Request By:
Mr. Bill Gordon
Commander, Special Investigations
Captain, Paducah Police Department
P.O. Box 2267
300 South Fifth Street
Paducah, Kentucky 42002-2267
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Kent T. Young, Assistant Attorney General
You have requested an opinion from this office relating to the authority of district courts of this Commonwealth. The hypothetical scenario depicted by your query is one in which a district court of this Commonwealth has found, as a result of a preliminary hearing proceeding, that probable cause exists to believe that a felony has been committed, but a grand jury has not yet returned an indictment. The questions raised in your query are:
(1) Does the district court then have authority to order that personal property seized incident to the arrest or by execution of a search warrant be returned to the defendant?
(2) If the district court does enter such an order, what is the correct judicial procedure for review of that order?
As a general proposition, where a district court has found, as a result of a preliminary hearing proceeding, that probable cause exists to believe that a felony has been committed, but a grand jury has not yet returned an indictment, the district court does not have the authority to order that personal property seized incident to the arrest or by execution of a search warrant be returned to the defendant. The district courts of this Commonwealth are courts of limited jurisdiction. KRS 24A.010(1). As courts of limited jurisdiction, their authority with respect to felony charges is limited to that granted by the provisions of KRS 24A.110. Unless a district court, upon a showing of good cause, amends a felony charge to a misdemeanor or finds a lack of probable cause and releases the defendant from custody, its sole authority with respect to a felony charge is the authority to examine the charge and determine whether to commit the defendant to jail or hold him to bail or other form of pre-trial release. KRS 24A.110.
A district court which has found probable cause to believe a felony has been committed lacks jurisdiction to entertain a motion in that criminal proceeding for the release of personal property held as evidence by the Commonwealth. KRS 24A.110, which defines a district court's criminal jurisdiction, provides no such authority.
This is why a district court cannot entertain a motion to suppress evidence obtained incident to or in support of a felony charge on the grounds that such evidence was unlawfully obtained. RCr 3.07 provides that a court which does not have the authority to try the offense charged shall proceed in accordance with Chapter III of the Kentucky Rules of Criminal Procedure. RCr 3.14(3), a part of Chapter III, specifically provides that motions to suppress must be made to the trial court as provided in RCr 9.78. RCr 9.78, which is outside Chapter III, makes it clear that the trial court is the proper forum to entertain objections to evidence on the ground that it was unlawfully obtained. Felony charges are tried in circuit court, not district court. Kentucky Constitution § 112; KRS 24A.010; KRS 24A.110(1)(a).
However, there may be cases in which the district court may be empowered, pursuant to its jurisdiction in civil matters, to entertain an independent civil proceeding for the return of property not subject to forfeiture which is held as evidence. For instance, one claiming entitlement to the possession of property not subject to forfeiture having a value not exceeding four thousand dollars might file an independent civil action for a writ of possession pursuant to KRS Chapter 425, invoking the district court's civil jurisdiction under KRS 24A.120.
A district court which has found probable cause exists to believe a felony has been committed does not have the authority to order the return of personal property subject to forfeiture. KRS 218A.410(2) provides that:
Title to all property, including all interests in the property, forfeit under this section vests in the Commonwealth on the commission of the act or omission giving rise to forfeiture under this section together with the proceeds of the property after the time . . . .
This property is not subject to replevin 1, ". . . but shall be deemed to be in the custody of the law enforcement agency subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings." KRS 218A.415(2). Pursuant to KRS 218A.460(1), "jurisdiction in all forfeiture proceedings shall vest in the court where the conviction occurred regardless of the value of property subject to forfeiture. "
Thus, jurisdiction to order the return to defendant of personal property seized for forfeiture does not vest in any court until there has been a conviction. Until that time, property is not subject to replevin, but is deemed to be in the custody of the appropriate law enforcement agency. The Commonwealth may hold property which may be subject to forfeiture under the penal code until the underlying criminal charges have been resolved, and upon conviction subject the property to forfeiture. Commonwealth v. Batchelor, Ky. App., 714 S.W.2d 158 (1986).
A district court order directing that personal property seized incident to an arrest or by execution of a search warrant be returned to the defendant is not a final action, so a direct appeal would not be available. Rather, review, if any, would be available through an original proceeding for relief in the nature of mandamus or prohibition in the circuit court pursuant to the authority of SCR 1.040(6), CR 81 and KRS 24A.080(2).
In Tipton v. Commonwealth, Ky. App., 770 S.W.2d 239 (1989), the district court entered an order before trial in a prosecution for driving under the influence suppressing Mr. Tipton's prior conviction and certain breathalyzer test results. The Commonwealth immediately appealed. The circuit court reversed, so Mr. Tipton moved the Court of Appeals for discretionary review. The Court of Appeals accepted the case on discretionary review, and vacated the judgment of the circuit court, holding that the circuit court lacked jurisdiction to entertain a direct appeal, since the appeal was from an interlocutory 2 order and not from a final action. KRS 23A.080(1) only allows appeals to the circuit court from final actions in district court. The court held that the proper procedure for review of an interlocutory district court ruling is through an original proceeding for relief in the nature of mandamus or prohibition in the circuit court.
The Tipton court hastened to add that this is an extraordinary remedy. The court stated:
To obtain relief in the nature of a writ prohibition, a petitioner must show that: (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no adequate relief by appeal, or (2) the lower court is about to act incorrectly, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury would result. The issuance of the writ is only under exceptional circumstances in order to prevent a miscarriage of justice. Tipton, supra at p. 241.
An original proceeding in the nature of a mandamus or prohibition would be of a civil nature. In the judicial circuits which contain an urban-county government or a city of the first or second class, the county attorney would appear to be the party responsible for attending to such a proceeding pursuant to KRS 69.210(4)(a) and KRS 69.010(2). In all other circuits, the Commonwealth's attorney would appear to be the responsible party pursuant to KRS 69.010.
We hope this letter has assisted you with your inquiry to the Office of the Attorney General.
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