In rе ONE RESIDENCE AT 319 E. FAIRGROUNDS DR., FAIRGROUNDS RESUB LOT 12 BLK 14, RECORDED IN THE OFFICE OF THE PIMA COUNTY RECORDER IN DOCKET 6969 AT PAGE 938, INCLUDING ALL BUILDINGS, FIXTURES, STRUCTURES, AND APPURTENANCES THERETO.
No. 2 CA-CV 2002-0117.
Court of Appeals of Arizona, Division 2, Department A.
July 3, 2003.
71 P.3d 930
(2002) (officer‘s temporary seizure of guns found under bed during residential search “was not unreasonable within the meaning of the Fourth Amendment” even though “it was not ‘immediately apparent’ that they were contraband“).8 And the shotgun‘s seizure and removal were justified by Corrales‘s observation that it was an illegal weapon. See
DISPOSITION
1 40 Rodriguez‘s convictions and probationary term are affirmed.
ESPINOSA, C.J. and DRUKE, J. (Retired), concurring.
Michael L. Alegria, Douglas, In Propria Persona.
Terry Goddard, Arizona Attorney General, By Cameron H. Holmes, Phoenix, for Amicus Curiae State of Arizona.
OPINION
HOWARD, J.
¶ 1 In this civil, in rem forfeiture action, the trial court entered summary judgment in favor of the State of Arizona and forfeited appellant Michael Alegria‘s interest in his house, in which police had found a large amount of drugs, several guns, and almost $15,000 in cash. On appeal, Alegria argues the trial court erred by allowing the state to exact an excessive fine and by granting summary judgment despite the existence of a genuine issue of material fact. Because we
BACKGROUND
¶ 2 Appellant Michael Alegria was arrested on drug-related charges and was later convicted of possession of a narcotic drug for sale and possession of drug paraphernalia. The state filed a civil, in rem complaint pursuant to
DISCUSSION
I. Jurisdiction
¶ 3 We first address the state‘s argument that we lаck jurisdiction because Alegria failed to send a copy of his notice of appeal and opening brief to the attorney general as required by
¶ 4 We see no reason to depart from this holding. The attorney general, in an amicus curiae brief, argues that the attorney general has a substantive right to participate in the appeal.1 Although that is true, the remedy allowed for an appellant‘s failure to serve the attorney general is not “an integral part of the right [to appeal] itself” and, therefore, is “solely procedural.” See Hinton v. Hotchkiss, 65 Ariz. 110, 116, 174 P.2d 749, 753 (1946) (bar of cross-claims and counterclaims in forcible entry and detainer actions “an integral part of the right itself” and, therefore, “not solely procedural“). Accordingly, we have jurisdiction of this appeal. Moreover, we decline to impose the sanction of dismissal for Alegria‘s failure to serve the attorney general in this case.
II. Application of the Eighth Amendment
¶ 5 Alegria first argues the trial court allowed the state to exact an excessive fine in violation of the Eighth Amendment by ordering forfeiture of his interest in his house. See
Badia v. City of Casa Grande, 195 Ariz. 349, ¶ 11, 988 P.2d 134, ¶ 11 (App.1999).
A. Arizona‘s statutory framework
¶ 6 The trial court ordered forfeiture of Alegria‘s house pursuant to
B. Austin and Bajakajian
¶ 7 In Austin, the United States Supreme Court addressed the issue of whether the Eighth Amendment‘s prohibition of “excessive fines” applies to civil, in rem forfeiture actions under federal anti-drug laws. The Court stated that the pertinent question for purposes of an Eighth Amendment analysis is “not ... whether fоrfeiture ... is civil or criminal, but rather[,] whether it is punishment.” Austin, 509 U.S. at 610. Analyzing the history of in rem forfeitures, the Court concluded that statutory in rem forfeitures have been traditionally understood, at least in part, as punishment. Id. at 618. Starting from the premise that in rem forfeitures are at least somewhat punitive, the Court then looked at the federal forfeiture statute under consideration to determine if anything in the statute contradicted that historical understanding. Id. at 619. It noted the presence of an “innocent owner” defense, stating that such an exemption served to make a forfeiture look “more like punishment, not less.” Id. The Court further noted that Congress has tied forfeitures directly to certain drug offenses and that the legislative history of the forfeiture statute confirmed it was intended to punish and deter crime. Id. at 620.
