*1
public
right
where
violation of the
trial
occurs. State v.
(1923);
Marsh,
142, 146-47,
126 Wash.
[T]he
appropriate
If,
should be
to the violation.
after
suppression
new
hearing, essentially the same evidence is
suppressed, a
presumably
new trial
would be a windfall for
defendant,
public
and not in the
interest.
Notwithstanding,
Waller,
persuaded
Durham, C.J., Smith, Guy, Johnson, Madsen, Al- JJ., exander, concur. Talmadge, [No. 62316-3. En Banc. December 1995.] Respondent, Washington, State of v. Michael Appellant. Cole, Respondent, The State Washington, v. James Appellant. Szymanowski, *3 by Jeffrey Associates, Subin; and Steinborn & Andrew L. appellants. Holt, C. Steinborn and Nicholas Attorney, Prosecuting Maleng, J. Stoks- and Peter Norm *4 Zavatsky, Hauptman, and tad, Francis D. Michele A. respondent. Deputies, Mack, A. Barbara — J. E. Petitioners Michael Cole and James Talmadge, Szymanowski were both drug-related convicted for offen ses. Prior to their convictions, each was to a subjected civil forfeiture action that resulted in the of forfeiture certain personal property. Szymanowski Cole and now seek vacation of their convictions and claiming sentences their criminal convictions violated the double jeopardy clauses of the United States of Constitution and the Con stitution of 5; the State of Washington. U.S. Const. amend I, art. 9. Cole also seeks reversal of the § Wash. Const. trial court’s denial of his motion to and dismissal suppress, of his case for lack of evidence.
We hold that the civil forfeiture of "proceeds,” defined 69.50, RCW by is not punishment does not double implicate jeopardy. With to the respect search war- case, rant in Cole’s we affirm trial court’s denial of his motion to suppress. Cole’s conviction is Szyman- affirmed. owski’s case is remanded to trial court for determi- nation of proceeds civilly whether were forfeited in his case.1
Issues 1. Does attach jeopardy upon the civil forfeiture of the proceeds illegal of drug transactions within the meaning 69.50.505(a)(7)? of RCW
2. Were proceeds illegal drug transactions forfeited the present case?
3. Was evidence provided by citizen informant who drug witnessed activity officer who smelled concurring opinion agrees disposition 1The Justice Alexander this go Szymanowski’s It case. would further hold that if trial court case illegal determines on remand that the forfeited was not transactions, drug implicated double would be as Justice Johnson has suggested disagree. in the dissent. We See note 18. infra *5 consumption power marijuana, growing of and evidence utility pursuant warrant, suf- a to search a from obtained probable com- a crime was cause that ficient to establish issue? a search warrant should so that mitted
Facts State v. Cole2 Drug County King early Police 1992, the In June telephone a call from citizen a Unit received Enforcement neighborhood Issa- residence informant who believed marijuana being grow Washington, quah, or to used was According activity. illegal Detective for some other Gaddy, investigated tip, Joseph the the informant who young unoccupied, appeared reported but some the house only staying week, for or three times men came two young informant described the each time. The few minutes appearances The of their automobiles. and one men’s neighbors he had also stated or she and other informant coming something apparently from the smelled unusual house. yard
Gaddy investigate. was drove to the house overgrown, in, did not look lived and the base- the house Although daylight, it windows were covered. ment light light porch left on. There an interior were Gaddy’s response As knock on the front door. he was no Cole, parties Report Proceedings designated is of 2In State v. volumes, as five denoted follows: May 18, 1993; Proceedings Proceedings Report on of I: 19, 1993; Proceedings May Report Proceedings on of II: 1993; Proceedings May 20, Proceedings Report III: on of 30, 1993; Proceedings July Proceedings Report on IV: of August 23, Proceedings Proceedings Report 1993. on V: Proceedings designated by parties Report Szymanowski, In State v. volumes, denoted follows: two (S) July 16, 1993; Proceedings Proceedings Report on I: (S) Proceedings Proceedings September Report II: past garage, walked Gaddy heard a sound humming he recognized aas ballast or halogen fluorescent metal lights fan motors operating garage. inside the Gaddy then stepped around the side of the garage to the electric meter house, located approximately two feet from the corner of the house nearest the driveway. The electric meter was spinning very faster than rapidly, Gaddy believed would be observed if the house were He occupied. also smelled the odor of growing marijuana. As Gaddy car, returned to his he noticed a new metal chimney *6 erected some distance away from the older masonry chimney.
The on day, observations, next based these filed Gaddy an affidavit for a search utility warrant for electrical and telephone account information suspect the residence. The affidavit Gaddy’s training summarized and experi- ence, the allegations by informant, made the citizen Gad- dy’s 9, 1992, observations of the on residence June and the basis for his suspicion grow that a marijuana operation existed the house. Clerk’s at 86-89. The Papers affidavit did identity not reveal the of informant, the citizen al- though police the knew who the informant was. Clerk’s at Papers 87.
A search warrant for the power account information 12, on 1992, was issued June King from the County District Court. Papers Clerk’s at 92-93.3 The power records from Puget Light obtained Sound Power and Company 7,000 high power consumption, averaging showed KWH two-month per billing period or about worth of power, $400 an 1,900 contrasted with average about KWH bill per ing $95, period, worth about over the six last months of the tenants’ in the prior occupancy residence.
