2011-02-14 02:47:20 Member Offline Registered: 2009-10-11 Posts: 2,776 State v. Alaway, 64 Wn.App.

796 -------------------------------------------------------------------------------CASE SUMMARY PROCEDURAL POSTURE: Defendant sought review of the judgment of the Superior Court for Pacific County (Washington), which entered an order forfeiting property that was seized from his home 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 forfeiting the seized property. Defendant objected and filed a motion for the return of his property. The trial court found in favor of the State and ordered the forfeiture of most of the property. On appeal, the court reversed, finding that the state had failed to comply with the statutory requirements for forfeiture of personal property. The court found that the property was not contraband because its possession did not constitute a crime. The court found that it was error for the trial court to determine that it had an inherent power to dispose of the seized property because the power to order 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, return of property, rightful owner, subject to forfeiture, criminal activity, constitutes a crime, personal property, instrumentality, manufacturing, illegally, Criminal Law, statutory procedure, commission of a crime, tool chest, hand-carved, deputies LexisNexis Headnotes Hide Headnotes Criminal Law & Procedure > Sentencing > Forfeitures > General Overview HN1Go to the description of this Headnote. Wash. R. Crim. P. 2.3(e) governs motions for the return of illegally seized property and also motions for the return of lawfully seized property no longer needed for evidence. Wash. R. Crim. P. 2.3(e) does not set forth any criteria for determining when the State has a superior right of possession. A court may refuse to return seized 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 Overview HN2Go to the description of this Headnote. See Wash. R. Crim. P. 2.3(e). Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Goods Smuggling > General Overview Criminal Law & Procedure > Search & Seizure > Search Warrants > Confidential Informants > General Overview HN3Go to the description of this Headnote. "Contraband" has been defined as an object, the

possession of which, without more, constitutes a crime. Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview Criminal Law & Procedure > Sentencing > Forfeitures > General Overview HN4Go to the description of this Headnote. Property that can be lawfully possessed but that the defendant 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 the government must follow proper forfeiture procedures to divest him of that interest. Criminal Law & Procedure > Sentencing > Forfeitures > General Overview HN5Go to the description of this Headnote. The State cannot confiscate property merely because it is derivative contraband, but instead must forfeit it using proper forfeiture procedures. Civil Procedure > Remedies > Forfeitures > Hearings Civil Procedure > Remedies > Forfeitures > Notice Requirements Criminal Law & Procedure > Sentencing > Forfeitures > Proceedings HN6Go to the description of this Headnote. Materials and equipment used in manufacturing any controlled 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 response is made, a hearing must be held. Wash. Rev. Code 69.50.505(d), (e). Criminal Law & Procedure > Sentencing > Forfeitures > Proceedings HN7Go 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 Overview Criminal Law & Procedure > Sentencing > Forfeitures > General Overview HN8Go to the description of this Headnote. Wash. Rev. Code 69.50.505 provides the exclusive mechanism 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 the time its owner was arrested and charged. Seven months later, the State sought an order forfeiting the property to the sheriff. Superior Court: The Superior Court for Pacific County, No. 88-1-00110-1, Joel M. Penoyar, J., on July 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 forfeiture was statutory, and that the statutory procedure had not been followed, the court reverses the order. 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 person seeking its return is not the rightful owner, the property is contraband, or it is subject to forfeiture under 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.

WA[3][3] Criminal Law Contraband Derivative Contraband Forfeiture Property that is lawful to possess and which is seized because of its use in committing a crime is derivative contraband which cannot be retained by the State unless proper forfeiture procedures are used to deprive its owner of any ownership interest. WA[4][4] Forfeitures Basis Common Law or Statutory The forfeiture power of the State is wholly statutory. WA[5][5] Forfeitures Instrumentalities of a Crime Inherent Judicial Authority Courts do not have 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 that he used for growing marijuana. We reverse. Alaway was arrested on October 6, 1988, after deputies uncovered his large marijuana growing operation. At that time, the deputies seized a [***2] substantial amount of equipment and personal property as evidence. The seized property included a tool chest, handsaw, handtruck, several propane tanks, pumps, barrels, garbage cans, CO[2] tanks, a carpenter's square, fans, grow lights, 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-carved pipe. 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 or return of the seized property. On May 30, 1989, the State moved for an order forfeiting the property to the sheriff. Alaway objected and moved for return of all his property. On July 27, 1989, the court heard both motions. The State argued that the court had inherent power to order how property used in criminal activity should be disposed of. It conceded that statutory 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 a criminal case to order destruction or disposal of the property that was seized [*798] which the State 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 tool chest (except the crescent wrenches) had not been used in the marijuana growing operation. Thus, it ordered that they be returned to Alaway. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - WA[1][1] The issue on appeal is whether the court erred by denying the defendant's motion for

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 return of illegally seized property and also motions for the return of lawfully seized property no longer needed for evidence. State v. Marks, 114 Wn.2d 724, 790 P.2d 138 (1990); State v. Pelkey, 58 Wn. 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 of possession. According to federal authority, 3 a court may refuse to return seized 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. See, e.g., United States v. 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 may move the court for the return of the property on the ground that the property was illegally seized and that the person is lawfully entitled to possession thereof. If the motion is granted the property shall 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 for guidance. E.g., State v. Marks, 114 Wn.2d at 734; State v. Card, 48 Wn. App. at 789-90. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - The State does not argue that Alaway is not the rightful owner of the property. He owned the property 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 property because [**593] it was contraband. HN3Go to this Headnote in the case."Contraband" has been defined by the United States Supreme Court as an object, "the possession of which, without more, 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, 504 F. Supp. 502, 505 (D. Md. 1980). The fact that tools, building materials, and gardening supplies were 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 was not entitled to its return because he used it to grow marijuana. HN4Go to this Headnote in the case.Property that can be lawfully possessed but that the defendant has used as the instrumentality 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 does not automatically lose his property interest, and that the government must follow proper forfeiture procedures 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 the case.the State cannot confiscate property merely because it is derivative contraband, but instead must forfeit it using proper forfeiture procedures. Washington has a statutory forfeiture procedure. HN6Go to this Headnote in the case.Materials and equipment used in manufacturing any controlled substance are subject to seizure and forfeiture. RCW 69.50.505(a)(2). [*800] Notice must be given within 15 days of seizure. RCW

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 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, that Washington courts have inherent authority to order the forfeiture of property used in the commission of a crime, even without statutory authorization. In response, Alaway argues that Washington's forfeiture statute is exclusive and that unless statutory procedures are followed, a Washington court cannot order forfeiture. WA[4][4] WA[5][5] Every jurisdiction that has considered the question has held that HN7Go to this Headnote 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, 344 U.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); Utah Liquor 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 by virtue 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 on Deodands, [*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 Common Law 34-35 (1881). In sum, there is no authority anywhere for the State's contention that the court had the inherent power to order forfeiture of Alaway's property because he used it in his marijuana growing operation, and we hold that RCW 69.50.505 HN8Go to this Headnote in the case.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 property returned. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - 4 The lone exception is Lipscomb v. Stewart, 436 F. Supp. 863 (S.D. Ala. 1977), but it was reversed by the Court of Appeals, without opinion, in 578 F.2d at 869 (5th Cir. 1978). See United States v. Farrell, 606 F.2d 1341 (D.C. Cir. 1979). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - [***10] Reversed. __________________ "Ignorance of the law is no excuse" 2 james sr 2011-03-08 18:43:22 Member Offline Registered: 2009-10-11 Posts: 2,776 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

150 Wn. App. 360; 208 P.3d 574; 2009 Wash. App. LEXIS 1267 April 28, 2009, Oral Argument May 28, 2009, Filed PRIOR HISTORY: [***1] Appeal from Walla Walla Superior Court. Docket No: 06-2-00813-9. Judgment or order under review. 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 in rem, seized money. The Walla Walla Superior Court, Washington, granted summary judgment in favor of the city. Appellant sublessor appealed. OVERVIEW: Police officers received reports from a neighbor that led them to conclude that a house the sublessor leased served as a "drop house" for money or drugs. Money was seized from 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 sublessor contended that the city should be collaterally estopped from challenging the propriety of the search. The appellate court agreed that the forfeiture could not be based on an unlawful search and seizure. The question then became whether there were genuine issues of material fact as to the ownership and source of the money seized. No untainted evidence, other than a taillight that fit the sublessor's truck, associated the sublessor with the storage locker and its contents. The evidence seized from the storage unit did not make it more probably true that the money in the sublessor's house was furnished or intended to be furnished in exchange for a controlled substance, pursuant to Wash. Rev. Code 69.50.505(1)(g). A factual issue remained as to whether 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, plastic bags, glove, attorney fees, obtained evidence, criminal convictions, collaterally estopped LexisNexis Headnotes Hide Headnotes Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > Collateral Estoppel Civil Procedure > Appeals > Standards of Review > De Novo Review HN1Go to the description of this Headnote. Whether collateral estoppel bars a claim is a question of law that an appellate court reviews de novo. Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > Collateral Estoppel HN2Go 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 is asserted 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 to be applied. Criminal Law & Procedure > Sentencing > Forfeitures > Proceedings

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 who participate in the illegal transportation of controlled substances. Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Exclusionary Rule Criminal Law & Procedure > Search & Seizure > Exclusionary Rule > Rule Application & Interpretation Criminal Law & Procedure > Sentencing > Forfeitures > Proceedings HN4Go to the description of this Headnote. The exclusionary rule of U.S. Const. amend. IV applies to forfeiture proceedings and so precludes the use of illegally obtained evidence in those proceedings. Civil Procedure > Summary Judgment > Appellate Review > Standards of Review Civil Procedure > Summary Judgment > Standards > Appropriateness Civil Procedure > Summary Judgment > Standards > Genuine Disputes Civil Procedure > Summary Judgment > Supporting Materials > Affidavits Civil Procedure > Appeals > Standards of Review > De Novo Review HN5Go to the description of this Headnote. An appellate court reviews summary judgment orders de novo. An appellate court views the evidence in a light most favorable to the nonmoving party. 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 a matter of law. Wash. Super. Ct. Civ. R. 56(c). A genuine issue of material fact exists where reasonable minds could differ on the facts controlling the outcome of the litigation. Criminal Law & Procedure > Sentencing > Forfeitures > Proceedings HN6Go to the description of this Headnote. A court may refuse to return seized property no longer needed for evidence only if (1) a 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 > Proceedings Evidence > Procedural Considerations > Burdens of Proof > Preponderance of Evidence HN7Go to the description of this Headnote. See Wash. Rev. Code 69.50.505(5). Criminal Law & Procedure > Sentencing > Forfeitures > Proceedings Evidence > Procedural Considerations > Burdens of Proof > Preponderance of Evidence HN8Go to the description of this Headnote. In a forfeiture proceeding, a seizing entity has to show by a preponderance of the evidence that the money seized was furnished or intended to be furnished in exchange for a controlled substance. Wash. Rev. Code 69.50.505(1)(g), (5). Hide Headnotes / Syllabus SUMMARY: WASHINGTON OFFICIAL REPORTS SUMMARY Nature of Action: A city sought the forfeiture of $401,333.44 in cash that police officers had seized from 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 criminal prosecution, 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 lawful owner of the money and is entitled to possession thereof, the court reverses the judgment and remands the case for further proceedings.

HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES WA(1)[1] Judgment Collateral Estoppel Review Question of Law or Fact Standard of Review. Whether collateral estoppel applies to preclude the relitigation of an issue is a question of law that is reviewed de novo. WA(2)[2] Judgment Collateral Estoppel Elements In General. Collateral estoppel does not apply to bar the relitigation of an issue unless (1) the issue is identical to one decided in a prior adjudicatory proceeding, (2) the prior proceeding resulted in a final adjudication on the merits, (3) the party against whom the doctrine is asserted was a party or in privity with a party to the prior adjudication, and (4) application of the doctrine will not work an injustice on the party against whom it is asserted. WA(3)[3] Controlled Substances Forfeitures Cash In General. Cash is subject to forfeiture 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 Fourth Amendment's exclusionary rule applies to forfeiture proceedings under RCW 69.50.505 and prevents the State from using unlawfully obtained evidence in such proceedings. WA(6)[6] Controlled Substances Forfeitures Exclusionary Rule Application in Criminal Proceeding Collateral Estoppel. An agency seeking the forfeiture of property in a proceeding under RCW 69.50.505 may be collaterally estopped from introducing evidence that a criminal court has ruled to be inadmissible under the exclusionary rule. WA(7)[7] Controlled Substances Forfeitures Evidence Seized Property Limited Admissibility 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 of establishing 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 court reviews a summary judgment de novo, applying the standard of CR 56(c) and viewing the facts submitted in the light most favorable to the nonmoving party. WA(9)[9] Judgment Summary Judgment Issues of Fact Material Fact What Constitutes. For purposes of a summary judgment proceeding, a genuine issue of material fact exists 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 to return 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 forfeiture pursuant 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 under RCW 69.50.505, the government has the burden of proving by a preponderance of the evidence that the property is subject to forfeiture. The contesting claimant is entitled to the property if the government fails to satisfy its burden. WA(12)[12] Controlled Substances Forfeitures Property Used in Drug Trafficking Claim

 Ownership Question of Law or Fact. In a property forfeiture proceeding under RCW 69.50.505, the source and ownership of the property are questions of fact that may not be decided as matters of law if the source and ownership of the property are disputed and the record supports 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 in which the court rules only that there are genuine issues of material fact that remain to be tried. An award 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 of Walla Walla that forfeited money found in what police concluded was a drug house. We concluded in the related criminal prosecution that police illegally entered the house and that the superior 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 the evidence supports its right to the proceeds as a matter of law. We conclude that issues of fact remain, 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 conclude that a house served as a drop house for money or drugs. They investigated, ultimately entered the 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 reported nothing exceptional. A truck [*363] without a license plate, but with a temporary permit, was in the 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 later identified as Mr. Ibarra-Raya, go into a room off the hallway and then come out of the room and open the back door. Officer Morford ordered the men to remain in the house. Officer Morford then followed the two men into the house and conducted a protective sweep, seeing marijuana and a bundle 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's observations, 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 officers then obtained a warrant and searched a storage unit in nearby Milton-Freewater, Oregon. The storage unit contained methamphetamine, marijuana, and cocaine. The police also found a stolen truck and assorted items such as plastic bags and rubber gloves.

4 The State prosecuted Mr. Ibarra-Raya for possession with intent to deliver marijuana and possession of cocaine. The city of Walla Walla (City) sued to forfeit the $ 401,333.44 seized from the house. Mr. Ibarra-Raya moved to remove the forfeiture action to superior court. The court granted that motion. The City moved to dismiss for lack of standing based on Mr. Ibarra-Raya's denial that the money was his. Mr. Ibarra-Raya moved to stay the forfeiture proceedings pending resolution 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 forfeiture proceedings [***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 granted summary judgment to the City. The court concluded as a matter of law that Mr. Ibarra-Raya had no lawful interest in the money and that the money is subject to forfeiture because it is furnished or intended to be furnished for a controlled substance in violation of the Uniform Controlled Substances Act[, chapter 69.50 RCW,] or used or intended for use to violate the Uniform Controlled Substances Act. Clerk's Papers (CP) at 273-74; see also Report of Proceedings at 30, 40-41. 6 Mr. Ibarra-Raya appealed his criminal convictions and argued, among other things, that the court 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 court erroneously 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 and subsequent 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. DISCUSSION Collateral Estoppel 8 Mr. Ibarra-Raya first contends that the City should be collaterally estopped [**576] from challenging the propriety of the search. He argues that this issue was resolved by our opinion in his 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 Five Hundred & Fifty-Eight Dollars ($ 639,558) in U.S. Currency, 293 U.S. App. D.C. 384, 387 n.5, 955 F.2d 712 (1992). The City also argues that there is substantial untainted evidence that the cash discovered 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 claim is 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 is asserted 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 Controlled Substances Act. HN3Go to this Headnote in the case.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. 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.2d 601 (1999). HN4Go to this Headnote in the case.The Fourth Amendment's exclusionary rule

applies to forfeiture proceedings and so precludes the use of illegally obtained evidence in those proceedings. Deeter, 106 Wn.2d at 379. WA(6)[6] 12 At least two cases have applied collateral estoppel to forfeiture proceedings. In Barlindal v. City of Bonney Lake, the State pursued criminal proceedings against a defendant after 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 the seizure 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 criminal proceeding and excluded the evidence seized during the unlawful search. Id. at 138. The Court of Appeals 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 estoppel precluded 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 of money and personal property was legal. Id. And the Court of Appeals affirmed the trial court's decision 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 search and seizure. The City urges instead that the court may consider the seized money for the limited purpose of establishing its existence, and the court's in rem jurisdiction over it. Six Hundred Thirty-Nine Thousand Five Hundred & Fifty-Eight Dollars, 293 U.S. App. D.C. at 387 n.5. We agree. The City also urges that there is sufficient untainted evidence to support a finding that the money was used for or gained from drug sales. The question, then, is whether genuine issues of material 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 over whether the money is the product of drug activity. The City responds that Mr. Ibarra-Raya has no standing to challenge forfeiture of the money because he did not show that the money was his and, indeed, denied that the money was his. And the City argues [***9] that it made the necessary 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 orders de 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 any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Hisle, 151 Wn.2d at 861. A genuine issue of material fact exists where reasonable minds could differ on the facts 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 seized 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 (1992). The City retained the money here pursuant to Washington's Uniform Controlled Substances Act. It permits forfeiture of moneys furnished or intended to be furnished by any person in exchange for a controlled [***10] substance. RCW 69.50.505(1)(g).

WA(11)[11] 18 The City argues that Mr. Ibarra-Raya had the initial burden of showing a lawful interest in the money. The City relies on Irwin v. Mount for its position. 47 Wn. App. 749, 753, 737 P.2d 277 (1987). It is mistaken. Irwin applies a prior version of RCW 69.50.505. In 2001, the legislature replaced the sentence of former RCW 69.50.505(e) (1993) that read, In cases involving personal property, the burden of producing evidence shall be upon the person claiming to be the lawful owner or the person claiming to have the lawful right to possession of the property. Laws of 2001, ch. 168, 1. The legislature again revised the statute in 2003, changing section (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 burden of 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 to show by a [*368] preponderance of the evidence that the money seized was furnished or intended 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's pre-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 in the 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 house on 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 the truck parked in Mr. Ibarra-Raya's driveway, which was outfitted with after-market taillight assemblies. CP at 175, 685-86. [***12] However, no other untainted evidence in this record associates 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 the illegal 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 same type 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 the context of the evidence seized from the Walla Walla house, the evidence seized from the Oregon storage unit does not make it more probably true that the money in Mr. Ibarra-Raya's house was furnished or intended to be furnished in exchange for a controlled substance. RCW 69.50.505(1)(g). Without the tainted evidence, the City is left showing a storage unit located 20 miles away from the seized money, leased to an individual unassociated with this action, and containing a lock, marijuana, [***13] rubber gloves, and plastic bags, period. Factual issues then remain 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). We conclude only that there are genuine issues of material fact. Fees and costs will then abide the ultimate resolution of this dispute. In re Estate of Baird, 131 Wn.2d 514, 522, 933 P.2d 1031 (1997).

Brown and Korsmo, JJ., concur. 3 james sr 2011-03-08 18:48:35 Member Offline Registered: 2009-10-11 Posts: 2,776 GEORGE BARLINDAL, Respondent, v. CITY OF BONNEY LAKE, Appellant. No. 20028-7-II COURT OF APPEALS OF WASHINGTON, DIVISION TWO 84 Wn. App. 135; 925 P.2d 1289; 1996 Wash. App. LEXIS 654 November 15, 1996, Filed PRIOR HISTORY: [***1] Appeal from Superior Court of Pierce County. Docket No: 91-2-120451. 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 of Pierce County (Washington) that ordered the return of seized firearms to respondent citizen. The city 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 the firearms sustained no damage while being stored by the city. OVERVIEW: The citizen was arrested and was prosecuted by the county. The criminal charges were dismissed after the trial court in the criminal proceeding found that the evidence, including the 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 firearms being present during the search because the search had been determined to be unlawful. The city appealed from the superior court's ruling that the firearms should be returned to the citizen because probable cause for the seizure could not be established. The court affirmed the superior court's order. The court held that the city needed to establish that probable cause existed for the seizure of the firearms before they could be lawfully forfeited. The city was precluded from litigating the probable cause issue, under the doctrine of collateral estoppel, when the matter had been decided in the criminal proceeding. The court held that the city was in privity with the county that prosecuted the criminal matter because both entities had a mutual interest and shared common purpose in the prosecution and forfeiture. OUTCOME: The court affirmed the decision of the superior court that dismissed the city's action for 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, forfeiture proceedings, criminal prosecution, personal property, relitigation, prosecuting, unlawfully, probable, seizing, mutual, felony, probable cause, law enforcement officers, law enforcement agency LexisNexis Headnotes Hide Headnotes

Civil Procedure > Remedies > Forfeitures > General Overview Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Criminal Instruments & Tools > General Overview Criminal Law & Procedure > Sentencing > Forfeitures > General Overview HN1Go to the description of this Headnote. A court may refuse to return seized 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. Firearms are not contraband because their possession, without more, does not constitute a crime. Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > General Overview Criminal Law & Procedure > Criminal Offenses > Weapons > Use > General Overview Criminal Law & Procedure > Sentencing > Forfeitures > Proceedings HN2Go to the description of this Headnote. Firearms are subject to forfeiture when proven to be in the possession of a person arrested for a felony violation of the Uniform Controlled Substances Act, which provides in part that: the superior courts and the courts of limited jurisdiction of the State of Washington may order forfeiture of a firearm which is proven to be found in the possession or under the control of a person at the 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 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 that confiscated firearms be returned if there is no probable cause to believe a violation occurred or if the criminal proceedings are dismissed: the court shall order the firearm returned to the owner upon a showing that there is no probable cause to believe a violation of (1) of this section existed. Wash. Rev. Code 9.41.098(3). After confiscation, the firearm shall not be surrendered except to the owner if the proceedings are dismissed. Wash. Rev. Code 9.41.098(4). Civil Procedure > Remedies > Forfeitures > General Overview Contracts Law > Types of Contracts > Personal Property Criminal Law & Procedure > Sentencing > Forfeitures > Proceedings HN3Go 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 or are 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 or intangible personal property, proceeds, or assets acquired in whole or in part with proceeds traceable 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 to forfeiture under this chapter may be seized by any board inspector or law enforcement officer of this state upon process issued by any superior court having jurisdiction over the property. Civil Procedure > Remedies > Forfeitures > General Overview Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > General Overview Criminal Law & Procedure > Search & Seizure > Warrantless Searches > Search Incident to Lawful Arrest > Proximity of Search to Arrest HN4Go to the description of this Headnote. Seizure of personal property without process may be made under the Uniform Controlled Substances Act if: The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant; The board inspector or law enforcement officer has probable cause to believe that the property was used or is intended to be used in violation of this chapter. The person shall be afforded a reasonable 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 the person claiming to have the lawful right to possession of the property. Wash. Rev. Code 69.50.505.