¶ 8 In rejecting the government‘s argument thаt forfeiture of a drug dealer‘s mobile home and automobile body shop was remedial and not punitive, the Court stated that, although forfeiture of contraband is remedial “because it removes dangerous or illegal items from society,” real property itself is not dangerous or illegal and cannot properly be characterized as “‘instruments’ of the drug trade.” Id. at 621. The Court also rejected the government‘s argument that, because the forfeiture statute had some remedial purpose, in that it helped to compensate the government for the costs of combating illegal drugs, the Court should find the Eighth Amendment inapplicable. Id. Instead, the Court held that a civil sanction that has any “retributive or deterrent purposes ... is punishment” and is limited by the Eighth Amendment. Id. at 621-22, quoting United States v. Halper, 490 U.S. 435, 448 (1989), overruled by Hudson v. United States, 522 U.S. 93 (1997). It declined, however, to state a specific test for what constitutes an excessive forfeiture under the Eighth Amendment. Id. at 622-23.
¶ 9 The Supreme Court again addressed the Eighth Amendment in the context of forfeitures in Bajakajian. In Bajakajian, the Court concluded that in rem forfeitures were traditionally nonpunitive and “considered to occupy a place outside the domain of the Excessive Fines Clause.” 524 U.S. at 331. The Court explained that traditional in rem forfeiture actions proceeded against the instrumentalities of crime, or the “guilty
¶ 10 The Court, however, did not retreat from its holding in Austin, repeating that, if a forfeiture “constitutes punishment even in part, regardless of whether the proceeding is styled in rem or in personam,” the Eighth Amendment applies. Id. at 331 n. 6. And, the Court further stated, albeit in a footnote, that,
[a]lthough the term “instrumentаlity” is of recent vintage, it fairly characterizes property that historically was subject to forfeiture because it was the actual means by which an offense was committed. “Instrumentality” forfeitures have historically been limited to the property actually used to commit an offense and no more. A forfeiture that reaches beyond this strict historical limitation is ipso facto punitive and therefore subject to review under the Excessive Fines Clause.
Id. at 333 n. 8 (citations omitted). The Court then adopted a gross disproportionality standard for determining whether a forfeiture is excessive under the Eighth Amendment, instructing courts to “compare the amount of the forfeiture to the gravity of the defendant‘s offense.” Id. at 336-37.
C. Application in Arizona
¶ 11 As the state argues, Arizona courts have consistently held civil, in rem forfeiture actions to be rеmedial in nature. See In re 2120 S. 4th Ave., 177 Ariz. 599, 603, 870 P.2d 417, 421 (App.1994); In re Ten Thousand Ninety-Eight Dollars, 175 Ariz. 237, 240, 854 P.2d 1223, 1226 (App.1993); In re One 1983 Toyota Silver Four-Door Sedan, 168 Ariz. 399, 403, 814 P.2d 356, 360 (App.1991). In 2120 S. 4th Avenue, this court distinguished Austin, finding that, in contrast to the federal forfeiture statutes at issue there, the “Arizona legislature intended our statutes to be remedial.” 177 Ariz. at 603, 870 P.2d at 421.
¶ 12 All of these cases, however, preceded Bajakajian and did not have the benefit of its analysis of the Eighth Amendment‘s requirements. And the issue after Austin and Bajakajian is whether the forfeiture statute is solely remedial, without any retributive or punitive рurposes. The court in State v. Leyva, 195 Ariz. 13, 985 P.2d 498 (App.1998), engaged in just such an analysis and found that in personam forfeiture under
¶ 13 If Alegria‘s house was an instrumentality of the crime, the forfeiture would be “outside the domain of the Excessive Fines Clause.” Bajakajian, 524 U.S. at 331. We therefore examine that issue first. Alegria was convicted of possession of a narсotic drug for sale and possession of drug paraphernalia. The Court in Austin specifically rejected the argument that real property can be characterized as an instrument of the drug trade and, thus, like contraband, be automatically removed from Eighth Amendment scrutiny. 509 U.S. at 621. We see no distinction between the real property at issue here and the real property in Austin. Accordingly, we cаnnot find that the house was an instrumentality and, thus, beyond Eighth Amendment analysis.