On County June the King District Court is- sued a search warrant for the residence and two suspect power consumption 3The date on which the records were obtained 12,1992. inventory clear from the The record. search warrant is dated June The 10, suggest and return of search warrant are dated June 1992. These dates chronology, however, preceded party search the warrant. Because no raises this it is not an issue we need address. warrant the residence. The seen at frequently automobiles which by Gaddy, affidavit expanded upon was based from information obtained summary a contained records, and the results added consumption power in his allegations previous into investigation further the residence The affidavit described visit affidavit. Hall Hall, which during Officer J.R. by June in a standing marijuana while smelling growing reported ten feet from the suspect neighbor’s yard approximately as member of a pro- The described Hall house. affidavit trafficking, level narcotics addressing active unit street officer, had been who, years than police in more two and grow marijuana operations with numerous involved Clerk’s growing marijuana. familiar with the smell Papers informa- affidavit also contained additional Gaddy three automo- identifying from citizen informant
tion house, frequenting biles used the persons for two of those plate the license numbers providing to be he believed the informant Gaddy vehicles. stated lived in the reliable because the informant had very the com- neighborhood years for several worked had no family community, had extended munity, *7 record, voluntarily and and came forward at 75. compensation. Papers Clerk’s requesting without owner of one vehi- registered The affidavit identified the and Hatcher, cle who had been arrested twice as Fred of the Uniform Controlled convicted once for violation appeared whose auto business Act,4 repair and Substances included The affidavit to be a front cocaine distribution. of the during surveillance additional information recorded residence, Gaddy’s individuals. including visits of various court, 4Cole, support suppress asserted bis before the trial of motion prison regarding and rec Fred Hatcher’s conviction statements the affidavit provides Papers at a docu Clerk’s 17. Cole ord were material misstatements. attempted showing of the Uniform of violation ment Hatcher was once convicted Act, misdemeanor, suspended a sentence. received a and Controlled Substances review, Papers on so we do did not raise this issue Clerk’s at 30-31. Cole it. consider investigation revealed connection between Hatcher and Report Proceedings Papers 38; Cole. of I at Clerk’s at 79. reported prior The affidavit also Cole had two convictions violation the Uniform Controlled Substances Act during prior and described Cole’s resistance arrest. Drug King County 30, 1992, On June officers with Enforcement Unit executed the warrant to search the suspect They house. discovered Cole at the and house ar- During search, rested him. the officers discovered evi- marijuana grow operation, including marijuana dence of a grow plants equipment. and July police 1, 1992,
On 69.50.505, authorized RCW truck, officers seized a 1988 Chevrolet one 1990 Kawasaki jet jet telephone, ski, ski, one Yamaha and a cellular Sanger notified Cole their intention to seize ski apparent trailer, boat and homemade boat all in Cole’s possession, probable prop- based cause to believe this erty acquired had been with traceable to viola- January Papers tions of RCW 69.50. Clerk’s at 48. On agreed forfeiting 1993, the court entered an order Cole’s jet telephone, truck, skis, interest in the and cellular directing the return of the ski boat and trailer to him. Papers Clerk’s at charged
On December Cole was with one count violating pos- the Uniform Controlled Substances Act: marijuana session of intent to with deliver. Cole moved to suppress from residence, evidence the search of the based probable argued power on lack of cause. He records were obtained violation of RCW 42.17.314. He also as- showing serted there was no informant was knowl- edgeable Finally, Gaddy’s and reliable. he contended beyond search of the area the corner of the house was a curtilage property. warrantless search of the of the rejected accepted trial contentions, court the first two but argument Gaddy constitutionally Cole’s was in a protected curtilage area of the house when he growing observed the electrical meter and smelled *8 marijuana. redacting evidence, After this the trial court support probable cause to sufficient found nevertheless Papers at 69-72. search warrant. Clerk’s charged upon May 21, 1993, was convicted Cole On Papers He stipulated 8-23, then moved at 52. Clerk’s facts. charge on double and dismiss his conviction to vacate grounds. motion and denied the The trial court appeal this followed. Szymanowski
State Szymanowski aon 24, 1992, was arrested On November subsequent a small A search located traffic violation. person. content with one cocaine on his Not amount of problem, again January Szymanowski on was arrested Washington attempting Patrol to elude a State after troop- trooper. vehicle, a his After and search of the arrest contents, which his Firebird and its ers seized guns, a cocaine, two radar detec- included a container glass pager, torches, tor, scanner, a a two butane some smoking marijuana, glass bongs pipes, and $290 two Papers 10-12, 112-14, ar- 63-64, 124. The cash. Clerk’s resting trooper at Szymanowski’s person over
found on key, deposit cash, and a business card $2,000 in a safe box Storage, Mini-Max located at 2656 15th Avenue West from (on were written two locker in Seattle the business card W-22). Papers 9, 112-13, at 122. Clerk’s numbers: N-23 and key deposit deposit Bank safe The was to a Seafirst safe Papers Szymanowski. Clerk’s box, which was rented obtaining troopers warrant, After search January 5, 1993. of the Firebird on searched trunk grams approximately they Inside, of cocaine. found proceedings immediately initiated Patrol State Szymanowski served forfeit all of the seized items. and the cash notice for the Firebird with seizure Szymanowski January January 5, 1993. On ownership and items in the Firebird his interest declared January previously 8,1993, Detec- Bellevue Also on seized. Lathrop the safe warrant on served search tive William dog police deposit $20,000 in A cash. and seized box *9 money indicated the was associated with narcotics. Three days Lathrop later, served the search warrant on stor- age guns, knives, lockers and seized three two a cellular telephone, drug pipes, records, sales several crack a water pipe, plastic baggies, measuring cup scale, and a contain- ing drug Papers Lathrop 10, residue. Clerk’s at ar- 123. Szymanowski storage rested when he arrived lock- at police ers. The an seized additional ounce of cocaine and person. Papers $5,585 from 10, his Clerk’s 59. January King County prosecutor 14, 1993, On charged Szymanowski possession with one count of of (count 1), cocaine, 24, committed on November 1993 and delivery January one count of cocaine, committed on (count 4). May 25, 1993, On the State filed adding attempt- amended information one count each (count 2) ing pursuing police posses- to elude a vehicle and (count 3), sion of cocaine with intent to deliver both com- January 4, mitted on 1993. parties agreement 16, 1993,
On March reached an Szymanowski agreed gun, under which to forfeit a radar pager, detector, scanner, $1,800 cash, and and the State agreed Papers to return the car and cash. Clerk’s $200 at 92-94.
Szymanowski pleaded guilty 2, 3, to counts July January 1 was Count dismissed on judgment it because had been omitted from the sentencing, argued Szymanowski punishment sentence. At (possession January count with intent to deliver on 1993) prohibited jeopardy double because forfei- punishment ture of his constituted and former (S) jeopardy. Report Proceedings II at trial 3-7. The (S) rejected argument. Proceedings Report court his II Szymanowski timely appeal. at 20-28. filed a Szymanowski As Cole and both raised the same issue of jeopardy, appeals double the court of consolidated of Certifica- court. Order them to this and certified cases at 1. tion
Analysis Jeopardy Double is whether in these cases critical issue The most subsequent Cole/Szymanowski to the criminal convictions jeopardy protection. trigger In double forfeitures civil Szymanowski civil forfei- settled the cases, Cole and these entered convictions were actions before the criminal ture argument. stage jeopardy double to set the their of a issue in the midst address the double We judicial activity, for- much of it the civil maelstrom of jeopardy in double arena.5 ferment over feiture *10 exemplified by perhaps is the United States courts best quarrelsome Supreme Court, where, in a and fractured joining Kennedy fully only decision, with Justice 5-to-4 jus- majority opinion, and with four other Justice Scalia’s writing separately dissent, the to concur and Court tices just years it had made three in 1993 overruled decision previously.6 jeopardy the federal constitution
The double
clause of
prosecution
protects against a
same offense
second
acquittal;
prosecution for
same offense
a second
after
multiple punishments
conviction;
for the same
and
after
Halper,
435, 440,
S.
490
109
United States v.
U.S.
offense.
(1989). Multiple punishments
1892,
U.S.
359,
Missouri
459 U.S.
368-69,
(1983).
673,
103 Ct.
74
S.
L.
2d
Ed.
