seizure cases

8/3/2019 Seizure Cases

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State v. Alaway, 64 Wn.App. 796

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CASE SUMMARY

PROCEDURAL POSTURE: Defendant sought review of the judgment of the Superior Court forPacific County (Washington), which entered an order forfeiting property that was seized from hishome when he was arrested for growing marijuana.

OVERVIEW: Defendant was arrested for growing marijuana. Pursuant to a valid search warrant,police confiscated a wide range of personal property from his home including tools, propane

tanks, garbage cans, and gardening equipment. Defendant entered a plea of guilty to the charge.Several months after he entered his plea of guilty, the State filed a motion for an order forfeitingthe seized property. Defendant objected and filed a motion for the return of his property. The trialcourt found in favor of the State and ordered the forfeiture of most of the property. On appeal, thecourt reversed, finding that the state had failed to comply with the statutory requirements forforfeiture of personal property. The court found that the property was not contraband because itspossession did not constitute a crime. The court found that it was error for the trial court todetermine that it had an inherent power to dispose of the seized property because the power toorder forfeiture was purely statutory.

OUTCOME: The court reversed.

CORE TERMS: forfeiture, contraband, marijuana, seized property, seized, derivative, seizure,

inherent power, common law, property used, longer needed, forfeiting, lawfully, grow, pipe, returnof property, rightful owner, subject to forfeiture, criminal activity, constitutes a crime, personalproperty, instrumentality, manufacturing, illegally, Criminal Law, statutory procedure, commissionof a crime, tool chest, hand-carved, deputies

LexisNexis Headnotes Hide Headnotes

Criminal Law & Procedure > Sentencing > Forfeitures > General OverviewHN1Go to the description of this Headnote. Wash. R. Crim. P. 2.3(e) governs motions for thereturn of illegally seized property and also motions for the return of lawfully seized property nolonger needed for evidence. Wash. R. Crim. P. 2.3(e) does not set forth any criteria fordetermining when the State has a superior right of possession. A court may refuse to returnseized property no longer needed for evidence only if (1) the defendant is not the rightful owner;

(2) the property is contraband; or (3) the property is subject to forfeiture pursuant to statute.

Criminal Law & Procedure > Sentencing > Forfeitures > General OverviewHN2Go to the description of this Headnote. See Wash. R. Crim. P. 2.3(e).

Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Goods Smuggling >General OverviewCriminal Law & Procedure > Search & Seizure > Search Warrants > Confidential Informants >General OverviewHN3Go to the description of this Headnote. "Contraband" has been defined as an object, the


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possession of which, without more, constitutes a crime.

Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > GeneralOverviewCriminal Law & Procedure > Sentencing > Forfeitures > General OverviewHN4Go to the description of this Headnote. Property that can be lawfully possessed but that thedefendant has used as the instrumentality of a crime has been labeled "derivative contraband".The owner of derivative contraband does not automatically lose his property interest, and that thegovernment must follow proper forfeiture procedures to divest him of that interest.

Criminal Law & Procedure > Sentencing > Forfeitures > General OverviewHN5Go to the description of this Headnote. The State cannot confiscate property merely becauseit is derivative contraband, but instead must forfeit it using proper forfeiture procedures.

Civil Procedure > Remedies > Forfeitures > HearingsCivil Procedure > Remedies > Forfeitures > Notice RequirementsCriminal Law & Procedure > Sentencing > Forfeitures > ProceedingsHN6Go to the description of this Headnote. Materials and equipment used in manufacturing anycontrolled substance are subject to seizure and forfeiture. Wash. Rev. Code 69.50.505(a)(2).Notice must be given within 15 days of seizure. Wash. Rev. Code 69.50.505(c). If the property

is personal property, one claiming an interest in it then has 45 days to respond, and if a responseis made, a hearing must be held. Wash. Rev. Code 69.50.505(d), (e).

Criminal Law & Procedure > Sentencing > Forfeitures > ProceedingsHN7Go to the description of this Headnote. The power to order forfeiture is purely statutory.

Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Delivery, Distribution &Sale > General OverviewCriminal Law & Procedure > Sentencing > Forfeitures > General OverviewHN8Go to the description of this Headnote. Wash. Rev. Code 69.50.505 provides the exclusivemechanism for forfeiting property used in a defendant's marijuana growing operation.

Hide Headnotes / Syllabus

SUMMARY: Nature of Action: Personal property used in growing marijuana was seized at thetime its owner was arrested and charged. Seven months later, the State sought an order forfeitingthe property to the sheriff.

Superior Court: The Superior Court for Pacific County, No. 88-1-00110-1, Joel M. Penoyar, J., onJuly 27, 1989, entered an order forfeiting the seized personal property.

Court of Appeals: Holding that the property was not contraband, that the only basis for forfeiturewas statutory, and that the statutory procedure had not been followed, the court reverses theorder.

HEADNOTES

WASHINGTON OFFICIAL REPORTS HEADNOTES

WA[1][1] Searches and Seizures Return of Seized Property Court Rule Under CrR 2.3(e),legally seized property no longer needed for evidence must be returned unless the personseeking its return is not the rightful owner, the property is contraband, or it is subject to forfeitureunder an appropriate statute.

WA[2][2] Criminal Law Contraband What Constitutes In General Contraband is an object,the possession of which, without more, constitutes a crime.


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WA[3][3] Criminal Law Contraband Derivative Contraband Forfeiture Property that islawful to possess and which is seized because of its use in committing a crime is derivativecontraband which cannot be retained by the State unless proper forfeiture procedures are used todeprive its owner of any ownership interest.

WA[4][4] Forfeitures Basis Common Law or Statutory The forfeiture power of the State iswholly statutory.

WA[5][5] Forfeitures Instrumentalities of a Crime Inherent Judicial Authority Courts do nothave the inherent power to order the forfeiture of property used in the commission of a crime.

COUNSEL: Thomas A. Copland and Copland & Micheau, for appellant.

Michael Sullivan, Prosecuting Attorney, and James A. Conley, Deputy, for respondent.

JUDGES: Morgan, J. Petrich, C.J., and Alexander, J., concur.

OPINION BY: MORGAN

OPINION

[*797] [**592] James Alaway appeals an order forfeiting to the Pacific County Sheriff property thathe used for growing marijuana. We reverse.

Alaway was arrested on October 6, 1988, after deputies uncovered his large marijuana growingoperation. At that time, the deputies seized a [***2] substantial amount of equipment and personalproperty as evidence. The seized property included a tool chest, handsaw, handtruck, severalpropane tanks, pumps, barrels, garbage cans, CO[2] tanks, a carpenter's square, fans, growlights, peat pots, a ladder, electric heaters, timers, switches, Mylar, humidifiers, weed sprayers,ventilators, metal pipe, personal photos, business cards, an address book, and a hand-carvedpipe. It is undisputed that the seizure was authorized by a valid warrant.

On October 10, 1988, Alaway was charged with manufacturing marijuana. On February 17, 1989,

he pleaded guilty and was sentenced. At that time, no action was taken with regard to forfeiture orreturn of the seized property.

On May 30, 1989, the State moved for an order forfeiting the property to the sheriff. Alawayobjected and moved for return of all his property.

On July 27, 1989, the court heard both motions. The State argued that the court had inherentpower to order how property used in criminal activity should be disposed of. It conceded thatstatutory forfeiture procedures had not been followed. See RCW 69.50.505.

At the conclusion of the hearing, the court orally ruled [***3] that it had "inherent power in acriminal case to order destruction or disposal of the property that was seized [*798] which theState has established was used in criminal activity." It entered a written order confiscating most of

the property. 1

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1 The court found that the hand-carved pipe, photos, business cards and the contents of the toolchest (except the crescent wrenches) had not been used in the marijuana growing operation.Thus, it ordered that they be returned to Alaway.

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WA[1][1] The issue on appeal is whether the court erred by denying the defendant's motion for


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return of property and, conversely, by granting the State's motion to retain and sell the property.In Washington, CrR 2.3(e) 2 HN1Go to this Headnote in the case.governs motions for the returnof illegally seized property and also motions for the return of lawfully seized property no longerneeded for evidence. State v. Marks, 114 Wn.2d 724, 790 P.2d 138 (1990); State v. Pelkey, 58Wn. App. 610, 794 P.2d 1286 (1990); State v. Card, 48 Wn. App. 781, 741 P.2d 65 (1987). [***4]CrR 2.3(e) does not set forth any criteria for determining when the State has a superior right ofpossession. According to federal authority, 3 a court may refuse to return seized property nolonger needed for evidence only if (1) the defendant is not the rightful owner; (2) the property iscontraband; or (3) the property is subject to forfeiture pursuant to statute. See, e.g., United Statesv. Farrell, 606 F.2d 1341, 1347 (D.C. Cir. 1979); United States v. Wright, 610 F.2d 930, 939 (D.C.Cir. 1979); United States v. Wilson, 540 F.2d 1100, 1101 (D.C. Cir. 1976); United States v. Brant,684 F. Supp. 421, 423 (M.D.N.C. 1988).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -2 HN2Go to this Headnote in the case.CrR 2.3(e) provides:

"(e) Motion for Return of Property. A person aggrieved by an unlawful search and seizure maymove the court for the return of the property on the ground that the property was illegally seizedand that the person is lawfully entitled to possession thereof. If the motion is granted the propertyshall be returned. If a motion for return of property is made or comes on for hearing after an

indictment or information . . . it shall be treated as a motion to suppress."[***5] 3 When construing CrR 2.3(e), Washington courts have looked to federal cases forguidance. E.g., State v. Marks, 114 Wn.2d at 734; State v. Card, 48 Wn. App. at 789-90.

