A search warrant authorized by sections 29-812 to 29-821 may be issued by any judge of the county court, district court, Court of Appeals, or Supreme Court for execution anywhere within the State of Nebraska or for service upon any publicly or privately held corporation, partnership, or other legal entity located within or outside the State of Nebraska. A similar search warrant authorized by such sections may be issued, subject to section 24-519, by any clerk magistrate within the county in which the property sought is located.

Cross References

Nebraska Liquor Control Act, issuance under, see section 53-1,108 et seq.

Annotations

Failure of magistrate to collect fee for issuing search warrant does not invalidate it. State v. McCown, 189 Neb. 495, 203 N.W.2d 445 (1973).
On a hearing on a motion to suppress evidence, it is within the discretion of the trial court to permit withdrawal of rest and the taking of further evidence. State v. Putnam, 178 Neb. 445, 133 N.W.2d 605 (1965).

(1) A warrant may be issued under sections 29-812 to 29-821 to search for and seize any property (a) stolen, embezzled, or obtained under false pretenses in violation of the laws of the State of Nebraska, (b) designed or intended for use or which is or has been used as the means of committing a criminal offense, (c) possessed, controlled, designed, or intended for use or which is or has been possessed, controlled, designed, or used in violation of any law of the State of Nebraska making such possession, control, design, or use, or intent to use, a criminal offense, or (d) which constitutes evidence that a criminal offense has been committed or that a particular person has committed a criminal offense.

(2) Notwithstanding subsection (1) of this section, no warrant shall be issued to search any place or seize anything in the possession, custody, or control of any person engaged in procuring, gathering, writing, editing, or disseminating news or other information for distribution to the public through a medium of communication unless probable cause is shown that such person has committed or is committing a criminal offense. For purposes of this subsection, the terms person, information, and medium of communication shall be defined as provided in section 20-145.

Annotations

An arrest may not be used as a pretext to search for evidence. A pretext arrest is one where the arrest is only a sham, a front being used as an excuse for making a search. The determination of whether an arrest is pretextual is a question of fact for the trial court. This court will not reverse a trial court's finding on this question unless the finding is clearly erroneous. State v. Vann, 230 Neb. 601, 432 N.W.2d 810 (1988).
A warrant to search a house also covers the land around the house and associated outbuildings used by the inhabitants of the house. State v. Vicars, 207 Neb. 325, 299 N.W.2d 421 (1980).
Items not listed on a search warrant but in plain view of officers searching an area described in the warrant for items listed on the warrant may be seized. State v. King, 207 Neb. 270, 298 N.W.2d 168 (1980).
The eyewitness report of a citizen informant may be self-corroborating; the fact that a citizen voluntarily came forward with information is itself an indicium of reliability. State v. King, 207 Neb. 270, 298 N.W.2d 168 (1980).
The fact that defendant's arrest may have been illegal does not render inadmissible evidence seized pursuant to a valid search warrant received by police shortly after they entered the defendant's apartment. State v. Smith, 207 Neb. 263, 298 N.W.2d 162 (1980).

A search warrant may be issued under section 29-814.04 pursuant to written affidavit sworn to before a magistrate, a judge, or any other person authorized to administer oaths under the laws of this state by the person making it. Such affidavit shall particularly describe the persons or places to be searched and the persons or property to be seized. Such affidavit shall set forth the facts and circumstances tending to show that such person or property is in the place, or the property is in the possession of the person, to be searched. Such affidavit may be submitted to the magistrate or judge in person or by facsimile or other electronic means and the warrant may be issued to the affiant in person or by facsimile or other electronic means.

Annotations

It is well established that affidavits for search warrants must be tested and interpreted in a common-sense and realistic fashion. Where the circumstances are detailed and reasons for crediting a source of information are given resulting in a finding of probable cause by the magistrate, the court should not invalidate the warrant by interpreting the affidavit in a hyper-technical manner and should find it sufficient if it will support the issuance of a warrant after the deletion of any inaccurate statements. State v. Longa, 211 Neb. 356, 318 N.W.2d 733 (1982).

