State v. Voog, 2012 VT 1.
Today’s case answers the question that nearly everyone has asked themselves at the end of an episode of Law and Order: “What do they do with all that evidence?”
The answer is surprisingly prosaic. The State maintains custody of the evidence seized from the defendant and the criminal court holds jurisdiction over it.
So far, so simple, but don’t worry it gets confusing. Let’s start with Vermont Rule of Criminal Procedure 41, which allows for a defendant to request the return of items that were illegally seized during an unlawful search but is silent on how a defendant would go about requesting the return of lawfully seized items.
Defendant was convicted of simple assault and sentenced to prison. After his conviction, he sought the return of his possessions and filed a motion with the criminal court for their return. The trial court, looking to Rule 41, found that Defendant had failed to show that the items were illegally seized and denied the motion.
On appeal, the SCOV reverses the trial court by noting that the language of Rule 41 is not the only source of power for the court when reviewing a request for the return of property to a defendant. The SCOV notes that criminal courts have in rem jurisdiction over property seized in the course of a criminal investigation and can enforce equitable rights over property.
The term in rem is one of those funny Latinate phrases that the law occasionally throws out to us to make sure we are awake. It is one of two types of jurisdictions that all courts have. The other is in personam. See if you can guess, which one is jurisdiction over property and which is people.
Typically, in rem cases carry quirky captions like In re 948 Acres, State of Vermont v. $2,465 in United States Currency, or United States v. 40 Kilograms of Cocaine. The latter was also the title from an episode of Miami Vice. The point is that the court in an n rem case can adjudicate property and ownership and not necessarily individual rights. At the end of an in rem case, property is seized, released, forfeited, or turned over, but no determination is made about the status of the individuals involved.
In today’s case, the SCOV notes that this jurisdiction is available to defendants and other parties seeking the return of property that has been seized as a result of a criminal action. Simply because it has been seized does not mean that the defendant’s ownership has ended. Nor does it mean that Defendant has to prove that the State seized it illegally. If the State no longer has a compelling interest and no right to permanently seize or take the property, then it should be returned to the Defendant.
Since the trial court never considered the State’s on-going interest, if any, in maintaining possession over the property, the SCOV remands the matter back to the trial court to allow the State to put on evidence as to why it has a continuing interest in the property given that Defendant has been convicted and incarcerated.
For Defendant, this is a win as he moves closer to a chance of reuniting with his long-ago seized possessions.
The SCOV also addresses two other issues that Defendant raised on appeal. Here Defendant’s luck runs out.
Defendant raised a question concerning the affidavit underlying his conviction. Originally, Defendant was charged with several other assault crimes. As part of his plea bargain, he was able to reduce the charge to one, simple assault. According to Defendant, however, the original language was causing the Department of Corrections to “increase his incarceration level,” which led to his transfer to an out-of-state facility.
The SCOV rejects this argument curtly by noting that the information used for Defendant’s charge was modified as part of his plea agreement, and nothing in the remaining document is surplusage. Therefore, the motion was properly denied by the trial court and is affirmed.
Finally, Defendant, in what was apparently a parallel pro-se brief filed alongside his appointed counsel’s filings, argues that his underlying conviction should be overturned because there was a defect in the notarization of his search warrant. The SCOV is leery about such filings (you usually either file pro se or you get a lawyer, you do not get both), but it considers the motion and rejects it as too little too late.
All in all, it is a mixed result for Defendant who has basically won a prize of more hearings and litigation. We certainly hope that the state at least seized something interesting.