535
Double jeopardy a fundamental
principle
Anglo-American jurisprudence
protecting individuals
from
government
excessive
action.
168,
163,
Ex
85
parte Lange,
(1873);
U.S.
In the cases at Cole and Szymanowski claim that the forfeitures followed their criminal convictions amount to multiple punishments offense, same their criminal convictions, having been after imposed former had with jeopardy attached the civil forfeitures, are by the prohibited double clause.7 In analyz ing claims, these we must decide if the civil forfeitures that occurred amounted constitutional punishments. If they were not punishments, the subsequent convictions of Cole and Szymanowski do implicate double jeopardy concerns.
1. Civil Forfeiture as Punishment
The employment of
drugs
forfeiture
the war on
began
in 1970 with the passage of the continuing
statute,
enterprise
U.S.C.
which was aimed at
§
destroying major drug trafficking organizations. The stat-
ute
contained
in personam criminal
provi-
forfeiture
designed
sion
to attack the economic
organiza-
base
drug
Smith,
tions.
David B.
Prosecution
Defense of
(1994).
1.01,
Cases
1-4
In
Congress
¶
Forfeiture
amended the act to permit
the seizure and forfeiture of
*11
cash
from
illegal drug transactions.
21 U.S.C.
881(a)(6). Civil forfeiture
as a tool against drug traffick-
§
ing did not come into wide use until 1984 with
passage
the
of
Comprehensive
1984, which,
the
Crime
ofAct
in
Control
other
among
things, Congress authorized the seizure and
881(a)(7).
forfeiture of real
21 U.S.C.
property.
§
protections
jeopardy
make no
7We
distinction between the
of
double
the state
constitutions,
having recently
protections
and federal
held those
to be
"Const,
1,
given
coextensive: The double
clause in
art.
9 is
the
§
same
interpretation
Supreme
gives
the
Court
the Fifth Amendment.” State
to
v.
95,
(1995).
Gocken,
107,
127 Wn.2d
275 Supreme Court United States decisions, the In recent the "where forfeiture about civil reservations has noted pecuniary government in the outcome interest ahas direct government has proceeding,” the and where of the drug v. James United States in forfeiture.” "financial stake Property, 492, 43, 114 S. Ct. U.S. 510 Real Daniel Good (1993). Thomas there Justice 490 n.2, 126 L. Ed. 2d 502 & expressed government’s scope of the the concern that 881(a)(7), subjects authority § which under 21 U.S.C. property to be used, or intended that is all real forfeiture facilitation, of a commission, or even used, private property posed drug offense, a threat federal heritage.” "rights Good, 114 are central to our rights, that dissenting (Thomas, concurring part, J., S. Ct. at 515 part).8 Subsequently, States, 509 U.S. in Austin v. United (1993), 488 the Court 602, 2801, 125 L. Ed. 2d 113 S. Ct. were forfeiture actions the notion that civil discarded persons. guilty objects, opposed against directed 881(a)(4) Declaring § under 21 U.S.C. that forfeitures (7) monetary punishment holder of the forfeited of the are subject property, are that such forfeitures the Court held fines clause of the of the excessive to the limitations Eighth Austin, at 2804-12. 113 S. Ct. Amendment. recently same issues State addressed the
This court
(1994).9
to a
Clark,
90,
Clarks’
residence;
and main
and, in the Clarks’
growing marijuana,
home,
motor
a book on
a manual for a
beverage
illegal
scales,
set of
and hollow
cans which
drugs could be secreted.
evidence,
Based on this
Robert
charged
possession
Clark was
with unlawful
with intent
to manufacture or deliver a controlled substance and with
possession
unlawful
of a controlled substance. At the same
County
time, Clallam
instituted a civil forfeiture action
against
home,
home,
Clarks’
motor
and van. RCW
69.50.505(a)(4)
(forfeiture
conveyances);
RCW
69.50.505(a)(8)(real property). Clark,
We considered whether the forfeiture of the Clarks’ punishment home and motor home constituted that would have barred the forfeitures as violative of the double clause, and concluded on the basis of punishments. Austin that the forfeitures were Clark, punishments, Wn.2d at forfeitures, 96-101. These would implicated jeopardy prohibition have the double had the successfully argued Clarks their convictions property amounted to the "same offense” for which their argument ap- was forfeit. The Clarks did not make this peal, however, and we affirmed the forfeitures. Clark, Wn.2d at 101-02.
2. Civil Forfeiture of Proceeds of a Crime
Despite Austin, all civil forfeitures are not necessar ily punishments. only Austin dealt with forfeiture of real property conveyances. and forfeiture of In we Clark, expressly scope opinion: limited the of our holding
This
is limited to the facts of this case. We do not
hold the
property acquired through proceeds trace-
forfeiture of
property.”
property
controlled substance and the real
Forfeiture of real
not an issue in the cases at bar.
history
Washington,
Nevin,
For a useful
of civil forfeiture in
see Jack F.
Tel
Property: Washington’s
Dilemma,
levik v. Real
Constitutional
29 Gonz. L. Rev.
(1993/94) (asserting
preseizure
that the seizure of real
without
no
unconstitutional).
tice is
be
under
"punishment”
violation to
able to a criminal
Tilley,
(Emphasis *13 Clark, in and proceed of the trail we marked at the head of whether the to address the directly question down it traceable to a criminal violation forfeiture of proceeds under the Fifth Amendment. We punishment constitutes not. hold that it does (5th 1994), Cir.
In United States v.
On the court noted first that the appeal, of the forfeiture constitute proceeding may punishment it the lawfully prop- because involves extraction of derived from the but held that forfeiture of erty forfeiting party,” drug the of a transaction was not proceeds "punishment”: When, however, government property the taken the activities, forfeiting party the was not derived from lawful nothing [T]he entitled him. . . . loses which law ever $650,000 illegal proceeds does approximately forfeiture of liberty price it exacts no punish the defendant because lawfully possessor him. The property or derived from illegal drug from sales never invested honest labor
proceeds
lawfully
subsequently
to obtain the
or other
derived
Consequently,
he has no
proceeds.
forfeited
reasonable
condone,
allow,
protect,
or even
expectation that the law will
possession
proceeds
they
his continued
of such
because
have
short,
very genesis
illegal activity.
wrong-
In
their
...
nothing,
nothing to
the law entitles
doer has
at least
which
him,
proceeds
possible
to lose from the
confiscation of the
Thus,
trade.
we believe the forfeiture of
from his
illegal drug
closely akin
proceeds from
sales is more
robbery
a federal bank
seizure of the
from the
lawfully
property.
real
. . .
than the seizure of
derived
because,
money, though
possession,
"[t]he
[the defendant’s]
;
rightfully
[Co.
is not
his” . . . see also Rex Trailer
v. United
States],
350 U.S.
[148]
at
76 S. Ct.
[219]
at 222 n. 6
(stat-
enrichment).
may
unjust
ing that civil sanction
serve to avoid
Consequently,
punishing
forfeiting party,
instead of
illegal proceeds,
forfeiture of
much like the confiscation of
robber, merely
money
places
party
from a
stolen
bank
enjoyed
lawfully protected
quo
financial status
that he
prior
launching
illegal
punishment
scheme. This is not
his
meaning
plain
Halper,
of the word.”