In lieu of, or in addition to, written affidavit, a search warrant may be issued under section 29-814.04 pursuant to an oral statement given in person and under oath to a magistrate or judge. The oral statement shall be taken by means of a voice recording device in the custody of the magistrate or judge. If no voice recording device is available, the statement may be taken stenographically. The magistrate or judge shall direct that the recorded or stenographic statement be transcribed and the magistrate or judge shall certify the accuracy of the transcription. The magistrate or judge shall file with the clerk of the district court of the county in which the property was seized the original of the record and the transcribed statement. Such filing shall be made at the same time the warrant, copy of the return, inventory, and all other papers connected with the warrant are filed pursuant to section 29-816. For purposes of sections 29-814.01 to 29-814.06, an oral statement authorized by this section shall be considered to be an affidavit.

Annotations

Where the judge incorporated an officer's oral statement into the officer's affidavit by interlineation, there was no need to comply with this section. State v. Nelson, 6 Neb. App. 519, 574 N.W.2d 770 (1998).

A search warrant may be issued under section 29-814.05 pursuant to a telephonic statement made to a magistrate or judge in accordance with the procedures set forth in this section. Prior to telephonically contacting a magistrate or judge, the law enforcement officer requesting the warrant shall contact the county attorney or a deputy county attorney of the county in which the warrant is to be issued for purposes of explaining the reasons why a search warrant should be issued pursuant to a telephonic statement. If the county attorney or deputy county attorney is satisfied that a warrant is justified, and that circumstances justify its immediate issuance, the county attorney or deputy county attorney shall contact the magistrate or judge and state that he or she is convinced that a warrant should be issued by telephone. The county attorney or deputy county attorney shall provide the magistrate or judge with a telephone number at which the officer requesting the warrant may be contacted. The magistrate or judge shall call the officer at the number provided and shall place the officer under oath and take his or her statement. The statement shall be taken by means of a voice recording device in the custody of the magistrate or judge. The magistrate or judge shall direct that the recorded statement be transcribed and the magistrate or judge shall certify the accuracy of the transcription. The magistrate or judge shall file with the clerk of the district court of the county in which the property was seized the original of the recording and the transcribed statement. Such filing shall be made at the same time the warrant, copy of the return, inventory, and all other papers connected with the warrant are filed pursuant to section 29-816. For purposes of sections 29-814.01 to 29-814.06, a telephonic statement authorized by this section shall be considered to be an affidavit.

If the magistrate or judge is satisfied that probable cause exists for the issuance of a search warrant, as a result of written affidavit or oral statement authorized pursuant to sections 29-814.01 and 29-814.02, the magistrate or judge shall issue the warrant which shall identify the person or place to be searched and the person or property to be seized. The warrant shall be directed to a law enforcement officer of the State of Nebraska or one of its governmental subdivisions, which officer shall be specifically named or described by the title of his or her office in the warrant. The warrant shall state whether the grounds or proper cause of its issuance is a written affidavit, an oral statement, or a combination of both. The warrant shall indicate the name or names of the person or persons whose affidavit or statement has been taken in support thereof. The warrant shall command the officer named in the warrant to search the person or place named for the purpose specified. The warrant shall direct that it be served in the daytime unless the magistrate or judge is satisfied that the public interest requires that it should not be so restricted, in which case the warrant may direct that it may be served at any time. The warrant shall designate the magistrate or judge to whom it shall be returned. For purposes of this section, daytime shall mean the hours from 7 a.m. to 8 p.m. according to local time.

