En Banc. Dolliver, J. Brachtenbach, Andersen, Durham, Smith, and Guy, JJ., and Callow, J. Pro Tem., concur. Dore, C.j., and Utter and Johnson, JJ., did not participate in the disposition of this case.
The sole issue facing the court is whether a law enforcement agency which has seized personal property based on probable cause has the burden of proof at the forfeiture hearing to show the property to be forfeited was used to facilitate the sale of a controlled substance. The Court of Appeals "[a]s a matter of statutory construction [held] former RCW 69.50.505 (under which this case was decided) . . . placed the burden on the governmental agency to establish by a preponderance of the evidence that the property sought to be forfeited was used, or intended to be used, to facilitate a drug sale." Rozner v. Bellevue, 56 Wash. App. 525, 531, 784 P.2d 537 (1990). We reverse.
The essential facts are as follows: On October 3, 1986, Bellevue Police Detective Bronson obtained a search warrant for a 1984 Ford van suspected of being used to facilitate a drug transaction. The van was seized, and the City of Bellevue sought forfeiture of the van pursuant to RCW 69.50.505(a)(4). Plaintiff Louie Rozner filed a claim of ownership and resisted forfeiture. At a hearing on the matter, the City of Bellevue presented Detective Bronson's affidavit of probable cause and evidence that a mirror with a small amount of cocaine on it was found in the van when the
vehicle was impounded. Plaintiff neither appeared personally at the hearing nor did he offer any evidence.
Forfeiture of the van was ordered by the hearing examiner. The forfeiture was upheld by the Superior Court. The Court of Appeals reversed holding the City had not proved, by a preponderance of the evidence, that the van was subject to forfeiture. Dissenting, Chief Judge Coleman argued the burden of proof lay with plaintiff Rozner, not the City. We granted review.
Under Washington's forfeiture statute, "[a]ll conveyances", including vehicles "used, or intended for use, in any manner to facilitate the sale" of controlled substances are subject to seizure and forfeiture. RCW 69.50.505(a)(4). At the time of this case, RCW 69.50.505(e) gave any person claiming a right to possession of the seized vehicle the right to a hearing, at which "the burden of producing evidence shall be upon [that] person . . .". Former RCW 69.50.505(e).
In 1988, however, the Legislature amended RCW 69.50.505 both to make real property subject to forfeiture and to place the "burden of producing evidence" in such cases on the State. Laws of 1988, ch. 282, § 2(e), pp. 1299, 1302. The Governor vetoed this amendment, explaining that the law enforcement community had rejected the bill, in part, because the amendment shifted the burden of proof to law enforcement. Laws of 1988, at 1304. The Governor urged the Legislature to work with the law enforcement community and "pass a law which allows law enforcement to continue under existing law for the 'personal property' forfeitures while adding new separate provisions for 'real property' forfeitures." Laws of 1988, at 1304. The 1989 Legislature amended RCW 69.50.505(e) so as to 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 items seized]. In cases involving real property, the burden of producing evidence shall be upon the law enforcement agency. The burden of proof that the seized real
property is subject to forfeiture shall be upon the law enforcement agency.
Laws of 1989, ch. 271, § 212, pp. 1299, 1302.
The issue of whether the law enforcement agency, having shown probable cause for seizure, must then also show by a preponderance of the evidence that the personal property was used to facilitate a drug sale has yet to be considered squarely by an appellate court. In Irwin v. Mount, 47 Wash. App. 749, 753, 737 P.2d 277, review denied, 108 Wash. 2d 1031 (1987), the Court of Appeals held RCW 69.50.505(e) placed an "initial burden . . . upon the claimant to show a lawful interest in the subject property", but did not decide whether a claimant whose standing to challenge the forfeiture is thus established must prove the property is not subject to forfeiture. In State v. Michel, 55 Wash. App. 841, 781 P.2d 496 (1989), the Court of Appeals touched upon this question by stating:
The statute here, in three different sections [former RCW 69.50.505(a)(4)(ii) and (e); RCW 69.50.506(a)], unambiguously provides that the claimant has the burden of proving lack of knowledge, the lawful right to possession, or any exemption or exception to the State's prima facie case for forfeiture.
Michel, 55 Wash. App. at 844. Michel, however, dealt only with the claimant's burden to establish lack of knowledge, exceptions, and exemptions where the claimant does not dispute whether the seizing agency met its initial burden. The court expressly relied on a Maryland opinion which held,
[O]nce the illicit use of the vehicle is shown, the vehicle is presumptively subject to forfeiture and the burden of proof is upon the owner to demonstrate entitlement to ...