490 U.S.
"within
*14
449,
(Citations omitted.)
The Court of for the Ninth Circuit Appeals adopted proceeds held the forfeiture of 10Mostcourts to have considered the issue have (8th 1231, Alexander, punishment: E.g., States v. 32 F.3d 1236 Cir. is not United 1994) ("Forfeiture and, thus, proceeds punishment, of cannot be considered clause, subject simply parts as it the owner from the fruits to the excessive fines 1994) (D.C. Bilzerian, 689, activity”); Cir. v. 29 F.3d 696 of the criminal S.E.C. ("The gains; give up only ill-gotten it did Bilzerian to his district court ordered Therefore, disgorgement subject penalty. does not constitute him to an additional Iadarola, (citing Tilley); Attorney punishment”) v. 623 District 1995) (N.Y. away property 999, Sup. ("Taking a in which N.Y.S.2d 1005 Ct. right punish ownership person possessory is not has no interest or no lawful ment, merely property from an unlawful remedial. Such forfeiture removes but Bldg. Equip. possessor/owner.”); West Side United States v. All Assets & of (N.D. 1993)("If 377, proceed illegal Supp. an Corp., an item is a 843 F. 383 Ill. remedial, transaction, exclusively drug it be considered is as cannot its forfeiture legitimately away something . . punishment claimant never owned. . to take (cita illegal drug apply property to facilitate activities.” Austin does to used 367, $288,930.00 Supp. omitted.); Currency, 838 F. United States v. in U.S. tions (N.D. 1993) ("In case, allegedly illegally obtained the forfeiture of 370 Ill. this rightfully punishment own the property the claimant does not is not a because Through By v. property.”); Dep’t Cade Law forfeited Idaho Enforcement $405,089.23 U.S. Cur- States v. In United a different view. (9th 1994), rejected the rency, the court Cir. F.3d 1210 property analysis, forfeited, Tilley on the which focused whether the forfei- rather, "determine held, proceedings impose government in these seeks to ture 'punishment,’ focus on the character- we must constitutes relies.” which it statutes on of the forfeiture istics Currency, Thus, if the F.3d at 1220. $405,089.23 U.S. exacting punishment, potential a itself has the statute according any pursuant statute, act to the then punishment. Circuit, must itself be a Ninth disagree. statute the federal forfeiture Neither We here is self- statute at issue nor our state forfeiture executing. lead to a if the statute as it reads could Even analysis, punishment pursuant the Austin unless punishment, applied there so as to effect such statute is obviously long punishment. hold that so is no We illegal drug proceeds an transac is forfeited jeopar punishment purposes of double tion, there is no dy.11 Forfeiture
3. Cole’s Civil County King a motion for order direct- Sheriff filed (1994) ("If 381, proceed Free, an item is a 885 P.2d 383 n.5 126 Idaho transaction, exclusively illegal drug it cannot be remedial and its forfeiture legitimately away something punishment the claimant never to take considered owned.”); 1993) ("Forfeiture (Mo. Meister, App. Ct. 866 S.W.2d State Thus, drugs forfei- is not a fine. such of the sale of contraband of ture is not Eighth inapplicable.”); punitive Johnson v. Amendment is and the (Minn. 1-424, 238, 241 Ct. Multiple Numbered 523 N.W.2d Miscellaneous Items 1994) legally illegal goods App. ("Keeping of those who cannot out of the hands punitive.’ possess goal plainly United States v. more remedial than them 'is Firearms, 354, 364, 104 Ct. 79 L. 465 U.S. S. One Assortment 89of (1984).”). Ed. 2d 361 $405,089.23 May 30, modified its decision in the Ninth Circuit 11On judges Currency, the court’s decision time seven dissented from U.S. at which said, part: banc. The dissent not to rehear the case en drug government dealer of traf- *15 panel could not convict The held that the illegal proceeds drugs of the ficking of the and then seek civil forfeiture prosecutes—the "punishes”—or dealer reasoned that to do so transactions. It twice for the Jeopardy Clause. of the Double same ofíense and thus runs afoul illegally drug panel’s reasoning flip that a dealer whose of the The side may prose- previously not thereafter be proceeds been seized have obtained cuted because right. "punished.” already cannot be This he will have been ing property August seizure of Cole’s 3, 1992. The mo- requested specifically directing tion an order seizure of one Toyota boat, 18-foot ski one 1977 trailer, boat one 1991 4Runner, Appendices and one 1992 Chevrolet Astro van. Reply Appellant, App. 11-page B, Br. of Ex. A. In an af- August support fidavit, 3, 1992, dated of the motion for King County order,12 the seizure Police Officer/Detective investigation Steve Tucker described his into Cole’s af- parts fairs. He noted Cole had claimed to be a clerk for a company, company reported local but that had no income through Washington Employment for Cole State Secu- rity Department. neighbors Cole’s told Tucker that Cole years, had pay- lived at his residence for two and one-half ing $1,600 rent of a month. Tucker concluded that Cole’s unexplained particularly wealth, boat, trailer, and drug vehicles, trafficking. came about because of Aff. of Tucker at 8-11.
Judge King County Superior signed Inveen of the Court directing July the order 29, 1992, seizure on and the order August 3, was entered on 1992. The court concluded that meaning the assets were within the of RCW 69.50.505(a)(7). Directing Appendices Seizure, Order Reply Appellant, App. Br. of B. parties subsequently agreed
The
entered an
order of for-
January
feiture, settlement, and dismissal
dated
acknowledged
which
that the State’s claim to the seized
property
rested on the assertion the
had been
Supreme
Court has held that the civil forfeiture of contraband is a re-
punishment
medial sanction that
purposes.
jeopardy
does not constitute
for double
Firearms,
354,104
United States v. One Assortment
465 U.S.
S.
(1984).
1099,
Ct.
equivalent
ing 435, 1892, Halper, one line in United States v. 490 U.S. 109 S. Ct. 104 L. (1989), States, Ed. 2d 487 and Austin v. United 509 U.S. 113 S. Ct. (1993), case, 125 L. Ed. surmising 2d 488 an excessive out of context and fines — changed despite "the Court its collective mind” about double say right, the fact that the Court itself didn’t that it had. This can’t be either. (9th $405,089.23 1995). Currency, United States v. U.S. 56 F.3d Cir. 12Appendices Reply Appellant, App. Br. of B.
