specially concurring and dissenting.
I concur in this decision to affirm the summary judgment granted by the trial court except to the portion of the money identified to be “buy money,” which was provided by the police to agents who used it to purchase the illegal drugs.1 I would *71hold that the trial court erred as a matter of law because the marked and identifiable buy money, fourteen one hundred dollar bills, is contraband per se which is similar to the purchased drugs and not subject to return whether or not the seizure was illegal. Logically, that cash has a status similar to a stolen vehicle, proceeds of extortion or receipts from a bank robbery.
The governmental agencies should not be relegated to the forfeiture process of W.S. 35-7-1049(e)(v) to re-acquire drug buy money. As to this identifiable, tangible property, acquisition by a drug vendor when exchanged in the police undercover operation should not extinguish the initial public ownership of the money any more than if the money itself had been stolen. Consequently, I would permit retention after re-acquisition of any provable funds advanced by the agency as an asset of the public from which ownership has never actually been severed.2 Contraband per se are “[tjhings which intrinsically are illegal to possess and are therefore insusceptible of ownership.” State v. Manuel, 426 So.2d 140, 144 (La.1983). Buy money is analogous to such items because it is not capable of being owned by individuals. Title to buy money does not pass when used for law enforcement purposes to pursue and incriminate persons selling illegal drugs. The character of the transaction by which the sellers acquire the money cannot create a title for them upon exchange for the product which they cannot legally sell.
The police officers who were conducting this extensive drug surveillance operation described that the use of the money “was an investment.” I agree that it should be considered to be retainable upon repossession and identification. Application of the forfeiture procedure can and should be confined to property which the custodian may assert some claim as a legitimate owner. Legal possession “denotes custody coupled with a right or interest of proprietorship; and ‘possession' is inclusive of ‘custody/ although ‘custody’ is not tantamount to ‘possession.’ ” Craig v. Gudim, 488 P.2d 316, 319 (Wyo.1971), Title is not necessarily determined by temporary custody. See Cheeseman v. Fenton, 13 Wyo. 436, 80 P. 823 (1905).
The United States Supreme Court in Trupiano v. United States, 334 U.S. 699, 710, 68 S.Ct. 1229, 1235, 92 L.Ed. 1663 (1948), overruled on other grounds sub nom. United States v. Robinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950) recognized that “since this property was contraband, they have no right to have it returned to them,” even though it was error to refuse petitioner’s motion to exclude and suppress the property which was improperly seized. With this case and conclusion, as a general principle, the subject of forfeiture and its relationship to contraband is well litigated. In terms of forfeiture or non-return, there is clearly a difference between two characters of property each of which may have been suppressed as far as criminal evidence is concerned. The difference is between contraband per se to which the custodian had no right of possession and derivative contraband where usage for.illegal purposes renders the property subject to forfeiture although the property and its acquisition in itself was not illegal. One 1958 Plymouth Sedan v. Com. of Pa., 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). Funds used for public purposes by law enforcement officers in drug sale surveillance would be contraband per se.
The confusion arises in trying to apply the suppression determination to the forfeiture proceeding. In United States v. Jeffers, 342 U.S. 48, 54, 72 S.Ct. 93, 96, 96 *72L.Ed. 59 (1951), where the cocaine itself was found, that court detailed:
Since the evidence illegally seized was contraband the respondent was not entitled to have it returned to him. It being his property, for purposes of the exclusionary rule, he was entitled on motion to have it suppressed as evidence on his trial.
The broad principle resulting is that the evidence of suppression has no affect on rights for agency retention if the property is contraband. Funds from the public treasury advanced to document illegal sales of drugs surely acquires that status.
The starting point for the return of illegally seized property is W.R.Cr.P. 40(e) (F.R.Cr.P. 41(e)), whereby “[i]f the motion [for suppression] is granted the property shall be restored unless otherwise subject to lawful detention.” Since the buy money was not legally obtained when traded for illegal drugs, that identifiable property is not normally merchantable nor subject to subsequent private party ownership no matter how acquired. Support for this thesis is found in the early Wyoming case of Cheeseman, 80 P. 823, where recovery was dependent upon proof of right to the property, and lacking a favorable determination, recovery by the claimant was denied. Consequently, a forfeiture proceeding under W.S. 35-7-1049 is not required for retention of public property even if contended to have been seized through illegal search or seizure when the property is contraband per se. See People v. Ziomek, 179 Ill.App.3d 303, 128 Ill.Dec. 356, 341, 534 N.E.2d 538, 543 (1989). Conversely, if the property is derivative contraband, as in this case all of the cash except the identified buy money, retention is inappropriate when seized illegally.
This general rule is stated in 2 J. Varón, Searches, Seizures and Immunities ch. XIV, § 7 at 912 (2d ed. 1974):
The mere fact that property is illegally seized from the possession of an aggrieved person does not necessarily command its return. We have already stated that the fourth amendment does not guarantee that illegally seized property will be returned to its owner. This applies particularly to contraband property, or property forfeitable or subject to lien. The general rule is that if property unconstitutionally seized is contraband or illegal per se, the owners have no right to have it returned to them.
