FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
April 14, 2017
In the Court of Appeals of Georgia
A17A0530. IN THE INTEREST OF T. F. N., JR., A CHILD.
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
1
The petition was later amended to add language to one of the counts, but the
amendment is not relevant to the present appeal.
2
The warrant application and affidavit, as well as the search warrant, were not
included in the appellate record. To the extent that the appellate record is incomplete,
T. F. N., as the appellant, “bore the burden of ensuring an accurate and complete record
on appeal.” (Citation and punctuation omitted.) Griffin Builders, LLC v. Synovus Bank,
320 Ga. App. 307, 309 (739 SE2d 760) (2013).
2
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
3
OCGA § 17-5-54 was revised by the General Assembly, effective July 1, 2015,
and the revised statute applies in this case. See Ga. L. 2015, p. 693, § 4–1/HB 233
(“This Act shall become effective on July 1, 2015, and shall apply to seizures of
property for forfeiture that occur on or after that date.”).
3
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
4
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
5
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.
4
“Law enforcement agency” is defined by the statute as “a law enforcement
agency of this state or a political subdivision of this state, including the Department of
Natural Resources.” OCGA § 17-5-54 (a) (3). “Rightful owner” is defined as “a person
claiming ownership of property which is the subject of a crime or has been abandoned.”
OCGA § 17-5-54 (a) (4).
5
OCGA § 17-5-54 (b) provides:
This Code section shall not apply to:
(1) Personal property which is the subject of any civil forfeiture
proceeding;
(2) Any property which is the subject of a disposition pursuant to Code
Sections 17-5-50 through 17-5-53; and
(3) Any abandoned motor vehicle for which the provisions of Chapter 11
of Title 40 are applicable.
T. F. N. does not contend that any of these provisions, including OCGA § 17-5-50,
apply under the circumstances of this case.
6
(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 personal property shall be returned to the
rightful owner within 30 days of the conclusion of the appeal or new trial,
whichever occurs last.
(3) Any 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. The person in charge of such property may return such
property to the applicant. The person to whom property is delivered shall
sign, under penalty of false swearing, a declaration of ownership, which
shall be retained by the person in charge of the property. Such declaration,
absent any other proof of ownership, shall be deemed satisfactory proof
of ownership for the purposes of this Code section; provided, however,
that with respect to motor vehicles, paragraph (3) of subsection (b) and
subsection (f) of this Code section shall govern the return of motor
vehicles.
(Emphasis supplied.) OCGA § 17-5-54 (c) (1) - (3).
7
Relying upon language in the prior version of OCGA § 17-5-54 substantially
similar to the language in current subsections (c) (1) and (c) (2), we recently held in
Norman v. Yeager, 335 Ga. App. 470, 472 (781 SE2d 580) (2016): “Following the
conclusion of a criminal prosecution, personal property seized for use as evidence at
trial must be returned to its rightful owner, unless the property constitutes contraband
or is subject to forfeiture.”6 See also Baez v. State, 231 Ga. App. 375, 376 (500 SE2d
339) (1998); Chappell v. Stapleton, 58 Ga. App. 138 (198 SE 109) (1938); Padgett v.
Sturgis, 6 Ga. App. 544 (65 SE 352) (1909). In Norman, we applied this rule in the
6
Norman cited to OCGA § 17-5-54 (a) (2013), which provided in part:
(a)(1) Except as provided in Code Sections 17-5-55 and 17-5-56 and
subsections (d), (e), and (f) of this Code section, when a law enforcement
agency assumes custody of any personal property which is the subject of
a crime or has been abandoned or is otherwise seized, a disposition of
such property shall be made in accordance with the provisions of this
Code section. 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 personal property shall be returned to
the rightful owner within 30 days of the conclusion of the appeal or new
trial, whichever occurs last. . . .
(d) The provisions of this Code section shall not apply to personal
property which is the subject of forfeiture proceedings as otherwise
provided by law.
8
circumstance where personal property had been seized for use as evidence in a criminal
prosecution and the prosecution had concluded with the criminal defendant pleading
guilty to one of the charges. Id. at 471-472.
