State v. McKinney

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. McKINNEY
Cite as 321 Neb. 172
State of Nebraska, appellee, v. Christopher
McKinney, appellee, and David McKinney,
intervenor-appellant.
___ N.W.3d ___
Filed April 10, 2026. 	No. S-24-881.
1. Standing: Jurisdiction: Parties. Standing is a jurisdictional component
of a party’s case, because only a party who has standing may invoke the
jurisdiction of a court; determination of a jurisdictional issue which does
not involve a factual dispute presents a question of law.
2. Interventions. Whether a party has the right to intervene in a proceed-
ing is a question of law.
3. Statutes. Statutory interpretation is a question of law.
4. Courts: Appeal and Error. An appellate court independently decides
questions of law.
5. Search and Seizure: Appeal and Error. The denial of a motion for
return of seized property is reviewed for an abuse of discretion.
6. Sentences: Appeal and Error. 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.
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. Search and Seizure: Property: Evidence. The seizure and retention of
property as evidence in no manner denies or affects the title of the true
owner, but simply postpones his or her right of possession until the exi-
gencies of the prosecution are satisfied.
9. 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/
10/18/2026 12:41 AM CDT

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STATE v. McKINNEY
Cite as 321 Neb. 172
10. 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.
11. 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.
12. ____: ____. The proper procedure to obtain the return of seized property
is to apply to the court for its return.
13. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
14. Standing: Jurisdiction: Parties. Standing refers to whether a party had,
at the commencement of the litigation, a personal stake in the outcome
of the litigation that would warrant a court’s exercise of its subject mat-
ter jurisdiction and remedial powers on that party’s behalf.
15. Standing: Parties. To have standing, the plaintiff must have some legal
or equitable right, title, or interest in the subject matter of the controversy.
16. Interventions: Pleadings. A court has authority to exclude from the
case an intervenor whose pleadings do not disclose a direct interest in
the matter in litigation.
17. Courts: Jurisdiction: Search and Seizure: Property. The court in
which a criminal charge was filed has exclusive jurisdiction to deter-
mine the rights to seized property, and the property’s disposition.
18. Statutes. Statutory interpretation begins with the text, and the text is to
be given its plain and ordinary meaning.
19. Statutes: Appeal and Error. An appellate court will not resort to inter-
pretation of statutory language to ascertain the meaning of words which
are plain, direct, and unambiguous.
20. Statutes. It is not within the province of the courts to read meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
21. Property. Derivative contraband comprises objects which are not inher-
ently illegal, but are used in an unlawful manner.
22. Criminal Law: Search and Seizure: Property: Words and Phrases.
Property seized in enforcing a criminal law falls within the category of
derivative contraband if, but not only if, in fact it was used in a man-
ner consistent with the definition in Neb. Rev. Stat. § 28-1205(6)(d)
(Supp. 2025).
23. Judgments: Appeal and Error. An appellate court may affirm a lower
court’s ruling that reaches the correct result, albeit based on differ-
ent reasoning.

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Nebraska Supreme Court Advance Sheets
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STATE v. McKINNEY
Cite as 321 Neb. 172
24. Criminal Law: Search and Seizure: Property: Presumptions: Proof.
When criminal proceedings have terminated, the person from whom
property 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.
25. Search and Seizure: Property: Proof. Seizure of property from some-
one is prima facie evidence of that person’s right to possession of the
property, and unless another party presents evidence of superior title, the
person from whom the property was taken need not present additional
evidence of ownership.
26. Property: Presumptions: Evidence. A presumption of ownership is
created by exclusive possession of personal property, and evidence must
be offered to overcome that presumption.
27. Search and Seizure: Property: Presumptions. The presumptive right
to possession of seized property may be overcome when superior title in
another is shown by a preponderance of the evidence.
28. Search and Seizure: Property. A motion for the return of seized
property is properly denied only if the claimant is not entitled to law-
ful possession of the property, the property is contraband or subject
to forfeiture, or the government has some other continuing interest in
the property.
Appeal from the District Court for Otoe County: Julie
D. Smith, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Trevin H. Preble, of Preble Law Firm, P.C., L.L.O., for
appellant.
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Funke, 	C.J., 	Cassel, 	Stacy, 	Papik, 	Freudenberg,
Bergevin, and Vaughn, JJ.
Cassel, J.
I. INTRODUCTION
From a district court’s order for the destruction of firearms
and ammunition seized in a criminal case, 1 an intervening
1 See Neb. Rev. Stat. §§ 29-818 and 29-820 (Reissue 2016).