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The State does not argue that Alaway is not the rightful owner of the property. He owned theproperty when the [*799] State seized it, and there are no third party claims against it.

WA[2][2] WA[3][3] The State does argue that Alaway was not entitled to return of the propertybecause [**593] it was contraband. HN3Go to this Headnote in the case."Contraband" has beendefined by the United States Supreme Court as an object, "the possession of which, withoutmore, constitutes a crime." One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699, 14 L.

Ed. 2d 170, 85 S. Ct. 1246, 1250 (1965); see also Farrell, 606 F.2d at 1344; Davis v. Fowler, 504F. Supp. 502, 505 (D. Md. 1980). The fact that tools, building materials, and gardening supplieswere used to grow marijuana does not cause possession of those items to be a crime. Therefore,the property in issue here was [***6] not contraband.

The State further argues even if the property was not contraband in and of itself, Alaway still wasnot entitled to its return because he used it to grow marijuana. HN4Go to this Headnote in thecase.Property that can be lawfully possessed but that the defendant has used as theinstrumentality of a crime has been labeled "derivative contraband". One 1958 Plymouth Sedan v.Pennsylvania, 380 U.S. at 699; Cooper v. Greenwood, Miss., 904 F.2d 302, 305 (5th Cir. 1990);Farrell, 606 F.2d at 1344. The federal courts agree that the owner of derivative contraband doesnot automatically lose his property interest, and that the government must follow proper forfeitureprocedures to divest him of that interest. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. at

699; Cooper, 904 F.2d at 305; Farrell, 606 F.2d at 1344; Davis v. Fowler, 504 F. Supp. at 505;see also United States v. Wright, 610 F.2d at 939; Farrell, 606 F.2d at 1345-46; United States v.Lane Motor Co., 199 F.2d 495 (10th Cir. 1952), aff'd, 344 U.S. 630 (1953); [***7] Brant, 684 F.Supp. at 424. In conformance with these cases, we hold that HN5Go to this Headnote in thecase.the State cannot confiscate property merely because it is derivative contraband, but insteadmust forfeit it using proper forfeiture procedures.

Washington has a statutory forfeiture procedure. HN6Go to this Headnote in the case.Materialsand equipment used in manufacturing any controlled substance are subject to seizure andforfeiture. RCW 69.50.505(a)(2). [*800] Notice must be given within 15 days of seizure. RCW


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69.50.505(c). If the property is personal property, one claiming an interest in it then has 45 daysto respond, and if a response is made, a hearing must be held. RCW 69.50.505(d), (e).

The State concedes that it did not comply with this statutory procedure. It argues, however, thatWashington courts have inherent authority to order the forfeiture of property used in thecommission of a crime, even without statutory authorization. In response, Alaway argues thatWashington's forfeiture statute is exclusive and that unless statutory procedures are followed, aWashington court cannot order forfeiture.

WA[4][4] WA[5][5] Every jurisdiction that has considered the question has held that HN7Go to thisHeadnote in the case.the power to order [***8] forfeiture is purely statutory. 4 United States v.Farrell, supra; United States v. Lane Motor Co., 199 F.2d 495, 496 (10th Cir. 1952), aff'd, 344U.S. 630 (1953); Ghisolfo v. United States, 14 F.2d 389 (9th Cir. 1926); Davis v. Fowler, 504 F.Supp. 502 (D. Md. 1980); Brant, 684 F. Supp. at 424; State v. Anonymous, 35 Conn. Supp. 659,406 A.2d 6 (1979); State v. One 1960 Mercury Station Wagon, 5 Conn. Cir. Ct. 1, 240 A.2d 99(1968); People ex rel. Mosk v. Barenfeld, 203 Cal. App. 2d 166, 21 Cal. Rptr. 501 (1962); UtahLiquor Control Comm'n v. Wooras, 97 Utah 351, 93 P.2d 455 (1939); Prudential Ins. Co. v. Rice,222 Ind. 231, 236, 52 N.E.2d 624, 626 (1944). The only case to arise in Washington is in accord.United States v. Two Hundred and Sixty-Seven Twenty-Dollar Gold Pieces, 255 F. 217 (W.D.Wash. 1919). Scholarly authorities also establish that the United States has never had a common

law of forfeiture, and that since colonial times, forfeiture in this country has existed [***9] only byvirtue of statute. Smith, Modern Forfeiture [**594] Law and Policy: A Proposal for Reform, 19 Wm.& Mary L. Rev. 661 (1977-1978); Finkelstein, The Goring Ox: Some Historical Perspectives onDeodands, [*801] Forfeitures, Wrongful Death and the Western Notion of Sovereignty, 46 Temp.L.Q. 169, 183 (1972-1973) (in-depth history of law of forfeiture); cf. O.W. Holmes, The CommonLaw 34-35 (1881). In sum, there is no authority anywhere for the State's contention that the courthad the inherent power to order forfeiture of Alaway's property because he used it in hismarijuana growing operation, and we hold that RCW 69.50.505 HN8Go to this Headnote in thecase.provides the exclusive mechanism for forfeiting property of the type involved in this case.The State having failed to comply with that statute, Alaway is entitled to have his propertyreturned.

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4 The lone exception is Lipscomb v. Stewart, 436 F. Supp. 863 (S.D. Ala. 1977), but it wasreversed by the Court of Appeals, without opinion, in 578 F.2d at 869 (5th Cir. 1978). See UnitedStates v. Farrell, 606 F.2d 1341 (D.C. Cir. 1979).

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[***10] Reversed.__________________"Ignorance of the law is no excuse"2 james sr 2011-03-08 18:43:22

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The City of Walla Walla, Respondent, v. $401,333.44, Defendant in Rem, Adrian Ibarra-Raya,Appellant.

No. 26243-0-III

COURT OF APPEALS OF WASHINGTON, DIVISION THREE


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150 Wn. App. 360; 208 P.3d 574; 2009 Wash. App. LEXIS 1267

April 28, 2009, Oral ArgumentMay 28, 2009, Filed

PRIOR HISTORY: [***1]Appeal from Walla Walla Superior Court. Docket No: 06-2-00813-9. Judgment or order underreview. Date filed: May 31, 2007. Judge signing: Honorable Robert L Zagelow.State v. Ibarra-Raya, 145 Wn. App. 516, 187 P.3d 301, 2008 Wash. App. LEXIS 1531 (2008)

CASE SUMMARY

PROCEDURAL POSTURE: Respondent city brought a forfeiture proceeding against defendant inrem, seized money. The Walla Walla Superior Court, Washington, granted summary judgment infavor of the city. Appellant sublessor appealed.

OVERVIEW: Police officers received reports from a neighbor that led them to conclude that ahouse the sublessor leased served as a "drop house" for money or drugs. Money was seizedfrom the house, and a storage locker was also searched. In the underlying criminal prosecution,

the appellate court concluded that police illegally entered the house. On appeal, the sublessorcontended that the city should be collaterally estopped from challenging the propriety of thesearch. The appellate court agreed that the forfeiture could not be based on an unlawful searchand seizure. The question then became whether there were genuine issues of material fact as tothe ownership and source of the money seized. No untainted evidence, other than a taillight thatfit the sublessor's truck, associated the sublessor with the storage locker and its contents. Theevidence seized from the storage unit did not make it more probably true that the money in thesublessor's house was furnished or intended to be furnished in exchange for a controlledsubstance, pursuant to Wash. Rev. Code 69.50.505(1)(g). A factual issue remained as towhether the sublessor was the owner of the money or was entitled to possession.

OUTCOME: The appellate court reversed the summary judgment in favor of the city.

CORE TERMS: forfeiture, controlled substances, forfeiture proceedings, summary judgment,collateral estoppel, exclusionary rule, subject to forfeiture, seizure, seized, evidence seized,storage locker, storage unit, marijuana, genuine, seized property, investigator, ownership, lawful,truck, question of law, matters of law, issue of material fact, de novo, criminal proceedings, plasticbags, glove, attorney fees, obtained evidence, criminal convictions, collaterally estopped


Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > CollateralEstoppelCivil Procedure > Appeals > Standards of Review > De Novo ReviewHN1Go to the description of this Headnote. Whether collateral estoppel bars a claim is aquestion of law that an appellate court reviews de novo.

Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > CollateralEstoppelHN2Go to the description of this Headnote. Collateral estoppel requires a showing of: (1)identical issues; (2) a final judgment on the merits; (3) the party against whom the plea isasserted must have been a party to or in privity with a party to the prior adjudication; and (4)application of the doctrine must not work an injustice on the party against whom the doctrine is tobe applied.

Criminal Law & Procedure > Sentencing > Forfeitures > Proceedings


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HN3Go to the description of this Headnote. Forfeiture proceedings under Wash. Rev. Code 69.50.505 are quasi criminal in nature since their purpose is to penalize individuals whoparticipate in the illegal transportation of controlled substances.

Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Exclusionary RuleCriminal Law & Procedure > Search & Seizure > Exclusionary Rule > Rule Application &InterpretationCriminal Law & Procedure > Sentencing > Forfeitures > ProceedingsHN4Go to the description of this Headnote. The exclusionary rule of U.S. Const. amend. IVapplies to forfeiture proceedings and so precludes the use of illegally obtained evidence in thoseproceedings.