Annotations

An affidavit in support of a search warrant need not contain a separate statement of facts showing why the public interest requires that the warrant be served at night, in order for the nighttime search to be valid. If the affidavit, read in a commonsense manner and as a whole, reasonably supports the inference that the interests of justice are best served by the authorization of nighttime service of a search warrant, provision for such service in the warrant is proper. State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (2008).
A factual basis that shows the reviewing judicial officer that the public interest requires a nighttime search is a prerequisite to the issuance of a warrant authorizing a nighttime search under this section. State v. Fitch, 255 Neb. 108, 582 N.W.2d 342 (1998).
Where the use of the catchall phrase "John and/or Jane Doe" is not based on probable cause that all persons to whom the phrase might be applied will be engaged in illegal activity, the warrant does not satisfy the requirements of this section. State v. Pecha, 225 Neb. 673, 407 N.W.2d 760 (1987).
In order to authorize the issuance of a search warrant for service during the nighttime, the magistrate or judge must only be satisfied from a commonsense reading of the affidavit in support of such issuance that it reasonably supports the inference that the interests of justice are best served by the authorization of such nighttime service. An affidavit in support of the issuance of a search warrant which alleges facts which would lead a reasonable person to believe that a delay in service of the warrant would permit the possible destruction of contraband may be sufficient to authorize immediate nighttime service. State v. Paul, 225 Neb. 432, 405 N.W.2d 608 (1987).
The showing of probable cause necessary to support a search warrant requires only the probability, and not a prima facie showing, of criminal activity, and probable cause is to be evaluated by the collective information of the police as reflected in the affidavit, and is not limited to the firsthand knowledge of the officer who executes the affidavit. State v. Longa, 211 Neb. 356, 318 N.W.2d 733 (1982).
In order to authorize the issuance of a search warrant for service during the nighttime under this section, the magistrate or judge must only be satisfied from a commonsense reading of the affidavit in support of such issuance that it reasonably supports the inference that the interests of justice are best served by the authorization of nighttime service. State v. Moore, 2 Neb. App. 206, 508 N.W.2d 305 (1993).
The receipt of information concerning defendant's drug involvement at 6:45 p.m. from informant under arrest and with access to phones satisfied public interest requirement justifying nighttime execution of search warrant. State v. Flemming, 1 Neb. App. 12, 487 N.W.2d 564 (1992).

(1) If the magistrate or judge is satisfied that probable cause exists for the issuance of a search warrant, as the result of a telephonic statement taken under section 29-814.03, and if the magistrate or judge is further satisfied that sufficient reason exists to issue such warrant by telephone, the magistrate or judge shall authorize the officer requesting the warrant to complete a duplicate original warrant which shall contain a description of the person or place to be searched, a description of the person or property to be seized, a command to the officer to conduct the search for the purposes specified, the date and time of issuance, a statement that the grounds or proper cause for its issuance is by telephonic statement, the name or names of the person or persons whose statement has been taken in support of the warrant, and the name of the judge to whom it is to be returned. The magistrate or judge shall authorize the officer to sign his or her name to the duplicate original warrant and to also sign the name of the officer thereto. A duplicate original warrant shall be deemed to be a search warrant for purposes of Chapter 29, article 8.

(2) At the time the magistrate or judge authorizes the officer to complete the duplicate original warrant under subsection (1) of this section, the magistrate or judge shall immediately complete and sign the original warrant which shall contain the information which is required for a duplicate original warrant under subsection (1) of this section. The magistrate or judge shall also enter on the face of the original warrant the exact time when the warrant was ordered to be issued.

(3) The duplicate original warrant shall be returned according to section 29-815. Upon the duplicate original warrant being returned, the magistrate or judge shall sign it and shall file it, together with the original warrant, in the same manner as that required under section 29-816.

(4) A search warrant issued pursuant to a telephonic statement shall be invalid unless the duplicate original warrant is signed by the issuing magistrate or judge pursuant to subsection (3) of this section.

(5) A search warrant issued under this section may be executed immediately upon issuance.

If the original of the oral or telephonic statement, taken pursuant to section 29-814.02 or 29-814.03, shall be lost, destroyed, or a critical portion thereof is unintelligible, a search warrant issued pursuant to such oral or telephonic statement shall be deemed to be invalid.

(1) The warrant must be executed and returned within ten days after its date. The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property or shall leave the copy and the receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken if they are present, or in the presence of at least one credible witness other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be verified by the officer. The judge or magistrate shall deliver a copy of the inventory upon request to the person from whom or from whose premises the property was taken and to the applicant for the warrant.

