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Fry's dog food was inedible at the time of
bidding, even in large part, and the price for that inventory was $1,739.00.
On April 18, the District Court issued its findings of fact and conclusions of law.
The court found that because Fry did not receive the notice required by MCL 750.372, the only
claim available to him was for replevin. Because the property was no longer in his possession
and was not being detained, the court found that he was not entitled to replevin damages.
The court awarded judgment in favor of Waddell and against the City in the
amount of $7,500, plus statutory interest, and in favor of the City and against Waddell in the
amount of $3,000, plus statutory interest. The court ordered both parties to bear their own
A. NOTICE REQUIREMENT
MCL 750.372 states, in pertinent part:
(1) In a civil action or proceeding under this chapter, the
plaintiff shall give notice to the defendant that the property
concerned is being detained by filing with the clerk of the court
in which the action or proceeding is filed, a return under oath,
stating that the property in question is being detained as
provided in this chapter and that the property is being held
without the consent of the defendant, or that the property is being
held under the judgment of a court of competent jurisdiction. If
the property in question is seized pursuant to an execution, the
plaintiff shall also notify the defendant of the commencement of
the action or proceeding and of the fact that the property is being
detained, the amount of the demand, and the fact that no security
(2) A return under oath stating the true facts may be amended at
any time before final judgment is entered in the action or
W. Va. Code § 38-1-6. The statute clearly provides for the return of a detained
vehicle, not merely a summons. Accordingly, we have adopted a policy that will allow the
trial court to order the return of a detained vehicle without regard to the requirements of
Rule 41(c) when the State does not comply with the notice provisions set forth in
§ 38-1-6(2). See, e.g., State ex rel. Allstate Ins. Co. v. Rose, 227 W. Va. 716, 724, 712
S.E.2d 832, 838 (2011) (allowing return of a defendant’s vehicle without return of an
summons and without a Rule 41(c) hearing), Syl. Pt. 4, State ex rel. Sizemore v.
Turner, 162 W. Va. 662, 251 S.E.2d 19 (1979) (finding that a circuit court may order the
return of a detained vehicle by the State without a Rule 41(c) hearing when the State fails
to comply with the notice provisions of West Virginia Code § 38-1-6).
Here, the initial vehicle in the case was a vehicle that was seized and detained
by the arresting officer on January 24, 2014. In accordance with W. Va. Code § 38-1-6,
notice was given to the registered owner of the seized vehicle, the Defendant, on February
13, 2014. A summons was not issued to the Defendant until March 24, 2014, after
additional vehicle search and seizure of the vehicle by law enforcement officials.4 After
receiving the Defendant’s motion to suppress on June 19, 2014, the circuit court held a
hearing on the motion on July 1, 2014. The Defendant also sought to suppress evidence
gained as the result of his arrest and search, which the circuit court found did not violate
the Fourth Amendment.5 The circuit court then ordered the Government to return the
vehicle to the Defendant.6
The parties acknowledge that on April 8, 2014, law enforcement officials
executed the search warrant on the vehicle, resulting in additional evidence that was later
used against the Defendant in a separate criminal case. See State v. Jones, _ W. Va. _,
_, 751 S.E.2d 1, 4 (2013).
The Defendant also sought to suppress evidence that he alleged was gained
from the cell phone. He alleged that the Government obtained a cell tower map by
correlating cell site information and a map of the area in which the Defendant resided.
The circuit court denied the motion, ruling that the Government’s acquisition of the cell
tower map was permissible under 18 U.S.C. § 2703, the Stored Communications
Privacy Act. The Defendant does not raise that issue on appeal.
The circuit court further ordered that the government was not required to