Civil Procedure > Summary Judgment > Appellate Review > Standards of ReviewCivil Procedure > Summary Judgment > Standards > AppropriatenessCivil Procedure > Summary Judgment > Standards > Genuine DisputesCivil Procedure > Summary Judgment > Supporting Materials > AffidavitsCivil Procedure > Appeals > Standards of Review > De Novo ReviewHN5Go to the description of this Headnote. An appellate court reviews summary judgmentorders de novo. An appellate court views the evidence in a light most favorable to the nonmovingparty. A court may grant summary judgment if the pleadings, affidavits, and depositions establish

there is no genuine issue of any material fact and the moving party is entitled to judgment as amatter of law. Wash. Super. Ct. Civ. R. 56(c). A genuine issue of material fact exists wherereasonable minds could differ on the facts controlling the outcome of the litigation.

Criminal Law & Procedure > Sentencing > Forfeitures > ProceedingsHN6Go to the description of this Headnote. A court may refuse to return seized property nolonger needed for evidence only if (1) a defendant is not the rightful owner; (2) the property iscontraband; or (3) the property is subject to forfeiture pursuant to statute.

Criminal Law & Procedure > Sentencing > Forfeitures > ProceedingsEvidence > Procedural Considerations > Burdens of Proof > Preponderance of EvidenceHN7Go to the description of this Headnote. See Wash. Rev. Code 69.50.505(5).

Criminal Law & Procedure > Sentencing > Forfeitures > ProceedingsEvidence > Procedural Considerations > Burdens of Proof > Preponderance of EvidenceHN8Go to the description of this Headnote. In a forfeiture proceeding, a seizing entity has toshow by a preponderance of the evidence that the money seized was furnished or intended to befurnished in exchange for a controlled substance. Wash. Rev. Code 69.50.505(1)(g), (5).


SUMMARY:WASHINGTON OFFICIAL REPORTS SUMMARY

Nature of Action: A city sought the forfeiture of $401,333.44 in cash that police officers had seizedfrom a house that the police believed was being used as a drop house for money or drugs. A

claimant sought a determination that the money belonged to him. In a related criminalprosecution, the Court of Appeals reversed a conviction of the claimant at 145 Wn. App. 516(2008), ruling that evidence was unlawfully seized from the house and must be suppressed.

Superior Court: The Superior Court for Walla Walla County, No. 06-2-00813-9, Robert L.Zagelow, J., entered a summary judgment in favor of the city on May 31, 2007.

Court of Appeals: Holding that issues of fact remain regarding whether the claimant is the lawfulowner of the money and is entitled to possession thereof, the court reverses the judgment andremands the case for further proceedings.


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HEADNOTESWASHINGTON OFFICIAL REPORTS HEADNOTES

WA(1)[1] Judgment Collateral Estoppel Review Question of Law or Fact Standard ofReview. Whether collateral estoppel applies to preclude the relitigation of an issue is a questionof law that is reviewed de novo.

WA(2)[2] Judgment Collateral Estoppel Elements In General. Collateral estoppel doesnot apply to bar the relitigation of an issue unless (1) the issue is identical to one decided in aprior adjudicatory proceeding, (2) the prior proceeding resulted in a final adjudication on themerits, (3) the party against whom the doctrine is asserted was a party or in privity with a party tothe prior adjudication, and (4) application of the doctrine will not work an injustice on the partyagainst whom it is asserted.

WA(3)[3] Controlled Substances Forfeitures Cash In General. Cash is subject toforfeiture under the controlled substances forfeiture statute, RCW 69.50.505.

WA(4)[4] Controlled Substances Forfeitures Nature of Proceeding Quasi-Criminal.Forfeiture proceedings under RCW 69.50.505 are quasi-criminal in nature since their purpose is

to penalize individuals who participate in the illegal transportation of controlled substances.

WA(5)[5] Controlled Substances Forfeitures Exclusionary Rule Applicability. The FourthAmendment's exclusionary rule applies to forfeiture proceedings under RCW 69.50.505 andprevents the State from using unlawfully obtained evidence in such proceedings.

WA(6)[6] Controlled Substances Forfeitures Exclusionary Rule Application in CriminalProceeding Collateral Estoppel. An agency seeking the forfeiture of property in a proceedingunder RCW 69.50.505 may be collaterally estopped from introducing evidence that a criminalcourt has ruled to be inadmissible under the exclusionary rule.

WA(7)[7] Controlled Substances Forfeitures Evidence Seized Property LimitedAdmissibility Purposes. In proceedings for the forfeiture of unlawfully seized property under

RCW 69.50.505, the court may consider the seized property for the limited purpose ofestablishing the existence of the property and the court's in rem jurisdiction over it.

WA(8)[8] Judgment Summary Judgment Review Standard of Review. An appellate courtreviews a summary judgment de novo, applying the standard of CR 56(c) and viewing the factssubmitted in the light most favorable to the nonmoving party.

WA(9)[9] Judgment Summary Judgment Issues of Fact Material Fact WhatConstitutes. For purposes of a summary judgment proceeding, a genuine issue of material factexists where reasonable minds could differ on the facts controlling the outcome of the litigation.

WA(10)[10] Searches and Seizures Return of Seized Property Test. A court may refuse toreturn seized property no longer needed for evidence only if (1) the person seeking its return is

not the rightful owner, (2) the property is contraband, or (3) the property is subject to forfeiturepursuant to statute.

WA(11)[11] Controlled Substances Forfeitures Burden of Proof Government's Burden.Under former RCW 69.50.505(5) (2003), in a contested property forfeiture proceeding underRCW 69.50.505, the government has the burden of proving by a preponderance of the evidencethat the property is subject to forfeiture. The contesting claimant is entitled to the property if thegovernment fails to satisfy its burden.

WA(12)[12] Controlled Substances Forfeitures Property Used in Drug Trafficking Claim


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Ownership Question of Law or Fact. In a property forfeiture proceeding under RCW69.50.505, the source and ownership of the property are questions of fact that may not bedecided as matters of law if the source and ownership of the property are disputed and the recordsupports competing inferences.

WA(13)[13] Controlled Substances Forfeitures Attorney Fees Final Resolution Necessity. Attorney fees are not awardable under RCW 69.50.505(6) for court proceedings inwhich the court rules only that there are genuine issues of material fact that remain to be tried. Anaward of attorney fees must await an ultimate resolution of the dispute.

COUNSEL: Janelle Carman and C. Dale Slack (of Carman Law Office), for appellant.

Timothy J. Donaldson, City Attorney, for respondent.

JUDGES: Authored by Dennis J. Sweeney. Concurring: Kevin M. Korsmo, Stephen M. Brown.

OPINION BY: Dennis J. Sweeney

OPINION

[*362] [**574] 1 Sweeney, J. This appeal follows a summary judgment in favor of the city ofWalla Walla that forfeited money found in what police concluded was a drug house. Weconcluded in the related criminal prosecution that police illegally entered the house and that thesuperior court should, therefore, have suppressed evidence later seized from the house. State v.Ibarra-Raya, 145 Wn. App. 516, 523, 187 P.3d 301 (2008), review granted, 165 Wn.2d 1036(2009). And we reversed the criminal convictions. Id. at 525. Here, each party claims that theevidence supports its right to the proceeds as a matter of law. We conclude that issues of factremain, and we therefore reverse and remand for trial.[**575] FACTS

2 Walla Walla police officers [***2] received reports from a neighbor that led them to concludethat a house served as a drop house for money or drugs. They investigated, ultimately enteredthe house without the benefit of a search warrant, and saw substantial evidence of an ongoing

drug operation:

When officers arrived at the house, they saw lights on and heard party noise but reportednothing exceptional. A truck [*363] without a license plate, but with a temporary permit, was inthe driveway. The vehicle identification number (VIN) check came back stolen out of California.

Two officers then knocked on the front door; immediately the lights in the living room went off.Walla Walla Police Officer Tim Morford was on the side of the house and saw two men, one lateridentified as Mr. Ibarra-Raya, go into a room off the hallway and then come out of the room andopen the back door. Officer Morford ordered the men to remain in the house. Officer Morford thenfollowed the two men into the house and conducted a protective sweep, seeing marijuana and abundle of cash. At this point, the officers learned that solely the truck's license plates had been

stolen and that Mr. Ibarra-Raya was subleasing the house. Based on Officer [***3] Morford'sobservations, officers obtained a search warrant that led to the discovery of cocaine, over $400,000 sealed in plastic bags, and marijuana. Officers arrested Mr. Ibarra-Raya.

Ibarra-Raya, 145 Wn. App. at 520-21.

3 Police asked Mr. Ibarra-Raya whether the money was his. He denied that it was. The officersthen obtained a warrant and searched a storage unit in nearby Milton-Freewater, Oregon. Thestorage unit contained methamphetamine, marijuana, and cocaine. The police also found a stolentruck and assorted items such as plastic bags and rubber gloves.


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4 The State prosecuted Mr. Ibarra-Raya for possession with intent to deliver marijuana andpossession of cocaine. The city of Walla Walla (City) sued to forfeit the $ 401,333.44 seized fromthe house. Mr. Ibarra-Raya moved to remove the forfeiture action to superior court. The courtgranted that motion. The City moved to dismiss for lack of standing based on Mr. Ibarra-Raya'sdenial that the money was his. Mr. Ibarra-Raya moved to stay the forfeiture proceedings pendingresolution of the criminal case. The court stayed the forfeiture proceeding.

5 Mr. Ibarra-Raya was convicted. The City then moved to vacate the stay of forfeitureproceedings [***4] and asked the court to treat its earlier motion to dismiss as a summary [*364]

judgment motion. The court vacated the order staying the forfeiture proceedings and grantedsummary judgment to the City. The court concluded as a matter of law that Mr. Ibarra-Raya hadno lawful interest in the money and that the money is subject to forfeiture because it is furnishedor intended to be furnished for a controlled substance in violation of the Uniform ControlledSubstances Act[, chapter 69.50 RCW,] or used or intended for use to violate the UniformControlled Substances Act. Clerk's Papers (CP) at 273-74; see also Report of Proceedings at30, 40-41.

