A 1983 Volkswagen, Id. No. IVWC0179V63656, License No. 2AAB574(CA) v. Washoe County, Washoe County Sheriff's Dept. Consolidated Narcotics Unit

• Decision Date: 08 May 1985
• Docket Number: No. 15729,15729
• Citation: 101 Nev. 222,699 P.2d 108
• Parties: A 1983 VOLKSWAGEN, ID. NO. IVWCO179V63656, LICENSE NO. 2AAB574 (CA), Its Tools and Appurtenances, Appellant, v. The COUNTY OF WASHOE, State of Nevada, ex rel. WASHOE COUNTY SHERIFF'S DEPARTMENT CONSOLIDATED NARCOTICS UNIT, Respondent.
• Court: Nevada Supreme Court

Page 108

699 P.2d 108

101 Nev. 222

A 1983 VOLKSWAGEN, ID. NO. IVWCO179V63656, LICENSE NO 2AAB574 (CA), Its Tools and Appurtenances, Appellant, v. The COUNTY OF WASHOE, State of Nevada, ex rel. WASHOE COUNTY SHERIFF'S DEPARTMENT CONSOLIDATED NARCOTICS UNIT Respondent.

No. 15729.

Supreme Court of Nevada.

May 8, 1985.

[101 Nev. 223] Jack Alian and Robert Bruce Lindsay, Reno, for appellant.

Brian McKay, Atty. Gen., Carson City; Mills Lane, Dist. Atty., and Richard A. Gammick, Deputy Dist. Atty., Washoe County, Reno, for respondent.

OPINION

PER CURIAM:

This is an appeal from the district court's order authorizing forfeiture of a vehicle used in violation of the Uniform Controlled Substances Act. Appellant argues, and we agree, that the state must prove its case beyond a reasonable doubt before an order of forfeiture may issue. In applying the exclusionary rule to forfeiture proceedings we have implicitly recognized the quasi-criminal nature of forfeiture actions. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965) (exclusionary rule applies to forfeiture proceedings because of quasi-criminal nature of action) cited with approval in One 1970 Chevrolet v. County of Nye, 90 Nev. 31, 518 P.2d 38 (1974). Proof beyond a reasonable doubt is therefore appropriate in order that the innocent not be permanently deprived of their property. Accord State v. Manuel, 426 So.2d 140 (La.1983).

Although we agree with appellant that the district court erred in employing the preponderance of the evidence standard of proof, we conclude that there was sufficient evidence to prove beyond a reasonable doubt that appellant, a 1983 Volkswagen, was used to transport cocaine for the purpose of sale. Therefore, we decline to disturb the judgment of the district court.

Mark Stephens, the owner of the Volkswagen, and Henry Renovato sold cocaine to undercover officer Partyka at the Pioneer Inn in Reno. Renovato testified that he had seen the cocaine in a blue bag in the Volkswagen the night before the sale. He also testified that he saw the bag in the Volkswagen when he and Stephens drove to the Pioneer the next day to effectuate the sale. Stephens and Renovato left the blue bag in the Volkswagen and met Rich and Vito inside the Pioneer. Unbeknownst to Stephens and Renovato, Vito was actually undercover officer Partyka. Stephens left the group twice and each time returned with cocaine. Before one trip, he stated he was going to the car. After Stephens returned the second time, he and Renovato sold the cocaine to Partyka.

Stephens was arrested that night and charged with possession and sale of cocaine in violation of the Uniform Controlled Substances Act. The next day, almost twenty-one hours later, Partyka went to the parking lot of the Pioneer and seized Stephens' Volkswagen without a warrant.

To effect a forfeiture under NRS 453.301 ¹ the state must prove 1) a violation of, not conviction under, the Uniform Controlled Substances Act, NRS 453.011 to 453.551 inclusive, and 2) that the vehicle was used to facilitate that violation. There was sufficient evidence to prove both elements beyond a reasonable doubt. The sale of cocaine to Partyka was a violation of the Act, thus satisfying the first element. Renovato's testimony provided the basis for an inference that the Volkswagen was used to transport the cocaine to the Pioneer. Thus the second element, that the vehicle was used to facilitate the sale, was also satisfied. ² Because a rational trier of fact could have found the essential elements beyond a reasonable doubt, we refuse to disturb the judgment of the district court. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Koza v. State, 100 Nev. 245, 250, 681 P.2d 44 (1984).

Appellant's remaining contention that the warrantless seizure of the Volkswagen was not supported by probable cause as required by NRS 453.306(2)(d) is without merit. Warrantless seizures of property subject to forfeiture are authorized by NRS 453.306(2)(d) where:

The division or other law enforcement agency has probable cause to believe that the property was used or is intended to be used in violation of the provisions of NRS 453.011 to 453.551, inclusive.

In determining that an officer had probable cause to arrest a suspect for harboring a fugitive, we equated probable cause with a reasonable belief that the suspect had assisted the fugitive in evading authorities. Carstairs v. State, 94 Nev. 125, 575 P.2d 927 (1978). Therefore, we read NRS 453.306(2)(d) in conjunction with NRS 453.301 to require Partyka to have had a reasonable belief that the Volkswagen was...