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In re T. F. N.

Court of Appeals of Georgia, First Division

April 14, 2017

IN THE INTEREST OF T. F. N., JR., A CHILD.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          Barnes, Presiding Judge.

         After his delinquency prosecution had concluded, T. F. N. filed a motion with the juvenile court seeking the return of three cell phones that had been seized from him by the City of Clarkston Police Department. Following a hearing, the juvenile court denied the motion, concluding, among other things, that T. F. N. had failed to comply with certain statutory requirements for seeking the return of personal property from a law enforcement agency, including those set forth in OCGA § 17-5-54 (c) (3). For the reasons discussed below, we conclude that the trial court committed no error and therefore affirm.

         The record reflects that on January 13, 2016, 16-year-old T. F. N. was arrested and detained at the DeKalb County Regional Youth Detention Center on several delinquency charges, and a police officer with the City of Clarkston Police Department filed a complaint against T. F. N. in the juvenile court the next day. The State subsequently filed a delinquency petition, alleging that T. F. N. had committed multiple delinquent acts, including theft by taking a motor vehicle and theft by receiving stolen property based on T. F. N. having received and retained stolen boots.[1]

         In connection with T. F. N.'s delinquency prosecution, the police department applied for and obtained a search warrant to seize the boots and three cell phones that T. F. N. had on his person when he was booked at the detention center.[2] Following execution of the warrant, the alleged victim of the theft by receiving stolen property count of the delinquency petition visually inspected the boots at the police department and identified them as her own. The police department released the boots to the victim, and T. F. N. did not challenge that decision.

         T. F. N. thereafter entered an admission of delinquency to the charge of theft by taking a motor vehicle, and the juvenile court adjudicated him delinquent of that offense. The State dismissed the other charges in the delinquency petition, including the theft by receiving charge based on the boots. The juvenile court entered an order of disposition on March 2, 2016, placing T. F. N. in restrictive custody for 10 months for his delinquent act of theft by taking a motor vehicle, with credit for time served since his detention in January 2016.

         On June 8, 2016, T. F. N., who remained in restrictive custody, filed a motion with the juvenile court seeking the return of the three seized cell phones that remained in the custody of the police department. T. F. N. requested that the cell phones be released to the Department of Family and Children Services so that the phones could be returned to him after he completed his sentence.

         The juvenile court conducted a hearing on T. F. N.'s motion for return of the cell phones. At the hearing, the State argued that T. F. N.'s motion should be denied because T. F. N. had failed to comply with the requirements found in OCGA § 17-5-54 (c) (3) (2016), [3] which provides in part that "[a]ny person claiming to be a rightful owner of property shall make an application to the entity holding his or her property and shall furnish satisfactory proof of ownership of such property and present personal identification." T. F. N.'s counsel conceded that T. F. N. had not complied with OCGA § 17-5-54 (c) (3), but argued that the juvenile court could order the return of the phones to him under OCGA § 17-5-54 (c) (2) now that his delinquency prosecution had concluded.

         The sole witness at the hearing was a police detective, who testified about the police department's decision to retain possession of the cell phones after T. F. N.'s delinquency prosecution had concluded. According to the detective, the police department was conducting several ongoing criminal investigations in which T. F. N. was a suspect and in which the department anticipated that charges would be filed against him. The detective testified that the police department was retaining the cell phones because of those ongoing investigations.

         Following the hearing, the juvenile court entered an order denying T. F. N.'s motion for return of the cell phones on two alternative grounds. First, the juvenile court concluded that T. F. N. had failed to follow the requirements found in OCGA § 17-5-54 (c) (3) for seeking return of the cell phones from the police department, and thus could not show that the department had improperly refused to release the phones to him. Second, the juvenile court concluded that, based on the testimony of the police detective at the hearing, the cell phones could be retained by the department due to the ongoing criminal investigations linked to T. F. N. T. F. N. now appeals the juvenile court's order.

         1. T. F. N. contends that the juvenile court erred in concluding that he was required to follow the requirements set out in OCGA § 17-5-54 (c) (3) for seeking the return of seized personal property from a law enforcement agency and in denying his motion for return of the cell phones for failing to follow those requirements. According to T. F. N., OCGA § 17-5-54 (c) (2) required the juvenile court to return the cell phones to him upon the conclusion of his delinquency prosecution, and the procedures found in OCGA § 17-5-54 (c) (3) only apply to third party civilians such as witnesses and victims who are seeking the return of their personal property. Alternatively, T. F. N. argues that even if OCGA § 17-5-54 (c) (3) applies to him, he complied with its requirements. We are unpersuaded.

         Chapter 5 of Title 17 of the Georgia Code addresses searches and seizures by the government, and Article 3 of that chapter addresses the disposition of various categories of property after they have been seized. See OCGA §§ 17-5-50 - 17-5-56. Among the provisions found in Article 3, OCGA § 17-5-54 addresses the disposition of personal property in the custody of a "law enforcement agency" to its "rightful owner."[4] Subsection (c) of that statute provides in part:

(1) Except as provided in Chapter 16 of Title 9 [addressing civil forfeiture proceedings], Code Sections 17-5-55 [addressing the disposition of evidence designated as dangerous or contraband by state or federal law] and 17-5-56 [addressing the maintenance of evidence containing biological material], and subsection (b) of this Code section, [5] when a law enforcement agency assumes custody of any personal property which is the subject of a crime or has been abandoned, a disposition of such property shall be made in accordance with the provisions of this Code section.
(2)When a final verdict and judgment is entered finding a defendant guilty of the commission of a crime, any personal property used as evidence in the trial shall be returned to the rightful owner of the property within 30 days following the final judgment; provided, however, that if the judgment is appealed or if the defendant files a motion for a new trial and if photographs, videotapes, or other identification or analysis of the personal property will not be sufficient evidence for the appeal of the case or new trial of the case, such ...

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