6 Mr. Ibarra-Raya appealed his criminal convictions and argued, among other things, that thecourt should have suppressed evidence seized because the police's initial entry into the house

was illegal. We agreed and reversed those convictions on the basis that the trial courterroneously denied Mr. Ibarra-Raya's motions to suppress. Ibarra-Raya, 145 Wn. App. at 523-25.We concluded that the police needed a warrant to enter the house. Id. at 523. The search andsubsequent seizure of drugs, money, and other evidence were then unlawful. Id. at 523, 525.

7 Mr. [***5] Ibarra-Raya now appeals the court's summary judgment in favor of the City,forfeiting the $ 401,333.44 seized from the house. He claims the money is his.DISCUSSIONCollateral Estoppel

8 Mr. Ibarra-Raya first contends that the City should be collaterally estopped [**576] fromchallenging the propriety of the search. He argues that this issue was resolved by our opinion inhis appeal from his criminal convictions. The City responds that illegal seizure does not bar its

action to forfeit. They are both correct. United States v. Six Hundred Thirty-Nine Thousand FiveHundred & Fifty-Eight Dollars ($ 639,558) in U.S. Currency, 293 U.S. App. D.C. 384, 387 n.5, 955F.2d 712 (1992). The City also argues that there is substantial untainted evidence that the cashdiscovered in Mr. Ibarra-Raya's house is drug money or that it is not his.

[*365] WA(1)[1] 9 HN1Go to this Headnote in the case.Whether collateral estoppel bars a claimis a question of law that we review de novo. LeMond v. Dep't of Licensing, 143 Wn. App. 797,803, 180 P.3d 829 (2008).

WA(2)[2] 10 HN2Go to this Headnote in the case.Collateral estoppel requires a showing of (1)identical issues; (2) a final judgment on the merits; (3) the party against whom the plea isasserted must have been a party to or in privity with a party to [***6] the prior adjudication; and(4) application of the doctrine must not work an injustice on the party against whom the doctrine is

to be applied. Shoemaker v. City of Bremerton, 109 Wn.2d 504, 507, 745 P.2d 858 (1987)(quoting Malland v. Dep't of Ret. Sys., 103 Wn.2d 484, 489, 694 P.2d 16 (1985)).

WA(3)[3-5] 11 The cash here is subject to forfeiture under Washington's Uniform ControlledSubstances Act. HN3Go to this Headnote in the case.Forfeiture proceedings under RCW69.50.505 are quasi criminal in nature since their purpose is to penalize individuals whoparticipate in the illegal transportation of controlled substances. Deeter v. Smith, 106 Wn.2d 376,378, 721 P.2d 519 (1986); accord Franklin v. Klundt, 50 Wn. App. 10, 746 P.2d 1228 (1987),overruled on other grounds by Thompson v. Dep't of Licensing, 138 Wn.2d 783, 798, 982 P.2d601 (1999). HN4Go to this Headnote in the case.The Fourth Amendment's exclusionary rule


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applies to forfeiture proceedings and so precludes the use of illegally obtained evidence in thoseproceedings. Deeter, 106 Wn.2d at 379.

WA(6)[6] 12 At least two cases have applied collateral estoppel to forfeiture proceedings. InBarlindal v. City of Bonney Lake, the State pursued criminal proceedings against a defendantafter seizing cash, drugs, and firearms [***7] from his home. 84 Wn. App. 135, 925 P.2d 1289(1996). The court in the criminal trial concluded that the search of Mr. Barlindal's home and theseizure of his possessions were unlawful and suppressed the evidence resulting from the search.Id. at 137-38. The court in the forfeiture proceeding followed the determination from the criminalproceeding and excluded the evidence seized during the unlawful search. Id. at 138. The Court ofAppeals affirmed. The court concluded that the exclusionary rule prohibits the use of [*366]unlawfully obtained evidence in a civil forfeiture proceeding and agreed that collateral estoppelprecluded reconsideration of whether the evidence was legally seized from Mr. Barlindal's home.Id. at 141-42.

13 In City of Des Moines v. Personal Property Identified as $ 81,231 in United States Currency,the trial court adopted the findings from the suppression hearing in the criminal trial. 87 Wn. App.689, 943 P.2d 669 (1997). There, the court concluded that the warrantless search and seizure ofmoney and personal property was legal. Id. And the Court of Appeals affirmed the trial court'sdecision that a conclusive determination of the search and seizure issue in the criminal [***8] trial

collaterally estopped the claimant from challenging the seizure in the civil forfeiture proceeding.Id. at 700.

WA(7)[7] 14 Here, the City agrees that the forfeiture cannot be based on the unlawful searchand seizure. The City urges instead that the court may consider the seized money for the limitedpurpose of establishing its existence, and the court's in rem jurisdiction over it. Six HundredThirty-Nine Thousand Five Hundred & Fifty-Eight Dollars, 293 U.S. App. D.C. at 387 n.5. Weagree. The City also urges that there is sufficient untainted evidence to support a finding that themoney was used for or gained from drug sales. The question, then, is whether genuine issues ofmaterial fact remain on both the ownership and source of the money seized. Hisle v. Todd Pac.Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004).[**577] Issues of Material Fact

15 Mr. Ibarra-Raya contends that the money is his and that the only factual disputes are overwhether the money is the product of drug activity. The City responds that Mr. Ibarra-Raya has nostanding to challenge forfeiture of the money because he did not show that the money was hisand, indeed, denied that the money was his. And the City argues [***9] that it made thenecessary showing that the money was the result of drug trafficking.

[*367] WA(8)[8, 9] 16 HN5Go to this Headnote in the case.We review summary judgment ordersde novo. Id. We view the evidence in a light most favorable to the nonmoving party. Herron v.Tribune Publ'g Co., 108 Wn.2d 162, 170, 736 P.2d 249 (1987). A court may grant summary

judgment if the pleadings, affidavits, and depositions establish there is no genuine issue of anymaterial fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Hisle, 151Wn.2d at 861. A genuine issue of material fact exists where reasonable minds could differ on thefacts controlling the outcome of the litigation. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d

1030 (1982).

WA(10)[10] 17 HN6Go to this Headnote in the case.[A] court may refuse to return seizedproperty no longer needed for evidence only if (1) the defendant is not the rightful owner; (2) theproperty is contraband; or (3) the property is subject to forfeiture pursuant to statute. State v.Alaway, 64 Wn. App. 796, 798, 828 P.2d 591 (1992). The City retained the money here pursuantto Washington's Uniform Controlled Substances Act. It permits forfeiture of moneys furnished orintended to be furnished by any person in exchange for a controlled [***10] substance. RCW69.50.505(1)(g).


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WA(11)[11] 18 The City argues that Mr. Ibarra-Raya had the initial burden of showing a lawfulinterest in the money. The City relies on Irwin v. Mount for its position. 47 Wn. App. 749, 753, 737P.2d 277 (1987). It is mistaken. Irwin applies a prior version of RCW 69.50.505. In 2001, thelegislature replaced the sentence of former RCW 69.50.505(e) (1993) that read, In casesinvolving personal property, the burden of producing evidence shall be upon the person claimingto be the lawful owner or the person claiming to have the lawful right to possession of theproperty. Laws of 2001, ch. 168, 1. The legislature again revised the statute in 2003, changingsection (e) into section (5). Laws of 2003, ch. 53, 348.

19 RCW 69.50.505(5) now reads, HN7Go to this Headnote in the case.In all cases, the burdenof proof is upon the law enforcement agency to establish, by a preponderance of the evidence,that the property is subject to forfeiture. HN8Go to this Headnote in the case.The City had toshow by a [*368] preponderance of the evidence that the money seized was furnished orintended to be furnished in exchange for a controlled substance. RCW 69.50.505(1)(g), (5).The claimant, here Mr. Ibarra-Raya, is entitled to the money if the law enforcement [***11]agency fails to demonstrate that the property is subject to forfeiture. RCW 69.50.505(5).

WA(12)[12] 20 The City relies on declarations of a narcotics investigator to support its claim.One of the Walla Walla narcotics investigator's two declarations explains the police department'spre-July 14, 2006, surveillance of the house under suspicion of drug activity. But that investigator

ultimately concluded, In doing some surveillance on the house, I didn't see much activity at all.CP at 170. In the remainder of his two declarations, the investigator reports other discoveries inthe search of Mr. Ibarra-Raya's house and of the Oregon storage locker.

21 The officer inspected a pickup truck in the driveway of the house and inquired of the VIN(vehicle identification number) before making contact with the people at Mr. Ibarra-Raya's houseon July 14. We did not invalidate that inspection or the inquiry. Ibarra-Raya, 145 Wn. App. at 523.Nor did we pass on the legality of the search of the Oregon storage locker. Id. at 521-24.

22 The City emphasizes that the storage locker contained factory taillight assemblies that fit thetruck parked in Mr. Ibarra-Raya's driveway, which was outfitted with after-market taillightassemblies. CP at 175, 685-86. [***12] However, no other untainted evidence in this recordassociates Mr. Ibarra-Raya with the storage locker or its contents. The storage locker was not

leased to Mr. Ibarra-Raya. And all evidence the City [**578] cites as tying the storage locker,and the drugs it contained, to the money found in Mr. Ibarra-Raya's house was found during theillegal search of that house. For example, the investigator explained that a key found at Mr.Ibarra-Raya's house fit the lock on the storage unit. The storage unit also contained the sametype of marijuana found at the house, plastic bags that were similar to those found at the house,and a rubber glove that [*369] was similar to the glove found at the house. Removed from thecontext of the evidence seized from the Walla Walla house, the evidence seized from the Oregonstorage unit does not make it more probably true that the money in Mr. Ibarra-Raya's house wasfurnished or intended to be furnished in exchange for a controlled substance. RCW69.50.505(1)(g). Without the tainted evidence, the City is left showing a storage unit located 20miles away from the seized money, leased to an individual unassociated with this action, andcontaining a lock, marijuana, [***13] rubber gloves, and plastic bags, period. Factual issues thenremain as to whether Mr. Ibarra-Raya is the present lawful owner of the money or is entitled to

possession.