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STATE v. McKINNEY
Cite as 321 Neb. 172
transferee appeals. Two issues appear. First, did the transferee
have standing? Because he claimed ownership of the seized
property, he did. Second, was the property contraband per se
or, alternatively, derivative contraband, despite the transfer? As
to all items but one, they were derivative contraband, and we
affirm the order for their destruction. As to the remaining item,
we must reverse the order and remand the cause for further
proceedings to determine the threshold question of whether
the transferee satisfied his burden of proving the existence of
a transfer of ownership. From that determination, the proper
disposition will naturally follow.
II. BACKGROUND
In this section, we set forth basic information. Additional
details follow in the analysis.
1. Conviction and Direct Appeal
The underlying criminal case stemmed from an encounter
on January 12, 2022, between Christopher McKinney and law
enforcement at his home. After an armed standoff, law enforce-
ment executed search and arrest warrants and seized numerous
firearms and thousands of rounds of ammunition.
Christopher pled no contest to terroristic threats, a Class
IIIA felony, 2 on April 17, 2023. In exchange, the State dis-
missed other charges, including use of a firearm to commit
a felony. 3 The district court accepted Christopher’s plea and
found him guilty of terroristic threats. On June 5, it sentenced
him to jail time and post-release supervision.
On direct appeal, the Nebraska Court of Appeals affirmed
Christopher’s conviction and sentence. 4
2 See Neb. Rev. Stat. § 28-311.01 (Reissue 2016).
3 See Neb. Rev. Stat. § 28-1205 (Supp. 2025).
4 See State v. McKinney, No. A-23-503, 2024 WL 561946 (Neb. App. Feb.
13, 2024) (selected for posting to court website).

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STATE v. McKINNEY
Cite as 321 Neb. 172
2. Petition for “Order for Destruction”
and Motion to Intervene
After Christopher’s direct appeal concluded, the State filed
a petition seeking an “Order for Destruction.” The petition set
forth a list of specific weapons and ammunition that remained
in law enforcement’s possession and referred to “other loose
ammunition not specifically listed.” The State asserted that
the weapons and ammunition were used in the commission of
a crime and that they were no longer required as evidence. It
requested the court to order the destruction of all items.
David McKinney moved to intervene, and the court held a
hearing on both the State’s petition and David’s motion.
In an affidavit received in evidence, David claimed that he
was the owner of the seized property. He alleged that “[o]n
or about April 1, 2023, Christopher . . . gave me all of his
interest in the property that was seized by law enforcement
from him on or about January 12, 2022.” (Emphasis sup-
plied.) David alleged that he was Christopher’s father and
that he could lawfully possess firearms. David asked that the
property be returned to him. Attached to the affidavit was a
list of the property.
In other words, the date on which Christopher “gave” the
property to David—April 1, 2023—was after the State seized
it and charged Christopher but before Christopher’s no contest
plea and felony conviction and his later sentencing.
The State objected to David’s motion. Although it did not
dispute that David could lawfully possess firearms, the State
argued that he did not have an ownership interest in the
seized property and therefore lacked standing. Relying upon
§ 29-818, it reasoned that the court had exclusive jurisdiction
over the property’s disposition and that Christopher lacked the
authority to “transfer ownership” to David.
Turning to the petition, the State offered a detailed list of all
property seized from the scene, as well as a document sorting
the firearms into four general categories—those seen by law
enforcement during the standoff, those specifically mentioned