(2) The return and inventory required by subsection (1) of this section may be submitted to the magistrate or judge in person or by facsimile or other electronic means.

Cross References

Fees for service, see section 33-117.

Annotations

Where there was no clear showing of prejudice, an officer's failure to return a search warrant within the time limit provided by this section was purely a ministerial defect and did not render the warrant invalid. State v. Nolt, 298 Neb. 910, 906 N.W.2d 309 (2018).
Irrespective of compliance with a rule or statutory time limit within which a search must be executed, a delay in the execution of a warrant may be constitutionally impermissible under the Fourth Amendment. State v. Swift, 251 Neb. 204, 556 N.W.2d 243 (1996).
Failure to provide a copy of a search warrant was a purely ministerial defect that did not invalidate the warrant absent a clear showing of prejudice. State v. Svendgard, 31 Neb. App. 596, 986 N.W.2d 88 (2023).
The execution of the warrant 6 days after its issuance does not require suppression of evidence obtained based on the warrant. State v. Moore, 2 Neb. App. 206, 508 N.W.2d 305 (1993).

The judge or magistrate who has issued the search warrant shall attach to the warrant a copy of the return, inventory, and all other papers in connection therewith and shall file them with the clerk of the district court for the county in which the property was seized. Copy of such warrant, return, inventory, and all other such papers so filed with such clerk, when certified as a true copy by such clerk shall be received in evidence in all proceedings where relevant without further foundation. The clerk of the district court shall file and index such warrant, together with the return thereon, the inventory, and other papers in connection therewith as a separate criminal proceeding. No fee shall be charged or collected for such service.

Annotations

Failure to comply strictly with post service statutory proceedings will not invalidate search under valid warrant in absence of clear showing of prejudice. State v. McCown, 189 Neb. 495, 203 N.W.2d 445 (1973).

Sections 29-812 to 29-821 do not modify any act inconsistent with it relating to search warrants, their issuance, and the execution of search warrants and acts relating to disposition of seized property in circumstances for which special provision is made. The term property is used in sections 29-812 to 29-821 to include documents, books, papers, any other tangible objects, and controllable electronic records as defined in section 8-3003. Nothing in sections 29-812 to 29-821 shall be construed as restricting or in any way affecting the constitutional right of any officer to make reasonable searches and seizures as an incident to a lawful arrest nor to restrict or in any way affect reasonable searches and seizures authorized or consented to by the person being searched or in charge of the premises being searched, or in any other manner or way authorized or permitted to be made under the Constitution of the United States and the Constitution of the State of Nebraska.

All search warrants shall be issued with all practicable secrecy and the complaint, affidavit, or testimony upon which it is based shall not be filed with the clerk of the court or made public in any way until the warrant is executed. Whoever discloses, prior to its execution, that a warrant has been applied for or issued, except so far as may be necessary to its execution, shall be guilty of a Class III misdemeanor, or he or she may be punished as for a criminal contempt of court.

Except for animals as provided in section 28-1012.01, property seized under a search warrant or validly seized without a warrant shall be safely kept by the officer seizing the same, unless otherwise directed by the judge or magistrate, and shall be so kept so long as necessary for the purpose of being produced as evidence in any trial. Property seized may not be taken from the officer having it in custody by replevin or other writ so long as it is or may be required as evidence in any trial, nor may it be so taken in any event where a complaint has been filed in connection with which the property was or may be used as evidence, and the court in which such complaint was filed shall have exclusive jurisdiction for disposition of the property or funds and to determine rights therein, including questions respecting the title, possession, control, and disposition thereof. This section shall not preempt, and shall not be construed to preempt, any ordinance of a city of the metropolitan or primary class.

Cross References

Seizure of vehicle and component parts, see section 60-2608.