¶ 14 We note that, under Bajakajian, forfeiture of anything other than an instrumentality of an offense is “ipso facto punitive and therefore subject to [Eighth Amendment] review.” 524 U.S. at 333 n. 8. However, because this statement was dictum, and because of our prior case law, we will
¶ 15 Although the legislature has expressly declared that Arizona‘s in rem forfeiture statutes are remedial, see
¶ 16 Further, just as the federal statute in Austin did,
¶ 17 Moreover, although the attorney general claims otherwise,
No оwner‘s or interest holder‘s interest may be forfeited under this chapter if the owner or interest holder establishes all of the following:
(a) He acquired the interest before or during the conduct giving rise to forfeiture.
(b) He did not empower any person whose act or omission gives rise to forfeiture with legal or equitable power to convey the interest, as to a bona fide purchaser for value, аnd he was not married to any such person or if married to such person, held the property as separate property.
(c) He did not know and could not reasonably have known of the act or omission or that it was likely to occur.
See also In re 4030 W. Avocado, 184 Ariz. 219, 220, 908 P.2d 33, 34 (App.1995) (referring to
¶ 19 Therefore, because Alegria‘s house was not the instrument of his crime, and because
D. Proportionality review
¶ 20 “[A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant‘s offense.” Bajakajian, 524 U.S. at 334. We review the proportionality of a punitive forfeiturе de novo. Id. at 336.
¶ 21 In its proportionality review in Bajakajian, the Court engaged in a case-specific analysis of whether forfeiture of the particular defendant‘s property was grossly disproportional to that defendant‘s crime. The Court examined the nature and extent of the defendant‘s crime, the surrounding circumstances and relationship to other illegal activities, the harm caused, and the maximum sentence and fine under the appropriate sentencing guidelines. Id. at 337-40; see also United States v. 3814 NW Thurman St., 164 F.3d 1191, 1197-98 (9th Cir.1999) (listing factors to consider in conducting proportionality review of forfeiture under Bajakajian). And one federal court has stated that, “if the value of forfeited property is within the range of fines prescribed by [the legislature], a strong presumption arises that the forfeiture is constitutional.” United States v. 817 N.E. 29th Drive, 175 F.3d 1304, 1309 (11th Cir.1999).
¶ 22 As previously noted, Alegria was convicted of pоssession of a narcotic drug for sale and possession of drug paraphernalia. The minute entry of his criminal bench trial shows that the police found a substantial amount of cocaine at Alegria‘s house, along with scales, latex gloves, and plastic bags. Also seized at the house, and forfeited without a claim from Alegria, were five guns and $14,500 in cash. Such a stockpile reflects substantial involvement in the illegal drug trade. For possession of a narcotic drug for sale, a class two felony, Alegria faced a maximum prison term of ten years and a fine of up to $150,000 plus surcharges. See
¶ 23 In its forfeiture complaint, the state alleged the total value of the house, the guns, and the cash was $50,650. Alegriа has not disputed this amount and has not provided any valuation of his home, other than claiming that his grandmother gave it to him and that his wife and children need a “place to stay.” Comparing $50,650 to Alegria‘s offense de novo, we conclude that the forfeited amount (or value) is not grossly disproportional to the crime committed. Alegria possessed a large amount of drugs and cash and
III. Propriety of Summary Judgment
¶ 24 Alegria also argues that the trial court erred in granting summary judgment, claiming a genuine issue of material fact existed on the amount of cocaine seized. He contends, apparently referring to his criminal trial, that a police officer and the court stipulated the total amount of cocaine seized was 249 grams, and not “more than 500,” as the state asserted in its motion for summary judgment.3 But Alegria did not raise this issue in response to the state‘s motion and did not present any evidence that only 249 grams had been involved. Accordingly, the court did not err in granting summary judgment. See GM Dev. Corp. v. Cmty. Am. Mortgage Corp., 165 Ariz. 1, 5, 795 P.2d 827, 831 (App.1990) (party opposing summary judgment motion has burden to demonstrate existence of issue of fact). Nor would this discrepancy have been material to the forfeiture proceedings.
DISPOSITION
¶ 25 The trial court‘s judgment is affirmed.
CONCURRING: J. WILLIAM BRAMMER, JR., Presiding Judge, and M. JAN FLÓREZ, Judge.