Civil Procedure > Remedies > Forfeitures > Probable Cause Requirements Evidence > Inferences & Presumptions > General Overview HN5Go to the description of this Headnote. A seizing law enforcement agency has the initial burden in a forfeiture action of showing probable cause to believe that seized items were the proceeds of or used or intended to be used in illegal drug activities. Civil Procedure > Remedies > Forfeitures > General Overview Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Probable Cause HN6Go to the description of this Headnote. Probable cause requires the existence of reasonable grounds for suspicion supported by circumstances sufficiently strong to warrant a person of ordinary caution in the belief . Civil Procedure > Remedies > Forfeitures > General Overview Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Exclusionary Rule Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Scope of Protection HN7Go to the description of this Headnote. The Fourth Amendment exclusionary rule prohibits the seizing law enforcement agency in a civil forfeiture action from using evidence unlawfully obtained. Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > Collateral Estoppel HN8Go to the description of this Headnote. The doctrine of collateral estoppel, or issue preclusion, bars relitigation of an issue after the party estopped has had a full and fair opportunity to present its case. Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > Collateral Estoppel HN9Go to the description of this Headnote. The doctrine of collateral estoppel may be applied when the issue decided in the prior criminal case is identical with the issue presented in the subsequent 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 Overview HN10Go to the description of this Headnote. Privity denotes a mutual or successive relationship to the same right or property. Governments > Local Governments > Duties & Powers HN11Go to the description of this Headnote. It is the obligation of a county prosecuting attorney to control a felony prosecution; the inability of a municipal attorney to control the prosecution does not diminish the common interests that both agencies have in the outcome of the prosecution. Civil Procedure > Judgments > Preclusion & Effect of Judgments > Estoppel > Collateral Estoppel Criminal Law & Procedure > Search & Seizure > Search Warrants > General Overview HN12Go to the description of this Headnote. Application of the doctrine of collateral estoppel works no injustice where the party being estopped had an opportunity in the first proceeding to present evidence and arguments to the trial court on the issue of probable cause. Hide Headnotes / Syllabus SUMMARY: Nature of Action: The owner of an arsenal of firearms that had been seized by a city during a search of the owner's residence and county law enforcement officers sought to have the

firearms returned to him. The city had instituted forfeiture proceedings after a criminal prosecution against the owner brought by a county prosecuting authority had been dismissed upon the court's suppression of the evidence seized by the city from the owner's residence. The evidence was suppressed by the court on the basis of an invalid search warrant. No appeal was taken from the suppression. Superior Court: The Superior Court for Pierce County, No. 91-2-12045-1, Bruce W. Cohoe, J., on February 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 that the doctrine of collateral estoppel prevented the city from relitigating whether the police had probable cause to search the owner's residence and to believe that the owner was engaged in illegal drug activity at the time of the search, the court affirms the judgment. HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES WA[1][1] Searches and Seizures Return of Seized Property Test A person is entitled to the return of property unlawfully seized by law enforcement officials if (1) the person is the rightful owner, (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 object the 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 civil forfeiture under RCW 69.50.505, it must have probable cause to believe that the owner of the property has violated RCW 69.50, the Uniform Controlled Substances Act. Probable cause is a reasonable suspicion supported by circumstances sufficiently strong to warrant a person of ordinary 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 obtained evidence in civil forfeiture proceedings conducted under RCW 69.50.505. WA[6][6] Judgment Collateral Estoppel Elements Injustice Full and Fair Opportunity To Litigate The doctrine of collateral estoppel -- or issue preclusion -- bars the relitigation of an issue 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 collateral estoppel -- or issue preclusion -- are to promote the policy of ending disputes, to promote judicial economy, and to prevent harassment of and inconvenience to litigants. WA[8][8] Judgment Collateral Estoppel Issue in Criminal Prosecution Use in Civil Action The doctrine of collateral estoppel may be applied in a civil action to bar the relitigation of an identical issue resolved in a prior criminal action. WA[9][9] Judgment Collateral Estoppel Elements In General The doctrine of collateral estoppel -- or issue preclusion -- applies to prevent the relitigation of an issue previously decided if (1) the issue in the current action is identical to one decided in a prior action, (2) the prior action resulted in a final judgment on the merits, (3) the party against whom the doctrine is asserted was a party or in privity with a party to the prior action, and (4) application of the doctrine does not work an injustice.

WA[10][10] Judgment Collateral Estoppel Elements Privity What Constitutes For purposes of the doctrine of collateral estoppel, privity denotes a mutual or successive relationship to 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 forfeiture of items seized by law enforcement officers is collaterally estopped from litigating in the forfeiture proceedings the issue of whether the police had probable cause to conduct the search if the issue previously had been determined by a court in a criminal prosecution brought by a county prosecuting 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 judgment ordering the return of firearms to George Barlindal. Barlindal cross-appeals the trial court's finding that the firearms sustained no appreciable damage while being stored by Bonney Lake. Bonney Lake's civil forfeiture action followed an unsuccessful, unappealed criminal prosecution by Pierce County wherein evidence seized during the execution of an invalid warrant was suppressed. We hold that Bonney Lake was in privity with Pierce County in the criminal action, and that the doctrine of issue preclusion prevents Bonney Lake from relitigating in the forfeiture action whether the police had probable cause to believe that Barlindal was engaged in illegal drug activity at the time [***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 Lake police and the Pierce County Sheriff executed the search warrant, discovering and seizing a sizable amount of methamphetamine, over 200 firearms, assorted knives, cash, and other miscellaneous items. In a later criminal proceeding brought by the Pierce County Prosecuting Attorney, 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 his application for the search warrant how his confidential informant had a sufficient basis of knowledge for recognizing a "controlled substance." The trial court ordered the evidence suppressed and dismissed the criminal charge. The trial court also ruled that "no evidence or description of said evidence shall be used in any proceeding against the defendant [George Barlindal] 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). 1 Barlindal removed the action to superior court; 2 the City responded, contending it was entitled to forfeiture of the items under RCW 9.41.098 and the UCSA. In the forfeiture proceeding, the trial court excluded any evidence of drugs or firearms being present at the time of the search because, in the prior criminal proceeding, the search had already been determined to be unlawful. The court also ruled as inadmissible hearsay offered by Bonney Lake to show that the police had probable cause to believe that the firearms were the proceeds of or used in drug transactions. The excluded hearsay involved statements from two officers that confidential informants had told them before obtaining the search warrant that Barlindal was known to exchange guns for drugs and was known to be armed during drug deals. After making these

rulings, the trial court concluded that Bonney Lake could not establish probable cause to "forfeit the seized items." It [*139] ordered Bonney Lake to return to Barlindal the firearms he owned. 3 Bonney Lake appeals. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - 1 RCW 69.50.505. [***4] 2 "Any person asserting a claim or right may remove the matter to a court of competent jurisdiction if the aggregate value of the article or articles involved is more than 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 damages claim. Both parties apparently agreed to treat Barlindal's replevin action as accomplishing removal, and we address it as such.3 Barlindal established his ownership of all of the firearms except 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 return seized 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.2d 1390 (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 gardening supplies used to grow marijuana not contraband). A HN2Go to this Headnote in the case.Firearms are subject to forfeiture when proven to be in the possession 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 a firearm which is proven to be: . . . (c) Found in the possession or under the control of a person at the 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 substances act, chapter 69.50 RCW. Former RCW 9.41.098(1) (LAWS OF 1989, ch. 222, 8). 4 RCW 9.41 also requires that confiscated firearms be returned if there is no probable cause to believe a violation occurred or if the 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) of this section [**1292] existed . . . ." RCW 9.41.098(3). [***6] "After confiscation, the firearm shall not be surrendered except . . . to the owner if the proceedings are dismissed . . . ." RCW 9.41.098(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 a nonfelony 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, firearms are subject to forfeiture when they are used in or are the proceeds of illegal drug transactions:

(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 . . . any controlled substance in violation of [RCW 69.50]; .... (7) All . . . tangible or intangible personal property, proceeds, or assets acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation [***7] of [chapter 69.50] . . . . 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 board inspector or law enforcement officer of this state upon process issued by any superior court having jurisdiction over the property. . . . HN4Go to this Headnote in the case.Seizure of personal property without process may be made if: (1) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant; .... (4) The board inspector or law enforcement officer has probable cause to believe that the property 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 or right. . . . In cases involving personal property, the burden of producing evidence shall be upon the 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 has the initial burden in a forfeiture action of showing probable [***8] cause to believe that seized items 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 to conclude that, to obtain possession of Barlindal's firearms by civil forfeiture, the State had the initial burden of showing probable cause to believe that Barlindal violated RCW 69.50. HN6Go to this 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 caution in the belief . . . ." Adams County v. One 1978 Blue Ford Bronco, 74 Wn. App. 702, 706, 875 P.2d 690 (1994). II WA[5][5] The Fourth Amendment exclusionary rule prohibits the seizing law enforcement agency in a civil forfeiture action from using evidence unlawfully obtained. Cf. Deeter v. Smith, 106 Wn.2d 376, 377-79, 721 P.2d 519 (1986) (applying rule to UCSA civil forfeiture action). The superior court determined in the criminal action brought by Pierce County against Barlindal that evidence

[***9] seized during the search of Barlindal's home was unlawfully obtained. Bonney Lake contends that issue preclusion does not apply in the civil forfeiture action because it was not a party 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, bars relitigation of an issue after the party estopped has had a full and fair opportunity to present its case. Hanson v. City of Snohomish, 121 Wn.2d 552, 561, 852 P.2d 295 (1993). The purpose of the doctrine is to promote the policy of ending disputes, to promote judicial economy, and to prevent harassment of and inconvenience [**1293] to litigants. The difference between the burdens of proof in criminal and civil cases often precludes the application of collateral estoppel to a civil case when preceded by a criminal case. See, e.g., U.S. 354, United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S. Ct. 1099, 79 L. Ed. 2d 361 (1984). HN9Go to this Headnote in the case.The doctrine may be applied, however, when the issue decided in the prior 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 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. Hanson, 121 Wn.2d at 562. Here there is an identity of issues. In the criminal action, Barlindal successfully argued that the search warrant was invalid. The evidence was suppressed. In this action, Bonney Lake argues that the search warrant was valid. The element of identity of issues is met for purposes of collateral estoppel. The criminal proceeding ended with a final judgment on the merits; the suppression order was not appealed and the matter dismissed. The remaining elements are privity and that application of the doctrine works no injustice. WA[10][10] [*143] HN10Go to this Headnote in the case.Privity denotes a mutual or successive relationship 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 under the facts of this case. The facts show that Pierce County and Bonney Lake had a mutual interest and shared a common purpose in a successful prosecution of Barlindal as well as a successful forfeiture 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 bring the forfeiture action; 5 . Both the State and Bonney Lake would have benefited from an order of forfeiture of firearms had Pierce County been successful in its criminal prosecution; 6 . The State would have benefited by receiving 10 percent of the net proceeds from forfeitures sought by Bonney Lake; 7 Bonney Lake would have benefited from the forfeitures by retaining 90 percent of the net proceeds; 8 and

. The proceeds would have benefited law enforcement [***12] activity in Bonney Lake and Pierce County. 9 These factors demonstrate that Bonney Lake and Pierce County were in privity from beginning to end. Their [*144] mutual objective was to work together to lawfully obtain evidence; they both sought to obtain a criminal conviction; and both could have benefited financially from either a successful prosecution or a successful civil forfeiture. Bonney Lake's argument that it was not in privity with Pierce County because it did not have an opportunity to present its arguments concerning the validity of the search is without merit. HN11Go to this Headnote in the case.It is the obligation of a county prosecuting attorney to control a felony prosecution; 10 the inability of a municipal attorney to control the prosecution does not diminish [**1294] the common interests that 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 be retained for use by local law enforcement agencies . . . ." Former RCW 9.41.098(2) (LAWS OF 1988, ch. 222, 8).7 RCW 69.50.505(h).8 RCW 69.50.505(i). [***13] 9 RCW 69.50.505(i).10 RCW 36.27.020(d). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - Bonney Lake argues that application of the doctrine of issue preclusion would work an injustice because the trial court's determination that the search warrant was invalid is erroneous as a matter of law. HN12Go to this Headnote in the case.Application of the doctrine works no injustice where the party being estopped had an opportunity in the first proceeding to present evidence and arguments to the trial court on the issue of probable cause. Hanson, 121 Wn.2d at 563. The record shows that Bonney Lake had an opportunity to present evidence and arguments in the criminal proceeding; its police conducted the initial investigation and presented the affidavit of probable cause; its police testified and its affidavit was reviewed at the criminal trial. Bonney Lake argues that an injustice might arise where a ruling is controlled by a clearly erroneous prior determination on a purely legal matter. See Franklin v. Klundt, 50 Wn. App. 10, 15, 746 P.2d 1228, review denied, [***14] 109 Wn.2d 1018 (1987). This is not the situation here. The trial court'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 informant had a basis of knowledge for recognizing "controlled substances." Bonney Lake should have and most likely did have a Pierce County deputy prosecutor [*145] review the affidavit, and, after the suppression 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 to search Barlindal's premises. Without probable cause to search the premises, Bonney Lake simply had insufficient evidence to show probable cause to believe that Barlindal owned firearms, much less 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 cause supported 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 would have the right to contest the validity of the search. Often, some written document permits the agencies to act in concert, e.g., a commission by the Sheriff of the county authorizing all officers to 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 that officers from several jurisdictions often cooperate in conducting the same search militates against a policy of allowing each jurisdiction to bring its own forfeiture proceeding. The trial court did not err in applying issue preclusion. III

Barlindal failed to file a timely notice of appeal under RAP 5.2. Therefore, we will not consider his appeal. 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 the doctrine of issue preclusion is dispositive. V Both parties contend for attorney fees. We deny [***16] the requests because Barlindal's claim for 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 Registered: 2009-10-11 Posts: 2,776 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 136 Wn. App. 220; 148 P.3d 1086; 2006 Wash. App. LEXIS 2727 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 an order from the Superior Court of Okanogan County (Washington), which ordered the forfeiture of cash and other personal items belonging to the deceased pursuant to a petition filed by respondents, a county and its sheriff's office. OVERVIEW: The deceased and a friend were reported missing while flying a small aircraft in Washington. The airplane was located 14 miles south of the Canadian border. The remains of the two men were found at the scene, as well as $ 118,134 in cash and other personal items. The sheriff 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 his due process rights were violated and that the evidence did not support the order of seizure. The court 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

the delay. Further, the trial court was permitted to allow the testimony of an agent with United States Immigration and Customs as an expert witness under Wash. R. Evid. 703. Finally, taken as a whole, the facts supported the trial court's finding, by a preponderance of the evidence, that the 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, probable cause, hearsay, detective, preponderance, marijuana, forfeited, seizing, flying, ownership, forfeiture action, substantial evidence, small amount, scheduled, seizure, notice, fuel tanks, border, drug transactions, review denied LexisNexis Headnotes Hide Headnotes Civil Procedure > Remedies > Forfeitures > General Overview HN1Go to the description of this Headnote. A court derives its authority to order a forfeiture of property solely from Wash. Rev. Code 69.50.505. The government is estopped from proceeding in a forfeiture action if it fails to follow statutory procedures. Civil Procedure > Remedies > Forfeitures > Hearings Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Scope of Protection HN2Go 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 within 90 days. Civil Procedure > Remedies > Forfeitures > Hearings HN3Go 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 > Hearings Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Scope of Protection HN4Go to the description of this Headnote. In determining whether due process was violated for the failure to hold a forfeiture hearing within 90 days, a court considers (1) the length of the delay, (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 Requirements HN5Go to the description of this Headnote. An adjudicative proceeding commences when a party is notified that some stage of the proceeding will be conducted. Civil Procedure > Appeals > Standards of Review > Abuse of Discretion Evidence > 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 to admit evidence for abuse of discretion. Evidence > Testimony > Lay Witnesses > Personal Knowledge HN7Go to the description of this Headnote. A witness is to testify on matters about which he has personal knowledge. Wash. R. Evid. 602. Evidence > Hearsay > General Overview Evidence > Testimony > Experts > Admissibility HN8Go to the description of this Headnote. Testimony relying on the practical experience and

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 of Evidence HN9Go to the description of this Headnote. Findings of fact are upheld if they are supported by substantial evidence. Civil Procedure > Remedies > Forfeitures > General Overview Civil Procedure > Appeals > Standards of Review > Substantial Evidence > Sufficiency of Evidence HN10Go to the description of this Headnote. An appellate court will consider only the findings supported by substantial evidence in determining if an order of forfeiture was supported by the evidence. Civil Procedure > Remedies > Forfeitures > Probable Cause Requirements Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Scope of Protection HN11Go to the description of this Headnote. Wash. Rev. Code 69.50.505 generally provides that 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 Overview Evidence > Procedural Considerations > Burdens of Proof > Preponderance of Evidence HN12Go to the description of this Headnote. In all cases, the burden of proof is upon a law enforcement agency to establish, by a preponderance of the evidence, that property is subject to forfeiture. Wash. Rev. Code 69.50.505(5). Civil Procedure > Remedies > Forfeitures > General Overview Evidence > Relevance > Circumstantial & Direct Evidence HN13Go to the description of this Headnote. The federal government may meet its burden in a forfeiture case through direct or circumstantial evidence. Hide Headnotes / Syllabus 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 the wreckage of an airplane near the Canadian border sought to challenge proceedings initiated by a sheriff's office for the forfeiture of a large sum of cash and other items discovered in the wreckage. 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. RCW 69.50.505 provides the exclusive mechanism by which a government agency may obtain the forfeiture of private property used for drug trafficking. A government agency is estopped from proceeding 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

OwnershipHearingTimelinessDue ProcessIn General. Due process requires that a claimant who contests a seizure of private property by a law enforcement agency under RCW 69.50.505 be given a full adversarial hearing within 90 days of asserting the claim, regardless of the forum chosen by the claimant, if there was no preseizure adversarial hearing. WA(3)[3] Controlled SubstancesForfeituresProperty Used in Drug TraffickingClaim OwnershipHearingTimelinessDue ProcessFactors. Whether a delay in the commencement of a full hearing under former RCW 69.50.505(e) (2001) on a claim contesting the 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 the delay, (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 TraffickingClaim OwnershipHearingTimelinessNotice. Under chapter 34.05 RCW, a forfeiture hearing required by former RCW 69.50.505(e) (2001) is timely commenced if, within 90 days of the date that the claimant notifies the seizing agency of a claim of ownership or a right to possession of the seized property, the agency notifies the claimant that some stage of the hearing will be conducted. WA(5)[5] Controlled SubstancesForfeituresProperty Used in Drug TraffickingClaim OwnershipHearingTimelinessDue ProcessRemoval to Superior Court at Claimant's Request. A claimant to private property seized by a law enforcement agency under former RCW 69.50.505(a) (2001) does not suffer a due process violation by a delay in the commencement of a full hearing on the claim under former RCW 69.50.505(e) if the prime reason for the delay was the claimant's request to have the case removed to superior court and, although the delay was long, the reason for the delay was court congestion and the delay did not cause any significant prejudice to the claimant. WA(6)[6] EvidenceReviewStandard of Review. A trial court's evidentiary rulings are reviewed for an abuse of discretion. WA(7)[7] EvidenceOpinion EvidenceExpert TestimonyQualificationsPractical Experience. The testimony of an expert witness who relies on practical experience and acquired knowledge may be admitted under ER 702. WA(8)[8] EvidenceOpinion EvidenceExpert TestimonyReliance on Hearsay. An expert witness may rely on and testify about hearsay on which the witness relied in forming his or her expert opinions, although the admission of such hearsay does not constitute proof of the facts stated therein. WA(9)[9] Controlled SubstancesForfeituresProperty Used in Drug TraffickingReview Appellate ReviewFindings of FactSubstantial EvidenceNecessity. An appellate court reviewing whether the forfeiture of private property seized by a law enforcement agency under former RCW 69.50.505(a) (2001) was supported by the evidence considers only those findings of fact entered by the trial court that are supported by substantial evidence. WA(10)[10] Controlled SubstancesForfeituresProperty Used in Drug TraffickingClaim HearingProofDirect or Circumstantial Evidence. In a hearing under former RCW 69.50.505(e) (2001) concerning the forfeiture of private property seized by a law enforcement agency under former RCW 69.50.505(a), the government may rely on direct or circumstantial evidence to meet its burden under RCW 69.50.505(5) (as amended by Laws of 2003, ch. 53, 348) of proving, by a preponderance of the evidence, that the property is subject to forfeiture. WA(11)[11] Controlled SubstancesForfeituresProperty Used in Drug TraffickingClaim HearingProofSufficiency of EvidenceMoney Found in Airplane Wreckage. In a hearing

under former RCW 69.50.505(e) (2001) concerning the forfeiture of money found in the wreckage of an airplane near the United States border and seized by a law enforcement agency under former RCW 69.50.505(a), evidence presented by the government that the money found on the airplane was an unusually large sum, was considerably more than what is permitted to be transported across the border without prior reporting, was found close to a small amount of a controlled substance, and was bundled and located in several different containers; that a notebook that appeared to be a log of drug transactions was also found in the wreckage; that the airplane was retrofitted with extra fuel tanks and cargo storage; and that the airplane's controls suggested that the airplane was being flown low in an attempt to avoid radar detection is sufficient to satisfy the government's burden under RCW 69.50.505(5) (as amended by Laws of 2003, ch. 53, 348) of proving, by a preponderance of the evidence, that the property was used in drug trafficking and is subject to forfeiture. COUNSEL: Ronald A. Hammett (of Law Office of Ronald A. Hammett), for appellant. Heidi E. Smith (of Karro & Smith, PLLC) and Karl F. Sloan, Prosecuting Attorney, and Stephen M. Bozarth, Deputy, for respondents. JUDGES: Author: KENNETH H. KATO. Concurring: STEPHEN M. BROWN. Dissenting: JOHN A. SCHULTHEIS. OPINION BY: KENNETH H. KATO OPINION [*223] 1 [**1087] Kato, J. Anthony Sam is the executor of Shura Lewton's estate. The Okanogan County Sheriff instituted forfeiture proceedings for cash and other items belonging to Mr. Lewton. The court ordered the seized items to be forfeited. Contending his due process rights were violated and the evidence did not support the order of seizure, Mr. Sam appeals. We affirm. 2 On April 18, 2003, Shura Lewton and David Nichols, both California residents, were reported missing while flying a small aircraft in Washington. On August 8, 2003, the airplane was located 14 miles south of the Canadian border in Okanogan County. The remains of Mr. Lewton and Mr. Nichols were found at the scene, as well as $118,134 [***2] in cash and other personal items. 3 On August 19, 2003, Cheryl Rios-Diaz Lewton, Mr. Lewton's former wife, received notice from the Okanogan [*224] County Sheriff that he was seeking to forfeit the cash and other items found on the plane. Ms. Rios-Diaz Lewton made a claim. A hearing was set for November 6, 2003. 4 On October 28, 2003, Anthony Sam notified the Okanogan County Sheriff he was the executor of Mr. Lewton's estate. He demanded that all personal property be returned to the estate and/or requested a hearing in superior court. The Okanogan County Sheriff responded that Mr. Sam's claim was not timely but informed him of the hearing on November 6. The hearing was later continued until December 9, 2003. 5 [**1088] On December 8, 2003, Mr. Sam filed a motion removing the action to superior court. Both parties moved for summary judgment. The court denied the motions. The case proceeded to bench trial in July 2005. 6 At trial, Detective Kreg Sloan testified he conducted a death investigation at the crash scene. The plane was registered to Mr. Nichols and was found 14 miles south of the Canadian border. Detective Sloan noticed the top portion of the instrument panel where switches were located was broken [***3] off. A heat switch, normally turned on during icy conditions, was on as was the propeller ice switch. The transponder was in the off position. The detective noted this was unusual because when flying in poor conditions, it is normal to fly with the transponder on, causing the aircraft to show up as an unidentified blip on radar.