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STATE v. McKINNEY
Cite as 321 Neb. 172
by Christopher during the standoff, those that appeared to be
positioned or “[s]taged” in the residence as part of his actions
during the standoff, and others. Additionally, the State offered
law enforcement reports, photographs, and body camera foot-
age of the scene.
The State argued that the seized property could not be
returned for three reasons. Again relying on § 29-818, it main-
tained that Christopher did not have the authority to transfer his
ownership of the seized property to David. Second, it argued
that as a felon from the conviction arising out of the underly-
ing events, Christopher was now prohibited from possessing
firearms, 5 making the firearms “per se contraband.” Finally, it
argued that the property was used in the commission of a crime
and therefore was derivative contraband.
Christopher’s direct appeal counsel appeared on behalf of
both Christopher and David to oppose the petition. He argued
that Christopher, as the owner of the property at the time of
the seizure, had the authority to transfer it to David before
sentencing and that David can legally possess the property.
He also expressed doubt that all of the seized property was
contraband. Among other things, he highlighted that the State’s
factual basis for Christopher’s crime had only one mention
of a firearm—stating that he pointed a single shotgun at law
enforcement. Counsel requested the court to take judicial
notice of the affidavit in support of Christopher’s arrest war-
rant, which the State had offered as the factual basis to support
Christopher’s plea. Additionally, he presented an excerpt of
the verbatim transcript of Christopher’s plea hearing and the
affidavit of David, discussed above.
Ruling from the bench, the district court sustained David’s
motion to intervene, though it noted that David would not nec-
essarily be entitled to the release of the seized property. The
court entered an order consistent with its ruling from the bench
and took the State’s petition under advisement.
5 See Neb. Rev. Stat. § 28-1206 (Supp. 2025).

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STATE v. McKINNEY
Cite as 321 Neb. 172
3. District Court’s Order
The court entered an “Order for Destruction of Firearms
and Ammunition,” in which it agreed with the State that
Christopher could not transfer his interest in the seized prop-
erty to David and that the property was contraband. We will
set forth its detailed factual findings and reasoning in the
analysis section below. The court granted the State’s petition
in full and ordered that all seized property be destroyed.
Within 30 days of the order, David filed this appeal. The
State filed a motion for summary dismissal for lack of juris-
diction, which the Court of Appeals overruled. Then, the State
filed a petition to bypass review by the Court of Appeals, 6
which we granted.
III. ASSIGNMENTS OF ERROR
David sets forth two assignments of error. He challenges the
district court’s determinations that (1) Christopher could not
transfer the seized property to him and (2) the seized property
was used in the commission of a crime. On appeal, the State
raises the same standing argument asserted below.
IV. STANDARD OF REVIEW
[1-4] Standing is a jurisdictional component of a party’s
case, because only a party who has standing may invoke the
jurisdiction of a court; determination of a jurisdictional issue
which does not involve a factual dispute presents a question of
law. 7 Likewise, whether a party has the right to intervene in a
proceeding 8 and statutory interpretation 9 are questions of law.
An appellate court independently decides questions of law. 10
6 See Neb. Rev. Stat. § 24-1106(2) (Cum. Supp. 2024).
7 Nebraska Firearms Owners Assn. v. City of Lincoln, 319 Neb. 723, 24
N.W.3d 891 (2025).
8 Harchelroad v. Harchelroad, 315 Neb. 351, 996 N.W.2d 263 (2023).
9 State v. Brooks, 319 Neb. 377, 22 N.W.3d 640 (2025).
10 Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395
(2011).

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STATE v. McKINNEY
Cite as 321 Neb. 172
[5,6] The denial of a motion for return of seized property is
reviewed for an abuse of discretion. 11 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. 12
V. ANALYSIS
1. Law on Property “In Custodia Legis”
[7,8] Property seized in enforcing a criminal law is said to
be “in custodia legis,” or in the custody of the court. 13 The
common law addressed property seized and held as evidence
in a criminal case. 14 Courts elsewhere have long recognized
that the seizure and retention of property as evidence “in no
manner denies or affects the title of the true owner, but simply
postpones his [or her] right of possession until the exigencies
of the prosecution are satisfied.” 15
[9,10] Based upon §§ 29-818 and 29-820, we have stated
several principles governing seized property that codify and
extend the common law. 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. 16
Property seized and held as evidence shall be kept so long
as necessary for the purpose of being produced as evidence
at trial. 17
11 State v. Allen, 318 Neb. 627, 17 N.W.3d 794 (2025).
12 State v. Jackson, 320 Neb. 609, 29 N.W.3d 232 (2026).
13 State v. Allen, supra note 11.
14 See, Good v. Police Commissioners, 137 Md. 192, 112 A. 294 (1921);
Azparren v. Ferrel, 44 Nev. 157, 191 P. 571 (1920); Commission and Stock
Co. v. Moore, 13 App. D.C. 78 (1898).
15 Commission and Stock Co. v. Moore, supra note 14, 13 App. D.C. at 85.
16 State v. Allen, supra note 11.
17 Id.

