Before: PRICE, J. JONES, SEXTON, JJ.
COURT OF APPEAL OF LOUISIANA, SECOND CIRCUIT
Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Hon. Robert T. Farr, Judge. 1983.LA.667
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JONES
Frank and Irma Feeback apply for writs to review an order of the district court denying in part their "Motion to Release Seized Property and Evidence." We affirm.
This matter arises from the following events.
On March 29, 1980, law enforcement officers executed a search warrant on a residence in West Monroe, Louisiana. The residence was owned by a corporation controlled by Frank Feeback and leased to Irma Jean Wilhite, who later became Mrs. Frank Feeback. Numerous items, including those which are the subject of this motion, were seized in the search. Frank Feeback was eventually convicted of several drug offenses and imprisoned. See State v. Feeback, 414 So.2d 1229 (La. 1982).
Frank, Irma and their attorney filed this motion on September 9, 1982. The items sought to be released were a wallet, a pair of gloves, keys, a briefcase, five address books, a tear gas cannister, a "slapper", a radio scanner, a telephone answering machine, a tape recorder, a set of scales, two holsters and 14 firearms. Mrs. Feeback claimed the guns and holsters as her own. The remaining items were asserted to be Frank's and were to be released to Mrs. Feeback on his behalf.
The motion was tried on November 2, 1982. Irma was the only witness. She testified that she had acquired the firearms as investments. However, on cross examination she could not recall where or how she had acquired most of the guns and she was quite vague as to the values of the guns and how they operated.
On November 9, 1982, the district judge handed down written reasons for his ruling on the motion. He ordered the wallet, gloves and keys released but found the other items claimed by Frank to be contraband as the paraphernalia of illegal drug activities and still needed as evidence in case of further review of the conviction and any retrial which might be required as a result of such review. He also questioned the credibility of Mrs. Feeback and found that she had not proved her ownership of the firearms and holsters which she claimed.
The district judge ordered the return of only the wallet, gloves and keys. The Feebacks applied for writs to review that ruling. They contend that the district judge erred in not releasing all the requested items.
This motion is based on C.Cr.P. art. 167 and R.S.15:41. *fn1 The language of each shows that a prerequisite to the release of property is that it is not to be used or is no longer needed as evidence.
The trial judge concluded that there was a continuing need for the items claimed by Frank, excluding the wallet, keys and gloves, as evidence. This is so because of the possibility that Feeback may seek state or federal post conviction relief. *fn2 In either event the evidence would be needed on review and in any new trial which might be required. We note in State v. Feeback, supra, page 1232, the court with ...