A-37, which provides for the return of seized property held by a court. We have held that SDCL 23A-37 gives the circuit courts authority to determine the rightful owner of seized property and to return the property to that person. State v. Cody, 322 N.W.2d 11 (S.D. 1982).The general rule of the federal courts is in accord with Cody: "Seized property, other than contraband, should be returned to the rightful owner once criminal proceedings have terminated." Sovereign News Co. v. United States, 690 F.2d 569 (Sixth Cir. 1982); United States v. Wright, 610 F.2d 930 (D.C. Cir. 1979); United States v. LaFatch, 565 F.2d 81 (Sixth Cir. 1977). See Fed.R.Crim.P. 41(e).

Unfortunately, the determination of the rightful owner of the property in question becomes more difficult when there are third party claimants, such as the manager of Getten's. Previous federal and state decisions do, however, give us guidelines to follow in determining the rightful owner. First, the seizure of property from someone is prima facie evidence of that person's entitlement, particularly when the property is money. Unless there are serious reasons to doubt a person's rights to property seized from him, he need not come forward with additional evidence of ownership. United States v. Wright, (supra) , at 939. Second, in cases of allegedly stolen property, the burden is on the state to show some nexus between the property and the criminal activity. Such a nexus is present where the property is shown to be a fruit of the crime. If there is no such evidence, the property must be returned to defendant. State v. Sweatt, 427 A.2d 940, (Me. 1981).

In the present case, appellant was never convicted of robbing Getten's, and the state has not shown a nexus between the seized property and the criminal activity. There is simply no evidence in the record to show that the $559.00 seized by the police was the fruit of the Getten's robbery.

The fact that appellant stated at his arraignment that he had no money other than $15.00 at the jail is not necessarily inconsistent with his claim to the seized money. Appellant merely attested at arraignment that he lacked the money to retain counsel at the time he requested the court to appoint counsel. United States v. Wright, (supra) , at 941. The $559.00 was in the custody of the court and could not be used by appellant. Therefore, under the two-part guideline stated above, the $559.00 would be the property of appellant.

Under SDCL 23A-40-11, a lien is created upon all of the property, both real and personal, of any person for whom legal counsel or a public defender has been provided. Upon satisfaction of this lien, the balance of the $559.00, if any, should be awarded to appellant.

The order of the circuit court is reversed and the case remanded for an amended order in ...

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