DAVIS, Justice:
Pristine Pre-Owned Auto, Inc. ("Pristine"), petitioner herein and plaintiff below, appeals an order of the Circuit Court of Mineral County denying its complaint seeking a writ of mandamus
On October 23, 2014, Trooper Travelpiece sought a search warrant from Mineral County Magistrate Sue Roby. Trooper Travelpiece's affidavit accompanying his complaint for a search warrant related that, on September 8, 2014, he was contacted by Shelly Jackson ("Ms. Jackson"), a customer of Pristine who, on advice from the West Virginia Department of Motor Vehicles ("the DMV"), sought to file a complaint of false pretenses against Pristine. Ms. Jackson had allegedly purchased an automobile from Pristine, and Pristine held a lien on the vehicle pending full payment of the purchase price. Pristine also purportedly financed subsequent repairs to the vehicle, although there appears to be a dispute over whether a secondary lien on the vehicle to cover the cost of the repairs was consented to by Ms. Jackson or her co-buyer, Mr. Eric Dorman ("Mr. Dorman"). Ms. Jackson reported to Trooper Travelpiece that Pristine had asked that she bring the car to the dealership to resolve a "paperwork discrepancy." Instead, Ms. Jackson contacted the DMV and, subsequently, Trooper Travelpiece.
The following day, Ms. Jackson, who resided in Maryland, reported the vehicle stolen and again contacted Trooper Travelpiece to apprise him of the missing vehicle. Trooper Travelpiece then located the vehicle on the lot at Pristine. Pristine claimed that it repossessed the vehicle due to Ms. Jackson's failure to make payments on a secondary lien on the vehicle. According to Trooper Travelpiece, however, Ms. Jackson had provided documentation to show that she had made agreed upon payments. Trooper Travelpiece further reported that he contacted the DMV and learned that, contrary to Pristine's assertions, there was no secondary lien recorded on the Certificate of Title pertaining to Ms. Jackson's automobile as of September 9, 2014.
Trooper Travelpiece also learned from the DMV that the sale of the vehicle to Ms. Jackson was being investigated by that agency because the Certificate of Title to the vehicle on file with the DMV did not properly identify it as a salvage vehicle.
The DMV further indicated to Trooper Travelpiece that its internal investigation suggested that Pristine had engaged in the
Based upon Trooper Travelpiece's representations, Magistrate Roby issued the requested search warrant, which sought all of Pristine's financial documentation, all records of vehicles sold by Pristine, all repossession paperwork, all vehicle titles, information pertaining to vehicles present on Pristine's lot, all paperwork documenting maintenance to reconstructed vehicles, all computers, and all electronic devices capable of storing business records.
When Trooper Travelpiece executed the warrant, corporate officers of Pristine refused to cooperate or assist in the location of the documents and equipment subject to the warrant. As a result, law enforcement seized, as described by the circuit court, "a considerable volume of paperwork, records, computer equipment, and other materials during the search of the property." Thereafter, on November 12, 2014, Pristine filed in the Circuit Court of Mineral County its complaint seeking a writ of mandamus and an injunction. Following a hearing, by order entered on December 12, 2014, the circuit court denied Pristine's complaint. However, instead of addressing the issues raised in the context of mandamus, the circuit court found that Rule 41(e) of the West Virginia Rules of Criminal Procedure provided the proper analysis. Addressing the sufficiency of the search warrant on the merits, the circuit court upheld the search and seizure. Additionally, however, the circuit court ordered Trooper Travelpiece and Prosecutor Courrier to "coordinate the return [to Pristine's counsel] of any items in which the State does not have a continuing interest." This appeal followed.
Before delving into our analysis of this case, we note that no criminal actions were pending against the principal officers of Pristine at the time of the circuit court's ruling. This no longer is the case. Prosecutor Courrier and Trooper Travelpiece aver in their briefs to this Court that, upon completion of the State Police investigation of Pristine, two of Pristine's officers were indicted. Fernando Manvel Smith, Pristine's Chief Operating Officer, and Jamie Elizabeth Crabtree, have each been indicted on twenty-nine felony counts of false pretenses in violation of W. Va.Code § 61-3-24(a)(1) (1994) (Repl. Vol. 2014), and an additional twenty-nine felony counts of conspiracy in violation of W. Va. Code § 61-10-31 (1971) (Repl. Vol. 2014). Finally, Prosecutor Courrier and Trooper Travelpiece explain that, once the items removed from Pristine were more thoroughly examined, some items that were not relevant to the investigation were returned to Pristine. Upon completion of the State Police investigation, additional items were ready for return. However, according to Prosecutor Courrier, Pristine refused to accept the items without a more detailed inventory. During oral argument, this Court was advised that the items finally were returned in mid-January 2016. Items which are evidence of the crimes committed have been retained by the State as evidence in the pending criminal prosecution.