Notably, however, the requirements included by the General Assembly in current
OCGA § 17-5-54 (c) (3) were not present in the prior version of the statute addressed
in Norman. “All statutes are presumed to be enacted by the legislature with full
knowledge of the existing condition of the law and with reference to it.” (Citation and
punctuation omitted.) Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 700-701 (10
SE2d 375) (1940). Thus, “when a statute is amended, from the addition of words it may
be presumed that the legislature intended some change in the existing law.” (Citation
and punctuation omitted.) Board of Assessors of Jefferson County v. McCoy Grain
Exchange, 234 Ga. App. 98, 100 (505 SE2d 832) (1998). Otherwise, the inclusion of
the new language would be treated as mere surplusage, a construction of the statute that
clearly should be avoided. Inland Paperboard & Packaging, Inc. v. Ga. Dept. of
Revenue, 274 Ga. App. 101, 104 (616 SE2d 873) (2005). Given these interpretive
principles, we must construe the newly added language of subsection (c) (3) with the
other sections of OCGA § 17-5-54 (c) in a manner that harmonizes the various
provisions and does not render any of the provisions meaningless or unnecessary. See
9
City of Buchanan v. Pope, 222 Ga. App. 716, 717 (1) (476 SE2d 53) (1996) (“[I]t is a
basic rule of construction that a statute . . . should be construed to make all its parts
harmonize and to give a sensible and intelligent effect to each part, as it is not presumed
that the legislature intended that any part would be without meaning.”) (citation and
punctuation omitted).
Construed in such a manner, under the current version of OCGA § 17-5-54, after
the conclusion of a criminal prosecution, any person claiming to be the rightful owner
of personal property seized for use as evidence in that prosecution must comply with
the requirements set forth in subsection (c) (3). Accordingly, any party claiming to be
the rightful owner of the property must make an application to the law enforcement
entity holding the property, furnish satisfactory proof of ownership, and present
evidence of his or her identity in compliance with subsection (c) (3) before the party can
claim that the entity has improperly refused to return the property to him or her in
violation of OCGA § 17-5-54 (c) (2).
T. F. N. argues, however, that OCGA § 17-5-54 (c) (3) applies only to third party
civilians (such as witnesses and victims) seeking to have their personal property
returned to them, not to defendants whose property was seized by the police in
connection with his or her criminal prosecution. But in determining whether the
10
requirements found in OCGA § 17-5-54 (c) (3) apply to defendants seeking the return
of their alleged personal property, “we must presume that the General Assembly meant
what it said and said what it meant. To that end, we afford the statutory text its plain and
ordinary meaning[.]” (Citation and punctuation omitted.) Deal v. Coleman, 294 Ga.
170, 172 (1) (a) (751 SE2d 337) (2013). And, here, OCGA § 17-5-54 (c) (3) broadly
and unequivocally states that it applies to “any person” who claims to be the rightful
owner of the personal property at issue and does not carve out an exception for criminal
defendants. T. F. N.’s argument for limiting the scope of subsection (c) (3) therefore is
unpersuasive, as this Court cannot amend a statute “by interpreting its language so as
to change the otherwise plain and unambiguous provisions.” (Punctuation and footnote
omitted.) In re Whittle, 339 Ga. App. 83, 89 (1) (793 SE2d 123) (2016).
Alternatively, T. F. N. argues that even if OCGA § 17-5-54 (c) (3) applies to
defendants like himself, he complied with its requirements. According to T. F. N., he
satisfied the requirements of subsection (c) (3) by filing a motion in juvenile court
seeking the return of the cell phones from the police department and pointing to the
undisputed evidence that the phones were taken from his person when he was booked
at the detention center. T. F. N.’s argument is misplaced. As an initial matter, T. F. N.
never argued in the juvenile court that he had complied with OCGA § 17-5-54 (c) (3);
11
in fact, as previously noted, his trial counsel conceded the opposite at the hearing on his
motion for return of the cell phones. Consequently, T. F. N. has waived any argument
on appeal that he satisfied the requirements of OCGA § 17-5-54 (c) (3). See In the
Interest of J. T., 297 Ga. App. 636, 639 (2) (678 SE2d 111) (2009).
In any event, OCGA § 17-5-54 (c) (3) requires that a party claiming to be the
rightful owner “shall make” the application for return of the seized personal property
“to the entity holding his or her property,” after which “the person in charge of such
property may return such property” to the claimant. If the person in charge decides to
return the property to the claimant as the rightful owner, the property is then “delivered”
to the claimant, who executes a “declaration of ownership, which shall be retained by
the person in charge of the property.” Id.
