DORAN v. STATE, 746 A.2d 275 (Del. 1999)

No. 39, 1999.Supreme Court of Delaware.Submitted: October 12, 1999.
Decided: December 28, 1999.

Court Below — Superior Court of the State of Delaware, in and for New Castle County Cr.A. No. IN98-03-0569.

AFFIRMED IN PART; REVERSED IN PART.

Before HOLLAND, HARTNETT and BERGER, Justices

ORDER
This 28th day of December 1999, upon consideration of the briefs on appeal and the record below, it appears to the Court that:

(1) The defendant-appellant, William Doran, filed this appeal from an order of the Superior Court denying his motion for return of property[1] . We find that the State concedes that certain of the items claimed by Doran should be returned to him. Accordingly, we AFFIRM in part and REVERSE in part.

(2) In this appeal, Doran claims the Superior Court committed legal error by denying his request for the return of certain property seized during a search of his residence. Doran contends the property must be returned because the State has failed to prove it is related to criminal activity. Doran seeks the return of $1,500 in cash, 1 box of baseball cards, a number of stuffed animals, a leather coat and shoes, and a semi-automatic handgun[2] .

(3) The record reflects that the police obtained a search warrant for Doran’s residence and vehicles after he became a suspect in a series of burglaries in New Castle County, Delaware. The burglaries occurred at small businesses such as laundries, beauty shops and gift shops. Access to these businesses was obtained by prying open the back doors with crowbar-type implements. In executing the search warrant, the police found items in Doran’s residence that could be linked to reported burglaries at various such businesses. For example, the police found a check made out to a burglarized beauty shop, rolls of coins matching the coins claimed to be missing from the same beauty shop, a number of stuffed animals with the tags from a burglarized gift shop still attached, as well as crowbar-type implements. The police also found a loaded semi-automatic handgun. Doran is prohibited from possessing a firearm because of prior convictions on felony charges.

(4) Doran pleaded guilty to 2 counts of felony theft, 2 counts of third degree burglary and 2 violations of probation. He was sentenced to a total of 18 months at Level V, with credit for time served, followed by 3 1/2 years at decreasing levels of probation. He was ordered to make restitution in an amount to be determined at a later time. Subsequently, Doran’s sentencing order was modified to require restitution to one of his victims. Doran did not file a direct appeal from his convictions.

(5) In a return of property action, the “person aggrieved by the deprivation of property seized by the police may move the court for the return of the property on the ground that such person is entitled to lawful possession of the property”[3] . Thus, in order to prevail on his claim, Doran must show that he is the lawful owner of the property. While Doran contends that the property belongs to him, he offers no evidence to support that contention. The only documentation presented is a copy of a check from Allstate in the amount of $2,310 made payable to him and Diana Hexstall, who apparently shared Doran’s residence with him at the time of the property seizure. Doran does not explain how this document supports his claim that the seized property belongs to him. Thus, Doran has failed to support his claim of ownership of the items he claims.

(6) Moreover, the currency and stuffed animals appear to have been obtained as the result of the commission of a crime[4] and the semi-automatic hand gun appears to have been used in the commission of a crime.[5] As such, Doran has no legitimate claim to those items. The State concedes that the baseball cards and leather jacket should be returned to Doran, however. Therefore, those items should be returned to Doran forthwith.

(7) To the extent that Doran seeks to raise the alleged illegality of the search and seizure as the basis for his claim, he is barred from so doing. That argument was not raised below and will not be considered by this Court for the first time on appeal.[6]

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED in part and REVERSED in part. This matter is hereby remanded to the Superior Court for proceedings in accordance with this Order. Jurisdiction is not retained.

BY THE COURT:

Maurice A. Hartnett, III Justice