This Court has previously held that "[a] de novo standard of review applies to a circuit court's decision to grant or deny a writ of mandamus." Syl. pt. 1, Harrison Cty. Comm'n, v. Harrison Cty. Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008). Accordingly, we engage in a plenary review of this case.
Although Pristine sought a writ of mandamus from the circuit court, in its order resolving this matter, the trial court instead examined W. Va.Code § 62-1A-6 (1965) (Repl. Vol. 2014), a statute providing for the return of property and the suppression of evidence, and West Virginia Rule of Criminal Procedure 41(e), addressing a motion for return of property. The trial court concluded that Rule 41(e) provided the proper analysis for this matter. Therefore, the circuit court assessed the sufficiency of the search warrant on the merits under Rule 41(e) and upheld the search and seizure. Pristine argues that the circuit court erred in failing to apply the remedy of mandamus in favor of Pristine. We disagree.
Syl. pt. 1, State ex rel. Williams v. Department of Military Affairs & Pub. Safety, Div. of Corr., 212 W.Va. 407, 573 S.E.2d 1 (2002) (emphasis added). In fact, "[t]o invoke mandamus the relator must show (1) a clear right to the relief sought; (2) a legal duty on the part of the respondent to do the thing relator seeks; and (3) the absence of another adequate remedy." Syl. pt. 2, Myers v. Barte, 167 W.Va. 194, 279 S.E.2d 406 (1981). In the case sub judice, there simply existed no duty on the part of Trooper Travelpiece or Prosecutor Courrier to return Pristine's property.
In West Virginia, two methods have been established for seeking the return of seized property: W. Va.Code § 62-1A-6 and West Virginia Rule of Criminal Procedure 41(e). As we will demonstrate below, both of these provisions fail to create a nondiscretionary duty on the part of Trooper Travelpiece or Prosecutor Courrier to return Pristine's property.
We first examine W. Va.Code § 62-1A-6 to ascertain the nature of any duty to return seized property created therein. At the outset, though, we note that "[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975). In our endeavor to ascertain legislative intent, we are mindful that "[a] statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect." Syl. pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951). Nevertheless, "[a] statute that is ambiguous must be construed before it can be applied." Syl. pt. 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992).
W. Va.Code § 62-1A-6 provides as follows:
Before concluding our discussion of W. Va. Code § 62-1A-6, we additionally point out that the circuit court determined that the foregoing statute was not applicable in this instance insofar as it contemplates a motion being filed after criminal charges are brought. In this case, no charges were pending against Pristine's corporate officers at the time they sought to have the circuit court direct the return of their property. We agree with the circuit court's conclusion. In discussing which court has jurisdiction to decide a motion for the return of property, W. Va.Code § 62-1A-6 provides that,
(Emphasis added). In addition, the statute states that "[t]he motion may be made before trial or hearing upon three days' [sic] notice, or, the motion may be made or renewed at the trial or hearing." (Emphasis added). The statute's references to "the offense," and the additional declarations referring to the "trial or hearing," plainly contemplate that a motion under W. Va.Code § 62-1A-6 will be made in connection with a criminal proceeding. Accordingly, we find that the circuit court was correct in determining that W. Va.Code § 62-1A-6 was not applicable in this particular instance insofar as no criminal charges were pending against Pristine's corporate officers at the time Pristine sought the return of its seized property.
Having determined that W. Va. Code § 62-1A-6 does not establish a nondiscretionary duty to return property in the absence of an order directing such a return, we next examine West Virginia Rule of Criminal Procedure 41(e). Rule 41(e) is titled "Motion for return of property," and provides that
Turning now to the language of Rule 41(e), we observe that the last sentence of Rule 41(e) states: "If a motion for return of property is made or comes on for hearing in the circuit court of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12." (Emphasis added). By setting out how the motion is to be treated if it is made after an indictment or information is filed, the Rule plainly contemplates that the motion also could be filed in the absence of an indictment or information. Thus, Rule 41(e) provides a means for a person to challenge an allegedly unlawful seizure whether or not criminal charges have been filed.
Our conclusion is in accord with how federal courts have interpreted Rule 41 of the Federal Rules of Criminal Procedure.
The federal courts have recognized that, when no criminal charges are pending against the person whose property was seized, a motion under Rule 41(e) should actually be treated as a civil, rather than a criminal, matter. See, e.g., United States v. Ritchie, 342 F.3d 903, 905 (9th Cir.2003) (interpreting old version of Federal Rule of Criminal Procedure Rule 41(e) and holding that a motion thereunder should be treated as a complaint filed under the Federal Rules of Civil Procedure when no criminal proceeding is pending); Mora v. United States, 955 F.2d 156, 158 (2d Cir.1992) (construing old version of Federal Rule of Criminal Procedure 41(e) and explaining that "where no criminal proceedings against the movant are pending or have transpired, a motion for the return of property is `treated as [a] civil equitable proceeding[] even if styled as being pursuant to Fed.R.Crim.P. 41(e)'" (quoting United States v. Martinson, 809 F.2d 1364, 1367 (9th Cir.1987))). See also Thomas M. Bradshaw & Dianne M. Hansen, Search Warrants for Business Records: Challenges
Based upon the foregoing discussion, we now expressly hold that, when a party against whom no criminal charges have been brought seeks the return of seized property, such person should file, in the circuit court of the county in which the property was seized, a complaint seeking the return of such property under West Virginia Rule of Criminal Procedure 41(e). The circuit court shall treat the complaint as a civil proceeding.