281 to traceable proceeds or in with part, in whole acquired, 69.50: of RCW exchange an violation Truck, Oregon License 1988 Chevrolet one Whereas (VIN) Number #SHR343, Identification Vehicle Ski, IGTHR33N9JJ501532; Jet 1990 Kawasaki one Jet #KA22273J99D; Yamaha #WN4884RA, one 1990 VIN #YAMA04476090; Motor- #WN5380RA, and one Ski, VIN King by officers of the were seized telephone cellular [sic] olla July Safety on or about Public County Department those items probable cause to believe the officers had because part or in acquired in whole had been property personal in violation RCW exchange traceable to an with 69.50. ours.) at 48.13The record reveals Papers Clerk’s
(Emphasis Cole concluding property an reason for additional forfeited was proceeds. 69.50.505(c) notified of the be requires person
RCW indicate an or ownership possessory seizure of to property Mount, Irwin v. in the or it is forfeited. property interest denied, 749, 753, 737 P.2d review 47 Wn. App. (1987). indicated that Cole agreed order Wn.2d 1031 a hear- participated notice of the seizure received ownership his to claim an ing standing to determine .inter- was found to "Michael E. Cole property: est in the seized standing challenge to be the individual with only Ski, Kawasaki Jet of the 1990 seizure/forfeiture on 17 #WN4884RA, Heavey the Honorable Edward had evidently at 49. Cole Papers 1992.” Clerk’s December challenge property to the other standing no forfeited, ownership pos- had no or meaning he ultimately complete the Cole parties provide record of the court with 13The failed noteworthy forfeited in proceeding. that a number of items It is forfeiture changed explanation August in the Janu without order are trial court’s ary 27, agreed parties character of If wish to establish the order. forfeiture, preserve adequate subject they generate trial court must record. standing challenge only sessory interest in it. He had jet the forfeiture of the Kawasaki ski.14 challenge Cole did not the forfeiture of the Kawasaki jet agreed permitted ski, order, In however. he the for everything Sanger feiture of the 1976 ski boat and the but boat trailer. These two items were 1977 homemade explained returned to him. Cole that he did not contest jet ski the forfeiture of the Kawasaki because to do so would have been frivolous under CR 11:
The fact that Mr. Colesettled the forfeiture matter without hearing a contested prosecution does not invalidate his claim that his *17 by jeopardy. practical a mat-
is barred double As ter, Mr. Cole had no choice but to settle the forfeiture. Had pursued through Mr. Cole the an administrative forfeiture hearing, having good argument no that the faith forfeiture provision apply, may RCW 69.50.505did not he have been Thus, if subject to sanctions a violation Civil Rule 11. argument accepted, only way the State’s for Mr. Cole argument preserve jeopardy to frivolousclaim for the return of his his double would be to file a
property,
pursue
and
through
hearing.
matter
an administrative
Mr. Cole should
simply preserve
a
not have to file such frivolousclaim
to
his
right
being placed
jeopardy.
constitutional
to
in double
avoid
ours.)
(Emphasis
Appellant’s Resp.
Supplemental
to
of Br.
why
Resp’t at 3. It is not clear
Cole became concerned
hearing
frivolity
only
about the
of a
he had both
after
property
partici-
filed a written claim to the seized
pated
standing
hearing
in a
to determine his
to claim an
By admitting
ownership
possessory
or
interest
in it.15
he
good
argument
contrary,
had no
faith
to the
Cole has ef-
fectively
property was the
conceded that
the forfeited
party
appealed
findings
respect
of the lower court with
14Neither
has
standing
challenge
property.
Cole’s
the forfeiture of the seized
proceeding,
simply
If
defaulted in the forfeiture
15See
note 17. Cole had
infra
See,
jeopardy
e.g.,
he
Torres,
have
a
double
claim.
United States v.
would not
had
viable
(7th
1994)
(holding
party who defaults in a civil
By January Washington letter of 25, 1993, the State Attorney Patrol turned the case over to the General, not- ing Szymanowski hearing regarding had asked the forfeiture. In that letter, in addition to the Pontiac Washington $2,080 Firebird and the cash, State Szymanowski Patrol listed as seized from intended for 9-mm forfeiture a Baretta, a Titan .38 caliber pistol, Telepage pager, Whistler detector, radar NW Resp’t App. and a Realistic scanner. Br. of A Attach. A at (Aff. Holmly). of Linda *18 hearing April A was set for 1993, before an adminis- judge. Resp’t App. trative law Br. of A Attach. A at 14 (Aff. Holmly). of Linda The case was settled without hearing, and, 25, 1993, on March the administrative law judge pursuant stipulation by par- entered an order to Szymanowski ties in which received the 1978 Pontiac Fire- bird and $2,080 of the seized; in cash that had $200 been agreed property he to the forfeiture of all of the other preceding paragraph. listed says Szymanowski only
The State that forfeited proceeds, arguing that the circumstances of his arrest "all support Szymanowski a reasonable inference that was of money and that was
dealing proceeds in cocaine Br. of at 7. However Resp’t dealing.” Supplemental that be, inference it falls consid- may the proposed reasonable this court needs to finding the factual erably short of pro- forfeited was Szymanowski the property conclude ceeds.16 situation, affidavit aby there was no
Unlike the Cole
averring prob-
to the seizure
prior
enforcement official
law
to be seized was
to believe that
the property
able cause
fact,
In
the trial
by
judge.
finding
and no such
proceeds,
nothing
in the record
also remarked that
there
court
and forfeit
had intended to seize
to indicate that
the State
(S)
The record
II at 27.
Proceedings
of
proceeds. Report
seized from
the assets
speculate
would
us to
require
to do so. On this
We decline
Szymanowski
proceeds.
were
record,
the forfeited
assets were
say
we cannot
Szy-
transactions.17 We remand
illegal drug
of
the court
to
the trial
court
for
manowski’s
case to
from Szy-
seized and forfeited
characterize
the property
they
argu
parties
again,
intend to make
for future
that if
16Once
we note
forfeited,
property
items of the
seized
ments as to the character of the
they
and/or
Findings
develop
adequate
appellate
of
for
courts to review.
must
an
record
appropriate
are essential.
fact
an
tribunal
Szyman
property
17Although
the record whether the
we cannot tell from
appeal why
proceeds, Szymanowski
he settled the
stated on
owski forfeited was
litigating
in a forfeiture
his claim to the
forfeiture action rather than
hearing:
Szymanowski
matter without
settled the forfeiture
The fact that Mr.
prosecution
hearing
his
is barred
his claim that
contested
by
does not invalidate
matter,
Szymanowski
practical
had no choice
jeopardy.
Mr.
As a
double
Szymanowski pursued the
Had Mr.
but to settle the forfeiture.
forfeiture
argument
hearing, having
good
that the
through
no
administrative
faith
subject
may
apply,
have been
provision
he
RCW 69.50.505did
forfeiture
Thus,
argument is
11.
if the State’s
a violation Civil Rule
to sanctions
Szymanowski
preserve
accepted,
only way
his double
Mr.
property, and
argument
return of his
tie to file a frivolous claim for the
would
hearing.
