Appeal from Superior Court of Spokane County. Docket No: 94-1-00778-6. Date filed: 03/13/95. Judge signing: Hon. Harold D. Clarke JR.
Authored by Ray E. Munson. Concurring: Dennis J. Sweeney, Philip J. Thompson.
The opinion of the court was delivered by: Munson
MUNSON, J. RCW 69.50.505 permits the seizure and forfeiture of property that is used to facilitate a violation of the Uniform Controlled Substances Act, RCW 69.50, or proceeds from a violation. In this case, we are asked to decide whether such a forfeiture is "punishment" for the purpose of the double jeopardy provisions of the federal and state constitutions, and therefore bars the subsequent prosecution of Gary M. Lynch for possession of cocaine. *fn1 We hold it is not and affirm Mr. Lynch's conviction.
On the night of March 9, 1994, Mr. Lynch parked his 1989 Chevrolet Astro van on a street near the Ridpath hotel. At around 9 p.m., a Ridpath employee observed several youths breaking into the vehicle. She called the police, and Officer Eric Olsen of the Spokane Police Department responded.
Officer Olsen checked the van, which had "Spokane Punchboard" painted on the side of it, and found the sliding door was unlocked. When he opened the door, he saw bags of pull tabs. He testified it appeared the bags had been gone through or ransacked they were "jumbled all over."
In an attempt to identify the vehicle's owner, Officer Olsen opened the van's front passenger door to look for registration documents. The first thing he saw was a cellular phone on the console with a checkbook visible beneath it. Officer Olsen moved the phone and picked up the checkbook, assuming it belonged to the van's owner and would have a name, address, and telephone number in it. He immediately noticed a baggy of bindles the checkbook had hidden from view. From his police experience, Officer Olsen knew that bindles commonly are used to package cocaine. He field tested the white powder inside one of the bindles and obtained a positive result for that drug.
As Officer Olsen conducted the field test, a man approached him, told him he knew the owner of the van and offered to go get him. In a short time, he returned with Mr. Lynch. Officer Olsen explained that he had entered the vehicle to find the owner's name and had discovered the bindles. He arrested Mr. Lynch, searched him incident to the arrest, and seized another bindle from Mr. Lynch's coat pocket.
The State charged Mr. Lynch with possession of cocaine. The Spokane police chief also instituted an in rem civil proceeding to forfeit the van and other items seized from Mr. Lynch at the time of his arrest. The chief obtained a decree of forfeiture on May 3, 1994, based on a finding the van was used to facilitate the crime of possession. The decree followed a hearing at which Mr. Lynch contested the forfeiture. Mr. Lynch also unsuccessfully moved in the criminal prosecution to suppress the cocaine Officer Olsen found in the van. He was convicted of possession on October 7, 1994, on stipulated facts. *fn2
Mr. Lynch appealed his conviction. While his appeal was pending, he moved the superior court to vacate the judgment and sentence and dismiss the possession charge on the ground the prior forfeiture constituted punishment for the same offense. As such, he argued the subsequent criminal conviction violated the state and federal constitutions' prohibition against double jeopardy. The superior court granted the motion on March 13, 1995. Thereafter, Mr. Lynch's appeal was dismissed, the State appealed the order vacating the conviction, and Mr. Lynch cross-appealed the court's denial of his motion to suppress.
The statute under which the Spokane police chief obtained these forfeitures is RCW 69.50.505. It generally provides for the forfeiture of property used to facilitate the sale, delivery, or receipt of controlled substances, or of property that is the proceeds of such activity. RCW 69.50.505(a)(1)-(8). Subsection (b) of the statute sets forth the procedure for forfeitures. Seizure of property is by warrant or it may be without process if incident to an arrest or a search under a search warrant. RCW 69.50.505(b)(1). The law enforcement agency that seizes the property must give the property owner and those with an interest therein, notice of intent to forfeit within 15 days. RCW 69.50.505(c). If no person appears to contest the forfeiture, the property seized is deemed forfeited. RCW 69.50.505(d). *fn3 Otherwise, a hearing is held before the chief law enforcement officer of the seizing agency or his or her designee. The burden of producing evidence is upon the person claiming the property.
RCW 69.50.505(e). (For the full text of RCW 69.50.505, see Appendix A to this opinion.)
In United States v. Ursery, U.S., 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996), the United States Supreme Court held that "in rem civil forfeitures [under 21 U.S.C.A. sec. 881 (West 1996) and 18 U.S.C.A. sec. 981 (West 1996)) *fn4 are neither 'punishment' nor criminal for purposes of the Double Jeopardy Clause." (For full text of 21 U.S.C.A. sec. 881, see Appendix B to this opinion.) Ursery, 116 S. Ct. at 2149. The court specifically reaffirmed United States v. One Assortment of 89 Firearms, 465 465 U.S. 354, 104 S. Ct. 1099, 79 L. Ed. 2d 361 (1984), and applied the two-part inquiry contained there: One, did the Congress intend the forfeiture statute to be criminal or civil? Two, are the proceedings so punitive in fact as to persuade the Court the forfeiture proceeding is criminal in nature, despite congressional intent? Ursery, 116 S. Ct. at 2147. *fn5
With regard to the first inquiry, the Court reiterated that in rem proceedings, which target the property and not the owner, have traditionally been civil proceedings. Ursery, 116 S. Ct. at 2147. As evidence Congress intended the forfeitures to be civil proceedings, the Court cited the procedural mechanisms provided for in the laws: actual notice is unnecessary when the government cannot identify an interested party, a summary administrative proceeding can dispose of the action if no party files a claim, and the ...