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STATE v. McKINNEY
Cite as 321 Neb. 172
[11,12] 	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. 18 The proper procedure to obtain the
return of seized property is to apply to the court for its return. 19
Although some states have a specific statutory procedure, 20
Nebraska does not.
Regarding firearms, ammunition, explosives, bombs, and
like devices, § 29-820 establishes two categories having sep-
arate directions. Such items “which have been used in the
commission of crime” are to be destroyed. 21 Those that have
not been used in the commission of crime, that have not been
defaced or altered in any manner that violates any state or fed-
eral law, that may have a lawful use and be lawfully possessed,
and that are not seized incident to an arrest for domestic assault
are to be restored to the owner. 22 These directions guide a court
in its disposition of such items under § 29-818.
2. State’s Jurisdictional
Argument Lacks Merit
[13] We must address the State’s jurisdictional argument.
Before reaching the legal issues presented for review, it is the
duty of an appellate court to determine whether it has jurisdic-
tion over the matter before it. 23 The State contends that David
lacked standing to intervene and that, consequently, this court
lacks jurisdiction of his appeal.
[14-16] To do so, we recall principles of standing applying,
respectively, to a party commencing litigation and to a person
18 Id.
19 State v. Zimmer, 311 Neb. 294, 972 N.W.2d 57 (2022).
20 See 79 C.J.S. Searches § 287 (2017).
21 § 29-820(1)(e).
22 See § 29-820(1)(f).
23 Powers v. Board of Directors of Elmwood Tower, 320 Neb. 906, 31
N.W.3d 599 (2026).

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STATE v. McKINNEY
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intervening in a suit. Standing refers to whether a party had,
at the commencement of the litigation, a personal stake in the
outcome of the litigation that would warrant a court’s exercise
of its subject matter jurisdiction and remedial powers on that
party’s behalf. 24 To have standing, the plaintiff must have
some legal or equitable right, title, or interest in the subject
matter of the controversy. 25 Similarly, a court has authority
to exclude from the case an intervenor whose pleadings do
not disclose a direct interest in the matter in litigation. 26 With
these principles in mind, we turn to the parties’ rationales.
(a) Parties’ Rationales
The State bases its standing argument upon § 29-818, which
provides, in relevant part:
[P]roperty seized . . . shall be so kept so long as neces-
sary for the purpose of being produced as evidence in any
trial. . . . [T]he court in which such complaint was filed
shall have exclusive jurisdiction for disposition of the
property . . . and to determine rights therein, including
questions respecting the title, possession, control, and
disposition thereof.
(Emphasis supplied.)
The State contends that § 29-818 barred Christopher from
transferring 	his 	ownership 	interest 	to 	David 	without 	first
obtaining the court’s approval. And, it asserts that because
David acquired no ownership interest in the property, he lacked
standing to intervene in this matter.
David distinguishes ownership from possession. He con-
cedes that Christopher could not possess the property while
the district court had its custody. But David maintains that
24 Kellogg v. Mathiesen, 320 Neb. 223, 26 N.W.3d 651 (2025).
25 Id.
26 Jennings Plant Servs. v. Ellerbrock-Norris Agency, 318 Neb. 138, 14
N.W.3d 10 (2024).

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STATE v. McKINNEY
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Christopher’s ownership interest had not, at the time of the
purported transfer, been lost.
(b) § 29-818 Did Not Completely Bar
Transfer of Ownership Interest
[17] Pursuant to § 29-818, the court in which a criminal
charge was filed has exclusive jurisdiction to determine the
rights to seized property, and the property’s disposition. 27
Because a criminal charge was filed against Christopher, we
agree with the State that § 29-818 governs jurisdiction here.
But the State goes further.
The State reasons that the court’s “exclusive jurisdiction
for disposition” 28 precluded Christopher from transferring his
interest to David during the period from seizure to disposi-
tion. It therefore asserts that David lacked the requisite legal
interest to intervene. It reads too much into § 29-818.
[18-20] Statutory interpretation begins with the text, and
the text is to be given its plain and ordinary meaning. 29 An
appellate court will not resort to interpretation of statutory
language to ascertain the meaning of words which are plain,
direct, and unambiguous. 30 It is not within the province of the
courts to read meaning into a statute that is not there or to
read anything direct and plain out of a statute. 31
Absent statutory language to the contrary, we decline to
hold that § 29-818 completely barred Christopher from trans-
ferring any of his ownership interest without the court’s
prior approval. The statute plainly states that seized property
must be “kept so long as necessary for the purpose of being
27 State v. Ebert, 303 Neb. 394, 929 N.W.2d 478 (2019).
28 § 29-818.
29 Khaitov v. Greater Omaha Packing Co., 319 Neb. 932, 25 N.W.3d 739
(2025).
30 State v. Jackson, supra note 12.
31 In re Interest of Johnny H., 320 Neb. 675, 29 N.W.3d 808 (2026).