Szymanowski
through
pursue
Mr.
matter
an administrative
simply
preserve his
claim
have to file such a frivolous
should not
jeopardy.
right
being placed in double
to avoid
constitutional
ours.)
judge
(Szymanowski)
Appellant
trial
(Emphasis
Reply
at 12. The
Br. of
Szymanowski
ac-
may
light
settled the forfeiture
on the reason
have shed some
hearing
during
sentencing
"positioning”
tion when she used the word
(S)
Proceedings
Report
II at
September
the settlement.
describe
*19
jeopardy
manowski. We decline to decide the double
issues
Szymanowski raises in the absence of the trial court’s
property.18
characterization of the forfeited
Search Warrant
in State v. Cole19
support
Cole contends that
the redacted affidavit in
jeopardy question
Szyman
18Thecourt does not need to reach the double
time,
owski’s
jeopardy
case
this
but we do not concede that double
under
employed by
Clark,
90,
"same elements” test
the search warrant for his residence was insufficient grow marijuana opera- probable to believe a tablish cause Cole contends tion would be found within the residence. *20 support of the search warrant contained the affidavit (a) that been redacted further: al- information legations should have (b) by informant; statements made citizen ability identify the odor of based on Hall’s asserted (c) power growing marijuana; information about following consumption procedures in obtained without RCW 42.17.314. may only upon a determi
A search warrant
issue
probable
upon
cause,
nation of
based
facts and circum
stances sufficient to establish a reasonable inference
activity
occurring or that contraband exists at
is
Smith,
329, 352,
a certain location. State v.
93 Wn.2d
610
(1980);
denied,
869,
P.2d
cert.
Cole
allegations made
based on unreliable
able cause
anonymous
the affidavit’s statement
He claims
informant.
"generic
reliability
recitation,”
is a
informant’s
as to the
Appellant
reliability. Br. of
insufficient
demonstrate
(Cole)
Washington
so-called
adhere
courts
at
probable
Aguilar-Spinelli
"[W]hen
the existence
test:
sup-
tip,
depends
the affidavit
on an informant’s
cause
port
the basis
warrant must establish
of the
credibility of the
as well as the
informant’s information
App.
698,
695,
Ibarra, 61
informant.” State v.
Wn.
(1991) (citing
432,
Jackson,
v.
102 Wn.2d
P.2d 114
State
(1984); Spinelli
States, 393
433,
v. United
Different rules
depending the
a
informant
whether
confidential
private
professional
citizen.
informant or
informant
is
App.
instance, when the
at
In either
Ibarra, 61 Wn.
699.
magistrate,
identity
there
is
to the
informant’s
unknown
coming
may
from
the information
be
exists concern that
App.
"anonymous
Ibarra,
at
61 Wn.
troublemaker.”
substantially
however,
decreased,
is
699-70. That concern
the
affidavit demonstrates
where information
the
truly
who is not involved
a citizen informant
informant
by
activity
self-interest.
criminal
or motivated
the
App.
Consequently,
aif
citizen
at
Ibarra, 61 Wn.
700.
anonymous, the affidavit must
remain
informant wishes to
background
support
infer-
a reasonable
facts to
contain
ence
the information is
and without
credible
motive
falsify.
App.
Wilke,
State v.
Wn.
778 P.2d
(1989).
1054,
denied,
review
If
Wn.2d 1032
the infor-
identity
police,
mag-
mant’s
is known to the
but
to the
may
though
istrate, the informant
be credible even
the af-
specifically why
fidavit does not state
the informant wishes
anonymous.
Dobyns,
App.
609,
remain
State v.
Wn.
(1989).
denied,
779 P.2d
review
We believe that the recitation here was more
greater
provides
allega-
and
validation than the factual
App.
in
Franklin,
tions
106,
Ibarra and State v.
49 Wn.
(1987),
741
83,
denied,
P.2d
review
289 allegations Relying to on the informant’s raised Ibarra. Dobyns probable and was with cause consistent find an of discretion. not abuse Marijuana Growing
2. Smell of finding prob the trial court erred Cole contends that Hall assertion based on the affidavit’s able cause suspect marijuana property. growing Cole on the smelled argues not information sufficient the affidavit did contain necessary training, skill, or Hall had the demonstrate to growing marijuana. identify experience the odor of King County Police Officer Hall had been a affidavit states marijuana grow years, been with for over two had involved operations time, smell in that and was familiar with the marijuana. App. growing Olson, State 73 Wn. v. (1994) denied, Wn.2d 1029 is on 869 P.2d review 124 point. statement The court held as sufficient affidavit’s patrol familiar the odor of that state detective was with marijuana growing participated had in the seizure of and grows. Acknowledging App. Olson, indoor 73 Wn. than a mere that such an assertion must be based more personal belief, Olson held a state statement of court actually training experience ment an officer with and that marijuana provides evi odor of sufficient detected the constituting justify by probable dence, itself, cause App. (citing Olson, Huff, at 356 State search. Wn. App. 641, denied, 647-48, 826 P.2d review Wn. (1992)). Gaddy’s adequately forth affidavit sets Wn.2d training experience; court not Hall’s and trial did finding probable its abuse discretion in cause. a Search Warrant
3. Power Records Obtained with Gaddy argues search obtained Cole also warrant consumption Puget power Sound Power records of procedures Light Company comply with the does may power provide 42.17.314, records RCW which that provides a writ- not be disclosed unless law enforcement utility may been crime have ten statement pertain person the records committed to whom alleged Relying pri- are to the crime. records relevant *23 290
marily (1990) Maxwell, on State v. 791 Wn.2d P.2d 223 support his contention that RCW 42.17.314 provides through police the exclusive means which can power consumption argues records, obtain Cole that the probable records were inadmissible to show cause. Cole’s misplaced. only police reliance is Maxwell held that a of- telephone request satisfy ficer’s requirement did not the statute’s request writing. Maxwell,
that the
be
made
pre-
contrast,
Allowing power consumption
by
be
records to
obtained
policy underly-
means of a search warrant also satisfies the
ing
Legislature
RCW 42.17.314. The
concern
enacting
general
prevent
fishing
42.17.314
RCW
was
expeditions
governmental
through power
authorities
usage
378, 392-93,
State
records.
v.