“[S]uch property is not required to be returned to the owner when it is contraband or forfeitable.” Welsh v. United States, 220 F.2d 200, 202 (D.C.Cir.1955). Cf. United States v. Wright, 610 F.2d 930, 941 n. 50 (D.C.Cir.1979), where the court required return of the cash, but said:
We assume, arguendo, that appellants would not be entitled to the return of money if it were the proceeds of crime.
Similar in result is United States v. LaFatch, 565 F.2d 81 (6th Cir.1977), cert. denied 435 U.S. 971, 98 S.Ct. 1611, 56 L.Ed.2d 62 (1978), where the defendant had been acquitted in state court of extortion and then filed a proceeding in federal court for the return of the $50,000 which had been paid to him as the funding for the contended extortion process. That court said:
The acquittal of LaFatch in the criminal proceedings did not necessarily mean that he is the rightful owner of the money. In the criminal proceedings the jury determined that the evidence was not sufficient to establish the guilt of La-Fatch beyond a reasonable doubt.
Id. at 84. Consequently, a civil determination of the title ownership remained between LaFatch and the party subject to the extortion. As stated by 3 C. Wright, Federal Practice and Procedure: Criminal 2d § 673 at 754 (1982), “[a] motion to suppress evidence may be made under Rule 41(f) even though the items seized are contraband, and the movant has no right to their return.” Obviously, the right to suppress contraband as evidence is different from the right to its return as illegally possessed property.
In People v. Mota, 27 Ill.App.3d 982, 327 N.E.2d 419, 421 (1975), where illegal seizure was shown and the issue of forfeiture remained for determination, the rule is stated:
*73We feel that it is important to determine if the money seized in this case is a contraband per se or a derivative contraband since the former will be forfeited even when illegally seized. Per se con-trabands are objects the possession of which without more, constitutes a crime * * *, while a derivative contraband is forfeitable only because of its use in criminal activity.
The criminal nature of the knowing acquisition of buy money from the sale of drugs surely needs no extended disputation. These funds as a critical element of the criminal offense are contraband to the recipient. Consequently, I would follow the result of People v. Ward, 685 P.2d 238, 239 (Colo.App.1984), where the defendant “was in no way entitled to claim the $620 he received as payment for the cocaine” from the agents making the purchase. See also Stewart v. People, 193 Colo. 399, 566 P.2d 1069 (1977), where the defendant could not claim the money received from forged checks.
Although the seized property was suppressed in United States v. Scott, 149 P.Supp. 837 (D.D.C.1957), the court then denied return of some items as stolen property which included coins. “Bait money” was found to fall within the non-return exception of F.R.Cr.P. 41(e) as contraband, although other non-criminal implement property was restored following illegal seizure. United States v. Margeson, 259 F.Supp. 256 (E.D.Pa.1966). Matter of 2029 Hering Street, Bronx, N.Y., 464 F.Supp. 164, 173 (S.D.N.Y.1979) provides a case where the evidence presented at hearing tended “to show that the seized property may have been the fruit of an illegal scheme. As such, that property is presently subject to lawful detention and will not be returned to the applicants.”3 Cf. Eggleston v. State of Colorado, 873 F.2d 242 (10th Cir.1989), relating to title and claims priorities.
Another case very similar in result is United States v. White, 660 F.2d 1178 (7th Cir.1981), where forfeiture of $38,394 in United States currency developed. In difference, although summary judgment on the majority of the money was reversed, police retention of $3,800 in prerecorded funds seized from a defendant’s apartment was not contested.
One proceeding, not at issue on this appeal, sought the forfeiture of the $3,800 in pre-recorded funds seized from White’s apartment. White did not contest that forfeiture action. The second proceeding sought the forfeiture of the remaining $38,394 of the seized money.
Id. at 1185.
I would reverse the summary judgment to permit retention by the State of the marked money used by the police to buy the drugs as cash which shortly thereafter came back into the hands of the State. See People v. Bustam, 641 P.2d 968 (Colo.1982).
. It is recognized that the State failed in trial court preparation or appellate brief to definí-*71tively advance the severable issue of the marked money. With this summary judgment determination of ownership where public funds are involved, title of governmental ownership should not be subject to litigative waiver. I write on a subject not essentially addressed by the litigants to favor a partial reversal of the summary judgment which denies retention of the buy money and which was used for criminal investigation drug purchases. This only involves the bills which were identified by police officer affidavit as the specific fourteen bills in $100 denomination.
. This case does not present, nor do I consider, a bona fide purchaser for value involving a title inquiry where the holder claims or proves a title interest asserted to be superior to the original owner.
. Issue preclusion by conviction was denied in United States v. $100,000 in United States Currency, 602 F.Supp. 712 (S.D.N.Y.1985), where the controversy was whether the money came not from crystalline white powder but was won in the Puerto Rican lottery. Despite conviction, the judge determined that the controverted issue of ownership and source of the funds required trial upon remand. Probable success of the claimant in that trial was not over-emphasized.