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City of Everett Police Department v. Real Property Known as 4827 268th St. N.W.

April 28, 1997

CITY OF EVERETT POLICE DEPARTMENT, APPELLANT,
v.
REAL PROPERTY KNOWN AS 4827 268TH ST. N.W., STANWOOD, SNOHOMISH COUNTY, WASHINGTON, AND ALL APPURTENANCES AND IMPROVEMENTS THEREON, RESPONDENT.



Appeal from Superior Court of Snohomish County. Docket No: 95-2-06410-6. Date filed: 12/21/95. Judge signing: Hon. Anita L. Farris.

Petition for Review Denied October 7, 1997,

Authored by H. Joseph Coleman. Concurring: Susan R. Agid, Ronald E. Cox.

The opinion of the court was delivered by: Coleman

COLEMAN, J. -- Under Washington law, real property presently being used with the owner's knowledge as a marijuana grow operation is subject to forfeiture. RCW 69.50.505(a)(8). If, however, the operation ceased due to "law enforcement intervention," the "present" requirement is nevertheless satisfied. Tellevik v. Real Property, 120 Wash.2d 68, 76, 838 P.2d 111 (1992), 845 P.2d 1325 (1993). The Everett Police Department filed a forfeiture action under this statute for the property at 4827 268th St. N.W. in Stanwood. The trial court dismissed the action because no grow operation existed at the time the warrant was executed. The City appeals, arguing that a grow operation had existed recently and only ceased because law enforcement activity had made the grow operator suspicious. We hold that the police involvement in this case does not constitute "law enforcement intervention" and thus affirm.

According to Detective Fred Helfers' affidavit, Helfers received information that Ray Canell might be involved in a grow operation. In late July 1995, Helfers contacted the Public Utilities District to check the property for possible power diversion. On August 8, 1995, PUD employee Dave Clark told Helfers that he had confronted Canell at the Stanwood property, who acted suspicious and nervous.

On August 9, 1995, Helfers drove to the address and saw a large rental truck backed up to the front doors of one of the buildings on the property. Fearing that the suspects may be moving a marijuana grow operation, Helfers arranged with two other detectives to conduct a "knock and talk." Canell refused consent. Helfers then received a search warrant for the truck and the building located on the property.

That same day, the Everett Police Department served the search warrant. At the time of its execution, there was no existing marijuana grow operation, nor were there significant amounts of marijuana present. Circumstantial evidence, however, indicated that a marijuana grow operation was conducted on the property as recently as twenty-four to forty-eight hours before the execution of the search warrant.

The property owner brought a motion to dismiss the forfeiture action. The trial court granted that motion, finding that RCW 69.50.505 required an existing prohibited use at the time of law enforcement intervention to support a real property forfeiture action.

The sole issue on appeal is whether the trial court erred in finding that the grow operation did not cease due to law enforcement intervention. The City argues that law enforcement intervention includes the police investigation that caused Canell to move the grow operation, and therefore, the forfeiture statute's present requirement is met.

The forfeiture statute provides in relevant part:

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

(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[.] However:

(iii) The possession of marijuana shall not result in the forfeiture of real property unless the marijuana is possessed for commercial purposes, the amount possessed is five or more plants or one pound or more of marijuana, and a substantial nexus ...


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