Maxfield,
Wn.2d
(1994).
fishing expedition
The affidavit supporting high” "extremely power stated there residence 7,000 per KWH approximately "averaging consumption 1,900 about billing with compared month period,” two are there Cole contends billing periods. per previous KWH consump- high power many legitimate explanations to establish this does tend tion, so that information *24 cause. probable by consumption an increase in electrical
While a cause to issue search probable itself does constitute increase, the other warrant, the when combined with facts, determining whether a factor suspicious proper In 43 Wn. at 851-52. cause exists. Sterling, probable App. case, for a warrant contained this the affidavit search facts, including other information suspicious numerous the in provided by anonymous by informant corroborated particular identification of dependent police investigation; convictions; a fictitious name with narcotics suspects prior the security given utility by and social number the sub residence; scriber service the and the ap suspect (over and of the residence pearance suspect condition interior and grown yard appearance, unlived-in during day, exterior basement windows lights roof, covered, a new metal vent on odor running ga of electric motors marijuana, sound rage). Papers properly Clerk’s at 75-80. The trial court one factor consumption simply concluded power justified issuance of search among many together 2). (conclusion at 70 of law warrant. Clerk’s Papers conclusion, testimony In informant Officer olfactory Hall’s skill the search warrant amply supported not violate RCW for the residence. The State did suspect records with consumption 42.17.314 by obtaining power its did not abuse discre- search warrant. The trial court suppress. motion to denying tion Cole’s
Conclusion
civil forfeiture
opinion,
As
noted at the outset of this
we
powerful
is a
drugs.
and effective
tool
the war on
The
combination
proceedings
of civil forfeiture with criminal
explosion
has
jeopardy litigation.
resulted in an
of double
simplest way
by
to address this issue was advanced
the United States District Court in United States v. McCa
(W.D.
1994):
Supp.
slin,
863 F.
Wash.
combine
proceeding
the civil forfeiture action in the same
as the
Multiple punishments
criminal case.
for the same offense
permissible
long
they
are
proceed
so
occur in the same
ing.
Hunter,
Missouri v.
359, 368-69,
459 U.S.
103 S. Ct.
(1983) (where
673, 679-80,
legislature
Unfortunately, Washington’s under civil forfeiture stat- *25 agrees ute, unless the defendant to have his or her forfei- hearing conducting ture occur before the court the crimi- presently trial, nal statutory way there is no prosecutors bring to the civil forfeiture action in the same proceeding Legislature may as the criminal case. The wish remedy to this situation. present
We hold in the Cole, cases that as to there was probable Jeop- cause to issue a search warrant in his case. ardy proceedings did not attach in the civil forfeiture involving Cole because the assets forfeited were the proceeds illegal drug transactions. Forfeiture of the proceeds punishment purposes of a crime is not of the Fifth Amendment. Because we cannot determine on this Szymanowski’s record that the forfeiture in case was of proceeds, we remand his case to the trial court for a deter- property mination of the forfeited. We affirm the convic- tion of Cole. JJ., concur. and Smith,
Dolliver dissenting (concurring part, part) J. Alexander, — agree majority should that Cole’s conviction I with found that I do so because the trial court be affirmed. proceeding property forfeiture was forfeited in the that trafficking. drug party proceeds a was was which Cole punish- forfeiture, therefore, be cannot considered regard, myself in accord with I find ment. In that many by majority to that it is the effect decisions cited something punishment away from claimant not take legitimately acquired. she which he or never Szymanowski concerned, I not State do Insofar as disagree majority’s decision we should with that trial court for a determination as to remand to the separately, property I nature of the forfeited. write go however, I us further and direct because would have Szymanowski’s conviction the trial court vacate charges, underlying in the it concludes dismiss the event proceeds on remand that the forfeited was drug trafficking. I I am am so inclined because satisfied charges follows a forfei- that conviction on criminal that punishment for the same ture action constitutes second agree expressed respect, offense. In that I with view Szy- Justice his the forfeiture of Johnson in dissent property, manowski’s if not shown to be of crimi- punishment. activity, separate proceed- nal ing following A proceeding would, therefore, the forfeiture punishment subsequent run afoul of the be and would jeopardy provisions of the federal and state double We so constitutions. should hold.
Durham, C.J., Madsen, J., concur Alexander, with J. *26 — (dissenting) are These two cases resolved
Johnson,
J.
controlling precedent,
by application
of recent
States,
602, 113
U.S.
v. United
509
established
Austin
(1993),
by
2801,
S. Ct.
The double
clause
second
prosecution
against multiple
for the same offense and
punishments
imposed
separate
for the same offense
proceedings.
Halper,
435, 440,
United States v.
490 U.S.
(1989);
109 S. Ct.
L.
104 Ed. 2d 487
North Carolina v.
Pearce,
395 U.S.
S.
89 Ct.
With to Petitioner remands for a factual determination as to whether the activity. items forfeited were In superior Szymanowski’s event the court determines forfei- proceeds, ture not criminal must was it then decide Szymanowski prosecuted whether or not same *27 majority’s fails decision The as the forfeiture. offense civil any guidance give superior this This issue. court to the proper under address this issue for this court to is the case Blockburger States, v. United test of the "same elements” (1932), we L. Ed. 306 which 52 S. Ct. 284 U.S. adopted Gocken, at 100-01. in 127 Wn.2d majority punitive RCW effect of examines the
The
69.50.505(a)(7)
Majority
applied in an individual case.
as
property
long
or assets are
as the forfeited
at
So
majority
illegal drug
proceeds
would
transaction,
anof
jeopardy.
purposes
punishment
This
of double
find no
contrary
analysis
wrong approach
to the
set
and is
legisla-
reviewing
Court,
forth in
The Austin
Austin.
history
forfeiture,
"that
found
tive and common law
generally
statutory
in
and
in rem forfeiture
forfeiture
particular historically
understood, at least in
have been
punishment.”