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produced as evidence in any trial.” 32 Thus, the State’s interest
extended to “ke[eping]” the property for use as evidence and
thereafter disposing of it to the rightful owner or destroying
it as contraband. And because the property seized here con-
sisted of firearms, ammunition, and attachments to firearms,
the directions in § 29-820(1)(e) and (f) imposed potential
limitations upon the transferability of Christopher’s owner-
ship interests.
Because the statutes are plain, direct, and unambiguous, we
look no further than the text. To the extent that Christopher
used these items in the commission of crime, any transfer of
his ownership was subject to the consequences of that usage.
But to the extent they were not used in the commission of
crime, had not been defaced or altered in any manner that
violates any state or federal law, were not seized incident to
an arrest for domestic assault, and had a lawful use and could
be lawfully possessed, the court was empowered to acknowl-
edge Christopher’s transfer to David as effective upon ter-
mination of the State’s interests in the property as evidence
or otherwise.
Thus, we agree with David that his purported ownership
interest was sufficient to support intervention. In other con-
texts, this court has deemed an ownership interest in the
property that is the subject of the litigation to be sufficient to
support intervention. 33 The district court did not err, as a matter
of law, in sustaining David’s motion to intervene.
This does not mean that David was necessarily entitled to
the return of the property. Nor does it mean that an owner of
seized property should not apply to the court having exclusive
jurisdiction of it for approval of a transfer of ownership. We
merely state that a transfer is not automatically void if done
32 § 29-818.
33 See, e.g., Ruzicka v. Ruzicka, 262 Neb. 824, 635 N.W.2d 528 (2001);
McConniff v. Van Dusen, 57 Neb. 49, 77 N.W. 348 (1898); Holland v.
Commercial Bank, 22 Neb. 585, 36 N.W. 112 (1888).

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without such approval and that based upon his allegations in
support of intervention, David had standing to intervene.
3. Merits of David’s Motion for Return
Having rejected the State’s jurisdictional argument, we now
turn to the merits of David’s motion for return of the seized
property.
(a) Additional Facts
At oral argument, David conceded that he does not quar-
rel with the district court’s factual findings in the order for
the destruction. The factual basis for the plea appears in the
record here and in the Court of Appeals’ opinion. 34 Briefly
summarized, it included information that law enforcement
was dispatched to Christopher’s home after he threatened to
hurt himself; that he pointed a shotgun at officers; and that he
told officers that if they attempted to enter a basement door,
he would “‘Blow them Away.’”
Then, based on the additional evidence on the matters
regarding disposition of the seized property, the court set forth
a thorough and extensive recitation (at least nine single-spaced
pages) of the underlying events. Very briefly summarized,
drawn from law enforcement reports, photographs, and body
camera footage of the scene, the court found that Christopher
loaded various firearms, verbally threatened to shoot law
enforcement, identified specific firearms, and referred to “‘a
large number of loaded weapons’” and thousands of rounds of
ammunition present in the home.
For the sake of completeness, we note that the court sum-
marized or quoted Christopher’s numerous threats of vio-
lence involving firearms and ammunition. A representative
sample includes:
During 	the 	standoff, 	[Christopher] 	could 	be 	heard
loading numerous firearms, and he made the following
comments to Deputy Shea[:]
34 See State v. McKinney, supra note 4.