Annotations

1. Jurisdiction

2. Miscellaneous

1. Jurisdiction

The district court, as the court in which the criminal charge was filed, has exclusive jurisdiction to determine the rights to seized property and the property's disposition. State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).
The court in which a criminal charge was filed has exclusive jurisdiction to determine the rights to seized property and the property's disposition. State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007).
Under this section, the court, where the criminal charge has been filed and where seized property was or may be used as evidence, has exclusive jurisdiction to dispose of the property and to determine rights therein, including questions respecting the title, possession, control, and disposition thereof. State v. Riley, 31 Neb. App. 292, 979 N.W.2d 538 (2022).
A car was property seized for the purpose of enforcing criminal laws in the plaintiff's ongoing criminal case; therefore, the car had been and remained to be in the custody of the court in the criminal case. As such, the district court in the plaintiff's separate criminal case continued to have exclusive jurisdiction to determine the rights to the car and the car's disposition. Huff v. Otto, 28 Neb. App. 646, 947 N.W.2d 343 (2020).
A harmonious reading of this section and section 29-819 is that references to jurisdiction in each are to jurisdiction over seized property, not subject matter jurisdiction. Huff v. Otto, 28 Neb. App. 646, 947 N.W.2d 343 (2020).
Where invoked, the grant of "exclusive jurisdiction" under this section gives a criminal trial court exclusive jurisdiction over only two issues: the disposition of seized property and the determination of rights in seized property. Huff v. Otto, 28 Neb. App. 646, 947 N.W.2d 343 (2020).

2. Miscellaneous

The defendant failed to make the requisite initial showing that the items were seized from him, where he did not introduce his motion alleging that the property was his "seized personal property" into evidence at the hearing and there was no other evidence that the property was seized from him. State v. Allen, 318 Neb. 627, 17 N.W.3d 794 (2025).
The defendant must make an initial showing that the items were seized from him or her before the burden shifts to the State to establish that another claimant has superior title to the property. State v. Allen, 318 Neb. 627, 17 N.W.3d 794 (2025).
The trial court plainly erred in ordering that any firearms, weapons, ammunition and ammunition components, and weapons parts and accessories used in the commission of the offenses for which the defendant was convicted be retained, but not identifying which specific items were evidence, and instead, seemingly leaving law enforcement to determine this. State v. Allen, 318 Neb. 627, 17 N.W.3d 794 (2025).
The denial of a motion for the return of a seized firearm was improper where the State failed to meet its burden to show the firearm was used by the claimant in an unlawful manner as an instrumentality of a crime. State v. Zimmer, 311 Neb. 294, 972 N.W.2d 57 (2022).
This section applies to a motion for the return of seized property where the firearm was seized incident to arrest for discharging a firearm within the city limits, a complaint was later filed charging refusal to obey a lawful order stemming from the incident, and the person pled guilty to this charge. State v. Zimmer, 311 Neb. 294, 972 N.W.2d 57 (2022).
The presumptive right to possession of seized property may be overcome when superior title in another is shown by a preponderance of the evidence. State v. Ebert, 303 Neb. 394, 929 N.W.2d 478 (2019).
Postconviction proceedings are the equivalent of a "trial" for purposes of this section. State v. Buttercase, 296 Neb. 304, 893 N.W.2d 430 (2017).
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. The property shall be kept so long as necessary for the purpose of being produced as evidence at trial. State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007).
A police officer's failure to "safely" keep a seized vehicle can give rise to liability under the Political Subdivisions Tort Claims Act. Section 29-818 requires a police officer to exercise reasonable care and diligence for the safekeeping of property within his custody. Nash v. City of North Platte, 205 Neb. 480, 288 N.W.2d 51 (1980).
This section mandates that the seized property is to be kept so long as necessary to make it available as evidence in "any trial." Postconviction proceedings are the equivalent of a "trial" for purposes of this section. Huff v. Otto, 28 Neb. App. 646, 947 N.W.2d 343 (2020).
The trial court's decision on the return of seized property is reviewed for an abuse of discretion. State v. Maestas, 11 Neb. App. 262, 647 N.W.2d 122 (2002).

Where seized property is no longer required as evidence in the prosecution of any complaint or information the court which has jurisdiction of such property may transfer the same to the jurisdiction of any other court, including courts of another state or federal courts, where it is shown to the satisfaction of the court that such property is required as evidence in any prosecution in such other court.