23 We, therefore, reverse the summary judgment in favor of the City and remand for trial.Attorney Fees

WA(13)[13] 24 Mr. Ibarra-Raya requests attorney fees pursuant to RCW 69.50.505(6). Weconclude only that there are genuine issues of material fact. Fees and costs will then abide theultimate resolution of this dispute. In re Estate of Baird, 131 Wn.2d 514, 522, 933 P.2d 1031(1997).


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Brown and Korsmo, JJ., concur.3 james sr 2011-03-08 18:48:35

MemberOffline


GEORGE BARLINDAL, Respondent, v. CITY OF BONNEY LAKE, Appellant.

No. 20028-7-II

COURT OF APPEALS OF WASHINGTON, DIVISION TWO


November 15, 1996, Filed

PRIOR HISTORY: [***1] Appeal from Superior Court of Pierce County. Docket No: 91-2-12045-

1. Date filed: 02/03/95. Judge signing: Hon. Bruce W. Cohoe.

CASE SUMMARY

PROCEDURAL POSTURE: Appellant city sought review of a judgment of the Superior court ofPierce County (Washington) that ordered the return of seized firearms to respondent citizen. Thecity had initiated an action in forfeiture under the Uniform Controlled Substances Act (UCSA),Wash. Rev. Code 69.50.505. The citizen sought review of the superior court's finding that thefirearms sustained no damage while being stored by the city.

OVERVIEW: The citizen was arrested and was prosecuted by the county. The criminal chargeswere dismissed after the trial court in the criminal proceeding found that the evidence, includingthe firearms, was seized during the execution of an invalid warrant. In the city's civil forfeiture

proceeding under 69.50.505 the superior court excluded any evidence of drugs or firearmsbeing present during the search because the search had been determined to be unlawful. Thecity appealed from the superior court's ruling that the firearms should be returned to the citizenbecause probable cause for the seizure could not be established. The court affirmed the superiorcourt's order. The court held that the city needed to establish that probable cause existed for theseizure of the firearms before they could be lawfully forfeited. The city was precluded fromlitigating the probable cause issue, under the doctrine of collateral estoppel, when the matter hadbeen decided in the criminal proceeding. The court held that the city was in privity with the countythat prosecuted the criminal matter because both entities had a mutual interest and sharedcommon purpose in the prosecution and forfeiture.

OUTCOME: The court affirmed the decision of the superior court that dismissed the city's actionfor civil forfeiture of the citizen's firearms. The court did not address the citizen's appeal based on

damages to his property. The parties' requests for attorney's fees were both denied.

CORE TERMS: firearm, forfeiture, probable cause, privity, search warrant, controlled substance,issue preclusion, seized, seizure, collateral estoppel, contraband, forfeiture action, injustice,doctrine of collateral estoppel, criminal action, criminal proceeding, benefited, forfeitureproceedings, criminal prosecution, personal property, relitigation, prosecuting, unlawfully,probable, seizing, mutual, felony, probable cause, law enforcement officers, law enforcementagency



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Civil Procedure > Remedies > Forfeitures > General OverviewCriminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Criminal Instruments& Tools > General OverviewCriminal Law & Procedure > Sentencing > Forfeitures > General OverviewHN1Go to the description of this Headnote. A court may refuse to return seized property nolonger needed for evidence only if (1) the defendant is not the rightful owner; (2) the property iscontraband; or (3) the property is subject to forfeiture pursuant to statute. Firearms are notcontraband because their possession, without more, does not constitute a crime.

Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General OverviewCriminal Law & Procedure > Criminal Offenses > Weapons > Use > General OverviewCriminal Law & Procedure > Sentencing > Forfeitures > ProceedingsHN2Go to the description of this Headnote. Firearms are subject to forfeiture when proven to bein the possession of a person arrested for a felony violation of the Uniform Controlled SubstancesAct, which provides in part that: the superior courts and the courts of limited jurisdiction of theState of Washington may order forfeiture of a firearm which is proven to be found in thepossession or under the control of a person at the time the person committed or was arrested forcommitting a crime of violence or a crime in which a firearm was used or displayed or a felonyviolation of the uniform controlled substances act, Wash. Rev. Code 69.50. Former Wash. Rev.

Code 9.41.098(1), 1989 Wash. Laws ch. 222, 8. Wash. Rev. Code 9.41 also requires thatconfiscated firearms be returned if there is no probable cause to believe a violation occurred or ifthe criminal proceedings are dismissed: the court shall order the firearm returned to the ownerupon a showing that there is no probable cause to believe a violation of (1) of this sectionexisted. Wash. Rev. Code 9.41.098(3). After confiscation, the firearm shall not be surrenderedexcept to the owner if the proceedings are dismissed. Wash. Rev. Code 9.41.098(4).

Civil Procedure > Remedies > Forfeitures > General OverviewContracts Law > Types of Contracts > Personal PropertyCriminal Law & Procedure > Sentencing > Forfeitures > ProceedingsHN3Go to the description of this Headnote. Under the Uniform Controlled Substances Act's(UCSA) separate forfeiture procedures, firearms are subject to forfeiture when they are used in orare the proceeds of illegal drug transactions. The following are subject to seizure and forfeiture

and no property right exists in them: All equipment of any kind which is used, or intended for use,in delivering any controlled substance in violation of Wash. Rev. Code 69.50; All tangible orintangible personal property, proceeds, or assets acquired in whole or in part with proceedstraceable to an exchange or series of exchanges in violation of 69.50. Wash. Rev. Code 69.50.505. The UCSA's forfeiture procedures are in part as follows: Personal property subject toforfeiture under this chapter may be seized by any board inspector or law enforcement officer ofthis state upon process issued by any superior court having jurisdiction over the property.

Civil Procedure > Remedies > Forfeitures > General OverviewCriminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > GeneralOverviewCriminal Law & Procedure > Search & Seizure > Warrantless Searches > Search Incident toLawful Arrest > Proximity of Search to Arrest

HN4Go to the description of this Headnote. Seizure of personal property without process maybe made under the Uniform Controlled Substances Act if: The seizure is incident to an arrest or asearch under a search warrant or an inspection under an administrative inspection warrant; Theboard inspector or law enforcement officer has probable cause to believe that the property wasused or is intended to be used in violation of this chapter. The person shall be afforded areasonable opportunity to be heard as to the claim or right. In cases involving personal property,the burden of producing evidence shall be upon the person claiming to be the lawful owner or theperson claiming to have the lawful right to possession of the property. Wash. Rev. Code 69.50.505.


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Civil Procedure > Remedies > Forfeitures > Probable Cause RequirementsEvidence > Inferences & Presumptions > General OverviewHN5Go to the description of this Headnote. A seizing law enforcement agency has the initialburden in a forfeiture action of showing probable cause to believe that seized items were theproceeds of or used or intended to be used in illegal drug activities.

Civil Procedure > Remedies > Forfeitures > General OverviewConstitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Probable CauseHN6Go to the description of this Headnote. Probable cause requires the existence ofreasonable grounds for suspicion supported by circumstances sufficiently strong to warrant aperson of ordinary caution in the belief .

Civil Procedure > Remedies > Forfeitures > General OverviewConstitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Exclusionary RuleConstitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Scope ofProtectionHN7Go to the description of this Headnote. The Fourth Amendment exclusionary rule prohibitsthe seizing law enforcement agency in a civil forfeiture action from using evidence unlawfullyobtained.

Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > CollateralEstoppelHN8Go to the description of this Headnote. The doctrine of collateral estoppel, or issuepreclusion, bars relitigation of an issue after the party estopped has had a full and fair opportunityto present its case.

Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > CollateralEstoppelHN9Go to the description of this Headnote. The doctrine of collateral estoppel may be appliedwhen the issue decided in the prior criminal case is identical with the issue presented in thesubsequent civil case. The requirements which must be met when applying the doctrine are: (1)the issue decided in the prior adjudication must be identical with the one presented in the second;(2) the prior adjudication must have ended in a final judgment on the merits; (3) the party against

whom the plea is asserted was a party or in privity with a party to the prior adjudication; and (4)application of the doctrine must not work an injustice.

Civil Procedure > Parties > Joinder > General OverviewHN10Go to the description of this Headnote. Privity denotes a mutual or successive relationshipto the same right or property.

Governments > Local Governments > Duties & PowersHN11Go to the description of this Headnote. It is the obligation of a county prosecuting attorneyto control a felony prosecution; the inability of a municipal attorney to control the prosecution doesnot diminish the common interests that both agencies have in the outcome of the prosecution.

Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > Collateral

EstoppelCriminal Law & Procedure > Search & Seizure > Search Warrants > General OverviewHN12Go to the description of this Headnote. Application of the doctrine of collateral estoppelworks no injustice where the party being estopped had an opportunity in the first proceeding topresent evidence and arguments to the trial court on the issue of probable cause.