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After 	Shea 	heard 	[Christopher] 	loading 	firearms:
“We’re ready to go. Let’s go.”
“Here’s the thing. Roughly, I’ve got 3000 rounds of
ammunition . . . And that’s not counting .22 mags or .22s
OK.”
“And I’ve got a large number of loaded weapons.”
“Here’s the thing Officer Shea . . . The biggest thing
in your world is making it home to your family alive.
Right?”
“Are you wearing body armor, Officer Shea? . . . I’m
guessing—just guessing—that you are wearing level 2
body armor. Is that correct? . . . Most officers wear level
2 body armor because that’s a body armor they can do
without inhibiting movement . . . . The gun that I have in
my hand. A 30.06 165 grain bullet fired at 2800 feet per
second will penetrate your body armor.”
“You have two choices. You can go home and see your
family. Or you can bother me.”
. . . .
“I am offering you the opportunity to leave. Because
right now, right now sittin’ here, right now, I’m going
to tell you full disclosure what I have: I got a 6.5 in my
hand, three more inside, shooting a 168 grain bullet, off
safe, three rounds in the chamber. I got a note written to
my son on the floor. I have a 12 gauge with a 3” turkey
mags there. I have 27 rounds of .22 mag ammo. I have
7-14 rounds of .22. I have another 12 gauge. I have a 30
uh a PMR 30, which is a .22 mag pistol.”
. . . .
“I’m relaxed enough to pull the [expletive] trigger right
now . . . . And the stupid part is that I’m dumb enough to
pull the trigger on you too.”
. . . .
“Okay. So let me ask you. I come out around the corner
here, and I got 30 rounds in this thing . . . I got another

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30 in my pocket—29 in my pocket actually to be honest.
Okay? Along with 5 in here. Which one of us do you
think is going to make it?”
“I’ve got 35 rounds of lethal ammunition—in my hand
. . . I could hit your iris—from here . . . I’m consistent ten
out of ten . . . . This isn’t a good job for you.”
The court’s order also set forth a list of the seized property,
which included ammunition and various firearms identified
by brand, model, and serial number. The court’s recitation
determined: “Firearms were positioned throughout the house
in what appeared to be staged locations near windows and
doors. Extra magazines and ammunition were also staged in
the same locations indicating that [Christopher] was taking up
defensive fighting positions in the event that law enforcement
breached the residence.” Additionally, the court observed,
“Several thousand rounds of ammunition [were] seized from
the basement.”
With these facts in place, the court next turned to the issues.
Three aspects are significant.
First, it reasoned that the seized property (except for one
firearm, referred to as the “Marlin .17 HMR”) was derivative
contraband, because it was used to commit terroristic threats
against law enforcement. Relying on the statutory definition
for “‘[u]se of a deadly weapon,’” 35 it reasoned that although
Christopher was not convicted of an offense under that stat-
ute, he was convicted of the “underlying felony” of terroris-
tic threats. Based on the facts, it concluded that Christopher
“employed or displayed” his firearms while he threatened law
enforcement or immediately thereafter during the standoff.
Additionally, his communication to law enforcement “indi-
cated the presence of a large arsenal of weapons and ammu-
nition and that he intended to harm [law enforcement] with
said weapons if [they] did not leave.” Therefore, under the
35 See § 28-1205.

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facts of this case, the firearms and ammunition were used to
threaten law enforcement “even if some of the firearms were
not actively employed or displayed.” (Emphasis in original.)
Second, it concluded that at the time of its order, because
Christopher was a convicted felon, the property was contraband
per se. Further, citing § 29-818, it reasoned that Christopher
could not circumvent the court’s exclusive jurisdiction to deter-
mine the disposition of the seized property by purporting to
transfer his ownership interest to David.
Finally, the court referred to the transfer as “purported[].”
It reasoned that a return of property to another person hav-
ing superior title “[s]urely . . . contemplates someone who
already had superior title at the time the item was seized . . . .”
(Emphasis in original.)
(b) Discussion
(i) Property Used in Crime
[21] We first consider David’s derivative contraband argu-
ment. David contends that the court erred in concluding
that most of the seized property was derivative contraband.
Derivative contraband comprises objects which are not inher-
ently illegal, but are used in an unlawful manner. 36
David 	asserts 	that, 	at 	most, 	Christopher 	handled—and
therefore “used”—three of the firearms in committing his
crime. David asserts that the remaining property was merely
present in the home and that Christopher’s “mere suggestion
that there were other firearms and ammunition in the home
simply does not rise to the level necessary to make them
instrumentalities of anything.” 37 David also seems to argue
that in order for the property to be derivative contraband, it
must have been used to commit the specific crime of which
the court found him guilty—terroristic threats.
36 State v. Zimmer, supra note 19.
37 Brief for appellant at 9.

