State v. Kornell

State v. Kornell (98-226); 169 Vt. 637; 741 A.2d 290

[Filed 24-Aug-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-226

                               JUNE TERM, 1999


State of Vermont	               }	APPEALED FROM:
	                               }
     v.	                               }	District Court of Vermont
	                               }	Unit No. 1, Windham Circuit
Diane Jesse Lynn Kornell	       }
a/k/a Diane Gentlewolf,	               }	DOCKET NO. 984-8-93Wmcr
Diane Viemeist	                       }	


             In the above-entitled cause, the Clerk will enter:


       Defendant appeals the district court's order dismissing for lack of
  jurisdiction her motion to compel  return of property.  We reverse and
  remand the matter for further proceedings.

       In July 1993, pursuant to a search warrant, a humane officer
  accompanied by several police officers,  seized eighteen dogs, twelve
  rabbits, and four sheep from defendant's home pursuant to 13 V.S.A. §
  354(b)(2)  (humane officer having probable cause to believe that animal is
  being subjected to cruel treatment may apply for  search warrant to
  authorize officer to seize animal).  Shortly thereafter, defendant was
  arraigned on three counts of  cruelty to animals, simple assault on a
  police officer, and impeding a police officer.  The State arranged for the 
  Windham County Humane Society to care for the animals.  See id. § 354(c)
  ("A humane officer shall provide  suitable care at a reasonable cost for an
  animal seized under this section, and have a lien on the animal for all 
  expenses incurred.").  In March 1994, in response to defendant's motion for
  return of property, the district court  terminated the State's right to
  retain possession of the animals, but acknowledged that it was not
  adjudicating any  rights of possession that might exist by virtue of the
  lien created under § 354.  In November 1994, after noting  that the State
  sought no further jurisdiction over the animals, the district court
  directed the State to return them "to  restore the animals to their proper
  owners or keepers according to law."  In March 1995, in response to the 
  humane society's motion for disposition of the animals, the district court
  ruled that it was not the proper forum to  resolve the parties' rights to
  the animals under § 354.  In February 1996, the district court granted
  defendant's  motion to suppress, ruling that the search warrant had been
  unlawfully based on the humane officer's misleading  description of the
  circumstances concerning defendant's care of the animals.  The State then
  agreed to the  dismissal of all charges.

       Following dismissal of the charges, defendant and the humane society
  pursued in superior court the  question of whether defendant would have to
  pay for the society's care of the animals over the previous three  years. 
  In July 1996, the superior court ruled that because the State did not
  lawfully seize the animals under § 354,  and because the humane society's
  claim to a lien under § 354 derived from the State's unlawful seizure,
  defendant  was entitled to return of her animals notwithstanding the humane
  society's claimed lien.  Still, the animals were  not returned.  In
  November 1997, defendant wrote the State asking for return of the animals,
  and the state's  attorney responded by explaining that the humane society
  had been advised that the animals could be released.  In  February 1998,
  defendant filed a motion in district court to compel return of the
  property.  The court denied the  motion for lack of jurisdiction.  This
  appeal followed.

       A person may move the district court under V.R.Cr.P. 41(e) for return
  of unlawfully 


 

  seized property.  When criminal proceedings against the moving party are
  not yet pending or have transpired, the  motion is treated as a civil
  equitable proceeding.  See United States v. Solis, 108 F.3d 722, 723 (7th
  Cir. 1997);  Mora v. United States, 955 F.2d 156, 158 (2d Cir. 1992);
  United States v. Colon, 993 F. Supp. 42, 43 (D. P.R.  1998).  Because such
  motions are treated as civil equitable proceedings, criminal courts
  generally use "caution  and restraint" before exercising ancillary
  jurisdiction and considering them.  See Ramsden v. United States, 2 F.3d 322, 324-25 (9th Cir. 1993) (listing four factors courts must consider
  before assuming jurisdiction over motions to  return property where no
  criminal proceeding is pending).  Although one of the factors courts must
  consider is  whether there is another adequate remedy at law, the
  availability of civil remedies does not necessarily discharge  the criminal
  court's duties nor disturb its jurisdiction.  See United States v. Totaro,
  468 F. Supp. 1045, 1048 (D.  Md. 1979).  Further, once the criminal court
  has granted a motion for return of property, the property must be  restored
  to its owner, see 27 Moore's Federal Practice § 641.194[2], at 342 (3d ed.
  1999), and that court retains  ancillary jurisdiction to assure that the
  order is followed.  See In re Motion for Return of Property, 149 F.R.D. 53, 
  54-55 (S.D.N.Y. 1993) (courts retain ancillary jurisdiction in cases
  originally filed with them to enforce their  orders, and thus government's
  commencement of forfeiture proceedings after district court had already
  issued  valid order for return of property did not nullify that order or
  deprive court of jurisdiction to enforce it).

       In this case, the district court plainly had continuing jurisdiction
  to adjudicate defendant's most recent  motion to compel return of the
  property.  The court assumed jurisdiction and ordered the return of
  defendant's  property in 1994.  The fact that the superior court later
  issued a ruling to resolve the issue of whether a lien existed  under §
  354(c) did not deprive the district court of continuing ancillary
  jurisdiction over motions seeking to  enforce its prior order.  Because the
  State illegally seized the property, it is the State's responsibility to
  abide by  the district court's order and assure that the property is
  returned.  Thus, it is appropriate that the district court  exercise its
  jurisdiction over defendant's motion to compel, which was in effect a
  motion to enforce the court's  earlier order requiring the State to return
  her property.  See United States v. Fabela-Garcia, 753 F. Supp. 326, 328-
  29 (D. Utah 1989) (highway patrol remained in constructive possession of
  property turned over to other state  agency, and thus district court
  retained ancillary jurisdiction to enforce its order requiring highway
  patrol to return  property); cf. State v. Aldrich, 122 Vt. 416, 424, 175 A.2d 803, 808-09 (1961) (contempt motion filed in  municipal court to
  compel return of property); Decker v. Hillsborough County Attorney's
  Office, 845 F.2d 17, 19-20 (1st Cir. 1988) (contempt motions filed in
  district court to compel return of property); Commonwealth v.  Cooley, 717 A.2d 28, 29 (Pa. Commw. Ct. 1998) (contempt order issued by criminal court
  finding that state  agency had failed to comply with earlier order
  requiring return of property).  Accordingly, the district court erred  in
  dismissing for lack of jurisdiction defendant's motion to compel.

       Reversed and remanded.


	                               BY THE COURT:


	                               _______________________________________
	                               Jeffrey L. Amestoy, Chief Justice

	                               _______________________________________
                                       John A. Dooley, Associate Justice

 

	                               _______________________________________
                                       James L. Morse, Associate Justice

	                               _______________________________________
	                               Denise R. Johnson, Associate Justice
	
	                               _______________________________________
	                               Marilyn S. Skoglund, Associate Justice