7 The rear passenger seat had been removed and the airplane had two extra fuel tanks. This suggested the plane was fitted to allow for extra cargo. The extra fuel tanks allowed them to fly without making suspicious stops. The plane also had smaller than normal identifying letters and numbers, making identification more difficult. 8 Detective Sloan found a leather bag containing a box with $95,080 in cash. There was an envelope attached to the box with $5,000 more in cash and another bag with $15,000 in cash. $2,474 was found in Mr. Nichols' pants pockets; $580 was found in Mr. Lewton's pants pockets. The [*225] money was bundled in groups of $100, $50, and $20 bills. The detective also found a ledger appearing to show drug transactions. One entry read 3100 - 1 lb, Clerk's Papers at 109, representing the payment of $3,100 for a pound of B.C. Bud marijuana. The date [***4] of one entry coincided with an earlier trip made by Mr. Nichols, whose shaving kit contained papers and a small amount of marijuana. 9 Tyler Morgan, an agent with United States Immigration and Customs, testified as an expert witness. He believed the money was drug money as evidenced by the manner in which it was packaged. Report of Proceedings at 114. He opined the airplane intended to go into Canada where the men planned to use the money to buy drugs. 10 Agent Morgan also testified that federal law required the reporting at customs prior to departure of over $10,000 in cash being transported from the United States to Canada. No such report existed here, suggesting the money was for something other than a legitimate business. 11 Mr. Sam testified and said Mr. Lewton had inherited money from his grandmother and dealt mainly in cash. 12 The court ordered the seized items to be forfeited. This appeal follows. WA(1)[1] 13 Mr. Sam claims the forfeiture action violated due process because the hearing was not held within the requisite 90 days. HN1Go to this Headnote in the case.A court derives its authority to order a forfeiture of property solely from RCW 69.50.505. Bruett v. 18328 11th Ave. Ne., 93 Wn. App. 290, 296, 968 P.2d 913 (1998); [***5] Espinoza v. City of Everett, 87 Wn. App. 857, 865, 943 P.2d 387 (1997), review denied, 134 Wn.2d 1016 (1998). The government is estopped from proceeding in a forfeiture action if it fails to follow statutory procedures. State v. Alaway, 64 Wn. App. 796, 799-800, 828 P.2d 591, review denied, 119 Wn.2d 1016 (1992). WA(2)[2] 14 HN2Go to this Headnote in the case.When property is seized under RCW 69.50.505 without a prior adversarial hearing, due process requires that a hearing be held within 90 days. Tellevik v. 31641 W. Rutherford St., 125 Wn.2d 364, 371-72, 884 P.2d 1319 [*226] (1994) (Tellevik II); Tellevik v. 31641 W. Rutherford St., 120 Wn.2d 68, 87, 838 P.2d 111, 845 P.2d 1325 (1992) (Tellevik I); Espinoza, 87 Wn. App. at 865 15 The Okanogan County Sheriff argues that pursuant to former RCW 69.50.505(e) (2001), the 90-day requirement does not apply when a claimant removes a forfeiture action to a court. However, Tellevik II makes it clear HN3Go to this Headnote in the case.the 90-day requirement applies regardless of the forum chosen by the claimant. Tellevik II, 125 Wn.2d at 372-74. [***6] WA(3)[3-5] 16 Relying on Valerio v. Lacey Police Department, 110 Wn. App. 163, 172, 39 P.3d 332 (2002), and Escamilla v. Tri-City Metro Drug Task Force, 100 Wn. App. 742, 999 [**1089] P.2d 625 (2000), the Okanogan County Sheriff asserts due process was nevertheless satisfied because a hearing had been scheduled within 90 days. In Valerio, the claimant's hearing was postponed due to his own request that the case be removed to superior court. Valerio, 110 Wn. App. at 173. The court found the claimant could have had a hearing within the 90-day requirement so it was scheduled within the time limits. Id. at 174. The hearing was eventually held a little more than two months after the 90-day time limit expired. Id. The court held due process

was not violated because the claimant had not shown the superior court could have set an earlier date or the hearing was not held within a reasonable time in light of the superior court calendar. Id. HN4Go to this Headnote in the case.In making this determination, the court considered (1) the length of the delay, (2) the reason for the delay, (3) the claimant's assertion of his right to a hearing, and (4) whether the claimant suffered [***7] any prejudice. Id. (citing In re Forfeiture of One 1988 Black Chevrolet Corvette Auto., 91 Wn. App. 320, 324, 963 P.2d 187 (1997)). 17 In Escamilla, this court followed the Administrative Procedure Act, chapter 34.05 RCW, and held HN5Go to this Headnote in the case.an adjudicative proceeding commences when a party is notified that some stage of the proceeding will be conducted. Escamilla, 100 Wn. App. at 749. Because notice of the hearing there was sent within 90 days, due process was satisfied. Id. [*227] 18 Mr. Sam was entitled to a hearing within 90 days of the seizure of the property, regardless of the forum. A hearing was indeed scheduled within the 90-day period, and he received notice of the hearing. This satisfies due process under Escamilla and Valerio. Mr. Sam was also the person who requested the removal to superior court, in effect requesting the delay. 19 We also consider the four Valerio factors. The delay here was long. The reason for the delay was court congestion. Mr. Sam claims he was prejudiced by the delay, but he fails to show how he was prejudiced. Due process was satisfied in these circumstances. WA(6)[6-8] 20 Mr. Sam next claims the court erred by admitting and [***8] relying on hearsay testimony by Agent Morgan. HN6Go to this Headnote in the case.We review a trial court's decision to admit evidence for abuse of discretion. State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001). HN7Go to this Headnote in the case.A witness is to testify on matters about which he has personal knowledge. See ER 602. But HN8Go to this Headnote in the case.testimony relying on the practical experience and acquired knowledge of an expert may be admitted. State v. Stenson, 132 Wn.2d 668, 717, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). These expert opinions may rely on hearsay. ER 703; Sunbreaker Condo. Ass'n v. Travelers Ins. Co., 79 Wn. App. 368, 374, 901 P.2d 1079 (1995), review denied, 129 Wn.2d 1020 (1996). 21 Agent Morgan testified about the reports and information he received and read from the authorities, which he subsequently used to form his opinions. The court was thus permitted to allow the admission of this testimony. Group Health Coop. of Puget Sound, Inc. v. Dep't of Revenue, 106 Wn.2d 391, 399, 722 P.2d 787 (1986). The admission of these facts, however, is not proof of them. Id. at 399-400. [***9] 22 Mr. Sam claims five of the court's findings of fact were not supported by the evidence because they were based on Agent Morgan's reliance on hearsay. See World Wide Video, Inc. v. City of Tukwila, 117 Wn.2d 382, 387, 816 P.2d 18 (1991) (HN9Go to this Headnote in the case.findings are upheld if they are supported by substantial evidence), cert. denied, 503 U.S. 986 (1992). [*228] 23 Finding of fact 7 indicates Mr. Nichols had flown through Wenatchee 14 times and refueled his aircraft. The finding further states there was no legitimate reason given for the purpose of these flights. This testimony was based upon the reports, which were not admitted into evidence. The admission of the testimony, however, was not proof of the facts. Without more, the finding is unsupported by substantial evidence. 24 Finding of fact 8 relates to the activities of Mr. Lewton and Mr. Nichols immediately prior to the crash. Finding of fact 9 [**1090] refers to items found on the plane and the manner in which the two men died. Finding of fact 16 refers to the fact that the plane was flying with the transponder off. Finding of fact 17 referred to Agent Morgan's opinions about how to spot drug smugglers. This [***10] evidence was testified to by both Agent Morgan and Detective Sloan. There has been no objection to Detective Sloan's testimony, which provides substantial evidence to support the finding.

WA(9)[9] 25 The court erred by entering finding of fact 7 because it accepted Agent Morgan's reliance on hearsay as proof of the facts. The remaining findings, however, were supported by admissible evidence. HN10Go to this Headnote in the case.We will consider only the findings supported by substantial evidence in determining if the order of forfeiture was supported by the evidence. See State v. Caldera, 66 Wn. App. 548, 551, 832 P.2d 139 (1992). 26 Mr. Sam contends the evidence did not support the court's order of forfeiture. HN11Go to this Headnote in the case.RCW 69.50.505 generally provides that 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. Escamilla, 100 Wn. App. at 747. 27 Under former RCW 69.50.505(b)(4), the seizing agency had the initial burden of showing probable cause to believe the seized items were the proceeds of or intended to be used in [***11] illegal drug activities. Valerio, 110 Wn. App. at 176. Once probable cause was established, the burden shifted to the claimant to prove by a preponderance of the evidence either that the property was not used or intended [*229] to be in an illegal drug activity or that it was used without the owner's consent or knowledge. Id. WA(10)[10, 11] 28 In 2003, the legislature changed the burden of proof required: HN12Go to this Headnote in the case.In all cases, the burden of proof is upon the law enforcement agency to establish, by a preponderance of the evidence, that the property is subject to forfeiture. RCW 69.50.505(5); see Laws of 2003, ch. 53, 348. No Washington case addresses this change. 29 Federal law, however, went through a similar change and is accordingly instructive. United States v. $22,991.00, More or Less, in U.S. Currency, 227 F. Supp. 2d 1220, 1231 (S.D. Ala. 2002). HN13Go to this Headnote in the case.The government may meet its burden through direct or circumstantial evidence. Id. Here, the court based its decision on several facts. First, it noted that the amount of money found on the plane was an unusually large sum. It was considerably more than what is permitted to be transported [***12] to Canada without prior reporting. This fact is highly probative of illegal activity and can help establish a link to illegal drug activity. United States v. $121,100.00 in U.S. Currency, 999 F.2d 1503, 1507 (11th Cir. 1993); United States v. Thomas, 913 F.2d 1111, 1115 (4th Cir. 1990); United States v. U.S. Currency, $83,310.78, 851 F.2d 1231, 1236 (9th Cir. 1988). 30 The money was found close to a small amount of marijuana. This is also circumstantial evidence of illegal drug activity. $22,991.00, 227 F. Supp. 2d at 1233. In addition to the marijuana, the police found a notebook that appeared to be a log of drug transactions. It is also circumstantial evidence the money was connected to illegal drug activity. Id.; see also United States v. $149,442.43 in U.S. Currency, 965 F.2d 868, 877 (10th Cir. 1992). 31 There are several other facts proving circumstantial evidence the money was connected to illegal drug activity. The money was bundled and located in several different containers. The plane was retrofitted with extra fuel tanks and cargo storage. The controls on the plane [***13] suggested Mr. Lewton and Mr. Nichols were flying low in an attempt to avoid radar detection. Taken as a whole, these facts support [*230] the court's finding, by a preponderance of the evidence, that the money was connected to drug activity. 32 Affirmed. Brown, J., concurs. DISSENT BY: SCHULTHEIS DISSENT

33 Schultheis, A.C.J. (dissenting) Under former RCW 69.50.505(a)(7) (2001), a law enforcement agency may seize and retain by civil forfeiture any money [**1091] furnished or intended to be furnished by any person in exchange for a controlled substance. The seizing agency must have probable cause to believe that the property was used or was intended to be used in violation of Washington's Uniform Controlled Substances Act, chapter 69.50 RCW. Former RCW 69.50.505(b)(4). In a hearing challenging forfeiture, the seizing agency carries the burden of establishing that forfeiture is justified by a preponderance of the evidence. Former RCW 69.50.505(e). Because I conclude that the admissible evidence produced at the civil forfeiture hearing did not establish probable cause or sufficient evidence that the [***14] money found in the crashed airplane was to be exchanged for controlled substances, I respectfully dissent. 34 As indicated in Valerio v. Lacey Police Department, 110 Wn. App. 163, 176-77, 39 P.3d 332 (2002), to support probable cause for forfeiture, the seizing agency must show reasonable grounds for suspicion substantiated by circumstances that support a cautious person's belief that the property was used or was intended for use in a controlled substances crime. The trial court here found that separating over $118,000 into bundles that could be paid to separate suppliers was consistent with recent cases of drug smuggling between the United States and Canada. In several findings of fact, the trial court found that this large amount of money and its packaging were not consistent with a legitimate transaction. Clerk's Papers (CP) at 107, 109, 111. While I agree that the evidence establishes probable cause that Shura Lewton and David Nichols were involved in an illegal activity, I find insufficient evidence to [*231] connect that activity with narcotics. Valerio, 110 Wn. App. at 180-81. 35 The essential facts are that a large amount of packaged money was found in [***15] a crashed airplane that was equipped and operated in a manner that suggested an intent to transfer contraband. The only evidence suggesting a connection to controlled substances was a notepad that contained an entry of 3100 - 1 lb and the fact that Mr. Nichols apparently used a small amount of marijuana recreationally. CP at 109. Large sums of packaged money are not enough alone to establish a narcotics transaction. See, e.g. United States v. $121,100.00 in U.S. Currency, 999 F.2d 1503, 1506-07 (11th Cir. 1993). And the trial court's finding that the entry in the notepad indicates the purchase or sale of one pound of B.C. Bud for $3,100 is only inferentially supported by the evidence. CP at 109. Recreational use of marijuana does not support a reasonable belief that the occupants of the airplane were drug smugglers. See State v. Goodman, 150 Wn.2d 774, 783, 83 P.3d 410 (2004) (mere possession of a controlled substance is insufficient to establish the inference of intent to deliver). 36 Additional circumstantial evidence herethat the airplane was scheduled to fly to Canada, a known source of B.C. Budis also tenuous, because nothing in [***16] the evidence points to B.C. Bud as the objective of the flight. The smuggling of any number of other items to or from Canada is just as likely. 37 Under the facts of this case, the circumstantial evidence supports no more than a suspicion, not a reasonable belief, that the money found in the airplane had been used or would be used in smuggling controlled substances. Valerio, 110 Wn. App. at 182-83. Accordingly, I would reverse the civil forfeiture on this basis. 38 Moreover, I would conclude as a matter of law that the money could not be forfeited because there is no evidence that the purportedly interested ownerthe estate of Mr. Lewtonhad knowledge of any alleged criminal activity. Personal property may not be forfeited to the [*232] extent of the interest of an owner, by reason of any act or omission which that owner establishes was committed or omitted without the owner's knowledge or consent. Former RCW 69.50.505(a) (7). Mr. Nichols' estate made no claim on the money found in the airplane. Consequently, only Mr. Lewton could have had actual or constructive possession. Anthony Sam, the personal executor of Mr. Lewton's estate, testified that [***17] Mr. Lewton did not use drugs and that he did not know why Mr. Lewton would have been flying to Canada on the day he died. Because the estate had

no knowledge of Mr. Lewton's criminal activity, its [**1092] interest in the money should not have been forfeited. Id. 39 Finally, I note that the primary purpose of the civil forfeiture provision is to deter drug crime by removing some of its profit incentive. Moen v. Spokane City Police Dep't, 110 Wn. App. 714, 720, 42 P.3d 456 (2002); see also Laws of 1989, ch. 271, 211. In a case such as this, when the only suspected criminals were killed, forfeiture of the money found in their possession would serve no deterrent purpose. Reconsideration denied January 16, 2007. 5 james sr 2011-03-08 18:53:30 Member Offline Registered: 2009-10-11 Posts: 2,776 City of Bothell, Respondent, v. 1982 Mercedes Benz 240, Defendant, Robert Wallace, Appellant. NO. 62734-1-I COURT OF APPEALS OF WASHINGTON, DIVISION ONE 2010 Wash. App. LEXIS 349 January 14, 2010, Oral Argument February 22, 2010, Filed NOTICE: RULES OF THE WASHINGTON COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE WASHINGTON RULES OF COURT. SUBSEQUENT HISTORY: Reported at City of Bothell v. 1982 Mercedes Benz 240, 2010 Wash. App. LEXIS 413 (Wash. Ct. App., Feb. 22, 2010) PRIOR HISTORY: [*1] Appeal from King County Superior Court. Docket No: 07-2-23856-5. Judgment or order under review. Date filed: November 14, 2008. Judge signing: Honorable Bruce Heller. CORE TERMS: pipe, forfeiture, drug paraphernalia, reasonable suspicion, informant, initial stop, arrived, license plate number, methamphetamine, detention, training, customer, reliable, inside, driving, police officer, obtained evidence, parking lot, man and woman, federal constitutions, suppressed, connected, illegally, suspicion, detained, dropped, dog, store employee, matched, search warrant Return to top Available Briefs and Other Documents Related to this Case: WA Court of Appeals Brief(s) COUNSEL: Counsel for Appellant(s): Jeffrey Steinborn, Jeffrey Steinborn PLLC, Seattle, WA. Counsel for Respondent(s): Rhonda Giger, City of Bothell, Bothell, WA. JUDGES: Authored by Linda Lau. Concurring: Ann Schindler, Marlin Appelwick. OPINION BY: Linda Lau

OPINION 1 Lau, J. While investigating a possession of drug paraphernalia complaint, City of Bothell police obtained a search warrant and recovered cocaine, heroin, methamphetamine, and electronic scales from inside Robert Wallace's car. He challenges the forfeiture of his car under RCW 69.50.505, which provides for the forfeiture of property connected to unlawful drug activities. Because the search of his car impermissibly exceeded the initial justification for the Terry 1 stopto investigate possession of drug paraphernaliawe reverse the forfeiture order relating to Wallace's car. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - 1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - FACTS 2 The essential facts are undisputed. On April 27, 2006, Bothell Police Officer Glen Chissus was dispatched to investigate a complaint about drug paraphernalia. [*2] The 911 operator told officer Chissus that a Kinko's store employee had called 911 to report that two people were inside her store and one of them had dropped a drug pipe. The employee was still on the phone with the 911 operator as Officer Chissus began driving toward the store. She provided her name and contact information. Through the operator, Officer Chissus asked her to describe the pipe and she said it was a long, yellow [hose] with a glass tube at the end that looks like it was burnt. Officer Chissus noted that based on his training and experience, this was consistent with a pipe used to smoke or ingest methamphetamine. 3 Before he reached the store, the operator relayed to Officer Chissus that the suspects were leaving. The employee described them as a male, six feet tall, with a mullet hairstyle, wearing a jeans jacket; and a female, five foot seven, with black hair, wearing pajama bottoms. She described their car as a white Mercedes Benz and reported its license plate number. As Officer Chissus arrived in the area, he saw a white Mercedes coming towards him, made a u-turn, and began following the car. He noted that the car's license plate number matched the employee's report. [*3] Soon after this, the car pulled into a nearby retail parking lot. Officer Chissus briefly flashed his emergency lights and parked his patrol car directly behind the Mercedes. 4 As Officer Chissus approached, Wallace got out of the car. Noting that he matched the description given by the Kinko's employee, Officer Chissus directed him to stand with his hands placed on the roof of the car while he began questioning the female passenger, who also matched the employee's description. Officer Chissus identified her as Bobbi De-Anne Mosier and explained the 911 complaint he had received. She told him that she had been at Kinko's, but she denied dropping a drug pipe there. Wallace also denied any involvement with the drug pipe. 5 Around this time, Bothell Police Officer Jimmy Potts arrived at the scene. Officer Chissus asked him to contact the Kinko's employee and obtain the drug pipe. Officer Potts spoke with the employee and learned that she did not actually see anyone drop the pipe. Rather, a customer had handed her the pipe, pointed to two people, claimed they dropped the pipe, and suggested she call the police. The customer left her name and telephone number with the store employee, and Officer [*4] Potts called her from the store. 6 The customer told him that she had gone outside to smoke a cigarette when a Mercedes Benz pulled into the parking lot. A man and woman got out of the car and entered the store. When she re-entered the store, she immediately noticed the pipe on the floor inside the doorway. She told Officer Potts that no one else entered the store while she was outside and she was certain the pipe was not there when she walked out of the store moments earlier. She picked up the pipe and took it to the store employee. As she passed the man and woman, the woman exclaimed, Oh my God, is that mine? Officer Potts looked at the pipe and confirmed, based on his training and

experience, that it was a drug pipe commonly used to ingest methamphetamine. He conveyed all of this information to Officer Chissus. 7 The undisputed record shows that Officer Chissus's investigation then turned to whether there were drugs in Wallace's car. He asked Mosier and Wallace whether they used drugs. Mosier admitted to using cocaine sometimes. Wallace admitted to using drugs in the past but denied using them any longer. Officer Chissus asked Wallace to consent to a search of his car and Wallace declined. [*5] Officer Chissus then called a narcotics canine to the scene. When the dog arrived, it alerted on the car to indicate the possible presence of drugs. Officer Chissus impounded the car and told Wallace and Mosier they were free to go. 2 He obtained a search warrant and drugs were found inside the car. Wallace unsuccessfully contested the forfeiture of his car to the City of Bothell in Bothell Municipal Court and later in King County Superior Court. This appeal followed. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - 2 And Wallace does not contend that Officer Chissus's detention of Wallace and Mosier, which lasted less than 20 minutes, rose to the level of an arrest. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - ANALYSIS 8 Wallace contends Officer Chissus violated his rights under the state and federal constitutions because the officer did not have enough reliable information to justify the initial stop or to expand his investigation into a general search for drugs. 3 Consequently, he argues, the drug evidence found in his car should have been suppressed as fruit of the poisonous tree. And illegally obtained evidence cannot be used in forfeiture proceedings. City of Walla Walla v. $ 401,333.44, 150 Wn. App. 360, 365, 208 P.3d 574 (2009). - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - 3 Wallace also contends the stop was improper [*6] because Officer Chissus did not have lawful authority to arrest him or Mosier for the misdemeanor of drug paraphernalia possession because it was not committed in his presence. Because we resolve the case on other grounds, we do not reach this issue. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - 9 Under RCW 69.50.505(1)(d), vehicles can be subject to seizure and forfeiture if they are used to facilitate the sale, delivery, or receipt of controlled substances. A person can contest the forfeiture and shall be afforded a reasonable opportunity to be heard. RCW 69.50.505(5). The hearing and any appeal fall under the Washington Administrative Procedures Act (WAPA), chapter 34.05 RCW. Under WAPA, this court may reverse an order that violates a constitutional provision. RCW 34.05.570(3)(a). An order of forfeiture that relies on illegally obtained evidence is constitutionally impermissible. See City of Walla Walla, 150 Wn. App. at 365 (The Fourth Amendment's exclusionary rule applies to forfeiture proceedings and so precludes the use of illegally obtained evidence in those proceedings.). Where, as here, the facts are not disputed, the issue of whether evidence should have been suppressed is a question of law, reviewed de novo. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002). 10 In [*7] general, warrantless seizures violate both state and federal constitutions. State v. Ladson, 138 Wn.2d 343, 349-50, 979 P.2d 833 (1999). But there are exceptions to this general rule, including an investigatory detention or Terry stop. State v. Lee, 147 Wn. App. 912, 916, 199 P.3d 445 (2008), review denied, 166 Wn.2d 1016 (2009). To justify a Terry stop under the state and federal constitutions, there must be some suspicion of a particular crime connected to the particular person, rather than a mere generalized suspicion that the person detained may have been up to no good. State v. Bliss, No. 37393-9-II, 2009 WL 3823332, 153 Wn. App. 197, 222 P.3d 107 (Nov. 17, 2009). A police officer must have a reasonable suspicion, based on specific

and articulable facts, that the person stopped has been or is about to be involved in a crime. State v. Dorey, 145 Wn. App. 423, 429, 186 P.3d 363 (2008). 11 The reasonable suspicion standard is a lower standard than the probable cause standard. Lee, 147 Wn. App. at 921-22. When determining whether the officer has reasonable suspicion, the court considers the totality of the circumstances known to the officer at the inception of the stop. State v. Rowell, 144 Wn. App. 453, 457, 182 P.3d 1011 (2008). [*8] This includes consideration of the officer's training and experience. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). Reasonable suspicion may also be based on information supplied by an informant, but the informant's tip must possess sufficient indicia of reliability. Lee, 147 Wn. App. at 918 (quoting State v. Sieler, 95 Wn.2d 43, 47, 621 P.2d 1272 (1980)). The primary factors a court considers when evaluating whether indicia of reliability exist are (1) whether the informant is reliable, (2) whether the information was obtained in a reliable fashion, and (3) whether the officers can corroborate any details of the informant's tip. Lee, 147 Wn. App. at 918. 12 Here, Officer Chissus had reasonable suspicion to justify the initial stop based on a report of unlawful possession of drug paraphernalia. At the time he initially detained Wallace and Mosier, he knew a Kinko's employee reported that a man and woman had just dropped a drug pipe in her store. 4 He also knew the employee's name and contact information, as well as her employer. Such a citizen informant can be inherently reliable for purposes of a Terry stop. State v. Conner, 58 Wn. App. 90, 96, 791 P.2d 261 (1990). Officer [*9] Chissus also verified this information. He asked the employee to describe the pipe because she was still on the phone with the 911 operator and had the pipe in her possession. Her description was consistent with a methamphetamine pipe, based on his training and experience. She also gave a detailed description of the individuals and their car, including its make and license plate number, and stated that they were leaving the store as Officer Chissus approached. In addition, he corroborated part of her report when he saw a white Mercedes with the same license plate number in the immediate vicinity of the store. Under these circumstances, Officer Chissus had reasonable suspicion to believe the people in the car had committed the crime of drug paraphernalia possession. 5 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - 4 Wallace objects that it was actually the customer who connected him and Mosier to the drug pipe rather than the employee. But Officer Chissus did not learn this until later. And in deciding whether he had reasonable suspicion to justify the initial stop, we look to the totality of the circumstances known to him at the inception of the stop. Rowell, 144 Wn. App. at 457.5 Wallace relies on Sieler, but that case is distinguishable. [*10] There, police learned that a named but unknown informant claimed to have witnessed what he concluded was a drug deal in a car at a school parking lot. He gave no description of the people involved or why he believed they were involved in criminal activity, and he was not available to talk to the police. Here, the employee was available to answer Officer Chissus's questions, she gave a description of the suspects, and most critically, she reported direct evidence of a crime, not just conclusory allegations about some suspicious activity. Compare Conner, 58 Wn. App. at 96 (holding Terry stop justified under similar facts). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - 13 Wallace next argues that Officer Chissus improperly prolonged the Terry stop and elevated it into a general search for drugs. We agree. During a Terry stop, [a]n officer may briefly detain and question a person reasonably suspected of criminal activity. State v. Rice, 59 Wn. App. 23, 26, 795 P.2d 739 (1990). But the detention must be temporary and last no longer than necessary to effectuate the stop's purpose. State v. Williams, 102 Wn.2d 733, 738, 689 P.2d 1065 (1984). An officer can expand the scope of an investigation only if there is reasonable suspicion to justify [*11] the expansion. State v. Smith, 115 Wn.2d 775, 785, 801 P.2d 975 (1990); State v. Henry, 80 Wn. App. 544, 551-53, 910 P.2d 1290 (1995) (although initial stop was justified, officer's expansion of stop's scope into a general drug investigation without an objective basis for doing so

was improper). 14 Here, the purpose of the stop was to determine whether someone in the Mercedes had committed the crime of drug paraphernalia possession. 6 Once Officer Potts tied the pipe to Mosier and confirmed that it was drug paraphernalia, the purpose for the stop ceased. At this point, Officer Chissus had the necessary information to support filing of a criminal complaint against Mosier for illegal possession of drug paraphernalia. But instead of terminating the stop, he extended the detention to conduct a general search for drugs. He testified on crossexamination, [Defense Counsel]: Any other evidence of crime that--that you haven't told us about that you observed? . A. At the point which they were detained? No. No, no other crimes that I know of. Q. And at the point at which the dog arrived, nothing --we haven't missed anything here[?] A. Not--not until after the--the dog arrived, no. Report of Proceedings [*12] (June 14, 2007) at 49. The record here reveals no specific and articulable facts to justify this expansion. The City relies on Wallace and Mosier's admission to past drug use and Mosier's recent possession of a drug pipe to justify the search of Wallace's car. But this evidence did not create a reasonable suspicion that Wallace's car contained drugs. See State v. Rangitsch, 40 Wn. App. 771, 780, 700 P.2d 382 (1985) (noting that officer's belief that habitual drug users keep drugs in their homes was mere speculation). Because the unwarranted expansion of the Terry stop was not reasonably related to the circumstances that justified the initial stop, the evidence should have been suppressed and the forfeiture dismissed. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - 6 Officer Chissus also testified that he was concerned the driver may have been driving under the influence of drugs, but he did not observe anything that would justify a stop on this basis. The City's argument that he had only limited opportunity to observe Wallace's driving does not change this fact. Because the officer did not have reasonable suspicion that Wallace was driving under the influence, his stop was not permissible on that basis. Moreover, he observed nothing [*13] during his investigation to suggest that either Mosier or Wallace were under the influence of drugs. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - 15 We reverse the order of forfeiture and remand for further proceedings consistent with this decision. Schindler, C.J., and Appelwick, J., concur. 6 james sr 2011-03-08 19:04:07 Member Offline Registered: 2009-10-11 Posts: 2,776 GEORGE B. TELLEVIK, as Chief of the State Patrol, ET AL, Appellants, v. REAL PROPERTY KNOWN AS 31641 WEST RUTHERFORD STREET, ET AL, Respondents.