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The district court looked to the definition in § 28-1205(6)(d),
which defines the offense of use of a deadly weapon to commit
a felony. Section 28-1205(6)(d) states:
Use of a deadly weapon includes the . . . employment, or
visible display of any part of a firearm . . . during, imme-
diately prior to, or immediately after the commission
of a felony or communication to another indicating the
presence of a firearm . . . during, immediately prior to, or
immediately after the commission of a felony, regardless
of whether such firearm . . . was discharged, actively
employed, or displayed.
[22] We agree that this is a proper definition of “use”
for purposes of analyzing whether the seized property was
derivative contraband. We now hold that property seized in
enforcing a criminal law falls within the category of derivative
contraband if, but not only if, in fact it was used in a manner
consistent with the definition in § 28-1205(6)(d).
On these facts, we see no error in the district court’s conclu-
sion that all firearms except for one—the Marlin .17 HMR—
and 	all 	ammunition 	were 	derivative 	contraband, 	because
Christopher used them in an “unlawful manner” as an instru-
mentality of crime. In committing terroristic threats against
law enforcement, Christopher employed and visibly displayed
various firearms, and he communicated to law enforcement
indicating the presence of a large number of firearms and
thousands of rounds of ammunition.
[23] Regarding all items used in the commission of crime
(i.e., everything but the Marlin .17 HMR), the court did not
abuse its discretion in overruling David’s motion for return and
ordering destruction. As to those items, we need not address
the court’s alternative reasoning that the property was contra-
band per se or the validity of the purported transfer. It makes
no difference. An appellate court may affirm a lower court’s
ruling that reaches the correct result, albeit based on different

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reasoning. 38 We therefore affirm the district court’s order for
the destruction of those items of derivative contraband.
(ii) Single Item Not Used
The State does not challenge the court’s conclusion that
a single firearm—the Marlin .17 HMR—was not derivative
contraband. The court found that Christopher “did not threaten
[law enforcement]” with it and that although they discussed
this firearm, Christopher “specifically told [law enforcement]
that he just got it and didn’t have any bullets for it yet.”
The question then becomes whether the court abused its
discretion in failing to order the return of this single firearm
to David. To the extent that the court employed the State’s
reasoning that § 29-818 was a complete bar on the transfer,
we reject that notion for the same reasons stated above. We
also reject the notion that this single firearm was contraband
per se. 39
As discussed below, two potential dispositional paths likely
would follow. The appropriate path hinges on the validity of
the transfer.
[24-27] When criminal proceedings have terminated, the
person from whom property 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. 40
Seizure of property from someone is prima facie evidence of
that person’s right to possession of the property, and unless
another party presents evidence of superior title, the person
38 Syring v. Archdiocese of Omaha, 317 Neb. 195, 9 N.W.3d 445 (2024).
39 See State v. Zimmer, supra note 19 (contraband per se comprises objects
possession of which, without more, constitutes crime). See, also, 94 C.J.S.
Weapons § 73 (2023) (firearms are not contraband per se and may not be
subjected to seizure and forfeiture simply on basis of possession, except,
for example, on conviction of offense of knowing unlawful possession of
firearm).
40 State v. Ebert, supra note 27.

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from whom the property was taken need not present addi-
tional evidence of ownership. 41 A presumption of ownership
is created by exclusive possession of personal property, and
evidence must be offered to overcome that presumption. 42 The
presumptive right to possession of seized property may be
overcome when superior title in another is shown by a prepon-
derance of the evidence. 43
a. Factual Findings Not Made
Regarding Transfer
We cannot read the district court’s order to make factual
findings regarding the actual existence of the asserted trans-
fer. David’s affidavit said merely that Christopher “gave”
David “all of his interest in the property.” Here, David was
the purported donee. We have no writing or testimony from
the purported donor.
We emphasize that nothing precluded the court from reject-
ing the factual predicates of the purported transfer. It was
presented with an affidavit and had no opportunity to assess
the veracity or credibility of the affiant. The court was not
required to accept it as true, particularly without supporting
documentation (e.g., a bill of sale or deed of gift). Additional
evidence might be required to satisfy a court before ordering
the transfer of possession of a firearm from a government
custodian to a transferee. 44 In other words, if the trial court is
not provided with credible evidence as to a transferee’s
41 State v. Zimmer, supra note 19.
42 State v. Ebert, supra note 27.
43 State v. Zimmer, supra note 19.
44 See, generally, Henderson v. United States, 575 U.S. 622, 135 S. Ct. 1780,
191 L. Ed. 2d 874 (2015) (holding that court-ordered transfer of felon’s
lawfully owned firearms from government custody to third party is not
barred by federal statute prohibiting felon’s possession of firearms if court
is satisfied that recipient will not give felon control over firearms, so that
felon could either use them or direct their use).