Annotations

A harmonious reading of this section and section 29-818 is that references to jurisdiction in each are to jurisdiction over seized property, not subject matter jurisdiction. Huff v. Otto, 28 Neb. App. 646, 947 N.W.2d 343 (2020).

(1) Unless other disposition is specifically provided by law, when property seized or held is no longer required as evidence, it shall be disposed of by the law enforcement agency on such showing as the law enforcement agency may deem adequate, as follows:

(a) Property stolen, embezzled, obtained by false pretenses, or otherwise obtained unlawfully from the rightful owner thereof shall be restored to the owner;

(b) Money shall be restored to the owner unless it was used in unlawful gambling or lotteries or it was used or intended to be used to facilitate a violation of Chapter 28, article 4, in which case the money shall be forfeited and disposed of as required by Article VII, section 7, of the Constitution of Nebraska;

(c) Property which is unclaimed or the ownership of which is unknown shall be sold at a public auction held by the officer having custody thereof and the net proceeds disposed of as provided in subdivision (b) of this subsection, as shall any money which is unclaimed or the ownership of which is unknown;

(d) Except as provided in subsection (2) of this section, articles of contraband shall be destroyed;

(e) Firearms, ammunition, explosives, bombs, and like devices which have been used in the commission of crime shall be destroyed; and

(f) Firearms which have come into the law enforcement agency's possession through a seizure or otherwise and (i) have not been used in the commission of crime, (ii) have not been defaced or altered in any manner that violates any state or federal law, (iii) may have a lawful use and be lawfully possessed, and (iv) are not subject to section 29-440 shall be restored to the owner.

(2) When the following property is seized or held and is no longer required as evidence, such property shall be disposed of on order of the court as the court may deem adequate:

Goods which are declared to be contraband but may reasonably be returned to a condition or state in which such goods may be lawfully used, possessed, or distributed by the public.

(3) When any animal as defined by section 28-1008 is seized or held and is no longer required as evidence, such animal may be disposed of in such manner as the court may direct. The court may consider adoption alternatives through humane societies or comparable institutions and the protection of such animal's welfare. For a humane society or comparable institution to be considered as an adoption alternative under this subsection, it must first be licensed by the Department of Agriculture as having passed the inspection requirements in the Commercial Dog and Cat Operator Inspection Act and paid the fee for inspection under the act. The court may prohibit an adopting or purchasing party from selling such animal for a period not to exceed one year.

(4) Unless otherwise provided by law, all other property shall be disposed of in such manner as the court in its sound discretion shall direct.

Cross References

Commercial Dog and Cat Operator Inspection Act, see section 54-625.

Annotations

The trial court plainly erred in basing its order disposing of seized property in part on this section, where there was no dispute that the court's exclusive jurisdiction under section 29-818 had been invoked. State v. Allen, 318 Neb. 627, 17 N.W.3d 794 (2025).
Traditional, or per se, contraband is defined as "objects the possession of which, without more, constitutes a crime." A claimant has no right to have per se contraband returned to him or her. Derivative contraband are articles which are not inherently illegal, but are used in an unlawful manner. State v. Zimmer, 311 Neb. 294, 972 N.W.2d 57 (2022).
This section applies only where the exclusive jurisdiction of a court under section 29-818 has not been invoked. State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).
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. State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007).
Illegal gambling devices forfeited to the State constitute contraband, which this section requires the State to destroy. State v. Dodge City, 238 Neb. 439, 470 N.W.2d 795 (1991).
Under this section, law enforcement is authorized to dispose of certain property seized or held and no longer required as evidence. State v. Riley, 31 Neb. App. 292, 979 N.W.2d 538 (2022).
When reading section 29-818 and this section together, this section applies only where the exclusive jurisdiction of a court under section 29-818 has not been invoked. State v. Riley, 31 Neb. App. 292, 979 N.W.2d 538 (2022).
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. State v. Dubray, 24 Neb. App. 67, 883 N.W.2d 399 (2016).

The provisions of sections 29-812 to 29-821 relating to the disposition of seized property shall not be exclusive, but shall be supplemental to other laws on the subject.