No. 60982-9 SUPREME COURT OF WASHINGTON 125 Wn.2d 364; 884 P.2d 1319; 1994 Wash. LEXIS 703 December 8, 1994, Filed SUBSEQUENT HISTORY: [***1] As Amended December 8, 1994. CASE SUMMARY PROCEDURAL POSTURE: Appellant state challenged the decision of the Superior Court for King County (Washington), which dismissed the state's forfeiture action against respondent landowners. OVERVIEW: The state contended that the court erred in dismissing the action on the ground that the state failed to give the landowners a hearing within 90 days of the mandate issued in a previous case. The mandate held that under Wash. Rev. Code 69.50.505(e), a claimant was entitled to a full adversarial hearing within 90 days if the claimant contested the seizure. The court held that unlike the federal forfeiture statute, the Washington statute did not permit the state to take actual possession until after a full adversarial hearing. The court held that the state's contention that the court's language that "claimants are entitled to a full adversarial hearing within 90 days if they contest the seizure," was dicta and should not have been relied upon by the trial judge, was plainly wrong. The court affirmed the judgment, concluding that the 90-day hearing limitation was applicable to the appeal, and the trial court properly dismissed the forfeiture action. The court held that the landowners were entitled to a full adversarial hearing within 90 days of the issuance of the mandate, and that the state ignored the unambiguous language and waited nearly 6 months before obtaining a trial date. OUTCOME: The court affirmed the judgment dismissing the state's forfeiture action against the landowners. CORE TERMS: seizure, forfeiture, real property, forfeiture action, claimant's, seizing, adversarial, notice, rem, contest, property used, drug trafficking, forfeiture statute, time requirement, lis pendens, ex parte proceeding, occupants, notify, timing, property interest, warrant of arrest, summary judgment, postdeprivation, predeprivation, noncompliance, deprivation, marijuana, prompt, property owner, statute of limitations LexisNexis Headnotes Hide Headnotes Civil Procedure > Remedies > Provisional Remedies > General Overview HN1Go to the description of this Headnote. Wash. Rev. Code 69.50.505(e) states that if any person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of items specified in 69.50.505(a)(8) within 90 days in the case of real property, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right. Civil Procedure > Remedies > Forfeitures > Hearings Civil Procedure > Remedies > Provisional Remedies > General Overview Criminal Law & Procedure > Sentencing > Forfeitures > Proceedings HN2Go to the description of this Headnote. "Seizure," as it is used in the context of Wash. Rev. Code 69.50.505, establishes only an inchoate property interest in the seizing agency and does not itself allow the seizing agency to remove the occupants from physical possession of the property. The statute provides a prompt post-seizure process. Under Wash. Rev. Code 69.50.505, once the property has been seized, the seizing agency may take further action to

remove the occupants or enter into an occupancy agreement only upon further order of the court following notice and for the property owners to be heard. Claimants are entitled to a full adversarial hearing within 90 days if they contest the seizure. Thus, unlike the federal forfeiture statute, the Washington statute does not permit the state to take actual possession until after a full adversarial hearing. Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Scope of Protection Constitutional Law > Substantive Due Process > Scope of Protection Criminal Law & Procedure > Sentencing > Forfeitures > Proceedings HN3Go to the description of this Headnote. Due process generally affords an individual notice and an opportunity to be heard when the government deprives the individual of a life, liberty, or property interest. The amount and type of process due an individual corresponds to the nature of the interest and the severity of the deprivation. Absent exigent circumstances, some type hearing prior to a deprivation is required by due process. Civil Procedure > Remedies > Forfeitures > General Overview Civil Procedure > Remedies > Provisional Remedies > General Overview Real Property Law > Priorities & Recording > Lis Pendens HN4Go to the description of this Headnote. Wash. Rev. Code 69.50.505, provides a claimant minimal due process protection, requiring only an ex parte proceeding prior to state seizure of real property. Wash. Rev. Code 69.50.505(b). However, the statute also significantly restricts the state's control of the property once seizure occurs. The statute effectively limits the state's "seizure" action to the filing of a lis pendens, and it expressly prohibits the state from transferring or otherwise conveying the property until 90 days after seizure or until a judgment of forfeiture is entered, whichever is later. Wash. Rev. Code 69.50.505(b). Therefore, at the seizure stage of a forfeiture action under Wash. Rev. Code 69.50.505, a claimant's right to enjoy, use, and benefit from the real property is not affected. Administrative Law > Agency Adjudication > Hearings > Right to Hearing > Due Process Administrative Law > Agency Adjudication > Hearings > Right to Hearing > Statutory Right Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > Scope of Protection HN5Go to the description of this Headnote. Where a pre-deprivation hearing is ex parte, a prompt post-deprivation hearing is an integral component of due process. Hide Headnotes / Syllabus SUMMARY: Nature of Action: Action to forfeit real property in which a tenant had conducted a marijuana grow operation. The Supreme Court at 120 Wn.2d 68 reversed the dismissal of the action and remanded the case for trial on the forfeiture. Superior Court: The Superior Court for King County, No. 90-2-07605-9, Marilyn R. Sellers, J., on September 20, 1993, dismissed the action. Supreme Court: Holding that the statute authorizing the forfeiture of the real property satisfies the requirements of due process but that the owners of the property were entitled to a hearing within 90 days of the issuance of the mandate in the earlier Supreme Court appeal, the court affirms the judgment. HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES WA[1][1] Controlled Substances -- Forfeitures -- Property Used in Drug Trafficking -- Real Property -- Seizure -- Government's Interest -- Due Process. The government's seizure of real property used for drug trafficking under RCW 69.50.505(b) creates only an inchoate interest in

the property in favor of the government; the act of seizure itself does not allow the government to remove the occupants from physical possession. Removal is effected only upon further order of the court following notice and an opportunity for the property owner to be heard. WA[2][2] Constitutional Law -- Due Process -- Scope -- Factors The amount and type of process due a person who has been deprived of a life, liberty, or property interest by the government depends on the nature of the interest and the severity of the deprivation. WA[3][3] Controlled Substances -- Forfeitures -- Property Used in Drug Trafficking -- Real Property -- Seizure -- Postseizure Hearing -- Timeliness -- Due Due process requires that an owner who contests a seizure of real property used for drug trafficking be given a full adversarial hearing within 90 days. As so construed, RCW 69.50.505 satisfies the requirements of due process. WA[4][4] Controlled Substances -- Forfeitures -- Property Used in Drug Trafficking -- Real Property -- Seizure -- Postseizure Hearing -- Timeliness Following Appeal When an owner unsuccessfully appeals a seizure of real property used for drug trafficking, a full adversarial hearing must be held within 90 days of the issuance of the appellate court's mandate. WA[5][5] Controlled Substances -- Forfeitures -- Property Used in Drug Trafficking -- Real Property -- Seizure -- Postseizure Hearing -- Timeliness --Violation -- Remedy Dismissal of an action to forfeit real property used for drug trafficking is required if the owner contests the seizure and is not given a full adversarial hearing within 90 days. COUNSEL: Christine O. Gregoire, Attorney General, and Roselyn Marcus, Assistant; Driano & Sorenson and Dominick V. Driano, for appellants. Allen M. Ressler and George Bianchi, for respondents. Richard J. Troberman on behalf of Washington Association of Criminal Defense Lawyers, amicus curiae for respondents. JUDGES: Johnson, J., Andersen, C.J., Utter, Brachtenbach, Dolliver, Smith, J.J., concurring. Madsen, J. (dissenting in part by separate opinion), Durham, Guy, J.J., dissenting. OPINION BY: Johnson OPINION En Banc. [*365] [**1319] Johnson, J. -- This is the second appeal in a drug forfeiture action involving residential property owned by Respondents Donald and Janet Pearson. At issue is the validity of this court's constitutional holding in the prior appeal in light of a recent United States Supreme Court decision, and the meaning of certain language in this court's decision in the prior appeal. FACTS On September 26, 1989, members of the Eastside Drug Task Force executed a warrant to search residential property located at 31641 West Rutherford Street in Carnation, Washington. At the time of the search the property was [***2] owned by Donald and Janet Pearson and leased to Stephen Cimbalista. The search uncovered a marijuana growing operation in the basement. Officers seized more than 30 mature marijuana plants, approximately 65 marijuana buds, and [*366] various fans, timers and lights. Based on the evidence uncovered during the search, Donald Pearson and Cimbalista were arrested and subsequently convicted of possession with intent to manufacture marijuana, in violation of RCW 69.50.401(a).

[**1320] On April 13, 1990, the chief of the Washington State Patrol filed a complaint for forfeiture in rem against the Pearsons' property at 31641 West Rutherford Street. At an ex parte hearing the same day, the judge found probable cause to believe the property was subject to forfeiture under RCW 69.50.505 and signed the warrant of arrest in rem. The State then filed a lis pendens against the Pearsons' interests in the property and a "notice of seizure and intended forfeiture". The notice of seizure stated that any person claiming ownership in the property "shall be afforded a hearing thereon if they notify the Washington State Patrol in writing . . . within ninety (90) days of the seizure of said real [***3] property". Clerk's Papers, at 16. The Pearsons filed separate answers to the notice of seizure and moved to dismiss the complaint on the ground that the forfeiture statute is unconstitutional on its face and as applied. Janet Pearson additionally moved to dismiss based on the innocent owner provisions of RCW 69.50.505(a)(8)(i). The trial court granted both motions, quashed the warrant for arrest in rem, and canceled the lis pendens. The State appealed directly to this court. That appeal was consolidated with another forfeiture action involving property owned by Charles and Janet Wilson at 9209 218th N.E. in Redmond. On October 15, 1992, this court held RCW 69.50.505(b) was constitutional as applied to the facts of this case, and, as construed, constitutional on its face. Tellevik v. 31641 W. Rutherford St., 120 Wn.2d 68, 838 P.2d 111, 845 P.2d 1325 (1992)(Tellevik I). Construing the statute, this court found the term "seizure" establishes only an inchoate property interest in the seizing agency. In its discussion of the claimants' due process argument, the court explained, "claimants are entitled to a full adversarial hearing within 90 days if they contest the [***4] seizure. RCW 69.50.505(e)". Tellevik I, [*367] 120 Wn.2d at 86. Four paragraphs later, the court again stated, "the statute requires a full adversarial hearing with judicial review within 90 days of the seizure of real property if the claimant notifies the seizing agency in writing". See Tellevik I, causes 57566-5, 57763-3 (filed Oct. 15, 1992), slip op. at 24. The Wilsons moved for reconsideration, arguing this court had misread RCW 69.50.505(e). 1 On February 12, 1993, the court denied the motion for reconsideration but amended the second sentence quoted above, deleting the words "of the seizure of real property". The revised sentence read, "the statute requires a full adversarial hearing with judicial review within 90 days if the claimant notifies the seizing agency in writing". Order Clarifying Op. and Denying Mots. for Recons. and Reh'g, at 2; Clerk's Papers, at 29-30. The court also added a citation to RCW 34.05.419 following this sentence. The case was then mandated on February 16, 1993. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - 1 HN1Go to this Headnote in the case.RCW 69.50.505(e) states: "If any person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of items specified in . . . (a)(8) of this section within . . . ninety days in the case of real property, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right. . . ." - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - [***5] Nearly 6 months later, in August 1993, the State requested the Superior Court set a trial date for the forfeiture action involving the Pearsons' property. On August 13, 1993, the court set trial for February 15, 1994. Five days later the Pearsons moved to dismiss the forfeiture action, arguing this court's decision in Tellevik I required the hearing to be held within 90 days from the date of the mandate and the State failed to act within this period. The trial court agreed and granted the Pearsons' motion to dismiss. The State then initiated this appeal, alleging the trial court erred in dismissing the State's forfeiture action because the claimants were not given a hearing within 90 days of the mandate

issued in Tellevik I. In their reply brief, Respondents raise the issue whether Tellevik I is still good law in [*368] light of a recent United States Supreme Court decision invalidating a similar seizure action. United States v. James Daniel Good Real Property, 510 U.S. 43, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993). The State and Respondents disagree as to whether the Supreme Court's decision undermines this court's holding in Tellevik I. Therefore [***6] we first [**1321] address the continuing validity of Tellevik I in light of Good. ANALYSIS I In December 1993, 10 months after this court mandated Tellevik I, the United States Supreme Court decided United States v. James Daniel Good Real Property, 510 U.S. 43, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993). Like Tellevik I, Good involved a residential property seizure pursuant to drug forfeiture laws. In Good, police officers executed a warrant to search James Daniel Good's residential property. The search uncovered over 80 pounds of marijuana, vials containing hashish oil, and other drug paraphernalia. Good, 126 L. Ed. 2d at 498. Good was subsequently convicted of promotion of a harmful drug, sentenced to 1 year in jail and 5 years' probation, and fined $ 1,000. Four and one-half years later, the United States filed an in rem action, seeking to forfeit Good's house and property under the federal drug forfeiture statute. Good, 126 L. Ed. 2d at 498. In an ex parte proceeding, a United States magistrate issued a warrant of arrest in rem, authorizing seizure of the property. Three days later the government [***7] took control of Good's property, executing an occupancy agreement which permitted the tenants to remain on the premises, but which directed the payment of future rents to the United States Marshal. Good, 126 L. Ed. 2d at 499. The Supreme Court rejected the government's seizure of Good's property, holding the ex parte procedure violated the due process clause of the Fifth Amendment. Absent exigent circumstances, explained the Court, due process prohibits the government from seizing real property without first affording [*369] the owner notice and an opportunity to be heard. Good, 126 L. Ed. 2d at 508-09. The Pearsons contend Tellevik I is no longer good law given the Supreme Court's decision in Good. We disagree. Tellevik I is distinguishable both on its facts and in the type of seizure authorized under the state and federal statutes. Consequently, Tellevik I does not need to be reconsidered for the purposes of this appeal. In Good, the government seizure addressed by the Court included actual control over the claimant's property. "Seizure", explained the Court, included, not only the right to prohibit sale, but [***8] also the right to evict occupants, to modify the property, to condition occupancy, to receive rents, and to supersede the owner in all rights pertaining to the use, possession, and enjoyment of the property. Good, 126 L. Ed. 2d at 503-04. The Court rejected ex parte seizures in a civil forfeiture action because the government had means, "short of seizure, to protect its legitimate interests in forfeitable real property". Good, 126 L. Ed. 2d at 507. According to the Court, these means included filing a lis pendens, as well as obtaining restraining orders or additional search and arrest warrants. Good, 126 L. Ed. 2d at 506. Given these means, "there [was] no reason to take the additional step of asserting control over the property without first affording notice and an adversary hearing". Good, 126 L. Ed. 2d at 507. WA[1][1] In Tellevik I, the State's seizure action was consistent with those means permitted under Good without a predeprivation opportunity to be heard. The State initiated the forfeiture action by

filing a summons and complaint. The judge issued an ex parte warrant of arrest in [***9] rem and the State filed a lis pendens. However, unlike the federal government in Good, the State did not take control of the premises. Instead, the lessees were permitted to remain on the premises and the Pearsons continued to collect the rent. Moreover, this court specifically rejected a broad definition of seizure in order to preserve the constitutionality of [*370] the state statute. This court held that HN2Go to this Headnote in the case."seizure", as it is used in the context of RCW 69.50.505, "establish[es] only an inchoate property interest in the seizing agency . . .", and does [**1322] not itself "allow the seizing agency to remove the occupants from physical possession of the property". Tellevik I, 120 Wn.2d at 85. This court then further limited the scope of government control of the seized property by construing the statute so as to provide a prompt postseizure process. Under RCW 69.50.505: Once the property has been seized, the seizing agency may take further action to remove the occupants or enter into an occupancy agreement only upon further order of the court following notice and an opportunity for the property owners to be heard. Claimants are entitled to a [***10] full adversarial hearing within 90 days if they contest the seizure. Tellevik I, 120 Wn.2d at 86. Thus, unlike the federal forfeiture statute, the Washington statute does not permit the State to take actual possession until after a full adversarial hearing. Consequently, Tellevik I is still good law and controls the outcome of this second appeal. II A We next determine whether the trial court properly dismissed the forfeiture action because the Pearsons were not afforded a hearing within 90 days of the mandate in Tellevik I. The State contends this court's language in Tellevik I, that "claimants are entitled to a full adversarial hearing within 90 days if they contest the seizure", Tellevik I, 120 Wn.2d at 86, was dicta and should not have been relied upon by the trial judge. 2 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - 2 Curiously, the State now takes and argues the position advocated by the claimants (the Wilsons) in the prior appeal, and which this court rejected in the motion for reconsideration in Tellevik I. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - [***11] WA[2][2] WA[3][3] The State is plainly wrong. The fundamental issue in Tellevik I was whether the seizure provisions of the state civil forfeiture statute afforded claimants adequate due process protection. We recognized in Tellevik I that HN3Go to this Headnote in the case.due process [*371] generally affords an individual notice and an opportunity to be heard when the government deprives the individual of a life, liberty, or property interest. Tellevik I, 120 Wn.2d at 82-83; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 94 L. Ed. 865, 70 S. Ct. 652 (1950). The amount and type of process due an individual corresponds to the nature of the interest and the severity of the deprivation. See Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). We further recognized, absent exigent circumstances, "some type of hearing prior to a deprivation is required by due process". Tellevik I, 120 Wn.2d at 82. In Tellevik I, we found the ex parte proceeding provided by the Washington civil forfeiture statute adequate because the deprivation was minimal and because the claimant was afforded a prompt [***12] postdeprivation opportunity to be heard. The statute at issue, HN4Go to this Headnote in the case.RCW 69.50.505, provides a claimant minimal due process protection, requiring only an ex parte proceeding prior to state seizure of real property. RCW 69.50.505(b). However, the

statute also significantly restricts the State's control of the property once seizure occurs. The statute effectively limits the State's "seizure" action to the filing of a lis pendens, and it expressly prohibits the State from "transferring or otherwise conveying [the property] until ninety days after seizure or until a judgment of forfeiture is entered, whichever is later". RCW 69.50.505(b). Therefore, at the seizure stage of a forfeiture action under RCW 69.50.505, a claimant's right to enjoy, use, and benefit from the real property is not affected. So as to preserve the constitutionality of the statute, this court further construed the term "seizure" to "establish only an inchoate property interest in the seizing agency", and explained, "a seizure, itself, does not allow the seizing agency to remove the occupants from physical possession of the property". [***13] Tellevik I, 120 Wn.2d at 85-86. We also recognized that HN5Go to this Headnote in the case.where a predeprivation hearing is ex parte, a prompt postdeprivation hearing is an integral component of due process. This court construed the forfeiture [*372] statute so as to entitle claimants "to a full adversarial hearing within 90 days if [**1323] they contest the seizure" and placed the burden "upon the seizing agency to prove the real property is subject to seizure". Tellevik I, 120 Wn.2d at 86. Contrary to the State's assertion, the 90-day hearing requirement articulated in Tellevik I is not dicta, but is, instead, central to its holding. This result is consistent with the Supreme Court's recent decision in United States v. James Daniel Good Real Property, supra, and with prior federal due process decisions. In Good, the Court explained: Whether the seizure of real property for purposes of civil forfeiture justifies such an exception [to the general predeprivation hearing rule] requires an examination of the competing interests at stake, along with the promptness and adequacy of later proceedings. (Italics ours.) [***14] Good, 126 L. Ed. 2d at 503. See also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 551, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985) (Marshall, J., concurring in part) ("the adequacy of the predeprivation and postdeprivation procedures are inevitably intertwined"). It is clear had we not construed seizure as we did in Tellevik I, Good would require a predeprivation hearing as a matter of federal constitutional due process under the Fifth and Fourteenth Amendments. However, the degree of deprivation triggers the amount of due process required in a particular case, and, in this case, due process is satisfied by a prompt postdeprivation hearing. B WA[4][4] Finding the 90-day hearing limitation is applicable to this appeal, we next address whether the trial court properly dismissed the forfeiture action. The mandate in Tellevik I was issued on February 16, 1993. The Pearsons were therefore entitled to a full adversarial hearing within 90 days of the issuance of the mandate, or, in other words, by May 17, 1993. The State ignored the clear and unambiguous language in Tellevik I and waited nearly 6 months before obtaining [***15] a trial date. [*373] The State claims the delay occurred because the State was waiting for the Pearsons to file a petition for a writ of certiorari in the United States Supreme Court, and the State, therefore, took no action "until after the time to [petition] the U.S. Supreme Court had run". Opening Br. of Appellants, at 7. We find this assertion misleading and without merit. The State does not have the power to ignore the statutory limitations on a hearing date on the chance the Respondents would petition for certiorari. Moreover, the Pearsons had 90 days in which to petition the Supreme Court. See 28 U.S.C. 2101(c). Even if, for the sake of argument, the State was justified in waiting 90 days until the time to petition the Supreme Court had run, it was certainly not justified waiting nearly 3 additional months before requesting a trial date.