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ownership or entitlement of property seized pursuant to a
warrant, a motion for return of the property should not
be granted. 45
Because the firearm was not in Christopher’s possession
when he “gave” it to David, the threshold question is whether
the transfer met the elements of a gift. To make a valid inter
vivos gift, there must be an intention to transfer title to prop-
erty, delivery by the donor, and acceptance by the donee. 46
Ordinarily, actual delivery is necessary where the subject of
the gift is capable of manual delivery, but where actual manual
delivery cannot be made, the donor may do that which, under
the circumstances, will in reason be considered equivalent to
actual delivery. 47
But here, the court did not address the threshold question. It
instead essentially accepted the State’s argument that no such
gift could have any effect during the duration of the seizure.
We acknowledge that the court did not have the benefit of
guiding precedent regarding a transfer at such a time.
For the same reasons explained above, a complete bar
on accepting the validity of such a transfer goes too far. We
reverse the order for the destruction of the Marlin .17 HMR
and remand the cause for further proceedings to address the
threshold question and to apply its findings to the remaining
issues. In doing so, the court may determine the answer based
on the existing record or it may receive additional evidence.
To guide the court on remand, we address the consequences
that likely flow from the answer to that question. 48
45 See 79 C.J.S., supra note 20, § 293.
46 In re Estate of Marsh, 307 Neb. 893, 951 N.W.2d 486 (2020).
47 Id.
48 See Slater v. Ichtertz, 320 Neb. 159, 26 N.W.3d 504 (2025) (appellate
court may discuss issues unnecessary to disposition where those issues are
likely to recur during further proceedings).

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b. Likely Consequences
i. Valid Transfer of Marlin
If the court determines that David proved that Christopher
did that which, under the circumstances, was in reason con-
sidered equivalent to actual delivery, then a valid ownership
transfer occurred. Unless other circumstances are prohibitive,
the court would sustain David’s motion in part—as to the
Marlin .17 HMR only—and order law enforcement to transfer
possession of it to David.
[28] A motion for the return of seized property is properly
denied only if the claimant is not entitled to lawful possession
of the property, the property is contraband or subject to for-
feiture, or the government has some other continuing interest
in the property. 49
ii. Not Valid
If the court determines that David failed to prove that
Christopher did that which, under the circumstances, was
in reason considered equivalent to actual delivery, then no
transfer occurred. It would necessarily follow that because of
Christopher’s status as a convicted felon, the Marlin .17 HMR
could not be returned to him. 50 Under this path, the court would
need to fashion appropriate relief, not including the return of
the firearm to Christopher but affording him an opportunity to
preserve, realize, or transfer the market value, if any, of his
nonpossessory ownership interest.
VI. CONCLUSION
As set forth in our analysis, we conclude:
• The seizure and retention of property as evidence in no man-
ner denies or affects the title of the true owner but simply
49 State v. Zimmer, supra note 19.
50 See § 28-1206 (addressing possession of deadly weapon by prohibited
person).

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postpones his or her right of possession until the exigencies of
the prosecution are satisfied.
• The court in which a criminal charge was filed has exclusive
jurisdiction to determine the rights to seized property, and the
property’s disposition.
• Section 29-818 did not completely bar Christopher from trans-
ferring any of his ownership interest without the court’s prior
approval.
• Property seized in enforcing a criminal law falls within the
category of derivative contraband if, but not only if, in fact
it was used in a manner consistent with the definition in
§ 28-1205(6)(d).
• Because all of the seized items, except the Marlin .17 HMR,
were derivative contraband, the court did not abuse its discre-
tion in ordering the destruction of those items.
• The Marlin .17 HMR was not contraband per se, and its proper
disposition depends upon a largely factual determination of
the validity of Christopher’s purported transfer of ownership
to David.
We therefore affirm the order for the destruction of the
seized items, except the Marlin .17 HMR. We reverse the order
for the destruction of that single item and remand the cause for
further proceedings consistent with this opinion.
Affirmed in part, and in part reversed and
remanded for further proceedings.