A. WHEELER, ARJ JUSTICE
matter is before the court on defendant's motion for
return of property, specifically gift cards that defendant
claims were not stolen property and were not identified on
the search warrant or named in count two of the indictment.
January 5, 2018, defendant pled guilty to one count of theft
by deception (Class C), one count of theft by receiving
stolen property (Class C) and one count of unlawful
possession of scheduled drugs (Class C). The relevant crime
for this motion is count two charging defendant with
receiving stolen property.
Count two of the indictment alleged in pertinent part:
From on or about December 29, 2010, through on or about
February 14, 2014, . . . Defendant did commit theft pursuant
to one scheme or course of conduct by receiving, retaining,
or disposing of the property of another knowing that it had
been stolen, or believing that it had probably been stolen,
with the intent to deprive the owners of the property, and
the value of the property was more than $1, 000 but not more
than $10, 000, such property including, but not limited to,
the property listed in Appendix A,  which is attached and
incorporated by reference, in violation of 17-A M.R.S.
§§ 352(5)(E), 359(1)(B)(4).
State has a total of nine (9) gift cards in the evidence
locker at the Westbrook Police Department. See Court Ex. 1.
The gift cards range from the lowest in the amount of $56.99
to the highest in the amount of $239.88, totaling $1, 623.19
for all nine gift cards. The State seized these gift cards in
the execution of a lawful search warrant. Prior to the
present motion, defendant did not claim that the gift cards
were unlawfully seized or that they were not contraband.
hearing on the instant motion, the defendant claimed that the
prosecutor promised that the gift cards would not be used
against him, but the tape of the plea and sentencing does not
reflect any such agreement. Defendant admitted at his
sentencing and told the sentencing judge that there were no
promises other than the plea agreement.
M.R.U.Crim.P 41(j) provides:
A person aggrieved by an unlawful seizure of property may
file a motion in the Unified Criminal Docket for the return
of the property on the ground that it was illegally seized.
The court shall receive evidence on any issue of fact
necessary to the decision of the motion. If the motion is
granted the court shall order that the property be restored
unless otherwise subject to lawful detention.
did not file a motion to suppress and does not contend that
the gift cards were illegally seized. The defendant did not
challenge the search warrant or the interview conducted the
same days as the search. The warrant authorized searching for
stolen property. The lead officer in the execution of the
search warrant testified that gift cards were seized together
with purses, fit bits and other stolen items. Defendant was
in the business of selling stolen high end items over the
internet. Some of the gift cards were packaged for mailing
out, having been sold on ebay. The defendant handed over two
gift cards that he suspected were stolen and there were other
gift cards in a brief case belonging to defendant. The case
also case contained illegal drugs. This officer, who
interviewed the defendant, testified that defendant told him
that "some of the cards were legitimate." But the
defendant did not identify which cards were legitimate.
Defendant also argued that the cards ready for mailing to
their purchasers belonged to the defendant.
the interview defendant was concerned he would be charged for
the drugs found during the search. The gift cards were kept
in a brief case waiting to be sold with illegal drugs. He
admitted that he suspected some of the gift cards that he had
were stolen. Typically, when he received gift cards, he did
not inquire whether gift cards were stolen. Defendant sold
the cards on line for one-half of what they were worth.
on all of the evidence concerning the gift cards, the court
concludes that it is more likely than not that the gift cards
were stolen, and even if there were not all stolen, defendant
is unable to identify those that were stolen and those that
were not stolen. Moreover, the gift cards in the Police
evidence locker were properly seized pursuant to a lawful
search warrant. Accordingly, defendant's motion for
return of property is denied.
defendant's motion is DENIED.
entry shall be: Motion to ...