*1 v Mason Inc Jackson 447 1980] MASON, INC W v JACKSON COUNTY PROSECUTOR 10, 1979, April Lansing. Docket No. 78-2972. Submitted at Decided 20, appeal February applied 1980. Leave to for. 16, 1978, April by plaintiff, On a bulldozer and trailer owned W. Mason, Inc., allegedly stolen one During larceny police the course O’Brien killed a officer. arrested, O’Brien was and the bulldozer and trailer were seized 15, 1978, the at the time of the arrest. On June brought against an action the Jackson Prose- cuting Attorney seeking and various law enforcement officers or, alternative, payment return its the the hearing the reasonable rental value A on the Court, Fleming, matter was held in Jackson Circuit James G. 20, J., awaiting on June 1978. As of that date O’Brien was preliminary open charge examination on an of murder. The prosecutor hearing at conceded that the bulldozer been negative checked for evidence the crime lab with results, argued something might up but come which would analysis further of the bulldozer and that the return of property might result in the loss that evidence. 12, 1978, July circuit court issued its on in which it prosecutor agencies held that the and law enforcement had a temporary right possession superior owner, to that of the and, accordingly, refused to order the return of the examining magistrate absent determination what should be made of this evidence. O’Brien’s examination was 31 1, August 1978, arraigned and he was in circuit court on August 1978. The bulldozer and trailer were returned to appeals. on October 1978. Plaintiff Held: It was an abuse of discretion for the circuit court to refuse to owner, order the to return the to its since physical there was reason to continue the retention of property by any law enforcement officials. The absence positive findings by inspection, coupled the crime lab after its with the fact there was little chance that Reference for Points in Headnotes [1, 2d, 68 Am Jur Searches and Seizures §§ Mich trial, photo- the fact that verified would be offered itself that there was no graphs fact would suffice for further be available indication *2 arose, negated to hold scfutiny the need to continue if the need property to should have been returned the the Since compensated owner, the for reasonable the be owner should the period during property time the of his for rental value unjustifiably him. property withheld from the and remanded. Reversed Cynar, J., the circuit court He hold that dissented. would to properly order the law enforcement officials to refused hearing the property, the time of the the since at return pre- yet prosecution reached the underlying had not criminal and, therefore, mag- stage examining liminary the pass opportunity upon yet the had the to had not istrate proper evidence. the question of the Since of the circumstances, proper under the the court was order of circuit ordering compensation does not exist. for a basis would affirm. He

Opinion Court of the Legis — — Return of Seized and Seizures Custodia 1. Searches Property Compensation — — Statutes. trial court to refuse order a It abuse of discretion for a is an party property to an innocent third owned return been seized and held in custodia that third which has prosecution pending the in a where negative property with the crime lab been examined results, property size that it is doubtful that the the is such a property as an exhibit and there is itself would offered not be available for further indication that the arose; prop- accordingly, scrutiny need the owner the erty rental value is entitled to reasonable unjustifiably during period is the owner (MCL the 28.884, 764.25; deprived MSA of the use of 78Ó.655; 28.1259[5]). MSA by Cynar, J. Dissent Property. — Seized and Searches Seizures Return A of a for the return of seized claim victim crime properly where owned victim denied pending prosecution being possible in a held yet disposi- examining magistrate has determined tion to be made of the evidence. Mason Inc v Jackson Opinion of the Court plaintiff. Nye,& for

Gibbons Prosecuting Wildeboer, L. John Assistant Attor- ney, for defendants. P.J.,

Before: V. J. Brennan, and Bronson Cynar, JJ. appeals right P.J.,

V. J. Plaintiff Brennan, 12, 1978, from a order Jackson denying plaintiffs Court Circuit motion directing order defendants to return a bulldozer pay plaintiff and trailer or to reasonable rental value bulldozer and trailer. complaint

Plaintiff had filed on June alleging wrongfully plaintiffs that defendants *3 hearing bulldozer and trailer. A in was held Jack- son Circuit Court on June 1978. The parties dispute April did not the facts. On 1978, defendants had seized bulldozer when they arrested O’Brien al- legedly plain- stolen the bulldozer and trailer from police tiff and killed Jackson Lieutenant Nixon in larceny. course At the time of the hearing O’Brien awaited open charge in the district court of murder. hearing prosecutor At the time of the considering charging felony

O’Brien with murder. prosecutor hearing conceded at the crime lab had checked the bulldozer argued for However, evidence. he that there was a possibility "something” might up come at the analysis examination which would further that, the bulldozer and it were returned time, before that use it in would its busi- get dirty muddy ness it that, or so perhaps, some evidence would be lost. 95 Mich Opinion of the Court 1978, issued its written