SUMMARY: Nature of Action: The owner of an arsenal of firearms that had been seized by a cityduring a search of the owner's residence and county law enforcement officers sought to have the


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firearms returned to him. The city had instituted forfeiture proceedings after a criminal prosecutionagainst the owner brought by a county prosecuting authority had been dismissed upon the court'ssuppression of the evidence seized by the city from the owner's residence. The evidence wassuppressed by the court on the basis of an invalid search warrant. No appeal was taken from thesuppression.

Superior Court: The Superior Court for Pierce County, No. 91-2-12045-1, Bruce W. Cohoe, J., onFebruary 3, 1995, entered a judgment ordering that the firearms be returned.

Court of Appeals: Holding that the city was in privity with the county prosecuting authority and thatthe doctrine of collateral estoppel prevented the city from relitigating whether the police hadprobable cause to search the owner's residence and to believe that the owner was engaged inillegal drug activity at the time of the search, the court affirms the judgment.

HEADNOTESWASHINGTON OFFICIAL REPORTS HEADNOTES

WA[1][1] Searches and Seizures Return of Seized Property Test A person is entitled to thereturn of property unlawfully seized by law enforcement officials if (1) the person is the rightfulowner, (2) the property is not contraband, and (3) the property is not subject to statutory

forfeiture.

WA[2][2] Criminal Law Contraband What Constitutes In General Contraband is an objectthe possession of which, without more, constitutes a crime.

WA[3][3] Weapons Firearms Status as Contraband A firearm is not contraband.

WA[4][4] Controlled Substances Forfeitures Property Used in Drug Trafficking Seizure Probable Cause Necessity For the State to obtain possession of personal property by civilforfeiture under RCW 69.50.505, it must have probable cause to believe that the owner of theproperty has violated RCW 69.50, the Uniform Controlled Substances Act. Probable cause is areasonable suspicion supported by circumstances sufficiently strong to warrant a person ofordinary caution in the belief that a crime has been committed.

WA[5][5] Controlled Substances Forfeitures Property Used in Drug Trafficking Seizure Illegality Effect The Fourth Amendment prevents the State from using unlawfully obtainedevidence in civil forfeiture proceedings conducted under RCW 69.50.505.

WA[6][6] Judgment Collateral Estoppel Elements Injustice Full and Fair OpportunityTo Litigate The doctrine of collateral estoppel -- or issue preclusion -- bars the relitigation of anissue by a party who has already had a full and fair opportunity to present its case.

WA[7][7] Judgment Collateral Estoppel Purposes The purposes of the doctrine of collateralestoppel -- or issue preclusion -- are to promote the policy of ending disputes, to promote judicialeconomy, and to prevent harassment of and inconvenience to litigants.

WA[8][8] Judgment Collateral Estoppel Issue in Criminal Prosecution Use in Civil ActionThe doctrine of collateral estoppel may be applied in a civil action to bar the relitigation of anidentical issue resolved in a prior criminal action.

WA[9][9] Judgment Collateral Estoppel Elements In General The doctrine of collateralestoppel -- or issue preclusion -- applies to prevent the relitigation of an issue previously decidedif (1) the issue in the current action is identical to one decided in a prior action, (2) the prior actionresulted in a final judgment on the merits, (3) the party against whom the doctrine is asserted wasa party or in privity with a party to the prior action, and (4) application of the doctrine does notwork an injustice.


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WA[10][10] Judgment Collateral Estoppel Elements Privity What Constitutes Forpurposes of the doctrine of collateral estoppel, privity denotes a mutual or successive relationshipto the same right or property.

WA[11][11] Controlled Substances Forfeitures Property Used in Drug Trafficking Seizure Probable Cause Determination Collateral Estoppel A municipality seeking the forfeitureof items seized by law enforcement officers is collaterally estopped from litigating in the forfeitureproceedings the issue of whether the police had probable cause to conduct the search if the issuepreviously had been determined by a court in a criminal prosecution brought by a countyprosecuting authority.

COUNSEL: Nancy C. Zaragoza and Dionne & Rorick, City Attorney, for appellant.

Antoni H. Froehling, Dan E. Platter, and Mayhew-Froehling, for respondent.

JUDGES: Authored by Carroll C. Bridgewater. Concurring: J. Dean Morgan, Elaine M. Houghton

OPINION BY: BRIDGEWATER

OPINION

[*137] [**1290] Bridgewater, J. -- The City of Bonney Lake appeals a superior court judgmentordering the return of firearms to George Barlindal. Barlindal cross-appeals the trial court's findingthat the firearms sustained no appreciable damage while being stored by Bonney Lake. BonneyLake's civil forfeiture action followed an unsuccessful, unappealed criminal prosecution by PierceCounty wherein evidence seized during the execution of an invalid warrant was suppressed. Wehold that Bonney Lake was in privity with Pierce County in the criminal action, and that thedoctrine of issue preclusion prevents Bonney Lake from relitigating in the forfeiture action whetherthe police had probable cause to believe that Barlindal was engaged in illegal drug activity at thetime [***2] of the search. Barlindal failed to timely file his cross-appeal, thus precluding review.We affirm.

Bonney Lake police obtained a telephonic warrant to search Barlindal's home. Bonney Lakepolice and the Pierce County Sheriff executed the search warrant, discovering and seizing asizable amount of methamphetamine, over 200 firearms, assorted knives, cash, and othermiscellaneous items. In a later criminal proceeding brought by the Pierce County ProsecutingAttorney, the trial court determined that the search of Barlindal's premises and the seizure of his[**1291] possessions were unlawful [*138] because the investigating officer failed to state in hisapplication for the search warrant how his confidential informant had a sufficient basis ofknowledge for recognizing a "controlled substance." The trial court ordered the evidencesuppressed and dismissed the criminal charge. The trial court also ruled that "no evidence ordescription of said evidence shall be used in any proceeding against the defendant [GeorgeBarlindal] herein." No appeal followed.

Before the criminal matter terminated, Bonney Lake notified Barlindal of its intent to seek

forfeiture of the seized items [***3] under the Uniform Controlled Substances Act (UCSA). 1Barlindal removed the action to superior court; 2 the City responded, contending it was entitled toforfeiture of the items under RCW 9.41.098 and the UCSA. In the forfeiture proceeding, the trialcourt excluded any evidence of drugs or firearms being present at the time of the searchbecause, in the prior criminal proceeding, the search had already been determined to beunlawful. The court also ruled as inadmissible hearsay offered by Bonney Lake to show that thepolice had probable cause to believe that the firearms were the proceeds of or used in drugtransactions. The excluded hearsay involved statements from two officers that confidentialinformants had told them before obtaining the search warrant that Barlindal was known toexchange guns for drugs and was known to be armed during drug deals. After making these


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rulings, the trial court concluded that Bonney Lake could not establish probable cause to "forfeitthe seized items." It [*139] ordered Bonney Lake to return to Barlindal the firearms he owned. 3Bonney Lake appeals.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1 RCW 69.50.505. [***4] 2 "Any person asserting a claim or right may remove the matter to acourt of competent jurisdiction if the aggregate value of the article or articles involved is morethan five hundred dollars." Former RCW 69.50.505(e) (LAWS OF 1977, 1st Ex. Sess., ch. 78).We note that Barlindal actually filed a replevin action in superior court, later adding a damagesclaim. Both parties apparently agreed to treat Barlindal's replevin action as accomplishingremoval, and we address it as such.3 Barlindal established his ownership of all of the firearmsexcept four, three confirmed stolen by police and one without a serial number.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

I

WA[1][1] WA[2][2] WA[3][3] HN1Go to this Headnote in the case."[A] court may refuse to returnseized property no longer needed for evidence only if (1) the defendant is not the rightful owner;(2) the property is contraband; or (3) the property is subject to forfeiture pursuant to statute."

State v. Alaway, 64 Wn. App. 796, 798, 828 P.2d 591, review denied, 119 Wn.2d 1016, 833 P.2d1390 (1992). Firearms are not contraband because their possession, without more, does not[***5] constitute a crime. Cf. Alaway, 64 Wn. App. at 799 (tools, building materials, and gardeningsupplies used to grow marijuana not contraband).

A

HN2Go to this Headnote in the case.Firearms are subject to forfeiture when proven to be in thepossession of a person arrested for a felony violation of the Uniform Controlled Substances Act:

The superior courts and the courts of limited jurisdiction of the state may order forfeiture of afirearm which is proven to be: . . . (c) Found in the possession or under the control of a person atthe time the person committed or was arrested for committing a crime of violence or a crime in

which a firearm was used or displayed or a felony violation of the uniform controlled substancesact, chapter 69.50 RCW.

Former RCW 9.41.098(1) (LAWS OF 1989, ch. 222, 8). 4 RCW 9.41 also requires thatconfiscated firearms be returned if there is no probable cause to believe a violation occurred or ifthe criminal proceedings are dismissed: "The court shall order the firearm returned to the owner[*140] upon a showing that there is no probable cause to believe a violation of subsection (1) ofthis section [**1292] existed . . . ." RCW 9.41.098(3). [***6] "After confiscation, the firearm shallnot be surrendered except . . . to the owner if the proceedings are dismissed . . . ." RCW9.41.098(4).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -4 Recently amended, the current statute reads "(d) In the possession or under the control of a

person at the time the person committed or was arrested for committing a felony or committing anonfelony crime in which a firearm was used or displayed." RCW 9.41.098(1).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

B

HN3Go to this Headnote in the case.Under the UCSA's separate forfeiture procedures, firearmsare subject to forfeiture when they are used in or are the proceeds of illegal drug transactions:


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(a) The following are subject to seizure and forfeiture and no property right exists in them:

. . . .