Lastly, the State argues the trial court should not have dismissed the forfeiture action even if there is a 90-day hearing requirement. The State contends dismissal with prejudice is a harsh sanction and it is not authorized under any statute, rule, or constitutional provision. The State cites to [***16] Good for the proposition that if a statute does not specify a consequence for noncompliance with internal timing provisions, the court cannot fashion its own coercive sanctions. Good, 126 L. Ed. 2d at 509-10. In Good, the government initiated the forfeiture within the 5-year statute of limitations for drug forfeiture actions, but failed to comply with "a series of internal requirements relating to the timing of forfeitures". Good, 126 L. Ed. 2d at 509. After reviewing the nature and function of the internal requirements, the Court concluded "the courts should not dismiss a forfeiture action for noncompliance". Good, 126 L. Ed. 2d at 510. The Court explained: Because [the relevant procedural laws incorporated by the forfeiture statute] contain[] a statute of limitations -- the usual legal protection against stale claims -- we doubt Congress intended to require dismissal of a forfeiture action for noncompliance [**1324] with . . . internal timing requirements . . .. [***17] Good, 126 L. Ed. 2d at 510. WA[5][5] [*374] The State's reliance on Good is inapposite. Unlike Good, the 90-day requirement is not merely an "internal timing requirement". Here, as discussed above, the time limitation requirement was read into the statute in order to preserve its constitutionality. Because a prompt postdeprivation hearing was an integral component of the Pearsons' due process rights under the Fifth and Fourteenth Amendments, and the Pearsons were denied this right, dismissal of the action was appropriate. The decision of the trial court is therefore affirmed. Andersen, C.J., and Utter, Brachtenbach, Dolliver, and Smith, JJ., concur. DISSENT BY: MADSEN DISSENT Madsen, J. (dissenting in part) -- I must respectfully disagree with the majority in this case as to the appropriate remedy for the State's failure to renote this matter for trial following its successful appeal in Tellevik v. 31641 W. Rutherford St., 120 Wn.2d 68, 93, 838 P.2d 111, 845 P.2d 1325 (1992) (Johnson, J., dissenting). The harsh remedy imposed by the majority is neither mandated by the applicable statute nor by our decision in Tellevik. Worse, it is [***18] unfair. The question presented in this case is whether the State complied with the due process requirement in Tellevik that an opportunity for a full adversarial hearing be provided within 90 days of the seizure of real property. The clear answer is yes. In Tellevik this court stated that: Theeffect of a seizure is to commence the forfeiture proceeding. RCW 69.50.505(c). Once the property has been seized, the seizing agency may take further action to remove the occupants or enter into an occupancy agreement only upon further order of the court following notice and an opportunity for the property owners to be heard. Claimants are entitled to a full adversarial hearing within 90 days if they contest the seizure. RCW 69.50.505(e). At the hearing, the burden is upon the seizing agency to prove the real property is subject to seizure. RCW 69.50.505(e). Tellevik, at 86. [*375] Looking at the case before us, Tellevik v. Real Property Known as 31641 W. Rutherford St., the State filed a complaint for forfeiture in rem and a lis pendens on April 13, 1990. At an ex parte hearing held that day, the trial court signed a warrant of arrest in rem. The summons, complaint [***19] for forfeiture in rem, lis pendens, notice of seizure and intended forfeiture, the

warrant of arrest in rem and supporting affidavit were served on the Defendants on April 13, 1990, as well. The Defendants appeared in superior court and moved to dismiss the complaint, arguing that the authority, therefore, RCW 69.50.505(b), was unconstitutional. Defendant Pearson also moved for summary judgment under the innocent owner provision of the statute. The State moved to continue the summary judgment motion pursuant to CR 56(f). On September 5, 1990, the trial court denied the State's continuance, granted Defendants' motion for summary judgment, quashed the warrant for arrest in rem, canceled the lis pendens, and found RCW 69.50.505(b) was unconstitutional on its face and as applied. The State appealed. This court accepted direct review and held that RCW 69.50.505(b) was not unconstitutional on its face nor as applied. It is implicit in this conclusion that RCW 69.50.505(b) was constitutional as applied precisely because the Defendants had received a full opportunity to contest the forfeiture action in King County Superior Court. This court reversed the trial court, including the grant of [***20] summary judgment and denial of the State's CR 56(f) motion and stated: "Plaintiffs in Tellevik v. 31641 West Rutherford Street should be allowed to complete discovery in their case against Janet Pearson. As to the remaining Defendants, both cases are remanded for trial on the forfeitures." Tellevik, at 92. [**1325] The Defendants argue here, and the majority agrees, that the 90-day period ordered by Tellevik applies to the renoting of their cases for trial and that the State's failure to comply with this time limitation requires the dismissal of their cases. I disagree. Due process requires only an opportunity to be heard and to contest the seizure. Tellevik, at 86-87. The [*376] Defendants clearly have had that and more. Through the course of this matter the Defendants have even had the opportunity for Supreme Court review. The effect of the mandate in Tellevik was simply to put the parties back in their respective positions before the trial court entered its erroneous dismissal order on September 5, 1990. Given the procedural history in this case, I would hold that due process has been afforded to these Defendants. As with other substantive time limits, [***21] such as a statute of limitations, once the time requirement has been complied with, it need not be complied with again. For example, remand following reversal of a jury verdict in a civil case does not subject the case to the statute of limitations again. Rather, the civil rules of procedure dictate the course of the actionon remand. Since due process was satisfied any further time requirements are not of constitutional magnitude but are merely procedural. The State argues that time requirements which are merely procedural do not require dismissal for noncompliance. I agree with the State. As the United States Supreme Court held recently in United States v. James Daniel Good Real Property, U.S., 510 U.S. 43, 126 L. Ed. 2d 490, 114 S. Ct. 492 (1993), if a statute does not specify a consequence for noncompliance with an internal timing provision, the court should not fashion its own coercive sanction. Good, 114 S. Ct. at 506. RCW 69.50.505 specifies neither a time limit for trial following remand nor a consequence if trial is set beyond 90 days from the issuance of a mandate. Nor does Tellevik provide a time requirement for trial following [***22] remand. If dismissal was improper in Good, where the statute contained a timing provision, it is clearly improper in this case where the statute and the case law are silent as to time requirements for trial following appeal. As the court concluded in Good, dismissal is not the proper remedy. In support of dismissal, the Defendants attempt to analogize the forfeiture scheme of RCW 69.50 to the speedy trial requirement of CrR 3.3. They cite Seattle v. Hilton, 62 Wn. App. 487, 815 P.2d 808 (1991), review denied, 122 Wn.2d 1012, 863 P.2d 72 (1993) as authority for their argument that the mandate [*377] in Tellevik retriggers the running of the 90-day hearing requirement. In Hilton, this court was asked to construe the provisions of CrRLJ 3.3 which set out the time requirements for trial in criminal cases following appeal or stay. The court found that the time requirements of the rule were commenced by the filing of the mandate. As the State correctly points out, however, there is no corresponding rule which dictates time limits for commencement of trial following appeal in a drug forfeiture case. Nor, as pointed out earlier, does [***23] Tellevik address whether the 90-day requirement begins anew following appeal. Defendants' reliance on CrR 3.3 is thus unpersuasive.

Moreover, if Defendants are correct that the filing of a mandate following appeal triggers the same preappeal requirements, such as the right to a hearing within 90 days as determined by Tellevik, then it follows that the Defendants should also be required to recomply with RCW 69.50.505(e) by filing another written notice contesting seizure after the mandate. See Tellevik, at 86. That statute, as well as Tellevik, requires that a reasonable opportunity to be heard be afforded to the property owner only if that person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of the property within 90 days. RCW 69.50.505(e); Tellevik, at 87. The failure of the owner to notify the seizing agency of a claim to the property will result in automatic forfeiture after 90 days. RCW 69.50.505(e). Here, the Defendants filed no written notice contesting the seizure of their property following the mandate in Tellevik. The only written notice by the Defendants in this case [**1326] [***24] was filed on June 12, 1990. If the State has not met its burden, the Defendants, likewise, have not met theirs. Finally, the State correctly argues that the Defendants themselves caused the delay in resetting the case. An affidavit filed by counsel for the State recites a conversation between the State and the Defendants' attorney about selecting the trial date. The State had contacted the defense to set a court date within 90 days following the mandate. In that discussion, the Defendants' counsel stated his preference [*378] that the matter be put off pending a decision to seek review by the United States Supreme Court. It is well settled that the right to due process may be waived. In re Adoption of Jackson, 89 Wn.2d 945, 952, 578 P.2d 33 (1978); State v. Myers, 86 Wn.2d 419, 426, 545 P.2d 538 (1976). Although the State would have been wise to formalize the agreement for delay in a case such as this, in which both parties are struggling with application of new law, this court should find that the verbal request for delay by defense counsel was sufficient to waive the 90-day requirement; that the State relied, to its detriment, on defense counsel's [***25] position; and that the Defendants are estopped from complaining of the delay. It must be borne in mind that we are not dealing with fundamental rights such as the right to speedy trial under CrR 3.3 nor the right to a jury of 12 in a criminal case. Under consideration today is the renoting of a matter in which the trial court's erroneous grant of summary judgment and dismissal resulted in reversal and remand. Given this circumstance, this court's dismissal for failure to comply with the 90-day requirement set forth in RCW 69.50.505(e) is both an inappropriate and an unfair result. Durham and Guy, JJ., concur with Madsen, J. 7 james sr 2011-03-08 19:09:30 Member Offline Registered: 2009-10-11 Posts: 2,776 TRI-CITY METRO DRUG TASK FORCE, Respondent, v. MARIA CONTRERAS, Appellant. No. 22179-2-III COURT OF APPEALS OF WASHINGTON, DIVISION THREE 129 Wn. App. 648; 119 P.3d 862; 2005 Wash. App. LEXIS 1633 July 12, 2005, Filed SUBSEQUENT HISTORY: [***1] Released for Publication September 20, 2005.

Reported at Tri-City Metro Drug Task Force v. Contreras, 128 Wn. App. 1037, 2005 Wash. App. LEXIS 2462 (2005) CASE SUMMARY PROCEDURAL POSTURE: The husband of appellant wife was arrested on drug charges, and the State seized property from the couple's house and their three vehicles. The hearing examiner made findings of fact and determined that all of the seized property was subject to forfeiture as proceeds of illegal drug activity and ordered that it be forfeited. The Superior Court of Franklin County, Washington, denied the wife's petition for review. The wife appealed. OVERVIEW: On review, the wife challenged the forfeiture and requested costs and attorney fees. The appellate court found that since the property in question was not traceable to any illegal drug transaction, it was not subject to forfeiture under former Wash. Rev. Code 69.50.505(a)(7) (2001). Further, as a prevailing party, the wife was entitled to costs and reasonable attorney fees under former Wash. Rev. Code 69.50.505(f) (2001). She was also entitled to her reasonable attorney fees and expenses on appeal under Wash. R. App. P. 18.1(a). OUTCOME: The forfeiture order was reversed and, except for the truck, the property was returned to the wife. She was also awarded costs and reasonable attorney fees below and on appeal. CORE TERMS: forfeiture, pickup, seized, subject to forfeiture, attorney fees, speakers, hearing examiner's, personal property, traceable, methamphetamine, drug transaction, registered, player, stereo, bag, box, drug offense, seized property, conveyance, boot, forfeiture proceeding, used to facilitate, drug activity, assets acquired, claimant, prevails, drug trafficking, outstanding warrant, years old, informant LexisNexis Headnotes Hide Headnotes Contracts Law > Types of Contracts > Personal Property Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Continuing Criminal Enterprises > Penalties Criminal Law & Procedure > Sentencing > Forfeitures > Proceedings HN1Go to the description of this Headnote. All tangible or intangible personal property, proceeds, or assets acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of the Uniform Controlled Substances Act are subject to forfeiture. Former Wash. Rev. Code 69.50.505(a)(7) (2001). Administrative Law > Judicial Review > Standards of Review > Clearly Erroneous Review HN2Go to the description of this Headnote. When reviewing an administrative decision, the appellate court applies the Washington Administrative Procedure Act directly to the agency record. Wash. Rev. Code 34.05.570(3)(e). The appellate court grants relief from an administrative order when the agency has erroneously interpreted or applied the law. Civil Procedure > Remedies > Forfeitures > General Overview Criminal Law & Procedure > Sentencing > Forfeitures > Proceedings HN3Go to the description of this Headnote. Former Wash. Rev. Code 69.50.505(a)(7) (2001) provides that personal property, proceeds, or assets acquired in whole or in part with proceeds traceable to an exchange or series of exchanges which constitute illegal drug activity are subject to forfeiture. This provision requires some evidence of tracing. When the record does not reflect that any effort was made to trace the proceeds to any illegal drug transaction, and the findings do not address that issue, there is no basis for the forfeiture of the personal property as proceeds. Civil Procedure > Appeals > Costs & Attorney Fees HN4Go to the description of this Headnote. Under Wash. R. App. P. 18.1(a), a party may

recover reasonable attorney fees and expenses on appeal if applicable law grants the party such right. Civil Procedure > Remedies > Costs & Attorney Fees > Costs > General Overview Civil Procedure > Remedies > Forfeitures > General Overview HN5Go to the description of this Headnote. Former Wash. Rev. Code 69.50.505(f) (2001) provides for costs and attorney fees to any claimant who substantially prevails in a civil forfeiture proceeding. Hide Headnotes / Syllabus SUMMARY: Nature of Action: The wife of a man charged with violating the Uniform Controlled Substances Act sought judicial review of a hearing examiner's decision ordering forfeiture of several items of personal property that were seized by law enforcement officials. Superior Court: The Superior Court for Franklin County, No. 02-2-50181-1, Vic L. VanderSchoor, J., on June 11, 2003, denied the petition for review. Court of Appeals: Holding that the hearing examiner misinterpreted the forfeiture statute by ordering forfeiture without requiring proof that the items seized were traceable to an illegal drug transaction, the court reverses the order of forfeiture and orders the property to be returned to the petitioner. HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES WA[1][1] Controlled Substances -- Forfeitures -- Review -- Appellate Review -- Record -- Agency Record An appellate court reviews a hearing examiner's decision in a forfeiture hearing under RCW 69.50.505 by applying the review standards of RCW 34.05.570(3) directly to the record made before the hearing examiner. WA[2][2] Controlled Substances -- Forfeitures -- Property Used in Drug Trafficking -- Proof -Necessity Personal property is not subject to forfeiture under former RCW 69.50.505(a)(7) (2001) of the Uniform Controlled Substances Act (chapter 69.50 RCW) if there is no evidence that the property is traceable to any illegal drug transaction. WA[3][3] Controlled Substances -- Forfeitures -- Attorney Fees -- On Appeal Attorney fees are awardable on appeal under former RCW 69.60.505(f) (2001) to a claimant who successfully prevails in a civil forfeiture proceeding under RCW 69.50.505. COUNSEL: James E. Egan and Todd V. Harms, for appellant. Steven M. Lowe, Prosecuting Attorney, and Frank W. Jenny, Deputy, for respondent. JUDGES: Written by: JOHN A. SCHULTHEIS. Concurred by: KENNETH H. KATO & FRANK L. KURTZ. OPINION BY: JOHN A. SCHULTHEIS OPINION [**862] [*649] P1 Schultheis, J. -- HN1Go to this Headnote in the case."[A]ll tangible or intangible personal property, proceeds, or assets acquired in whole or in part with proceeds traceable to an exchange or series of exchanges" in violation of the Uniform Controlled Substances Act, chapter 69.50 RCW, are subject to forfeiture. Former RCW 69.50.505(a)(7) (2001). Here, the hearing examiner misinterpreted the statute by ordering forfeiture without

requiring proof or finding that the items seized were traceable to any illegal drug transaction. Accordingly, we reverse. FACTS P2 On November 21, 2001, Detective Darren Pitt of the Tri-City [***2] Metro Drug Task Force (Task Force) received a telephone call from a confidential informant. The informant advised Detective Pitt that Remigio Contreras Jr. [**863] and Ramon Rios were in a Chevrolet pickup and were going to Mr. Contreras' home to "cut up" methamphetamine. Clerk's [*650] Papers (CP) at 16. Detective Pitt determined that Mr. Contreras and Mr. Rios each had an outstanding warrant for his arrest. P3 Mr. Contreras lived at 8222 West Ruby in Pasco, Washington with his wife, Maria Del Contreras, and their three children (then 11, 9, and 7 years old). Sergeant Mike Monroe of the Task Force drove to the Contreras residence and saw the pickup leaving the residence. He stopped the pickup and arrested Mr. Contreras and Mr. Rios on the outstanding warrants. During a search of the pickup incident to arrest, officers found 13 bags of marijuana weighing a total of 13 ounces. The quantity was in an amount substantially larger than for personal use and was possessed with the intent to deliver. CP at 16 (finding of fact 4). The pickup was seized as a conveyance used to facilitate a drug offense. 1 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - 1 While Mrs. Contreras assigned error to the findings concerning all the other seized property, she did not assign error to the finding that the pickup was subject to forfeiture as a conveyance used to facilitate a drug offense. CP at 18 (finding of fact 19). That finding is a verity on appeal. Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 407, 858 P.2d 494 (1993). Further, she devoted no portion of her brief to the conveyance provision of the forfeiture statute, former RCW 69.50.505(a)(4) (2001). See RAP 10.3. Moreover, she seemed to concede that forfeiture of the pickup was appropriate. See Appellant's Br. at 8 ("The 1988 Chevy pickup is [sic] seized because it was used to transport drugs."). Accordingly, we treat the issue of the seizure of the 1988 Chevrolet pickup as abandoned. See McKee v. Am. Home Prods. Corp., 113 Wn.2d 701, 705, 782 P.2d 1045 (1989). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - [***3] P4 Detective Pitt applied for a telephonic warrant to search the Contreras residence, the pickup from which the marijuana was seized, and other vehicles parked at the premises. While the residence was under observation during the application process, police saw Jose M. Chavez arrive and enter with a key and then leave in his vehicle. Patrol cars stopped him. Mr. Chavez told officers he had received a phone call a short time before from someone unknown to him asking him to get a boot box out of the master bedroom closet in the Contreras residence. He stated he removed the boot box as requested and put it in his vehicle. He denied knowing the contents of the box. P5 A search warrant was then obtained for Mr. Chavez's car. Officers found the boot box. It held five sealed plastic [*651] bags of methamphetamine. Each bag weighed approximately one pound. The manner of packaging was consistent with that produced by devices such as a Seal-AMeal. The methamphetamine had a street value of approximately $ 25,000. The methamphetamine was possessed with intent to deliver. CP at 17 (finding of fact 8). P6 When the Contreras residence was searched, a scale commonly used to weigh controlled substances was found [***4] behind the living room couch. A Seal-A-Meal device and roll of bags were found in a five-gallon bucket in a shed behind the residence. A small quantity of methamphetamine was found above a kitchen cupboard. P7 Police seized three of the Contrerases' vehicles as proceeds of drug trafficking. First, they

took a 1991 Nissan Pathfinder registered to Mr. Contreras. Second, they confiscated a 1999 Chevrolet Astro van registered to Mr. and Mrs. Contreras. A receipt for the purchase of the Astro van was found showing that Mr. Contreras had paid off the vehicle with $ 9,000 in cash on June 7, 2001. Third, they seized a 1995 Chevrolet Corvette. The Corvette was registered to another, but inside the car was a title and bill of sale signed by the registered owner indicating it had been sold to Mr. Contreras for $ 12,000. P8 Officers also seized $ 1,264 cash and seven silver dollar coins. They seized various other items of personal property: 70 DVD movies; a SEGA system with three controllers and 14 SEGA games; a Sharp fax machine; a black nylon suitcase; a Paperport scanner; an HP printer; a Symphonic VCR; a Compac PC with monitor, speakers, and keyboard; a Sony DVD player; a Compac PCU; an Emerson VCR; [***5] five Sony speakers; a Phillips Portable Stereo; a Broksonic TV/DVD; an RCA home theater TV; Weslo treadmill; two Kicker speakers; a Technique stereo receiver; an AIWA CD player; an Eagle depth finder; two Sony [**864] speakers; an AIWA stereo CD player with speakers; a Craftsman socket set in black case; a Sony stereo CD player with speakers; and a Craftsman recip saw. Police found documents [*652] in the search indicating that the Contrerases had a Chapter 13 bankruptcy plan approved on June 6, 2001. P9 Mrs. Contreras apparently was not charged with any crime related to these events. The status of Mr. Contreras' criminal charges, if any, related to the drugs is not part of the record. 2 Mrs. Contreras requested a hearing for the return of the seized property. At the forfeiture hearing, Detective Lee Barrow testified that the seized personal property appeared to be in like-new condition and appeared to have been recently purchased. He thought it would cost a substantial amount of money to furnish the house with the items that were seized, and the property did not appear consistent with the legitimate income he was able to document. Detective Barrow produced evidence that Mrs. Contreras' legitimate [***6] income was $ 5,901.57 in 1998; $ 9,028.29 in 1999; $ 8,521.13 in 2000; and $ 8,415.16 through the third quarter of 2001. Her total income from 1998 through the third quarter of 2001 was $ 31,866.15. Mr. Contreras' income from legitimate employment was $ 1,776.00 in 1998; $ 1,369.40 in 1999; $ 3,041.76 in 2000; and $ 1,124.00 through the third quarter of 2001. His total legitimate income from 1998 through the third quarter of 2001 was $ 7,311.16. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - 2 Conviction of a drug offense is not a prerequisite to forfeiture under former RCW 69.50.505 (2001). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - P10 Detective Pitt testified that the Contreras residence was a "nice" double-wide manufactured home that appeared to be two or three years old and recently placed on the lot at the time of the search. CP at 26. He said it was "very clean" and well maintained. CP at 26. P11 Mrs. Contreras testified that the family had lived in the home "[g]oing on four years." CP at 37. The family was purchasing the residence. The monthly payment was $ 796. Annual real estate [***7] taxes were $ 1,400. Electricity averaged $ 50 per month and water $ 25. P12 The hearing examiner made findings of fact and determined that all of the seized property was subject to [*653] forfeiture as proceeds of illegal drug activity and ordered that it be forfeited. P13 Mrs. Contreras filed a petition for review in Franklin County Superior Court. The petition was denied. Mrs. Contreras appealed to this court. The State's motion on the merits was denied. DISCUSSION WA[1][1] HN2Go to this Headnote in the case. P14 When we review an administrative decision, we apply the Administrative Procedure Act, chapter 34.05 RCW, directly to the agency record.

RCW 34.05.570(3)(e); Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993). We grant relief from an administrative order when the agency has erroneously interpreted or applied the law. RCW 34.05.570(3)(d). WA[2][2] HN3Go to this Headnote in the case. P15 Former RCW 69.50.505(a)(7) provides that "personal property, proceeds, or assets acquired in whole or in part with proceeds traceable to an exchange or series of exchanges" which constitute illegal drug activity are subject to forfeiture. This provision requires some evidence of tracing. [***8] King County Dep't of Pub. Safety v. 13627 Occidental Ave. S., 89 Wn. App. 554, 950 P.2d 7 (1998). When "[t]he record does not reflect that any effort was made to trace the proceeds" to any illegal drug transaction, and the findings do not address that issue, there is no basis for the forfeiture of the personal property as proceeds. Id. Such is the case here. Since the property was not traceable to any illegal drug transaction, it was not subject to forfeiture under the statute. The hearing examiner misapplied the statute. Because the statute does not apply, the other issues raised by the parties are superfluous. WA[3][3] HN4Go to this Headnote in the case. P16 Under RAP 18.1(a), a party may recover reasonable attorney fees and expenses on appeal if applicable law grants the party such right. Mrs. Contreras seeks attorney [**865] fees under HN5Go to this Headnote in the case.former RCW 69.50.505(f) (2001), which provides for costs and attorney fees to any claimant who substantially prevails in a civil forfeiture proceeding. As a prevailing [*654] party she is entitled to costs and reasonable attorney fees. P17 Therefore, we reverse the order granting forfeiture and, pursuant to former RCW 69.50.505(e) (2001), order that the property [***9] be returned to Mrs. Contreras (excluding the Chevrolet pickup, see note 1). We also award costs and reasonable attorney fees below and on appeal upon her compliance with RAP 18.1(d). Kato, C.J., and Kurtz, J., concur. 8 james sr 2011-03-08 19:13:19 Member Offline Registered: 2009-10-11 Posts: 2,776 KING COUNTY DEPARTMENT OF PUBLIC SAFETY, Respondent, v. REAL PROPERTY KNOWN AS 13627 OCCIDENTAL AVE. S., ET AL., Appellants. No. 38916-5-I COURT OF APPEALS OF WASHINGTON, DIVISION ONE 89 Wn. App. 554; 950 P.2d 7; 1998 Wash. App. LEXIS 25 January 20, 1998, Filed SUBSEQUENT HISTORY: [***1] [As amended by order of the Court of Appeals February 27, 1998.] Petition for Review Denied September 2, 1998, Reported at: 136 Wn.2d 1008, 966 P.2d 903, 1998 Wash. LEXIS 642. CASE SUMMARY PROCEDURAL POSTURE: Appellants, physician and spouse, challenged a decision of the Superior Court of King County (Washington) forfeiting some of their property under Wash. Rev.

Code 69.50.505. The physician admitted to having distributed legend drugs after his medical license was revoked. OVERVIEW: A physician distributed legend drugs after his license was revoked. Real and personal property belonging to he and his spouse was forfeited by the trial court under Wash. Rev. Code 69.50.505. This decision was reversed by the court, which awarded the physician and his spouse costs along with attorney fees. The court noted that nothing in 69.50.505 authorized forfeiture of personal property following unlawful distribution of legend drugs. Further, the court found that 69.50.505(8) only authorized forfeiture of real property actually associated with the creation, distribution, import, or export of legend drugs. OUTCOME: The court reversed the trial court's forfeiture of the property belonging to the physician and spouse and granted them an award of costs and reasonable attorney fees. CORE TERMS: controlled substance, legend, real property, forfeiture, personal property, traceable, clinic, subject to forfeiture, dispensed, license, revoked, delivery, negotiable instruments, manufacturing, prescription, drug-related, ambiguous, nexus, forfeiture action, law enforcement agency, used to facilitate, different parts, bona fide, hundred dollars, reasonable attorney fees, differentiate, carisoprodol, practitioner, osteopathic, compounding LexisNexis Headnotes Hide Headnotes Civil Procedure > Remedies > Forfeitures > General Overview Contracts Law > Negotiable Instruments > General Overview Contracts Law > Types of Contracts > Personal Property HN1Go to the description of this Headnote. Wash. Rev. Code 69.50.505 states that: (a) The following are subject to seizure and forfeiture and no property right exists in them: (2) All raw materials, products, and equipment of any kind which are used, or intended for use, in delivering any controlled substance in violation of this chapter or 69.41. (5) All books, records, and research products and materials, including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this chapter or 69.41. (7) All moneys, negotiable instruments, securities, or other tangible or intangible property of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this chapter or 69.41, all tangible or intangible personal property, proceeds, or assets acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of this chapter or 69.4, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this chapter or 69.41. Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Delivery, Distribution & Sale > General Overview Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Manufacture > Elements International Trade Law > Forfeitures & Penalties > General Overview HN2Go to the description of this Headnote. Under Wash. Rev. Code 69.50.505 (dealing with property subject to forfeiture): (8) All real property, including any right, title, and interest in the whole of any lot or tract of land, and any appurtenances or improvements which are being used with the knowledge of the owner for the manufacturing, compounding, processing, delivery, importing, or exporting of any controlled substance, or which have been acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of this chapter or 69.41, if such activity is not less than a class C felony and a substantial nexus exists between the commercial production or sale of the controlled substance and the real property. However: (ii) The bona fide gift of a controlled substance, legend drug, or imitation controlled substance shall not result in the forfeiture of real property; (iv) The unlawful sale of marijuana or a legend drug shall not result in the forfeiture of real property unless the sale was forty grams or more in the case of marijuana or one hundred dollars or more in the case of a legend drug, and a substantial nexus exists between the unlawful sale and the real property.