Having clarified the proper application of Rule 41(e), we now consider, for purposes of our determination of the propriety of utilizing a writ of mandamus to seek the return of seized property, whether this Rule creates a nondiscretionary duty to return such property. We glean no duty to return property under Rule 41(e) until such time as a court has granted relief thereunder. Under the plain language of Rule 41(e), a duty to return property arises only after a motion or complaint made pursuant to the rule has been granted: "If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings." W. Va. R.Crim. P. 41(e) (emphasis added). See Syl. pt. 1, E.H. v. Matin, 201 W.Va. 463, 498 S.E.2d 35 ("It is well established that the word `shall,' in the absence of language ... showing a contrary intent ..., should be afforded a mandatory connotation." (internal quotations and citations omitted)). Because no duty to return property arises under Rule 41(e) prior to the granting of a request made thereunder, Rule 41(e) does not support the use of the extraordinary writ of mandamus to compel the return of property prior to the entry of an order directing such property's return.
Pristine relies on State ex rel. White v. Melton, 166 W.Va. 249, 273 S.E.2d 81 (1980), to support its claim that mandamus provided a proper remedy. We find that White is both factually and legally distinguishable from the case at bar. Factually, in White, officers seized cash from the home of Mr. and Mrs. White during the execution of a search warrant issued in relation to their son's illegal sale of controlled substances. A county magistrate issued arrest warrants for Mr. and Mrs. White, but, following a preliminary hearing, the magistrate found no probable cause to hold them for grand jury action. Notably, Mr. and Mrs. White filed a motion in the magistrate court seeking the return of their money, which motion was granted. In response, the county prosecutor petitioned the circuit court to prohibit the magistrate from returning the currency. Mr. and Mrs. White then petitioned this Court for a writ of mandamus ordering the return of their money pursuant to the magistrate court's order. This Court concluded that the magistrate lacked jurisdiction to return the property because it had been seized pursuant to felony warrants against the Whites' son. Because the charges against the Whites' son were pending in the circuit court, it was determined that the circuit court, not the magistrate court, had jurisdiction to order the return of the seized money. Rather than remand the matter to the circuit court, this Court granted the requested writ and ordered the return of Mr. & Mrs. White's property.
More important to the instant matter, however, is the Court's holding in White: "A party aggrieved by an unlawful seizure of property by a law officer may seek the property's return by a Code, 62-1A-6 motion in the proper forum or by mandamus." Syl. pt. 4, White, 166 W.Va. 249, 273 S.E.2d 81 (emphasis added). In determining that mandamus provided a proper remedy to the
White, 166 W.Va. at 254, 273 S.E.2d at 84. Notably, at the time White was decided in 1980, the West Virginia Rules of Criminal Procedure had not yet been adopted. Therefore, Rule 41(e) was not available at that time to provide a remedy for individuals seeking the return of seized property when no criminal charges had been filed against them. Accordingly, White does not provide authority for utilizing mandamus to provide a remedy to Pristine in the instant matter, because Pristine had another adequate remedy available to it. Pristine could have filed a complaint pursuant to Rule 41(e) of the West Virginia Rules of Criminal Procedure.
Based upon our analysis of W. Va.Code § 62-1A-6 and West Virginia Rule of Criminal Procedure 41(e) set out above, we now hold that a duty to return property seized by the State in the execution of a search warrant does not arise until a court of competent jurisdiction has entered an order pursuant to either W. Va.Code § 62-1A-6 (1965) (Repl. Vol. 2014) or West Virginia Rule of Criminal Procedure 41(e) directing the return of such property. Accordingly, the extraordinary remedy of mandamus is not cognizable prior to the entry of such an order.
Pristine has failed to secure an order directing the return of its seized property. In the absence of such an order, there is no duty obligating Trooper Travelpiece or Prosecutor Courrier to return said property. In the absence of such a duty, mandamus simply is not proper. Thus, we affirm the circuit court's denial of Pristine's complaint seeking a writ of mandamus, although the basis for our decision differs from the grounds relied upon by the circuit court.
For the reasons stated in the body of this opinion, the December 12, 2014, order of the Circuit Court of Mineral County is affirmed.
Affirmed.