On denying cause which the order to show prosecutor and enforce- law concluded temporary, superior agencies held a involved ment right possession use as of such in a criminal evidence impression in of first case an issue

This raises long Michigan: can hold in custodia How belonging incriminating to an inno- evidence criminal defendant seized from a cent pursuant arrest? a valid holding present case is in plaintiffs under the author- bulldozer and trailer ity 28.884, 764.25; MSA which states: of MCL making an shall take from the

"Any person arrest arrested, incriminating weapons offensive or person all person may have his and must which he about articles county, chief of deliver them to the sheriff magistrate he is city or to the before whom taken.” long does indicate how

The above statute incriminating seized can evidence state hold pursuant However, no as there is an arrest. incrim- in of admissible difference the use effect pursuant inating to an arrest evidence seized incriminating pursuant admissible warrant, likewise be search there should length can difference in the of time such evidence legis. 780.655; MSA be held custodia *4 28.1259(5) length limit the of time evidence does in can under a search be warrant legis provides custodia that Therefore the two statutes should together. pari read in materia and be construed Michigan Ass’n v Board See Road v Jackson Mason Inc Opinion Court Canvassers, 119; 407 Mich NW2d State (1979). 28.1259(5), speaks 780.655; MSA incriminating pursuant evidence seized to the exe- provides pertinent warrant, in cution of a search part: property things safely "The so seized shall be long kept by necessary purpose the officer so being produced any or used as evidence on trial.” present In the case the conceded that the crime lab had examined the confis- Further, for relevant evidence. cated physical rules of evidence do not that present; prosecu- it is that evidence be dubious tion would have offered the bulldozer itself as an any judicial Photographs, in if exhibit properly identified, marked and would be sufficient any event, in cases. In there no indica- most tion would refuse to make the bull- scrutiny and trailer available for further dozer a view the need arose. gives great

Another factor Court this weight to is that the confiscated and held represents whereby plain- the means living; tiff’s owner makes his the bulldozer is the tool of the business. Plaintiff is an innocent which was victimized the theft. To con- deprive plaintiff tinue to of its unneces- sarily only serves than further defeat rather justice. longer plain- necessary

As it was no to hold the tiff’s trial court custodia refusing abused its discretion to order the state possession its restore that owner. *5 447 Mich by Cynar, J. Dissent corporation another bull- to rent had Plaintiff during the activities its business continue

dozer to period kept wrongfully the bulldozer Plaintiff loss. it, financial or suffer from victimized has been innocent by It is the state. once the thief and twice, once upon ruling that, basic based this Court equity, com- principles entitled to be value of the pensated rental reasonable period during was un- bulldozer deprived 820.1(7). justifiably bulldozer. of the use GCR for fact the trial court case is remanded

This finding fair what to determine be. Reversed. J., concurred.

Bronson, (dissenting). was the claimed Plaintiff J. Cynar, allegedly trailer stolen of a bulldozer owner equipment im- was This O’Brien. one personnel pounded by law enforcement Prosecutor of the Jackson direction evidence charge against felony murder a with in connection people were The any, defense, would be asserted aware what imple- people The claimed the defendant. until at least it as evidence ments must be the conclusion of the

preliminary district court. July 12, on trial court herein determined by the examin-

1978, that a determination absent ing magistrate should to what evidence, the trial court made of this authority to return order the completion preliminary ex- until Mason v Jackson Inc by Cynar, J. Dissent tempo- people animation, had shown since the right superior rary such to hold items appeal pending This in a July 27, examina- filed on August 31 and was held tion *6 arraigned in circuit court on the defendant August trailer were 8, 1978. The bulldozer plaintiff 13, 1978. on October returned general is that rule they may keep until are officers 2d, Jur 68 Am its use as evidence. finished with p Seizures, § The owner of 773. Searches replevy while it cannot prosecution. in a criminal Replevin, p44, 2d, § 36, Am fn Jur involved herein was seized the with the It was a lawful connected time of arrest. charged did murder. The trial court offense of refusing plaintiff return to the bulldozer err in completion until the and trailer a victim Because examination. compensate crime, the failure equipment pending use the loss of proceeding appears to most unfair. Acknowledging so, herein this to be judge based on error attributed to trial should judge my result, since in the trial not ruled correctly on what was submitted for consid- eration.

I would affirm the order the circuit refusing the bull- to order to return defendants plaintiff. dozer and trailer to