Civil Procedure > Remedies > Forfeitures > General Overview HN3Go to the description of this Headnote. Wash. Rev. Code 69.50.505(e) provides that in cases involving real property, the burden of proof that the seized real property is subject to forfeiture is on the law enforcement agency. Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Intent to Distribute > Elements Governments > State & Territorial Governments > Licenses HN4Go to the description of this Headnote. Wash. Rev. Code 69.41.030 and 69.41.070 prohibit the possession, sale, delivery, or possession with intent to deliver legend drugs without a valid prescription dispensed by a licensed practitioner. Civil Procedure > Remedies > Forfeitures > General Overview Criminal Law & Procedure > Sentencing > Forfeitures > General Overview HN5Go to the description of this Headnote. Wash. Rev. Code 69.50.505(a)(8) has two clauses which are stated in the alternative. The first provides for the forfeiture of real property used for the delivery of any controlled substance. The second clause provides for forfeiture of real property that has been acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of Wash. Rev. Code 69.41. Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Definitions HN6Go to the description of this Headnote. A controlled substance means a drug, substance, or immediate precursor included in Schedules I through V as set forth in federal or state laws, or federal or board rules. Wash. Rev. Code 69.50.101(d). Civil Procedure > Remedies > Forfeitures > General Overview Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview HN7Go to the description of this Headnote. Wash. Rev. Code 69.50.505(a)(2) and the first clause of Wash. Rev. Code 69.50.505(a)(7), like the first clause of Wash. Rev. Code 69.50.505(a)(8), are limited to violations involving the distribution or exchange of a controlled substance. Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview Estate, Gift & Trust Law > Community Property > General Overview Family Law > Marital Duties & Rights > Property Rights > General Overview HN8Go to the description of this Headnote. The Washington Legislature finds that: drug offenses and crimes resulting from illegal drug use are destructive to society; the nature of drug trafficking results in many property crimes and crimes of violence; state and local governmental agencies incur immense expenses in the investigation, prosecution, adjudication, incarceration, and treatment of drug-related offenders and the compensation of their victims; drug-related offenses are difficult to eradicate because of the profits derived from the criminal activities, which can be invested in legitimate assets and later used for further criminal activities; and the forfeiture of real assets where a substantial nexus exists between the commercial production or sale of the substances and the real property will provide a significant deterrent to crime by removing the profit incentive in drug trafficking, and will provide a revenue source that will partially defray the large costs incurred by government as a result of these crimes. The legislature recognizes that seizure of real property is a very powerful tool and should not be applied in cases in which a manifest injustice would occur as a result of forfeiture of an innocent spouse's community property interest. 1989 Wash. Laws, ch. 271, 211. Civil Procedure > Remedies > Costs & Attorney Fees > Costs > General Overview Civil Procedure > Remedies > Forfeitures > General Overview HN9Go to the description of this Headnote. Wash. Rev. Code 69.50.505(e) provides that the prevailing party is entitled to a judgment for costs and reasonable attorney fees and that the seizing law enforcement agency shall promptly return the article or articles to the claimant upon a

determination by the administrative law judge or court that the claimant is the present lawful owner or is lawfully entitled to possession thereof of items specified in subsection (a)(2)-(8) of this section. Hide Headnotes / Syllabus SUMMARY: Nature of Action: A local jurisdiction sought the forfeiture of real and personal property owned by an osteopath who was found to have prescribed legend drugs after his license to practice osteopathic medicine was revoked. Superior Court: The Superior Court for King County, No. 95-2-21711-7, Peter Jarvis, J., on June 17, 1996, entered a judgment of forfeiture with respect to three of the items of property. Court of Appeals: Holding that the forfeiture statute did not authorize forfeiture of the unlicensed osteopath's property insofar as the subject legend drugs were not controlled substances and the osteopath's property was not acquired from the proceeds of the exchange or sale of legend drugs, the court reverses the judgment and orders the property returned to the osteopath. /////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////// /////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////// //////////////////////////////////////////////////////////////////////////////////////////// THIS IS THE "GRAVAMEN" : insofar as the subject legend drugs>>>[ were not controlled substances] <<<<<<< [PDF] May 7 - 8, 2009 Board of Pharmacy Agenda File Format: PDF/Adobe Acrobat - Quick View May 7, 2009 ... Cathy is a participant of the Washington State Pharmacy and ... www.doh.wa.gov/hsqa/Professions/Pharmacy/.../20090507.pdf - Similar [It appears the state DOH removed the PDF link... after I posted this... nice to see someone is paying attention to legal issues in wa... can't imagine whom that is?] NO WORRIES, I HAVE ANOTHER COPY. Joyce Roper, AAG stated that: Ms. Roper also noted that this board***** [does not regulate herbal substances]******. >>>>The Board of Pharmacys authority relates to [legend drugs and substances available] at pharmacies<<<< /////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////// /////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////// //////////////////////////////////////////////////////////////////////////////////////////// HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES WA[1][1] Controlled Substances -- Prescription Drugs -- Legend Drug -- Forfeitures -- Real Property -- Test Under RCW 69.50.505(a)(8), the real property of a person found to have sold or dispensed a legend drug in violation of RCW 69.41 is not subject to forfeiture unless (1) the legend drug also constitutes a controlled substance under statutory definitions or (2) the real property was acquired, in whole or in part, with proceeds traceable to an exchange or series of exchanges of the legend drug. WA[2][2] Statutes -- Construction -- Legislative Intent -- Legislative History -- In General The legislative intent of an ambiguous statute may be determined by consulting the statute's legislative history.

WA[3][3] Statutes -- Construction -- Meaning of Words -- Same Word When the same term is used in different parts of the same statute, it is presumed that the Legislature intended the term to have the same meaning in each location. WA[4][4] Controlled Substances -- Prescription Drugs -- Legend Drug -- Forfeitures -- Personal Property -- Test Under RCW 69.50.505(a)(2) and (a)(7), the personal property of a person found to have sold or dispensed a legend drug in violation of RCW 69.41 is not subject to forfeiture unless (1) the legend drug also constitutes a controlled substance under statutory definitions or (2) the property was acquired, in whole or in part, with proceeds traceable to an exchange or series of exchanges of the legend drug. COUNSEL: John D. Blankinship of Montgomery, Purdue, Blankinship & Austin, P.L.L.C., for appellants. Norm Maleng, Prosecuting Attorney, and Tami A. Perdue, Deputy, for respondent. JUDGES: Authored by Susan R. Agid. Concurring: C. Kenneth Grosse, Faye C. Kennedy. OPINION BY: Susan R. Agid OPINION [*555] [**7] Agid, J. -- When Vernon D. Clausing continued to sell legend drugs after his professional license was revoked, the State brought this forfeiture action against real and personal property belonging to Clausing and his wife, Cleo. Because the facts of this case fall outside the scope of the forfeiture statute, we hold that the property was not subject to forfeiture under the statute and reverse. FACTS On April 22, 1995, the Board of Osteopathic Medicine and Surgery revoked Vernon Clausing's professional license and fined him $ 25,000 [***2] based on its finding that he had overprescribed the legend drugs nalbuphine (Nubain) and carisoprodol (Soma). In July [**8] 1995, Sheryl Reynaga contacted police and told them Clausing was continuing to sell Nubain and Soma even though his license had been revoked. Reynaga agreed to cooperate in a police investigation. In July and August 1995, she participated in a series of controlled buys during which Clausing and his wife, Cleo, gave her Nubain and Soma both at the Community Family Practice Clinic and at their home, which is immediately adjacent to the clinic. Based on these transactions, police obtained and executed a search warrant on both the clinic and the Clausings' [*556] home. They found large amounts of Nubain and Soma in both places and, in the clinic, a log reflecting a large volume of sales of both drugs. Clausing and his wife do not dispute that they dispensed Nubain and Soma from their clinic and home after his license was revoked. On August 18, 1995, the King County Department of Public Safety filed four in rem forfeiture actions against the Clausings' real and personal property, including personal property consisting of the Community Family Practice Clinic, the real property [***3] on which the clinic is located, the real property on which the Clausings' home is located, and two bank accounts at Key Bank. After trial, the court dismissed the State's forfeiture action against the two bank accounts but directed forfeiture of the remaining properties. DISCUSSION The State contends that the Clausings' real and personal property was subject to forfeiture under RCW 69.50.505 because it was used to facilitate transactions in violation of RCW 69.41, or was acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in

violation of RCW 69.41. 1 But while some sections of RCW 69.50.505 make reference to violations of RCW 69.41, not every section of the statute applies to such violations. The pertinent provisions of HN1Go to this Headnote in the case.RCW 69.50.505 follow: (a) The following are subject to seizure and forfeiture and no property right exists in them: .... (2) All raw materials, products, and equipment of any kind which are used, or intended for use, in . . . delivering . . . any [*557] controlled substance in violation of this chapter or chapter 69.41 . . . RCW; ... (5) All books, records, and research products and materials, including formulas, [***4] microfilm, tapes, and data which are used, or intended for use, in violation of this chapter or chapter 69.41 . . . RCW; .... (7) All moneys, negotiable instruments, securities, or other tangible or intangible property of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this chapter or chapter 69.41 . . . RCW, all tangible or intangible personal property, proceeds, or assets acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of this chapter or chapter 69.41 . . . RCW, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this chapter or chapter 69.41 . . . RCW . . . . HN2Go to this Headnote in the case.(8) All real property, including any right, title, and interest in the whole of any lot or tract of land, and any appurtenances or improvements which are being used with the knowledge of the owner for the manufacturing, compounding, processing, delivery, importing, or exporting of any controlled substance, or which have been acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of this [***5] chapter or chapter 69.41 . . . RCW, if such activity is not less than a class C felony and a substantial nexus exists between the commercial production or sale of the controlled [**9] substance and the real property. However: ... (ii) The bona fide gift of a controlled substance, legend drug, or imitation controlled substance shall not result in the forfeiture of real property; ... (iv) The unlawful sale of marijuana or a legend drug shall not result in the forfeiture of real property unless the sale was forty grams or more in the case of marijuana or one hundred [*558] dollars or more in the case of a legend drug, and a substantial nexus exists between the unlawful sale and the real property[.] (Emphasis added.) HN3Go to this Headnote in the case.RCW 69.50.505(e) provides that in cases involving real property, the burden of proof that the seized real property is subject to forfeiture is on the law enforcement agency. - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - 1 HN4Go to this Headnote in the case.RCW 69.41.030 and RCW 69.41.070 prohibit the possession, sale, delivery, or possession with intent to deliver legend drugs without a valid

prescription dispensed by a licensed practitioner. Because Vernon Clausing's license to practice osteopathic medicine was revoked on April 27, 1995, and Cleo Clausing was never a practitioner as defined in RCW 69.41.010(11), neither could legally sell, possess, dispense or deliver Nubain or Soma after that date. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - [***6] WA[1][1] The Clausings' real property can be forfeited only if it falls under HN5Go to this Headnote in the case.RCW 69.50.505(a)(8). 2 That subsection has two clauses which are stated in the alternative. The first provides for the forfeiture of real property used for the "delivery . . . of any controlled substance." Because Nubain and Soma are not controlled substances, 3 this clause does not apply. The second clause provides for forfeiture of real property that has been "acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of . . . chapter 69.41." But here the trial court made no finding that any of the real property was "acquired in whole or in part" with proceeds traceable to the Clausings' sale of legend drugs. Nor does the record support such a finding. Rather, it reflects that the real property on which the clinic is located was acquired in 1950, 45 years before the Clausings began to sell and distribute legend drugs in violation of RCW 69.41. There is nothing in the record about when they bought the house. Because there is no evidence that the real property was acquired in whole or in part with proceeds traceable to illegal drug exchanges, or that it was used in [***7] connection with "the manufacturing, compounding, processing, delivery, importing, [*559] or exporting of any controlled substance," none of it is subject to forfeiture under RCW 69.50.505(a) (8). - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - 2 It is undisputed that the value of the legend drugs dispensed by the Clausings was in excess of one hundred dollars. Thus, the exception in RCW 69.50.505(a)(8)(iv) does not apply. The exception in RCW 69.50.505(a)(8)(ii) would apply if the transactions were a bona fide gift. But the trial court made no such finding, and it appears from the record that the drugs were given to Reynaga in exchange for information about a grand jury Clausing believed Reynaga was on.3 HN6Go to this Headnote in the case.A "'[c]ontrolled substance' means a drug, substance, or immediate precursor included in Schedules I through V as set forth in federal or state laws, or federal or board rules." RCW 69.50.101(d). Soma and Nubain, or carisoprodol and nalbuphine, are not listed on Schedules I through V. - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - WA[2][2] WA[3][3] WA[4][4] Nor is the Clausings' personal property subject to forfeiture under the [***8] facts of this case. HN7Go to this Headnote in the case.RCW 69.50.505(a)(2) and the first clause of RCW 69.50.505(a)(7), 4 like the first clause of RCW 69.50.505(a)(8), are limited to violations involving the distribution or exchange of a controlled substance. To the extent that RCW 69.50.505(a)(2) can be considered ambiguous because it refers to the "manufacturing [of a] controlled substance in violation of . . . chapter 69.41 . . . RCW," we may look to the legislative history of the statute. 5 In enacting RCW 69.50.505, the Legislature referred only in general terms to drug-related offenses. 6 But in the statute [**10] itself the Legislature did differentiate between legend drugs and controlled substances and imposed a different range of consequences for illegal transactions involving controlled substances from those [*560] involving legend drugs. 7 In addition, both "controlled substance" and "legend drug" are defined in the relevant statutes. 8 Where the Legislature clearly differentiates between the two in other subsections, we cannot assume it intended "controlled substance" to mean both controlled substances and legend drugs where it has not explicitly said so. 9 Because RCW 69.50.505(a)(2) and the first clause of RCW [***9] 69.50.505(a)(7) are limited to violations involving the exchange of a controlled substance and the drugs the Clausings illegally exchanged were not controlled substances, neither authorizes forfeiture of the Clausings' personal property, i.e., the Community Family Practice Clinic.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - 4 We note that the trial court's order directing the forfeiture of the Clausings' personal property is premised only on RCW 69.50.505(a)(2) and (5). RCW 69.50.505(a)(5) relates to "[a]ll books, records, and research products and materials," none of which were identified as the subject of this action.5 State v. Roberts, 117 Wn.2d 576, 585, 817 P.2d 855 (1991). But if any drug listed on Schedules I through V can be prescribed by a physician, that alone would resolve the ambiguity.6 The Legislature stated as follows: HN8Go to this Headnote in the case.The legislature finds that: Drug offenses and crimes resulting from illegal drug use are destructive to society; the nature of drug trafficking results in many property crimes and crimes of violence; state and local governmental agencies incur immense expenses in the investigation, prosecution, adjudication, incarceration, and treatment of drug-related offenders and the compensation of their victims; drug-related offenses are difficult to eradicate because of the profits derived from the criminal activities, which can be invested in legitimate assets and later used for further criminal activities; and the forfeiture of real assets where a substantial nexus exists between the commercial production or sale of the substances and the real property will provide a significant deterrent to crime by removing the profit incentive in drug trafficking, and will provide a revenue source that will partially defray the large costs incurred by government as a result of these crimes. The legislature recognizes that seizure of real property is a very powerful tool and should not be applied in cases in which a manifest injustice would occur as a result of forfeiture of an innocent spouse's community property interest. LAWS OF 1989, ch. 271, 211. [***10] 7 See, e.g., RCW 69.50.505(a)(8)(ii), (iv).8 See RCW 69.50.101(d); RCW 69.41.010(9).9 See State v. Wilbur, 110 Wn.2d 16, 19, 749 P.2d 1295 (1988) (the rule of lenity requires that ambiguous criminal statutes be strictly and liberally construed in favor of the defendant); De Grief v. City of Seattle, 50 Wn.2d 1, 11, 297 P.2d 940 (1956) (when legislature uses similar words in different parts of statute, courts presume it intended same meaning throughout). - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - The second and third clauses of RCW 69.50.505(a)(7) also do not provide a basis for forfeiting the Clausing's personal property. The second clause requires some evidence that the property was "acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of . . . chapter 69.41 . . . RCW." The record does not reflect that any effort was made to trace the proceeds of the Clausings' illegal sale of legend drugs, and the trial court entered no finding on the question. The third clause of RCW 69.50.505(a)(7) refers only to "moneys, negotiable instruments, and securities," none which was [***11] at issue here. On these facts, RCW 69.50.505 provides no basis for forfeiting the Clausings' real and personal property. We therefore reverse and direct that the property be returned [*561] to Vernon and Cleo Clausing, together with an award of costs and reasonable attorney fees below and on appeal. 10 - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - 10 HN9Go to this Headnote in the case.RCW 69.50.505(e) provides that the prevailing party is entitled to a judgment for costs and reasonable attorney fees and that the "seizing law enforcement agency shall promptly return the article or articles to the claimant upon a determination by the administrative law judge or court that the claimant is the present lawful owner or is lawfully entitled to possession thereof of items specified in subsection [(a)(2)-(8)] of this section." - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - Reversed.

Kennedy, A.C.J., and Grosse, J., concur. Review denied at 136 Wn.2d 1008, 966 P.2d 903 (1998). Last edited by james sr (2011-03-08 19:47:32) 9 james sr 2011-03-30 01:46:33 Member Offline Registered: 2009-10-11 Posts: 2,776 DAGOBERTO ESPINOZA, ET AL., Respondents, v. THE CITY OF EVERETT, ET AL., Appellants. No. 38131-8-I COURT OF APPEALS OF WASHINGTON, DIVISION ONE 87 Wn. App. 857; 943 P.2d 387; 1997 Wash. App. LEXIS 1516 September 8, 1997, Filed SUBSEQUENT HISTORY: [***1] Review denied at 134 Wn.2d 1016, 958 P.2d 315 (1998). CASE SUMMARY: PROCEDURAL POSTURE: Petitioners, city, police chief, and police department (city), appealed an order of the Court of Appeals, Division One (Washington), which dismissed a forfeiture proceeding and ordered the return of respondent property owners' cash and car on summary judgment. The property owners appealed the order denying statutory post-judgment interest and costs. OVERVIEW: The city appealed the return of a large sum of cash and a car seized from a drug investigation. The trial court dismissed the forfeiture action. On review, the court held that the forfeiture action was properly dismissed because the city had violated statutory and constitutional due process guarantees. The power to order forfeiture derived solely from statute. The forfeiture statute of the Uniform Controlled Substances Act obligated the city to serve notice of an intent to forfeit upon any individual having a known right or interest in the property sought to be forfeited. The court also held that that the city had no right to retain the property once the forfeiture action had been dismissed. The property was not contraband, was not subject to forfeiture, was not alleged to have been stolen or needed for evidence. The owners had provided prima facie evidence of their right to possession. Thus, the trial court correctly ordered a return of the property. The court affirmed the denial of statutory post-judgment interest. OUTCOME: The court affirmed the judgment of the trial court and remanded for an award of statutory costs. CORE TERMS: forfeiture, ownership, claimant, seizure, notice, forfeiture proceedings, forfeiture statute, property used, seized property, drug trafficking, seized, claim of ownership, right to possession, postjudgment interest, currency, forfeit, forfeiture actions, real property, notified, law enforcement officer, joint venture, registered, conversion, lawful, property seized, subjected, review denied, reasonable opportunity, reply brief, prima facie evidence LexisNexis(R) Headnotes

Civil Procedure > Appeals > Standards of Review > De Novo Review [HN1] When the issues on review involve the application of law to undisputed facts, the facts are reviewed de novo. Civil Procedure > Remedies > Forfeitures > Hearings Constitutional Law > Bill of Rights > Fundamental Rights > Procedural Due Process > General Overview Criminal Law & Procedure > Sentencing > Forfeitures > Proceedings [HN2] The power to order forfeiture derives solely from statute. The forfeiture statute of the Uniform Controlled Substances Act obligates the city to serve notice of an intent to forfeit upon any individual having a known right or interest in the property sought to be forfeited. Individuals specifically required to be notified within 15 days of seizure include the owner and the person "in charge" of the property. Wash. Rev. Code 69.50.505(c). A party contesting the forfeiture of personal property has 45 days from the date of the seizure to file a claim of ownership or right to possession, after which the claimant is entitled to a reasonable opportunity to be heard. Wash. Rev. Code 69.50.505(e).In a case involving attempted forfeiture of real property, the Arizona Supreme Court held that due process entitles such claimants to a full adversarial hearing within 90 days of seizure. Civil Procedure > Remedies > Forfeitures > General Overview [HN3] The seizure of property from someone is prima facie evidence of that person's entitlement. Business & Corporate Law > Agency Relationships > Agents Distinguished > Joint Venturers Business & Corporate Law > Joint Ventures > General Overview Contracts Law > Types of Contracts > Joint Contracts [HN4] The forfeiture statute provides that if any person notifies the seizing law enforcement agency in writing of the person's claim of ownership that person shall be afforded a reasonable opportunity to be heard as to the claim. Wash. Rev. Code 69.50.505(e). The Uniform Controlled Substances Act defines "person" as including corporations, associations, partnerships, and joint ventures. Wash. Rev. Code 69.50.101(u). As the trial court noted, the law recognizes de facto joint ventures even if they have no formal name. Civil Procedure > Justiciability > Standing > General Overview Civil Procedure > Remedies > Forfeitures > General Overview [HN5] There is no justification or authority for requiring a claimant to submit proof of his standing along with his forfeiture claim. The forfeiture rule does not require such evidence and the very short time limit for filing a claim would create problems in some cases if a claimant had to submit proof of his standing along with his ownership claim. It would also be a trap since the language of the rule does not require a claimant to support his claim of ownership with proof. Civil Procedure > Remedies > Forfeitures > General Overview [HN6] Just as the forfeiture statute does not require the explicit naming of all individuals, neither does it require a recitation of background facts establishing the claimants' interest in the property. Governments > Legislation > Interpretation [HN7] A fundamental rule of statutory construction is that once a statute has been construed by the highest court of the state, that construction operates as if it were originally written into the statute. Civil Procedure > Appeals > Reviewability > Preservation for Review [HN8] When a party does not make an argument until its reply brief , the court will not consider it on appeal. Ariz. R. Civ. App. P. 2.5(a) and 10.3(c). Civil Procedure > Summary Judgment > Standards > Appropriateness Civil Procedure > Summary Judgment > Standards > Materiality

