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Barlindal v. City of Bonney Lake

November 15, 1996

GEORGE BARLINDAL, RESPONDENT/CROSS-APPELLANT,
v.
CITY OF BONNEY LAKE, APPELLANT/CROSS-RESPONDENT.



Appeal from Superior Court of Pierce County. Docket No: 91-2-12045-1. Date filed: 02/03/95. Judge signing: Hon. Bruce W. Cohoe.

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

The opinion of the court was delivered by: Bridgewater

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 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 possessions were unlawful 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 under the Uniform Controlled Substances Act (UCSA). *fn1 Barlindal removed the action to superior court; *fn2 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 ordered Bonney Lake to return to Barlindal the firearms he owned. *fn3 Bonney Lake appeals.

I

" 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 Wash. App. 796, 798, 828 P.2d 591, review denied, 119 Wash. 2d 1016, 833 P.2d 1390 (1992). Firearms are not contraband because their possession, without more, does not constitute a crime. Cf. Alaway, 64 Wash. App. at 799 (tools, building materials, and gardening supplies used to grow marijuana not contraband).

A

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, sec. 8). *fn4 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 upon a showing that there is no probable cause to believe a violation of subsection (1) of this section existed . . . ." RCW 9.41.098(3). "After confiscation, the firearm shall not be surrendered except . . . to the owner if the proceedings are dismissed . . . ." RCW 9.41.098(4).

B

Under the UCSA's separate forfeiture procedures, firearms are subject to forfeiture when they are used in or are the ...


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