Through its plain language and structure, OCGA § 17-5-54 (c) (3) reflects that
the initial application for return of seized property must be made directly to the law
enforcement agency with custody of the property, after which the agency’s property
custodian will make the initial decision as to whether a particular claimant is the rightful
owner to whom the property should be delivered. Nothing in subsection (c) (3) indicates
that this procedural step can be sidestepped by filing an application for return of the
property initially with a court.
12
Indeed, another section of the statute, OCGA § 17-5-54 (e), provides that “[f]or
any unclaimed personal property that is not a firearm, the sheriff, chief of police, or
other executive officer of a law enforcement agency shall make application to the
superior court for an order to retain, sell, or discard such property.” (Emphasis
supplied.) As we have explained, “where the legislature uses certain language in one
part of the statute and different language in another, the Court assumes different
meanings were intended.” (Citation and punctuation omitted.) Robinson v. State, 312
Ga. App. 736, 750 (4) (d) (719 SE2d 601) (2011). The language in OCGA § 17-5-54
(e) shows that when the General Assembly intended for an application to be made
directly to a court, it said so in express terms in the statute, and we must presume that
the absence of similar language in subsection (c) (3) “was a matter of considered
choice.” (Citation and punctuation omitted.) Deutsche Bank Nat. Trust Co. v. JP
Morgan Chase Bank, N.A., 307 Ga. App. 307, 311 (1) (b) (704 SE2d 823) (2010).
Accordingly, OCGA § 17-5-54 (c) (3) requires that a party claiming to be the
rightful owner file his or her application directly to the law enforcement agency with
custody of the personal property rather than to a court in the first instance. In the present
case, the uncontroverted evidence showed that T. F. N. did not file an application
directly with the police department for return of the cell phones, and thus never afforded
13
the department an opportunity to evaluate and make a decision regarding his claim
before seeking court intervention. The evidence of record therefore undisputedly
showed that T. F. N. failed to comply with the requirements imposed by OCGA § 17-5-
54 (c) (3) for obtaining return of the cell phones, and thus he could not successfully
claim that the police department had wrongfully refused to return the phones to him in
violation of OCGA § 17-5-54 (c) (2).
For these combined reasons, the juvenile court committed no error in concluding
that T. F. N. was required to and had failed to follow the requirements found in OCGA
§ 17-5-54 (c) (3) for seeking the return of the cell phones from the police department
before seeking court intervention for an alleged violation by the department of OCGA
§ 17-5-54 (c) (2). The juvenile court therefore properly denied T. F. N.’s motion for
return of the phones.7
2. T. F. N. also contends that the juvenile court should have granted his motion
for return of the cell phones because the police department’s continued retention of the
7
Because the juvenile court properly denied T. F. N.’s motion for failing to
comply with the requirements of OCGA § 17-5-54 (c) (3), we need not address whether
the court properly denied T. F. N.’s motion on the alternative basis that there were
ongoing criminal investigations justifying the continued retention of the phones. See
Little v. City of Lawrenceville, 272 Ga. 340, 342 (2) (528 SE2d 515) (2000) (a trial
court order will be affirmed if right for any reason).
14
phones without obtaining a new search warrant constituted an illegal seizure under the
Fourth Amendment to the United States Constitution. T. F. N. failed to raise this
constitutional argument in the court below, and the juvenile court did not rule on it.
“Because this [C]ourt is a court for the correction of errors, we will not consider
matters, even of constitutional magnitude, that were not raised and ruled upon in the
trial court.” Walker v. State, 314 Ga. App. 714, 716, n. 3 (725 SE2d 771) (2012). See
Morris v. Johnson, 262 Ga. App. 182, 185 (585 SE2d 375) (2003) (appellant waived
argument that Fourth Amendment rights were violated, where argument was neither
raised nor ruled upon by the trial court).8
Judgment affirmed. McMillian and Mercier, JJ., concur.
8
Because T. F. N. did not argue in the court below that the police department’s
continued retention of the cell phones was an illegal warrantless seizure, we do not
address whether T. F. N. could have sought return of the cell phones under OCGA § 17-
5-30 rather than OCGA § 17-5-54. See OCGA § 17-5-30 (a) (“A defendant aggrieved
by an unlawful search and seizure may move the court for the return of property, the
possession of which is not otherwise unlawful, and to suppress as evidence anything so
obtained on the grounds that: (1) The search and seizure without a warrant was illegal;
or (2) The search and seizure with a warrant was illegal because the warrant is
insufficient on its face, there was not probable cause for the issuance of the warrant, or
the warrant was illegally executed.”).
15