[HN9] Summary judgment is proper only if there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(c). Civil Procedure > Remedies > Forfeitures > General Overview Criminal Law & Procedure > Sentencing > Forfeitures > General Overview [HN10] A court may refuse to return seized 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. Civil Procedure > Remedies > Forfeitures > General Overview [HN11] The seizure of property from someone is prima facie evidence of that person's entitlement and the burden is on the city to prove a greater right of possession than that of the plaintiffs. Civil Procedure > Remedies > Judgment Interest > General Overview Contracts Law > Types of Contracts > Express Contracts Governments > Local Governments > Claims By & Against [HN12] A city is immune from interest on judgments unless express contract terms or a reasonable construction of a statute dictate otherwise. SUMMARY: Nature of Action: While investigating a suspected drug operation, a city seized an automobile containing a large sum of cash. The city then sought forfeiture of both the car and the cash. Ownership of the cash was claimed by the registered owner of the automobile on behalf of several unnamed individuals. The claim was made by way of a letter given to the city by the registered owner's attorney. The city did not respond to the letter for nearly one month, at which time it refused to set a hearing on the claim of ownership to the cash. Five months after the cash had been seized, the forfeiture action was removed to superior court at the plaintiffs' request. One year later, during which time the city served interrogatories on the foreign plaintiffs and the plaintiffs' counsel traveled to a foreign country to take the plaintiffs' depositions, the city unilaterally, and without notice to the superior court, transferred the cash to the United States Customs Service. The Customs Service, after 18 months, relinquished the cash to the superior court on the basis of the superior court's previously asserted jurisdiction over the res. Superior Court: After dismissing the forfeiture action, the Superior Court for Snohomish County, No. 91-2-03796-3, Anita L. Farris, J., on February 9, 1996, entered a summary judgment ordering that the cash be restored to the plaintiffs. The plaintiffs were also awarded any interest the city may have actually earned on the cash. Court of Appeals: Holding that the letter was sufficient to apprise the city of the plaintiffs' claim of ownership, that the plaintiffs were entitled to a hearing on their claim within 90 days of the city's receipt of the letter, and that the inordinate delay before the plaintiffs were granted a hearing on their claim violated their due process rights, the court affirms the dismissal and judgment. HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES [1] Statutes -- Application to Facts -- Question of Law or Fact -- Review The application of a statute to the undisputed facts of a case is a question of law that is reviewed de novo. [2] Forfeitures -- Basis -- Common Law or Statutory A court's authority to order the forfeiture of private property is wholly statutory in origin. [3] Controlled Substances -- Forfeitures -- Property Used in Drug Trafficking -- Notice -Custodian Under RCW 69.50.505(c), the person from whom private property has been seized by a law enforcement officer is entitled to notice of the seizure and the intended forfeiture of the property. [4] Controlled Substances -- Forfeitures -- Property Used in Drug Trafficking -- Claim -"Ownership" -- Joint Venturers -- Identification -- Necessity When the ownership of property seized by a law enforcement officer and subjected to forfeiture proceedings under RCW

69.50.505 is claimed on behalf of a de facto joint venture of unnamed participants, RCW 69.50.505(e) requires the government to afford the claimants a reasonable opportunity to be heard on the claim. The statutory right to a hearing does not depend upon the joint venturers being explicitly named in the claim notice. [5] Controlled Substances -- Forfeitures -- Property Used in Drug Trafficking -- Claim -"Ownership" -- Notice -- Sufficiency -- Legitimacy of Claim A person's right to be heard on a claim of ownership to property seized by a law enforcement officer and subjected to forfeiture proceedings under RCW 69.50.505 does not depend upon whether the legitimacy of the claim is revealed by the claim notice. The legitimacy of the claim is determined at the hearing. [6] Controlled Substances -- Forfeitures -- Property Used in Drug Trafficking -- Claim -"Ownership" -- Notice -- Sufficiency -- Background Facts A claim of ownership to property seized by a law enforcement officer and subjected to forfeiture proceedings under RCW 69.50.505 may be sufficient to warrant a hearing on the claim absent a recitation of background facts establishing the claimant's interest in the property. [7] Controlled Substances -- Forfeitures -- Property Used in Drug Trafficking -- Claim -"Ownership" -- Hearing -- Timeliness -- Due Process The due process rights of a person claiming an ownership interest in private property seized by a law enforcement officer and subjected to forfeiture proceedings under RCW 69.50.505 are not satisfied if a hearing on the claim is not held within 90 days of the claim filing. [8] Controlled Substances -- Forfeitures -- Property Used in Drug Trafficking -- Claim -"Ownership" -- Hearing -- Timeliness -- Violation -- Effect The government's authority under RCW 69.50.505 to obtain the forfeiture of private property used in drug trafficking is foreclosed by its failure to conduct a timely hearing upon a person's claim of ownership thereto. [9] Statutes -- Construction -- Effect -- Supreme Court Construction The Supreme Court's construction of a statute operates as if it were originally written into the statute. [10] Appeal -- Review -- Issues First Raised in Reply Brief -- In General An appellate court will not consider a claim made for the first time in a reply brief. [11] Controlled Substances -- Forfeitures -- Property Used in Drug Trafficking -- Return of Seized Property -- Test A government agency that has seized property and sought its forfeiture under RCW 69.50.505 must return the property to its rightful owner if the forfeiture proceedings have been dismissed and the property is not contraband, was not stolen, or is not evidence in a criminal trial. [12] Controlled Substances -- Forfeitures -- Property Used in Drug Trafficking -- Return of Seized Property -- Burden of Proof Property seized by a government agency that is no longer subject to forfeiture under RCW 69.50.505 must be returned to its rightful owner if the agency has not met its burden of proving that the agency has a greater right to possess the property than the owner. [13] Interest -- Postjudgment Interest -- Municipal Corporations Postjudgment interest may not be taxed against a municipal corporation in the absence of an express contract term or a statute that may reasonably be construed to authorize such an award. [14] Controlled Substances -- Forfeitures -- Property Used in Drug Trafficking -- Return of Seized Property -- Cash -- Interest Actually Earned In general, the owner of cash seized by a law enforcement agency and later returned upon the dismissal of forfeiture proceedings under RCW 69.50.505 is entitled to any interest the agency actually earned on the money. [15] Controlled Substances -- Forfeitures -- Property Used in Drug Trafficking -- Return of Seized Property -- Statutory Costs A person who prevails in an action against the government for the

return of property seized by a law enforcement officer and subjected to forfeiture proceedings under RCW 69.50.505 may be awarded costs under RCW 4.84.030. COUNSEL: Mark T. Patterson; and Catherine Wright Smith and Edwards, Sieh, Hathaway, Smith & Goodfriend, P.S., for appellants. Richard B. Daniel; and Richard J. Troberman, for respondents. JUDGES: Authored by Ann L. Ellington. Concurring: H. Joseph Coleman, Walter E. Webster. OPINION BY: Ann L. Ellington OPINION [*861] [**389] Ellington, J -- During a drug investigation, City of Everett police searched Manuel Arechiga's car, in which they discovered $ 260,000 in cash. The City attempted to forfeit both car and cash. When the government seeks to forfeit property as drug proceeds, the government must observe certain modest due process requirements. The City of Everett failed to do so, and the trial court dismissed the forfeiture proceedings and ordered the property returned to the plaintiffs, who (when finally afforded an opportunity after almost five years) presented unrebutted evidence of ownership. We hold that a letter claiming ownership of [***2] property and contesting its forfeiture need not provide detailed identification of claimants nor actual proof of their ownership, and that a hearing within 90 days is required. We affirm dismissal of the forfeiture and restoration of the property to plaintiffs. Facts On January 9, 1991, City of Everett police searched two hotel rooms registered to suspected drug traffickers. One of the rooms was registered to Mary Ellen Ortega, who had listed a Volkswagen Jetta as affiliated with her room. Angel Lopez was staying in the room with Ortega. The police found no cocaine in the room, but in Lopez's wallet, they found a receipt for a storage locker. Lopez told the police that the Jetta was stored in this locker but that he did not know to whom the car belonged or what was in it. The police obtained a warrant to search the car, which was registered to Manuel Arechiga. In the trunk, they discovered "flecks of white powder" that tested positive for cocaine, but in amounts "much less than 0.1 gram." In a door panel, the police found $ 260,000 in cash. The car and the cash were impounded. No charges were filed against either Ortega or Arechiga; charges filed against Lopez were dismissed. [***3] The day after the seizure, the City notified Lopez and Ortega of its intent to forfeit the car and the $ 260,000, thus providing them with 44 days to file a claim contesting [*862] the forfeiture. See RCW 69.50.505 (c), (d). Neither filed any claim. Six days after the seizure, the City notified Arechiga of its intent to forfeit the car. The notice sent to Arechiga made no mention of the money. Some 30 days later, Arechiga's attorney notified the City of Arechiga's claim of ownership and right to possession of the car. In the same letter, the attorney informed the City that he represented a group of individuals who were lawful owners of "a large sum of cash money that was also seized by your department on January 9, 1991." [**390] The letter did not explicitly identify the individual members of the group claiming the cash. The attorney requested a hearing as to both car and cash. 1 1 In full, the attorney's letter states: Our office represents Manuel Leon Arechiga owner of a 1990 volkswagen [sic] Jetta vehicle ID number WVWMA21G8LW121771 seized by your department on January 9, 1991. Mr. Arechiga is claiming his right to possession of this vehicle as its rightful and lawful owner. In addition there to [sic] we represent a group of approximately twenty five people who are the owners of a large sum of cash money that was also seized by your department on January 9, 1991. These individuals are the lawful legal owners of this money and have retained us to assist them in obtaining their legal right to possession of the seized property. We hereby request a hearing regarding the seized property owned by our clients and referred to

above. Thank you for your cooperation in this matter and please advise us as soon as possible as to your intentions with regard to releasing our clients['] property to them. [***4] The City did not respond for nearly one month, by which time the statutory deadline for demanding a hearing had elapsed. RCW 69.50.505(c), (d). The City then agreed to set a hearing for the car, but refused any hearing on forfeiture of the cash, contending that "a claim by 25 unidentified persons who provide no basis in fact for the claim is not a sufficient notice of claim." The City cited no authority to support its view that the claim was insufficient. 2 Because of the City's delay in responding, plaintiffs lost [*863] any opportunity to cure this alleged deficiency within the statutory deadline. See RCW 69.50.505(c), (d). Plaintiffs' counsel requested the City to reconsider, listed 27 individuals (including Arechiga) who claimed ownership of the money, and informed the City that these individuals intended to use the money to purchase buses, as they had done in the past. The City declined to reconsider, and set no hearing of any kind for either the car or the cash. 2 In full, the City's letter recites: I am the attorney for the City of Everett in contested forfeiture actions. I have reviewed your letter of February 12, 1991, to the Chief of Police[,] which was received in our office on February 15, 1991. Based on that letter we will set a hearing for your client Manuel Leon Arechiga concerning the Volkswagen Jetta, ID No. WVWMA21G8LW121771. With regard to the cash, it is our view that a claim by 25 unidentified persons who provide no basis in fact for the claim is not a sufficient notice of claim, and I will recommend that no hearing be set on the basis of this letter. [***5] On June 24, 1991, approximately five months after the seizure, plaintiffs removed the forfeiture action to superior court as permitted by the forfeiture statute. See RCW 69.50.505(e). In the year following removal, the City served a number of interrogatories. To obtain answers, plaintiffs' counsel traveled to Mexico and deposed the plaintiffs. The City was invited to attend, but declined. The record contains excerpts from the depositions of 14 plaintiffs, each of whom testified to giving a sum of U.S. currency to Arechiga so he could purchase equipment such as buses and tractors in the United States, equipment not readily available in Mexico. They desired buses because the Mexican government allows private enterprises to provide mass transit services on a permit basis. Tractors and other equipment were desired for general farm work. They used currency because individuals cannot maintain bank accounts in U.S. dollars within the borders of Mexico, and maintaining bank accounts in pesos is fiscally imprudent because of constant devaluation. Several deponents testified they had previously purchased equipment in this manner. Four months after the depositions were taken, the City unilaterally, [***6] and without advising the trial court, transferred [*864] the currency to the U. S. Customs Service. The money languished in the federal system for a year and a half before plaintiffs persuaded Customs that the transfer was invalid because the state court had previously asserted jurisdiction over the res. Once so persuaded, Customs returned the currency to superior court, where litigation resumed. Eventually, in August 1995, the court dismissed the forfeiture action, finding that a delay of four and half years between the seizure and a full adversarial hearing violated due process guarantees of the state and federal constitutions. The court also found this delay affronted the forfeiture statute, which provides for a reasonable opportunity to be [**391] heard. Rejecting the City's contention that its position was justified because counsel had not initially identified the individuals claiming ownership of the money, the court noted that the forfeiture statutes require no such identification. On summary judgment, the court ordered the City to deliver the property to plaintiffs because the money had been found in Arechiga's car, no one else had claimed the money, Arechiga testified he was holding the [***7] money on behalf of other plaintiffs who in turn testified they gave the

money to Arechiga, and the State provided no evidence that the money belonged to anyone but plaintiffs. The City's argument that a jury should determine whether the money was actually drug money was rejected by the court as irrelevant because the City's delay rendered the forfeiture statute inapplicable: "It does not matter whether the money was Plaintiffs' drug money or Plaintiffs' equipment money, so long as it was Plaintiffs' money." Plaintiffs asked the court to order postjudgment interest at the maximum lawful rate pursuant to RCW 4.56.110, and for statutory costs under RCW 4.84.030. The court cited Smith v. Mount, 45 Wn. App. 623, 726 P.2d 474, review denied, 107 Wn.2d 1016 (1986) for the proposition that the forfeiture statute did not allow the recovery of costs. The [*865] court also refused to award statutory postjudgment interest, reasoning that ordering the return of the cash was an equitable remedy and that a money judgment and related statutory interest were therefore unwarranted. The court did, however, award plaintiffs any interest that the City had actually earned on the cash. Discussion [1] The [***8] City argues that the court erred in dismissing the forfeiture proceeding and in ordering the return of the property on summary judgment. Plaintiffs argue that the court erred in denying statutory postjudgment interest and costs. [HN1] These issues all involve the application of law to undisputed facts and are therefore reviewed de novo. See Friends of the Law v. King County, 123 Wn.2d 518, 523, 869 P.2d 1056 (1994). Due Process [2] The first question is whether the court properly dismissed the forfeiture action because the City had violated statutory and constitutional due process guarantees. [HN2] The power to order forfeiture derives solely from statute. The forfeiture statute of the Uniform Controlled Substances Act obligates the City to serve notice of an intent to forfeit upon any individual having a known right or interest in the property sought to be forfeited. Individuals specifically required to be notified within 15 days of seizure include the owner and the person "in charge" of the property. RCW 69.50.505(c). A party contesting the forfeiture of personal property has 45 days from the date of the seizure to file a claim of ownership or right to possession, after which the claimant [***9] is entitled to "a reasonable opportunity to be heard." RCW 69.50.505(e); see also State v. Alaway, 64 Wn. App. 796, 799-801, 828 P.2d 591, review denied, 119 Wn.2d 1016, 833 P.2d 1390 (1992). In a case involving attempted forfeiture of real property, our Supreme Court held that due process entitles such claimants to a full adversarial hearing within 90 days of seizure. [*866] Tellevik v. Real Property, 125 Wn.2d 364, 367, 370-372, 884 P.2d 1319 (1994) (Tellevik II); Tellevik v. Real Property, 120 Wn.2d 68, 86, 838 P.2d 111, 845 P.2d 1325 (1993) (Tellevik I). [3] Here, the City seized a quarter of a million dollars from a car registered to Arechiga. The only other people with any connection to the car, Lopez and Ortega, claimed no ownership. Lopez, who was in possession of the storage locker receipt, informed the police that he had no ownership interest in either the car or the cash. Ortega made no claim. The only known possible owner of the car, therefore, was its registered owner, Arechiga, and the person likely to be "in charge" of its contents was also Arechiga. " [HN3] 'The seizure of property from someone is prima facie evidence of that person's entitlement.'" State [***10] v. Marks, 114 Wn.2d 724, 734, 790 P.2d 138 (1990) (quoting United States v. Wright, 197 U.S. App. D.C. 411, 610 F.2d 930, 939 (D.C. Cir. 1979)) (emphasis omitted). The facts here plainly constitute prima facie evidence that Arechiga [**392] had an ownership interest in the car, and had at least a possessory interest in the cash. Thus, the forfeiture statute obliged the City to serve Arechiga notice of the seizure and the intended forfeiture of both the car and the cash. See RCW 69.50.505(c). For reasons the City has never explained, it provided Arechiga with notice as to the car only. This is arguably fatal to the City's attempt to proceed with forfeiture of the cash, because when statutory procedures are not followed, the government is estopped from proceeding in a forfeiture action. See Alaway, 64 Wn. App. at 799-802. We do not decide the case on this ground, however, because the plaintiffs have not urged us to do so, and because, as his attorney's letter demonstrates, Arechiga was effectively apprised of the cash seizure when notified of the car seizure. Even assuming proper notice was provided here, the City's subsequent actions divested the City of any authority to forfeit either car or currency. Plaintiffs [***11] timely requested a hearing for

both the car and the cash. The [*867] City concedes that the hearing demand for the car was proper. Nevertheless, the City never set a hearing for the car. The City asserts the alleged defect in the demand was fatal to plaintiff's right to a hearing as to the cash. This argument is not supported by either the statute or our cases. [4] [HN4] The forfeiture statute provides that " if any person notifies the seizing law enforcement agency in writing of the person's claim of ownership . . . . [that] person shall be afforded a reasonable opportunity to be heard as to the claim." RCW 69.50.505(e). The Uniform Controlled Substances Act defines "person" as including corporations, associations, partnerships, and joint ventures. 3 RCW 69.50.101(u). As the trial court noted, the law recognizes de facto joint ventures even if they have no formal name. See, e.g., Malnar v. Carlson, 128 Wn.2d 521, 534-36, 910 P.2d 455 (1996). The trial court correctly concluded that the statutory scheme does not require constituent members of such a joint venture to be explicitly named. Indeed, explicitly naming such members would provide no information of immediate value to the City. The [***12] only identifying information necessary at this stage is contact information so that the City can schedule further proceedings. Here, such communication could have been made through counsel. Finally, had the City served notice as to the cash, at least one claimant (Arechiga) would very likely have been identified with specificity. 3 The definition of "person" is: "'Person' means individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial agency." RCW 69.50.101(u). [5] Although never clearly explained, the crux of the City's argument is apparently that the legitimacy of plaintiffs' claim could not be discerned by inspecting the demand letter. But the statute places no such burden on the demand letter. The legitimacy of the claim is to be resolved by a trier of fact after a full adversarial hearing. It is not to be unilaterally resolved by the party seeking to effectuate forfeiture. [*868] [6] The City cites [***13] United States v. $ 38,570 U.S. Currency, 950 F.2d 1108 (5th Cir. 1992) for the proposition that "[a] claimant's 'bare assertion' of ownership of currency is insufficient to establish standing to object to forfeiture." That case, however, involved the interpretation of a federal forfeiture rule and thus is only persuasive authority at best. More to the point, its reasoning has been soundly criticized as imposing an unreasonable burden, in the limited time available to file a claim, and as creating a trap for unwary claimants: In [$ 38,570], the Fifth Circuit apparently took the position that, ordinarily, "a claimant is required to submit some additional evidence of ownership along with [the] claim in order to establish standing to contest the forfeiture." This is incorrect. [HN5] There is no justification or authority for requiring a claimant to submit proof of his standing along with his claim. Rule C(6) does not require such evidence and the very short time limit for filing a claim would create problems in some cases if a claimant had to submit proof of his standing along with his ownership claim. It would also be a trap since the language of [**393] the rule does not require a claimant to support his [***14] claim of ownership with proof. 1 DAVID B. SMITH, PROSECUTION AND DEFENSE OF FORFEITURE CASES P9.04 at 9-68.7 (1996) (footnote omitted). We agree with this criticism. As the facts here demonstrate, these concerns are well-founded. Plaintiffs resided in a remote locale and had only 39 days from the time Arechiga was notified in which to locate an attorney and contest the forfeiture. [HN6] Just as the forfeiture statute does not require the explicit naming of all individuals, neither does it require a recitation of background facts establishing the claimants' interest in the property. Nor did the City's notice indicate that such information was necessary. Rather, Arechiga was instructed only to "notify the City . . . in writing of [his] claim of ownership or right to possession." Under these circumstances, imposing such naming and recitation requirements would indeed constitute a trap for the unwary. [*869] [7] [8] [9] The city next attempts to avoid the 90-day hearing requirement of Tellevik, arguing that Tellevik should be limited to its facts, and that application of the 90-day hearing required by the Tellevik holdings "is particularly unwarranted given that both Tellevik I and

Tellevik II were decided [***15] after this action was commenced." But the Tellevik court imposed the 90-day time limitation to preserve the constitutionality of the statute. See Tellevik II, 125 Wn.2d at 370-71. In any event, [HN7] a fundamental rule of statutory construction is that once a statute has been construed by the highest court of the state, that construction operates as if it were originally written into the statute. See, e.g., In re Vandervlugt, 120 Wn.2d 427, 436, 842 P.2d 950 (1992). Nor does the fact that Tellevik involved the seizure of real property suggest, as the City contends, that a rule more lenient to the government should be fashioned for forfeiture of personal property. Nothing in the Tellevik opinions suggests that the 90-day rule should be limited to real property. Rather, the court modified Tellevik I to remove a reference to real property and to add a citation to the Administrative Procedures Act, which does not apply to real property. Tellevik I, 120 Wn.2d 68, 87, 838 P.2d 111, 845 P.2d 1325 (1993). Indeed, an argument can be made for a rule more protective of personal property interests, rather than less, because claimants retain physical control of seized real property, [***16] see Tellevik II, 125 Wn.2d at 371-72, whereas seized personal property comes under the complete and immediate control of the government. As the facts here demonstrate, such complete control will not always be wise stewardship. Even ignoring the 90-day requirement of Tellevik, the City does not explain how passage of four and a half years could conform to due process and constitute "a reasonable opportunity to be heard." We hold that the 90-day hearing requirement of Tellevik applies to forfeiture of any property, real or personal. The City's other arguments are also without merit. For [*870] example, the City next contends that it should be excused from adhering to the time limit because plaintiffs "participated in the federal forfeiture proceedings, during which the City had no control over the seized property." This argument ignores the fact that the City deliberately relinquished its "control over the seized property" and created the need for the federal forfeiture proceedings when it unilaterally transferred the cash to Customs without authorization from the state trial court, an action for which the City has provided no justification whatsoever. The fault for any delay associated [***17] with the federal action lies entirely with the City. In a similar vein, the City argues that its delay should be excused because plaintiffs complicated matters by asserting an "unwarranted Section 1983 claim." The merits of this claim are irrelevant, as its assertion does not vest the City with "the power to ignore the statutory limitations on a hearing date." Tellevik II, 125 Wn.2d at 373. In any event, the delay associated with this claim is inconsequential because the claim was dismissed in September, 1994, after which another year passed without the City setting any hearing. [10] The [**394] City further argues that the notice is defective because plaintiffs' claim failed to identify the res with specificity. [HN8] The City did not make this argument until its reply brief and thus we will not consider it here. See RAP 2.5(a); RAP 10.3(c). We note, however, that there was never any dispute as to the identity of the cash, and if plaintiffs' counsel could perhaps have identified the amount with greater specificity, his failure to do so is in part explained by the fact that the City, contrary to the forfeiture statute, did not notify Arechiga of its intent to forfeit the cash found in his [***18] car. See RCW 69.50.505(c). Lastly, the City argues that plaintiffs caused the delay by failing to provide timely discovery, noting that in February 1995, it moved to compel answers to interrogatories served in November 1994. The City forgets that the seizure occurred in January, 1991. Any delay in responding to [*871] discovery occurred more than three years after the seizure and is of no moment here. We also note that several of these interrogatories had been answered in the depositions taken two years earlier. In short, the equities in no way favor the City. Relying entirely upon a technical argument about the adequacy of plaintiffs' demand letter, the City denied all requests for hearings. Yet the City seeks to be relieved of procedural requirements premised on constitutional principles and statute. The City seeks stringent rules for claimants, and lenient rules for government. This equation is hardly in balance. Right to Possession After Dismissal of Forfeiture [11] [12] The next question is whether the court correctly held on summary judgment that the City had no right to retain the property once the forfeiture action had been dismissed. [HN9] Summary