(2) All . . . equipment of any kind which [is] used, or intended for use, in . . . delivering . . . anycontrolled substance in violation of [RCW 69.50];

. . . .

(7) All . . . tangible or intangible personal property, proceeds, or assets acquired in whole or inpart with proceeds traceable to an exchange or series of exchanges in violation [***7] of [chapter69.50] . . . .

RCW 69.50.505. The UCSA's forfeiture procedures are in relevant part as follows:

(b) . . . Personal property subject to forfeiture under this chapter may be seized by any boardinspector or law enforcement officer of this state upon process issued by any superior courthaving jurisdiction over the property. . . . HN4Go to this Headnote in the case.Seizure of personalproperty without process may be made if:

(1) The seizure is incident to an arrest or a search under a search warrant or an inspectionunder an administrative inspection warrant;

. . . .

(4) The board inspector or law enforcement officer has probable cause to believe that theproperty was used or is intended to be used in violation of this chapter.

[*141] . . . .

(e) . . . the person . . . shall be afforded a reasonable opportunity to be heard as to the claim orright. . . . In cases involving personal property, the burden of producing evidence shall be uponthe person claiming to be the lawful owner or the person claiming to have the lawful right to

possession of the property.

RCW 69.50.505. HN5Go to this Headnote in the case.The seizing law enforcement agency hasthe initial burden in a forfeiture action of showing probable [***8] cause to believe that seizeditems were the proceeds of or used or intended to be used in illegal drug activities. See Rozner v.City of Bellevue, 116 Wn.2d 342, 350, 804 P.2d 24 (1991).

C

WA[4][4] Our study of both RCW 9.41.098 and RCW 69.50.505 and relevant case law leads us toconclude that, to obtain possession of Barlindal's firearms by civil forfeiture, the State had theinitial burden of showing probable cause to believe that Barlindal violated RCW 69.50. HN6Go tothis Headnote in the case."Probable cause requires the existence of reasonable grounds for

suspicion supported by circumstances sufficiently strong to warrant a person of ordinary cautionin the belief . . . ." Adams County v. One 1978 Blue Ford Bronco, 74 Wn. App. 702, 706, 875 P.2d690 (1994).

II

WA[5][5] The Fourth Amendment exclusionary rule prohibits the seizing law enforcement agencyin a civil forfeiture action from using evidence unlawfully obtained. Cf. Deeter v. Smith, 106 Wn.2d376, 377-79, 721 P.2d 519 (1986) (applying rule to UCSA civil forfeiture action). The superiorcourt determined in the criminal action brought by Pierce County against Barlindal that evidence


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[***9] seized during the search of Barlindal's home was unlawfully obtained. Bonney Lakecontends that issue preclusion does not apply in the civil forfeiture action because it was not aparty or in [*142] privity with Pierce County in the criminal action. We disagree.

WA[6][6] WA[7][7] WA[8][8] WA[9][9] The doctrine of collateral estoppel, or issue preclusion, barsrelitigation of an issue after the party estopped has had a full and fair opportunity to present itscase. Hanson v. City of Snohomish, 121 Wn.2d 552, 561, 852 P.2d 295 (1993). The purpose ofthe doctrine is to promote the policy of ending disputes, to promote judicial economy, and toprevent harassment of and inconvenience [**1293] to litigants. The difference between theburdens of proof in criminal and civil cases often precludes the application of collateral estoppelto a civil case when preceded by a criminal case. See, e.g., U.S. 354, United States v. OneAssortment of 89 Firearms, 465 U.S. 354, 104 S. Ct. 1099, 79 L. Ed. 2d 361 (1984). HN9Go tothis Headnote in the case.The doctrine may be applied, however, when the issue decided in theprior criminal case is identical with the issue presented in the subsequent [***10] civil case.Hanson, 121 Wn.2d at 561-62.

The requirements which must be met when applying the doctrine are: (1) the issue decided inthe prior adjudication must be identical with the one presented in the second; (2) the prioradjudication must have ended in a final judgment on the merits; (3) the party against whom theplea is asserted was a party or in privity with a party to the prior adjudication; and (4) application

of the doctrine must not work an injustice.

Hanson, 121 Wn.2d at 562.

Here there is an identity of issues. In the criminal action, Barlindal successfully argued that thesearch warrant was invalid. The evidence was suppressed. In this action, Bonney Lake arguesthat the search warrant was valid. The element of identity of issues is met for purposes ofcollateral estoppel.

The criminal proceeding ended with a final judgment on the merits; the suppression order was notappealed and the matter dismissed. The remaining elements are privity and that application of thedoctrine works no injustice.

WA[10][10] [*143] HN10Go to this Headnote in the case.Privity denotes a mutual or successiverelationship to the same right or property. [***11] Owens v. Kuro, 56 Wn.2d 564, 354 P.2d 696(1960). Our analysis leads us to hold that Pierce County and Bonney Lake were in privity underthe facts of this case. The facts show that Pierce County and Bonney Lake had a mutual interestand shared a common purpose in a successful prosecution of Barlindal as well as a successfulforfeiture of his possessions:

. Both Pierce County and Bonney Lake were acting on authority of state law;

. Both participated in the acquisition of a search warrant and the subsequent search;

. Both had a unity of purpose in securing Barlindal's conviction with lawfully obtained evidence;

. Either Pierce County or Bonney Lake could have been the "seizing agency" entitled to bringthe forfeiture action; 5

. Both the State and Bonney Lake would have benefited from an order of forfeiture of firearmshad Pierce County been successful in its criminal prosecution; 6

. The State would have benefited by receiving 10 percent of the net proceeds from forfeituressought by Bonney Lake; 7 Bonney Lake would have benefited from the forfeitures by retaining 90percent of the net proceeds; 8 and


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. The proceeds would have benefited law enforcement [***12] activity in Bonney Lake andPierce County. 9

These factors demonstrate that Bonney Lake and Pierce County were in privity from beginning toend. Their [*144] mutual objective was to work together to lawfully obtain evidence; they bothsought to obtain a criminal conviction; and both could have benefited financially from either asuccessful prosecution or a successful civil forfeiture. Bonney Lake's argument that it was not inprivity with Pierce County because it did not have an opportunity to present its argumentsconcerning the validity of the search is without merit. HN11Go to this Headnote in the case.It isthe obligation of a county prosecuting attorney to control a felony prosecution; 10 the inability of amunicipal attorney to control the prosecution does not diminish [**1294] the common intereststhat both agencies have in the outcome of the prosecution.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -5 RCW 69.50.505(c).6 "A maximum of ten percent of such [judicially forfeited] firearms may beretained for use by local law enforcement agencies . . . ." Former RCW 9.41.098(2) (LAWS OF1988, ch. 222, 8).7 RCW 69.50.505(h).8 RCW 69.50.505(i). [***13] 9 RCW 69.50.505(i).10RCW 36.27.020(d).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Bonney Lake argues that application of the doctrine of issue preclusion would work an injusticebecause the trial court's determination that the search warrant was invalid is erroneous as amatter of law. HN12Go to this Headnote in the case.Application of the doctrine works no injusticewhere the party being estopped had an opportunity in the first proceeding to present evidenceand arguments to the trial court on the issue of probable cause. Hanson, 121 Wn.2d at 563. Therecord shows that Bonney Lake had an opportunity to present evidence and arguments in thecriminal proceeding; its police conducted the initial investigation and presented the affidavit ofprobable cause; its police testified and its affidavit was reviewed at the criminal trial. Bonney Lakeargues that an injustice might arise where a ruling is controlled by a clearly erroneous priordetermination on a purely legal matter. See Franklin v. Klundt, 50 Wn. App. 10, 15, 746 P.2d1228, review denied, [***14] 109 Wn.2d 1018 (1987). This is not the situation here. The trialcourt's determination in the criminal trial that the affidavit in support of the search warrant was

inadequate was not clearly erroneous, where the affidavit failed to show the confidential informanthad a basis of knowledge for recognizing "controlled substances." Bonney Lake should have andmost likely did have a Pierce County deputy prosecutor [*145] review the affidavit, and, after thesuppression order, the prosecuting attorney -- a veteran -- did not appeal.

WA[11][11] Because all four requirements of the doctrine of issue preclusion are satisfied,Bonney Lake is precluded from relitigating the issue of whether the police had probable cause tosearch Barlindal's premises. Without probable cause to search the premises, Bonney Lake simplyhad insufficient evidence to show probable cause to believe that Barlindal owned firearms, muchless show that firearms were connected in some way to illegal drug activity.

It would contravene public policy to allow a multiplicity of suits contesting whether probable causesupported the issuance of a search warrant. Frequently, multijurisdictional forces conduct [***15]

joint drug searches; under Bonney Lake's analysis, each agency involved in the seizure wouldhave the right to contest the validity of the search. Often, some written document permits theagencies to act in concert, e.g., a commission by the Sheriff of the county authorizing all officersto act as deputy sheriffs or an interlocal agreement on cooperation and sharing of forfeitures.There is no evidence of such an agreement here, but, even without such evidence, the fact thatofficers from several jurisdictions often cooperate in conducting the same search militates againsta policy of allowing each jurisdiction to bring its own forfeiture proceeding. The trial court did noterr in applying issue preclusion.

III


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Barlindal failed to file a timely notice of appeal under RAP 5.2. Therefore, we will not consider hisappeal. RAP 5.1(a); RAP 1.2(a); RAP 18.8(b).

IV

Bonney Lake makes several additional arguments on [*146] appeal, but application of thedoctrine of issue preclusion is dispositive.

V

Both parties contend for attorney fees. We deny [***16] the requests because Barlindal's claimfor damages was not frivolous and because the City's appeal is not completely without merit.