part,
Austin,
Even the forfeiture is re- 69.50.505(a)(7) medial, scope of RCW is not limited to *28 traceable to proceeds Rather, criminal activity. three distinct categories of and property assets are to subject (a) forfeiture under the personal statute: and as- property sets "furnished or intended to be by any furnished person in for a exchange controlled substance in violation of this (b) or chapter RCW”; 69.41 or chapter personal 69.52 prop- and erty assets in "acquired whole or with part proceeds traceable or exchange to series of exchanges in viola- RCW”; tion of this chapter chapter or 69.41 or 69.52 and (c) certain or assets "used intended to be used to facilitate any violation of chapter chapter this or 69.41 or 69.52 69.50.505(a) follows, pertinent part: 20RCW reads "(a) following subject right The property are to and seizure forfeiture and no exists in them: "(7) moneys, negotiable instruments, securities, tangible All or other or intangible property by any person of value or furnished intended to be furnished exchange chapter chapter controlled substance in of violation this or RCW, tangible intangible personal property, proceeds, 69.41 or 69.52 all or or acquired part proceeds exchange assets in whole or in with traceable to an or exchanges RCW, chapter chapter series of of violation this or 69.41 or 69.52 instruments, moneys, negotiable and all and securities used or intended to be any chapter chapter used to facilitate violation this or 69.41 or A 69.52 RCW. instruments, money, negotiable securities, tangible forfeiture of or other or intangible property security subject encumbered a bona fide interest is the the if, party created, security interest of the at secured the time the interest was party knowledge neither secured had nor consented to the act or omission. No personal property may paragraph, be forfeited under this to the extent of the owner, by any interest of an reason of act or omission which that owner knowledge establishes was committed or omitted consent!.]” without owner’s or 69.50.505(a)(7). Only category the second RCW RCW.” 69.50.505(a)(7) proceeds. allows RCW Because involves property personal seized and forfeited to be and assets clearly proceeds are not and assets if the even solely drug a remedial crime, it serve does not related Accordingly, purpose. 69.50.505- a forfeiture under RCW (a)(7), punish- here, must be considered at issue the statute Halper, at and Austin, 113 S. Ct. ment under at 448. U.S. analysis and conclu-
This result is consistent with our analysis following case, of Austin sion in Clark. In that entirety Halper, 69.50- examined the of RCW and we .505(a)(8) (4) they solely whether served to determine Finding purpose purpose. a deterrent on their a remedial 69.50.505(a)(8) (4) face, we held forfeiture under RCW punishment. Clark, at 124 Wn.2d 97-101. constitute 69.50.505(a)(7) fairly Similarly, RCW "cannot be because purpose, solely to but rather can said only serve remedial serving explained either retributive or de- be as also pursuant purposes,” civil forfeiture terrent RCW 69.50.505(a)(7) subject punishment to double (quoting Halper, protections. Austin, at 113 S. Ct. 448). majority by answering The errs 490 U.S. wrong question. majority Szymanowski to determine remands property seized and forfeited was the
whether the activity. majority approach, what Under *29 superior happens If court determines next is unclear. the proceeds, presumably then the forfeiture was criminal majority conviction, above, affirm his stated would disagree. superior However, if court determines the I proceeds, criminal there remains forfeiture was not of proceeding question for the the forfeiture was of whether question proceeding. This is same offense as the criminal requires importance public to case this court of and the guidance provide for our in order address this issue were not If trial finds these courts. court lower proceeds, proceeding was for I find forfeiture would proceeding. the same offense as To determine whether civil forfeiture constitutes the Szymanowski same offense as that which convicted, requires the Blockburger test us to determine whether requires proof each offense of a fact the other does not. 304; Gocken, U.S. at Wn.2d Blockburger, Szymanowski possession was convicted of with intent 69.50.401(a). cocaine, deliver of violation RCW RCW 69.50.505(a)(7), personal property under which his and as- requires forfeited, sets were a violation or intended viola- 69.41, tion of either 69.50, RCW or 69.52: moneys, negotiable instruments, securities, All or other tangible intangible property or of value or intended furnished by any to be person exchange in a controlled furnished chapter substance violation this chapter or 69.41or 69.52 of tangible intangible personal property, proceeds, RCW, all or or assets acquired part or whole with proceeds traceable to an exchange or series exchanges in violation this moneys,nego- RCW, all chapter chapter or 69.41 or 69.52 instruments, tiable and securities used or intended to be used any violation chapter chapter this or 69.41 or facilitate 69.52RCW. (Italics mine.) 69.50.505(a)(7). RCW existence or actual intended criminal offense thus is an element of forfeiture, civil and the elements of the criminal offense 69.50.505(a)(7). imported are into RCW Szymanowski’s position is similar to that of the defen- (E.D. Supp. dant States, 872 F. Oakes United 1994). government Wash. In Oakes, initiated civil for- proceedings against separately feiture the defendant, then marijuana growing opera- filed a criminal indictment for a applying court, test, tion. The the Blockburger held the drug federal civil forfeiture statute for related offenses to premised upon be a violation of the controlled substances statutes:
Any 881(a)(7), requires therefore, forfeiture under section preceding Thus, violation of the controlledsubstance statutes. attempted [the the Government could have to take marijuana defendant’s] [he] home had not manufactured *30 argument that the accept the Government’s premises. To simply one sec- because elements sections involve different people, property and the other deals with tion of the statute theory. illusory adopt a circular and be to would criminal and the Petitioner’s The civil forfeiture action of the identical violation prosecution the identical addressed proceedings laws; only difference between fact, In the Govern- remedy sought by the ... Government. remedy forfeiture action in the civil have had no ment would subchapter,” "a of this prove it not been able violation had 841(a)(1). short, i.e., In the forfeiture statute subsumes section 841(a)(1) therefore, and, renders the criminal all of section the "same offense” and the civil forfeiture conviction by Blockburger. defined
(Citation omitted.) Oakes, F. Supp. 824. Accord (W.D. McCaslin, 1299, 1303 Supp. United States v. 863 F. 1994) ("To government had to Wash. obtain forfeiture commit, or to facili- that was used 'to prove of, a of this subchapter pun- tate the commission violation . . .’ 21 year’s imprisonment. ishable more than one 881(a)(7). The relied for the forfei- upon U.S.C. offenses § indict- ture were the same ones that appeared ment.”). The courts Oakes and McCaslin each vacated following criminal civil forfeiture double prosecution follow we are not bound to jeopardy grounds. Although cases, is- recent federal decisions the same analyzing these be persuasive. sue should as the faces the same situation Szymanowski
Petitioner civil forfei- in Oakes and Because defendants McCaslin. violation, is of a criminal there requires ture the existence 69.50.401(a) also present no element RCW 69.50.505(a)(7). test, Szyman- Blockburger Under the RCW for the same offense criminally owski was prosecuted at- Jeopardy civil forfeiture. he was punished by which thus completed penalty proceedings, tached to the civil See United barring subsequent prosecution. 1995) (E.D. Tamez, 460, 465-66 Wash. 881 F. Supp. States when to a forfeiture proceeding attaches civil (jeopardy judgment forfeiture); the court enters final its United (D. 1994). Supp. Stanwood, States v. 872 F. 798-800 Or. *31 Szy I would reverse the convictions of both Cole (1) jeopardy grounds manowski on double because RCW 69.50.505(a)(7) solely purpose does not serve remedial as (2) required by Austin, and the civil forfeiture and crimi prosecution nal were the same offense. Prosecutors can by seeking imprisonment, avoid this dilemma fines, and proceeding, apparently becoming forfeiture in one practice e.g., under federal See, forfeiture statutes. Mc Supp. government easily Caslin, 863 F. at 1307. The can by seeking avoid double concerns forfeiture of the defendant’s case, in the criminal while maintaining extinguish a civil cause in rem to the claims persons criminally charged. who are not
Guy, J., Tern., J. Pro concur with Utter, Johnson, J. February
Reconsideration denied [No. 61935-2. En Banc. December 1995.] Respondents, Reese, al., William Foster et James M.D., E. Petitioners. Stroh, Jr., al., et