judgment is proper only if there are [***19] no issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). "'[ [HN10] A] court may refuse to return seized 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.'" Barlindal v. City of Bonney Lake, 84 Wn. App. 135, 139, 925 P.2d 1289 (1996) (quoting State v. Alaway, 64 Wn. App. 796, 798, 828 P.2d 591, review denied, 119 Wn.2d 1016, 833 P.2d 1390 (1992)). " [HN11] 'The seizure of property from someone is prima facie evidence of that person's entitlement[,]'" State v. Marks, 114 Wn.2d 724, 734, 790 P.2d 138 (1990) (emphasis omitted) (quoting United States v. Wright, 197 U.S. App. D.C. 411, 610 F.2d 930, 939 (D.C. Cir. 1979)), and the burden is on the City to prove a greater right of possession than that of the plaintiffs. State v. Card, 48 Wn. App. 781, 790-91, 741 P.2d 65 (1987). Here, the City made no showing of a right to possession. The property was not contraband, was not subject to forfeiture, was not alleged to have been stolen or needed for [*872] evidence. Plaintiffs provided prima facie evidence of their right to possession. While there may [***20] also have been indications that the money was the fruit of illegal activity, this is irrelevant, because the City's lack of diligence divested the City of the opportunity to seek forfeiture: "[T]he [government] cannot confiscate property merely because it is derivative contraband, but instead must forfeit it using proper forfeiture procedures." Alaway, 64 Wn. App. at 799. Having failed to use proper forfeiture procedures, the City acquired the burden of demonstrating some other right to possession, a burden it failed to meet in any way. The court correctly ordered the money returned to plaintiffs. PostJudgment Interest [13] [14] The trial court refused to award statutory postjudgment interest. [HN12] A city is immune from interest on judgments unless express contract terms or a reasonable construction of a statute dictate otherwise. Campbell v. Saunders, 86 Wn.2d 572, 577-78, 546 P.2d 922 (1976). Although this issue was discussed in the trial court proceedings, the plaintiffs waited until their reply brief to make any argument as to how the City's immunity could be overcome. Only then did plaintiffs maintain they were entitled to statutory interest because the City committed [**395] the tort [***21] of conversion. 4 Plaintiffs provide no citation to the record that this conversion theory was argued below; nor have we found any such indication. Out of fairness to the trial court and the opposing party, theories advanced for [*873] the first time on appeal generally will not be considered. See RAP 2.5(a). We thus decline to consider the conversion theory on the merits, and affirm the denial of statutory postjudgment interest. Because the City has not argued otherwise, however, plaintiffs are, as the trial court ruled, entitled to any interest that the City actually earned on the money. Accord United States v. $ 277,000 U.S. Currency, 69 F.3d 1491, 1492 (9th Cir. 1995). 5 4 By statute, a city is liable for postjudgment interest if that judgment is based on tortious conduct. See, e.g., Teevin v. Wyatt, 75 Wn. App. 110, 114-15, 876 P.2d 944 (1994); RCW 4.56.115. The tort of conversion occurs when one intentionally and unlawfully deprives an owner of possession of a chattel. See, e.g., Frisch v. Victor Indus., Inc., 51 Wn. App. 377, 381, 753 P.2d 1000 (1988). Plaintiffs' theory here is that while the City had a lawful justification for seizing the property, that justification ceased to exist when the City refused to schedule a hearing within 90 days of the seizure. See Tellevik II, 125 Wn.2d at 370-71. From that point forward, the plaintiffs argue that the City intentionally interfered with their property and therefore committed conversion. Accord Johnson v. Johnson, 849 P.2d 1361, 1365 (Alaska 1993). We note that Tellevik was decided well after the seizure here. [***22] 5 The City's request for fees in responding to this portion of the cross-appeal is denied. Costs [15] The trial court also refused to award statutory costs to plaintiffs under Smith v. Mount, 45 Wn. App. 623, 726 P.2d 474, review denied, 107 Wn.2d 1016 (1986). The issue in the Smith case was whether the government could collect fees under the forfeiture statute, which authorizes

fees to a prevailing claimant in a hearing involving two or more claimants. See RCW 69.50.505(e). The court held fees were not available because the government was not a claimant. Smith, 45 Wn. App. at 630-31. The Smith court in no way implied that a prevailing party is precluded from recovering costs under RCW 4.84.030, nor is any such implication warranted. We therefore reverse the denial of costs. Affirmed, and remanded for an award of statutory costs. Coleman and Webster, JJ., concur. Review denied at 134 Wn.2d 1016 (1998). 10 james sr 2011-03-31 02:31:18 Member Offline Registered: 2009-10-11 Posts: 2,776 WAC 246-75-010 Medical marijuana. (1) Purpose. The purpose of this section is to "define" the >>>>amount of marijuana<<<< a "qualifying patient" could reasonably >>>"expect to need" <<<<over a sixty-day period for their >>>"personal medical use"<<<. It is intended to: (a) Allow medical practitioners to exercise their best professional judgment in the delivery of medical treatment; (b) Allow designated providers to assist patients in the manner provided in chapter 69.51A RCW; and (c) >>Provide clarification<<< to patients, >>>law enforcement and others<<< in the >>>"use" <<< of medical marijuana. (2) Definitions. (a) "Designated provider" means a person as defined in RCW 69.51A.010. (b) "Plant" means any marijuana plant in any stage of growth. (c) "Qualifying patient" means a person as defined in RCW 69.51A.010. (d) >>>"Useable marijuana" means<<<< the dried leaves and flowers of the Cannabis plant family Moraceae. Useable marijuana excludes stems, stalks, seeds and roots. (3) >>>>Presumptive sixty-day supply.<<< i.e. NOT contraband. (a) A qualifying patient and a designated provider >>>"may possess"<<< a total of no more than twenty-four ounces of useable marijuana, and no more than fifteen plants. (b) Amounts listed in (a) of this subsection are total amounts of marijuana between both a qualifying patient and a designated provider. (c) The presumption in this section >>>>"may be overcome with evidence"<<< of a qualifying patient's necessary medical use.

[Statutory Authority: RCW 69.51A.080 and 2007 c 371. 08-21-001, 246-75-010, filed 10/2/08, effective 11/2/08.]

Rev. Code Wash. (ARCW) 69.51A.050 (2011) 69.51A.050. Medical marijuana, >>>lawful possession<<<< -- State not liable. (1) >>>>The "lawful possession or manufacture of medical marijuana" as "authorized by this chapter"<<<< >>>shall not "result" in the forfeiture or seizure of >>>>any<<< "property".

What does that mean? Last edited by james sr (2011-03-31 02:36:36) 11 james sr 2011-03-31 02:43:23 Member Offline Registered: 2009-10-11 Posts: 2,776 and the "burden" is on the City "to prove" >>>>a greater right of possession than that of the plaintiffs.<<<<< State v. Card, 48 Wn. App. 781, 790-91, 741 P.2d 65 (1987). 12 james sr 2011-03-31 15:38:53 Member Offline Registered: 2009-10-11 Posts: 2,776 http://safeaccessnow.org/punbb/viewtopic.php?id=6675 medical conditions.10 Under state law, patients >>>>>were permitted<<<<< to possess a 60-day supply of medical marijuana based on a doctors written recommendation. However, a 60-day supply was not defined in law or rule. In an attempt to clarify the situation, the Washington State Department of Public Health issued a new rule (Washington Administrative Code (WAC) 246-75-010, effective November 2008) that defines a 60-day supply as 15 plants and 24 ounces of smokable marijuana.

http://www.mrsc.org/wa/courts/index_dtSearch.html PLEASE READ "DISCLAIMER" FIRST!!!!

48 Wn. App. 781, STATE v. CARD CITE: 48 Wn. App. 781, 741 P.2d 65 STATE v. CARD CAUSE NUMBER: 9189-5-II FILE DATE: August 6, 1987

CASE TITLE: The State of Washington, Appellant, v. James Melvin Card, et al, Defendants, Virginia Zurilda Card, Respondent. [1] Appeal - Review - Issues Not Raised in Trial Court - Discretion of Court. Under RAP 2.5(a), the interests of public policy and fundamental justice are a proper basis for an appellate court's exercise of its discretion to consider an issue which was not raised in the trial court. [2] Searches and Seizures - Return of Seized Property - Court Rule. CrR 2.3(e) governs the disposition of property seized by the police, regardless of the legality of the seizure. A motion for the return of property may be made at any time. [3] Searches and Seizures - Return of Seized Property - Hearing - Burden of Proof. A trial court acts on a motion for the return of seized property under CrR 2.3(e) by holding an evidentiary hearing to resolve the competing claims of the claimant and the State. The State has the initial burden of proving by a preponderance of the evidence that its possessory right is superior to that of the claimant. NATURE OF ACTION: After pleading guilty to possession of stolen property, the defendant sought the return of all the property seized by the State which crime victims had not claimed and which the defendant had not admitted was stolen. Superior Court: The Superior Court for Pierce County, No. 84 1-00694-5, Floyd v. Hicks, J. Pro Tem., on September 25, 1985, ordered the property to be returned to the defendant. Court of Appeals: Holding that an evidentiary hearing under CrR 2.3(e) was required to determine whether the property claimed by the defendant was stolen property, the court REVERSES the judgment and REMANDS the case for an evidentiary hearing. COUNSEL: JOHN W. LADENBURG, PROSECUTING ATTORNEY, and BARBARA L. COREYBOULET and KATHLEEN PROCTOR, DEPUTIES, for appellant. ROBERT W. HAMILTON and PHILLIP J. FRENCH, for respondent. AUTHOR OF MAJORITY OPINION: McInturff, C.J.*JUDGE PRO TEMPORE NOTE: -------------------------------------------------------------------------------* This case was heard by a panel of Division Three judges sitting in Division Two. JUDGE PRO TEMPORE NOTE: MAJORITY OPINION:

Virginia Card pleaded guilty to second degree possession of stolen property. Upon her motion, the court ordered all remaining unclaimed personal property seized by the State, from the defendant's premises, be returned to the defendant. The State contends, for the first time on appeal, the court erred when it did not conduct a hearing for return of the property under CrR 2.3(e) and STATE EX REL. SCHILLBERG v. EVERETT DIST. JUSTICE COURT, 90 Wn.2d 794, 585 P.2d 1177 (1978). The State also contends the court improperly placed the initial burden of proof on the State to prove the property is stolen property. We hold CrR 2.3(e) does apply; compliance was not made and the initial burden of showing the property was stolen was properly placed on the State. We reverse and remand for proceedings consistent with this opinion. Under search warrants, police seized items from the Cards' second- hand business located in their residence. 1 -------------------------------------------------------------------------------1 Although the value of the property seized and claimed is not clear from the record, it is substantially in excess of the values covered by the guilty pleas. -------------------------------------------------------------------------------Five members of the Card family were charged with crimes, four pleaded guilty stating they knowingly possessed stolen property in excess of the dollar minimums for the degree of the crime charged. 2 -------------------------------------------------------------------------------2 James Melvin Card pleaded guilty to first degree possession of stolen property. Virginia Card pleaded guilty to second degree possession of stolen property. James Martin Card pleaded guilty to third degree possession of stolen property. Joel Card pleaded guilty to second degree possession of stolen property. Jeffrey Card was convicted of first degree and second degree possession of stolen property. -------------------------------------------------------------------------------The informations to which four members of the Card family pleaded guilty, listed specific items of property as stolen property. The sheriff's office attempted to find the owners of the seized property, but much of it remained unclaimed. 3 -------------------------------------------------------------------------------3 Video tape recordings of all the property were made and shown at local theaters with an appeal by the State to the public to come forward and claim the property. Additionally, the property was placed on public display and the State advertised to victims of crimes the opportunity to come forward and identify their property. Only a very small percentage of the property was identified as stolen. -------------------------------------------------------------------------------Property specifically admitted by the defendants to be stolen is not included among the unclaimed

property. Virginia Card moved for the return of all property that had not been claimed. The first issue is whether the order directing return of property should be vacated because it does not comport with the guidelines of STATE EX REL. SCHILLBERG v. EVERETT DIST. JUSTICE COURT, SUPRA. A. Is the State precluded by RAP 2.5(a) from raising the applicability of CrR 2.3(e) for the first time on appeal? [1] RAP 2.5(a) provides: " Errors Raised for First Time on Review. The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: (1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, and (3) manifest error affecting a constitutional right. A party or the court may raise at any time the question of appellate court jurisdiction. The applicability of a court rule may be raised for the first time on review. GROSS v. LYNNWOOD, 90 Wn.2d 395, 397, 583 P.2d 1197, 96 A.L.R.3d 187 (1978); BATTEN v. ABRAMS, 28 Wn. App. 737, 742, 626 P.2d 984 (1981). RAP 2.5(a) is phrased to allow the court discretion to refuse to hear arguments raised for the first time on appeal- it says the court "may" refuse. Washington courts have allowed issues to be considered for the first time on appeal when fundamental justice so requires. 4 -------------------------------------------------------------------------------4 In GREER v. NORTHWESTERN NAT'L INS. CO., 36 Wn. App. 330, 339, 674 P.2d 1257 (1984), fundamental justice required review of an insurance clause to determine if it violated public policy. SEE ALSO 2A L. Orland, Wash. Prac., RULES PRACTICE 2132, at 502 (3d ed. 1978). -------------------------------------------------------------------------------Thus, we shall consider the State's argument that the return of unclaimed property to the defendant would allow her to profit from her crime. We conclude public policy and fundamental justice require this court to review these issues. B. Does CrR 2.3(e) govern the disposition of lawfully seized property after the property is no longer needed as evidence? CrR 2.3 governs search and seizure. CrR 2.3(e) provides: " Motion for Return of Property. A person aggrieved by an UNLAWFUL search and seizure may move the court for the return of the property on the ground that the property was illegally seized and that the person is lawfully entitled to possession thereof. If the motion is granted the property shall be returned. If a motion for return of property is made or comes on for hearing after an indictment or information is filed in the court in which the motion is pending, it shall be treated as a motion to suppress. (Italics ours.) We find little guidance on whether the procedure contemplated by CrR 2.3 applies to property LAWFULLY seized under a warrant or on whether CrR 2.3 governs motions to return property after the property is no longer useful as evidence, I.E., posttrial or following a guilty plea. [2] Court rules are subject to the same principles of statutory construction as statutes, including the rule that language clear on its face does not require or permit any construction. STATE v. MCINTYRE, 92 Wn.2d 620, 622, 600 P.2d 1009 (1979). Although the wording of CrR 2.3(e)

explicitly refers to "unlawful" seizures of property, the comments to the rule state the rule supersedes a statute, repealed in 1984, that governed disposition of property lawfully seized. 5 -------------------------------------------------------------------------------5 STATE EX REL. SCHILLBERG v. EVERETT DIST. JUSTICE COURT, SUPRA at 800 n.1 recognized that a different rule applied to property seized by aid of a warrant, former RCW 10.79.030, which provided: When any officer in the execution of a search warrant shall find any stolen or embezzled property, or shall seize any other things for which a search is allowed by RCW 10.79.010 through 10.79.030, all the property and things so seized, shall be safely kept by the direction of the court or magistrate, so long as shall be necessary for the purpose of being produced in evidence on any trial, and as soon as may be afterwards, all such stolen and embezzled property shall be restored to the owner thereof, and all other things seized by virtue of such warrant shall be returned to the owner thereof if such may be legally done or shall be destroyed under direction of the court or magistrate. The footnote goes on to state: The superior court criminal rules contain a provision identical to JCrR 2.10(e). Comments following it and the statute state that the rule supersedes the statute. This comment, like the one we had under consideration in STATE v. CUMMINGS, 87 Wn.2d 612, 555 P.2d 835 (1976), is erroneous. There is no conflict between the statute and the rules. ONE GOVERNS THE DISPOSITION OF PROPERTY TAKEN LEGALLY BY AID OF A SEARCH WARRANT, AND THE OTHER PERTAINS TO THE CLAIMANT'S RIGHT TO HAVE ILLEGALLY SEIZED PROPERTY SUPPRESSED AND/OR RETURNED TO HIM. (Italics ours.) RCW 10.79.030 was repealed by Laws of 1984, ch. 76, 35, p. 465. The comments to CrR 2.3 state that the rule supersedes RCW 10.79.010 and .030. -------------------------------------------------------------------------------Federal law interprets the federal counterpart of the rule to apply to lawfully seized evidence as well as unlawfully seized evidence. UNITED STATES v. WRIGHT, 610 F.2d 930 (D.C. Cir. 1979). A motion for return of property made after an information is filed is treated as a motion to suppress. 12 R. Ferguson, Wash. Prac., CRIMINAL PRACTICE 2305, at 444 (1984). However, a motion for return of property may be made at any time, including after a determination of guilt. 12 R. Ferguson, 2305. Finding the comments to CrR 2.3(e) and federal precedent persuasive, we hold the CrR 2.3(e) procedure is applicable here. [3] STATE EX REL. SCHILLBERG v. EVERETT DIST. JUSTICE COURT, SUPRA, construed JCrR 2.10(e), which has the same wording as CrR 2.3(e). Here, the court described the procedure contemplated by CrR 2.3(e) as encompassing an evidentiary hearing in which the State and the claimant of the property would introduce evidence on the issue of which party had the better claim to possession of the property. STATE EX REL. SCHILLBERG v. EVERETT DIST. JUSTICE COURT, SUPRA at 796- 98. There, both the State and the claimant of the property submitted affidavits which comprised the only evidence before the court. The court's description of the procedure contemplated by JCrR 2.10(e) (to include an evidentiary hearing) is applicable to CrR 2.3(e) by analogy. Therefore, CrR 2.3(e) requires an evidentiary hearing. Here, a hearing was held on the motion to return the property. The State submitted a memorandum in support of the State's retention of stolen property. The defendant submitted a memorandum in opposition to the State's retention of property. No affidavits were offered by either the State or the defendant, nor was other evidence taken at the hearing in the form of testimony. Since we find an evidentiary hearing is required under CrR 2.3(e), the procedure used here was defective. Therefore, this case must be remanded to the superior court for a proper CrR 2.3(e) hearing.

Although we find the procedure used here was defective, we still address the State's contention that the court, in the hearing for return of property, used an improper rule of law which wrongfully placed the initial burden of proof on the State. The State argues Virginia Card's plea of guilty to possession of stolen property and the circumstances of the seizure of the property are sufficient to place the initial burden of proof on Virginia Card to show that she is entitled to possession of the property. Finding of fact 7 states: " The State of Washington, through law enforcement officers of the City of Tacoma and the County of Pierce are currently in possession of personal property which has neither been claimed as stolen by members of the general public or proven to be fruits of criminal activities in a Court of law. The court concluded: I. Possession of personal property, under a claim of right, is evidence of ownership as against all the world except the true owner. II. Absent any cognizable claim of ownership or right to possession adverse to the defendant, Virginia Zurilda Card, the property currently held by the State of Washington shall be returned to the defendant, Virginia Zurilda Card. The State argues STATE EX REL. SCHILLBERG v. EVERETT DIST. JUSTICE COURT, SUPRA at 797-98 places the burden on the person moving for return of property taken in an unlawful search and seizure to prove not only that the search and seizure was illegal, but that he is lawfully entitled to possession of the property seized. However, the State's argument ignores the language in STATE EX REL. SCHILLBERG v. EVERETT DIST. JUSTICE COURT, SUPRA at 796, indicating the State had made a substantial showing that the merchandise, or a part of it at least, had been stolen. There, the defendant made a motion for release of the property seized when he was arrested. The motion was accompanied by an affidavit of his attorney which stated his client advised him the items taken were legitimately in his possession, that he legitimately paid for such items and demanded their return. By affidavit also, one of the arresting officers stated that a man who had been observed taking merchandise from a store without paying for it was seen entering a vehicle bearing the description and license number of the defendant's car; boxes were seen in the vehicle later that day, bearing tags of the store from which the merchandise had been taken. STATE EX REL. SCHILLBERG v. EVERETT DIST. JUSTICE COURT, SUPRA at 795 96. The court stated that a SUBSTANTIAL SHOWING HAD BEEN MADE THAT THE MERCHANDISE, OR A PART OF IT AT LEAST, HAD BEEN STOLEN and pointed to the absence of any affidavit by the defendant stating the facts upon which he claimed a right to possession and the conclusory nature of the affidavit by defendant's attorney. The court concluded there was good reason to believe the property may have been stolen and any doubts were not resolved by the affidavit of the defendant's attorney. STATE EX REL. SCHILLBERG v. EVERETT DIST. JUSTICE COURT, SUPRA at 801. The court held JCrR 2.10(e) contemplates that a claimant by his own testimony or affidavits will show the court sufficient facts to convince it of his right to possession, and if such a showing is not made, the motion must be denied. STATE EX REL. SCHILLBERG v. EVERETT DIST. JUSTICE COURT, SUPRA at 801. Therefore, the language cited by the State from STATE EX REL. SCHILLBERG v. EVERETT DIST. JUSTICE COURT, SUPRA at 797-98 does not persuade us that the claimant has the initial burden of proof. We find no law in Washington dealing directly with who has the INITIAL burden of proof in a claim

for possession of property legally seized after trial or plea of guilty. Cases from other jurisdictions provide some general guidance. A party from whom things are seized retains a protectable property interest in the seized materials. WARDEN v. HAYDEN, 387 U.S. 294, 307-08, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967); UNITED STATES v. HUBBARD, 650 F.2d 293, 303 (D.C. Cir. 1980); UNITED STATES v. FARRELL, 606 F.2d 1341, 1347 (D.C. Cir. 1979). Lawful seizure of property may affect the timing of return, but never the owner's right to eventual return. UNITED STATES v. HUBBARD, SUPRA at 303. A finding that much of the property seized under a warrant was intended for use in further breaking and entering did not authorize denial in toto of defendant's motion to return. STATE EX REL. RICCI v. GOTTSCHALK, 115 R.I. 90, 341 A.2d 45, 46 (1975). Virginia Card cites UNITED STATES v. PALMER, 565 F.2d 1063 (9th Cir. 1977), where the court reversed a district court decision denying the return of money and personal effects confiscated by the government. In PALMER, at 1064, the defendant had been convicted of bank robbery. Money was seized from the defendant at the time of his arrest and placed in evidence at his trial. There was no evidence the money was the property of the bank robbed. " In absence of any cognizable claim of ownership or right to possession adverse to that of appellant, the district court should have . . . returned to him the money taken from him by government seizure. PALMER, at 1065. This decision was made despite Mr. Palmer's conviction of stealing approximately $2,500 from a bank 9 days before his arrest with the money. PALMER, at 1064 n.3. 6 -------------------------------------------------------------------------------6 In PALMER, at 1064 n.1, the court noted that existing statutes do not discriminate between grounds to support a motion to return seized things and grounds for a motion to suppress, yet plainly there is a great different. PALMER, at 1064 n.1 indicates that in most, if not all circumstances, the legality of the search or seizure is irrelevant to a motion to return the property. If possession of the things seized is unlawful, the State should retain the things no matter how it got them. PALMER, at 1064 n.1. If stolen goods are involved and the true owner is on hand with undisputed evidence of title, he should have them restored to him no matter how the State got them. PALMER, at 1064 n.1. -------------------------------------------------------------------------------In UNITED STATES v. WRIGHT, SUPRA, officers seized $2,100 in a drug raid under a warrant. The charges were dropped and the defendants moved for return of the money. WRIGHT, at 932. At a hearing on the motion to return the property, a seizing officer testified he took the money from defendants' person and apartment. The defendants did not testify, basing their claim of ownership on the officers' testimony and argument that the government had not met its burden to show the money was contraband or proceeds of a crime. WRIGHT, at 934. WRIGHT, at 939, rejected the government's contention that defendants have an obligation to prove they are entitled to the money. The court held seizure of property from someone is prima facie evidence of that person's entitlement, particularly when the seized property is money. Unless there are serious reasons (presented by the government or adverse claimants) to doubt a person's right to property seized from him, he need not come forward with additional evidence of ownership. 7 -------------------------------------------------------------------------------7 WRIGHT, at 941-42, stated that guilty pleas to drug charges based on offenses occurring AFTER the search and seizure did not establish that the money was fruit of a narcotics sale. --------------------------------------------------------------------------------

A procedural rule of court cannot be used to take away substantive rights. STATE v. FLEMING, 41 Wn. App. 33, 36, 701 P.2d 815 (1985). Here, to apply the State's interpretation of CrR 2.3(e) and impose the INITIAL burden to show right of possession on the person claiming property seized under a search warrant would be to impact the claimant's protectable property interest in the seized materials. The approach of the federal court in WRIGHT protects the claimant's property interest by placing the burden initially on the State to show the seized property is fruit of a crime. We hold the initial burden of proving seized materials are stolen property is on the State. We interpret the "substantial showing" from STATE EX REL. SCHILLBERG v. EVERETT DIST. JUSTICE COURT, SUPRA, which the State is required to make to require the State to prove by a preponderance of the evidence that the property is stolen property. This proceeding is in the nature of a replevin action. It is conceded the State seized this property from the defendants. Once that concession is made, the burden is on the State to prove a greater right of possession than the defendants. Thus, the burden is properly on the State. A showing by the State that the Card family pleaded guilty to possession of stolen property in excess of a stated dollar amount does not shift the burden of proof to the persons from whom the property was seized because property worth considerably more than the dollar amount stated in the guilty pleas has been seized. Additionally, introduction of the circumstances under which the property was seized in a residence when the residence is also the location of the claimant's second-hand business is not sufficient to shift the burden of proof from the State because there were no circumstances argued which distinguish this property as stolen as opposed to inventory of a legitimate second-hand business. Because the procedures outlined in CrR 2.3(e) and STATE EX REL. SCHILLBERG v. EVERETT DIST. JUSTICE COURT, SUPRA, were not followed, this case is reversed and remanded for a CrR 2.3(e) hearing. Only if the State can make a substantial showing that the merchandise, or at least a significant part of it, is stolen, will the claimant be required to show the court sufficient facts of her right to possession. STATE EX REL. SCHILLBERG v. EVERETT DIST. JUSTICE COURT, SUPRA at 801. The judgment of the Superior Court is reversed; this case is remanded for proceedings consistent with this opinion. CONCURRING JUDGES: Green and Munson, JJ., concur.