We affirm.

Houghton, A.C.J., and Morgan, J., concur.4 james sr 2011-03-08 18:50:18

Member

Offline


Anthony T. Sam, as Administrator, Appellant, v. Okanogan County Sheriff's Office et al.,Respondents.

No. 24487-3-III

COURT OF APPEALS OF WASHINGTON, DIVISION THREE


December 14, 2006, Filed

SUBSEQUENT HISTORY: [***1]Reconsideration denied by Sam v. Okanogan County Sheriff's Office, 2007 Wash. App. LEXIS 91(Wash. Ct. App., Jan. 16, 2007)

CASE SUMMARY

PROCEDURAL POSTURE: Appellant, the executor of a deceased's estate, sought review of anorder from the Superior Court of Okanogan County (Washington), which ordered the forfeiture ofcash and other personal items belonging to the deceased pursuant to a petition filed byrespondents, a county and its sheriff's office.

OVERVIEW: The deceased and a friend were reported missing while flying a small aircraft inWashington. The airplane was located 14 miles south of the Canadian border. The remains of thetwo men were found at the scene, as well as $ 118,134 in cash and other personal items. Thesheriff instituted forfeiture proceedings for the cash and other items belonging to the deceased.The trial court ordered the seized items to be forfeited. On appeal, the executor claimed that hisdue process rights were violated and that the evidence did not support the order of seizure. Thecourt found that a hearing was scheduled within the 90-day period required by Wash. Rev. Code 69.50.505. The executor also received notice of the hearing. Hence, due process was satisfied.The executor was the person who requested the removal to superior court, in effect requesting


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the delay. Further, the trial court was permitted to allow the testimony of an agent with UnitedStates Immigration and Customs as an expert witness under Wash. R. Evid. 703. Finally, takenas a whole, the facts supported the trial court's finding, by a preponderance of the evidence, thatthe money was connected to drug activity.

OUTCOME: The court affirmed the judgment of the trial court.

CORE TERMS: forfeiture, claimant, controlled substance, airplane, law enforcement agency,seized, plane, drug trafficking, drug activity, property used, circumstantial evidence, probablecause, hearsay, detective, preponderance, marijuana, forfeited, seizing, flying, ownership,forfeiture action, substantial evidence, small amount, scheduled, seizure, notice, fuel tanks,border, drug transactions, review denied


Civil Procedure > Remedies > Forfeitures > General OverviewHN1Go to the description of this Headnote. A court derives its authority to order a forfeiture ofproperty solely from Wash. Rev. Code 69.50.505. The government is estopped from proceedingin a forfeiture action if it fails to follow statutory procedures.

Civil Procedure > Remedies > Forfeitures > HearingsConstitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Scope ofProtectionHN2Go to the description of this Headnote. When property is seized under Wash. Rev. Code 69.50.505 without a prior adversarial hearing, due process requires that a hearing be held within90 days.

Civil Procedure > Remedies > Forfeitures > HearingsHN3Go to the description of this Headnote. The 90-day hearing requirement in Wash. Rev.Code 69.50.505 applies regardless of the forum chosen by the claimant.

Civil Procedure > Remedies > Forfeitures > HearingsConstitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Scope of

ProtectionHN4Go to the description of this Headnote. In determining whether due process was violatedfor the failure to hold a forfeiture hearing within 90 days, a court considers (1) the length of thedelay, (2) the reason for the delay, (3) the claimant's assertion of his right to a hearing, and (4)whether the claimant suffered any prejudice.

Civil Procedure > Remedies > Forfeitures > Notice RequirementsHN5Go to the description of this Headnote. An adjudicative proceeding commences when aparty is notified that some stage of the proceeding will be conducted.

Civil Procedure > Appeals > Standards of Review > Abuse of DiscretionEvidence > Procedural Considerations > Preliminary Questions > Admissibility of Evidence >General Overview

HN6Go to the description of this Headnote. An appellate court reviews a trial court's decision toadmit evidence for abuse of discretion.

Evidence > Testimony > Lay Witnesses > Personal KnowledgeHN7Go to the description of this Headnote. A witness is to testify on matters about which hehas personal knowledge. Wash. R. Evid. 602.

Evidence > Hearsay > General OverviewEvidence > Testimony > Experts > AdmissibilityHN8Go to the description of this Headnote. Testimony relying on the practical experience and


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acquired knowledge of an expert may be admitted. These expert opinions may rely on hearsay.Wash. R. Evid. 703.

Civil Procedure > Appeals > Standards of Review > Substantial Evidence > Sufficiency ofEvidenceHN9Go to the description of this Headnote. Findings of fact are upheld if they are supported bysubstantial evidence.

Civil Procedure > Remedies > Forfeitures > General OverviewCivil Procedure > Appeals > Standards of Review > Substantial Evidence > Sufficiency ofEvidenceHN10Go to the description of this Headnote. An appellate court will consider only the findingssupported by substantial evidence in determining if an order of forfeiture was supported by theevidence.

Civil Procedure > Remedies > Forfeitures > Probable Cause RequirementsConstitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Scope ofProtectionHN11Go to the description of this Headnote. Wash. Rev. Code 69.50.505 generally providesthat law enforcement may seize property without process when probable cause exists to believe

the property is being used for illegal drug activity, or represents proceeds of illegal drug sales.

Civil Procedure > Remedies > Forfeitures > General OverviewEvidence > Procedural Considerations > Burdens of Proof > Preponderance of EvidenceHN12Go to the description of this Headnote. In all cases, the burden of proof is upon a lawenforcement agency to establish, by a preponderance of the evidence, that property is subject toforfeiture. Wash. Rev. Code 69.50.505(5).

Civil Procedure > Remedies > Forfeitures > General OverviewEvidence > Relevance > Circumstantial & Direct EvidenceHN13Go to the description of this Headnote. The federal government may meet its burden in aforfeiture case through direct or circumstantial evidence.


SUMMARY: Schultheis, A.C.J., dissents by separate opinion.

Nature of Action: The executor of the estate of a decedent whose remains were found in thewreckage of an airplane near the Canadian border sought to challenge proceedings initiated by asheriff's office for the forfeiture of a large sum of cash and other items discovered in thewreckage. The plaintiff's motion to remove the action to superior court was granted.

Superior Court: The Superior Court for Okanogan County, No. 03-2-00660-4, Jack Burchard, J.,entered a judgment of forfeiture on August 11, 2005.

Court of Appeals: Holding the hearing was timely and that the evidence established that the

seized property was used in drug trafficking, the court affirms the judgment.

HEADNOTES

WA(1)[1] Controlled SubstancesForfeituresStatutory ProvisionsExclusive Authority. RCW69.50.505 provides the exclusive mechanism by which a government agency may obtain theforfeiture of private property used for drug trafficking. A government agency is estopped fromproceeding in a forfeiture action if it fails to follow the procedures set forth in RCW 69.50.505.

WA(2)[2] Controlled SubstancesForfeituresProperty Used in Drug TraffickingClaim


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OwnershipHearingTimelinessDue ProcessIn General. Due process requires that aclaimant who contests a seizure of private property by a law enforcement agency under RCW69.50.505 be given a full adversarial hearing within 90 days of asserting the claim, regardless ofthe forum chosen by the claimant, if there was no preseizure adversarial hearing.

WA(3)[3] Controlled SubstancesForfeituresProperty Used in Drug TraffickingClaimOwnershipHearingTimelinessDue ProcessFactors. Whether a delay in thecommencement of a full hearing under former RCW 69.50.505(e) (2001) on a claim contestingthe seizure of private property by a law enforcement agency under former RCW 69.50.505(a)constitutes a violation of the claimant's right to due process depends on (1) the length of thedelay, (2) the reason for the delay, (3) the claimant's assertions of the right to a hearing, and (4)whether the claimant has been prejudiced by the delay.

WA(4)[4] Controlled SubstancesForfeituresProperty Used in Drug TraffickingClaimOwnershipHearingTimelinessNotice. Under chapter 34.05 RCW, a forfeiture hearingrequired by former RCW 69.50.505(e) (2001) is timely commenced if, within 90 days of the datethat the claimant notifies the seizing agency of a claim of ownership or a right to possession ofthe seized property, the agency notifies the claimant that some stage of the hearing will beconducted.

WA(5)[5] Controlled SubstancesForfeituresProperty Used in Drug TraffickingClaimOwnershipHearingTimelinessDue ProcessRemoval to Superior Court at Claimant'sRequest. A claimant to private property seized by a law enforcement agency under former RCW69.50.505(a) (2001) does not suffer a due process violation by a delay in the commencement of afull hearing on the claim under former RCW 69.50.505(e) if the prime reason for the delay wasthe claimant's request to have the case removed to superior court and, although the delay waslong, the reason for the delay was court congestion and the delay did not cause any significantprejudice to the claimant.

WA(6)[6] EvidenceReviewStandard of Review. A trial court's evidentiary rulings are reviewedfor an abuse of discretion.

WA(7)[7] EvidenceOpinion EvidenceExpert TestimonyQualificationsPractical

Experience. The testimony of an expert witness who relies on practical experience and acquiredknowledge may be admitted under ER 702.

WA(8)[8] EvidenceOpinion EvidenceExpert TestimonyReliance on Hearsay. An expertwitness may rely on and testify about hearsay on which the witness relied in forming his or herexpert opinions, although the admission of such hearsay does not constitute proof of the factsstated therein.

WA(9)[9] Controlled SubstancesForfeituresProperty Used in Drug TraffickingReviewAppellate ReviewFindings of FactSubstantial EvidenceNecessity. An appellate courtreviewing whether

seizure cases

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