City of Walla Walla v. $401,333.44

• Decision Date: 28 May 2009
• Docket Number: No. 26243-0-III.,26243-0-III.
• Citation: 208 P.3d 574,150 Wn. App. 360
• Court: Washington Court of Appeals
• Parties: CITY OF WALLA WALLA, Respondent, v. $401,333.44, Defendant in rem, Adrian Ibarra-Raya, Appellant.

208 P.3d 574

150 Wn. App. 360

CITY OF WALLA WALLA, Respondent, v. $401,333.44, Defendant in rem, Adrian Ibarra-Raya, Appellant.

No. 26243-0-III.

Court of Appeals of Washington, Division 3.

May 28, 2009.

Janelle Carman, C. Dale Slack, Carman Law Office Inc., Walla Walla, WA, for Appellant.

Timothy J. Donaldson, Walla Walla City Attorney, Walla Walla, WA, for Respondent.

SWEENEY, J.

¶ 1 This appeal follows a summary judgment in favor of the City of Walla Walla that forfeited money found in what police concluded was a drug house. We concluded in the related criminal prosecution that police illegally entered the house and that the superior court should, therefore, have suppressed evidence later seized from the house. State v. Ibarra-Raya, 145 Wash.App. 516, 523, 187 P.3d 301 (2008), review granted, 165 Wash.2d 1036, 205 P.3d 131 (2009). And we reversed the criminal convictions. Id. at 525, 187 P.3d 301. Here, each party claims that the evidence supports its right to the proceeds as a matter of law. We conclude that issues of fact remain, and we therefore reverse and remand for trial.

FACTS

¶ 2 Walla Walla police officers received reports from a neighbor that led them to conclude that a house served as a "drop house" for money or drugs. They investigated, ultimately entered the house without the benefit of a search warrant, and saw substantial evidence of an ongoing drug operation:

When officers arrived at the house, they saw lights on and heard party noise but reported nothing exceptional. A truck without a license plate, but with a temporary permit, was in the driveway. The vehicle identification number (VIN) check came back "stolen out of California." ...

Two officers then knocked on the front door; immediately the lights in the living room went off. Walla Walla Police Officer Tim Morford was on the side of the house and saw two men, one later identified as Mr. Ibarra-Raya, go into a room off the hallway and then come out of the room and open the back door. Officer Morford ordered the men to remain in the house. Officer Morford then followed the two men into the house and conducted a protective sweep, seeing marijuana and a bundle of cash. At this point, the officers learned that solely the truck's license plates had been stolen and that Mr. Ibarra-Raya was subleasing the house. Based on Officer Morford's observations, officers obtained a search warrant that led to the discovery of cocaine, over $400,000 sealed in plastic bags, and marijuana. Officers arrested Mr. Ibarra-Raya.

Ibarra-Raya, 145 Wash.App. at 520-21, 187 P.3d 301.

¶ 3 The officers then obtained a warrant and searched a storage unit in nearby Milton-Freewater, Oregon. The storage unit contained methamphetamine, marijuana, and cocaine. The police also found a stolen truck and assorted items such as plastic bags and rubber gloves. Police asked Mr. Ibarra-Raya whether the money was his. He denied that it was.

¶ 4 The State prosecuted Mr. Ibarra-Raya for possession with intent to deliver marijuana and possession of cocaine. The City of Walla Walla (City) sued to forfeit the $401,333.44 seized from the house. Mr. Ibarra-Raya moved to remove the forfeiture action to superior court. The court granted that motion. The City moved to dismiss for lack of standing based on Mr. Ibarra-Raya's denial that the money was his. Mr. Ibarra-Raya moved to stay the forfeiture proceedings pending resolution of the criminal case. The court stayed the forfeiture proceeding.

¶ 5 Mr. Ibarra-Raya was convicted. The City then moved to vacate the stay of forfeiture proceedings and asked the court to treat its earlier motion to dismiss as a summary judgment motion. The court vacated the order staying the forfeiture proceedings and granted summary judgment to the City. The court concluded as a matter of law that Mr. Ibarra-Raya had no lawful interest in the money and that the money is subject to forfeiture because it is "furnished or intended to be furnished for a controlled substance in violation of the [U]niform [C]ontrolled [S]ubstances [A]ct [chapter 69.50 RCW] or used or intended for use to violate the [U]niform [C]ontrolled [S]ubstances [A]ct." Clerk's Papers (CP) at 273-74; see also Report of Proceedings at 30, 40-41.

¶ 6 Mr. Ibarra-Raya appealed his criminal convictions and argued, among other things, that the court should have suppressed evidence seized because the police's initial entry into the house was illegal. We agreed and reversed those convictions on the basis that the trial court erroneously denied Mr. Ibarra-Raya's motions to suppress. Ibarra-Raya, 145 Wash.App. at 523-25, 187 P.3d 301. We concluded that the police needed a warrant to enter the house. Id. at 523, 187 P.3d 301. The search and subsequent seizure of drugs, money, and other evidence were then unlawful. Id. at 523, 525, 187 P.3d 301.

¶ 7 Mr. Ibarra-Raya now appeals the court's summary judgment in favor of the City forfeiting the $401,333.44 seized from the house. He claims the money is his.

DISCUSSION

COLLATERAL ESTOPPEL

¶ 8 Mr. Ibarra-Raya first contends that the City should be collaterally estopped from challenging the propriety of the search. He argues that this issue was resolved by our opinion in his appeal from his criminal convictions. The City responds that illegal seizure does not bar its action to forfeit. They are both correct. United States v. Six Hundred Thirty-Nine Thousand Five Hundred and Fifty-Eight Dollars ($639,558) in United States Currency, 293 U.S.App. D.C. 384, 387 n. 5, 955 F.2d 712 (1992). The City also argues that there is substantial untainted evidence that the cash discovered in Mr. Ibarra-Raya's house is drug money or that it is not his.

¶ 9 Whether collateral estoppel bars a claim is a question of law that we review de novo. LeMond v. Dep't. of Licensing, 143 Wash.App. 797, 803, 180 P.3d 829 (2008).

¶ 10 Collateral estoppel requires a showing of: "`(1) identical issues; (2) a final judgment on the merits; (3) the party against whom the plea is asserted must have been a party to or in privity with a party to the prior adjudication; and (4) application of the doctrine must not work an injustice on the party against whom the doctrine is to be applied.'" Shoemaker v. City of Bremerton, 109 Wash.2d 504, 507, 745 P.2d 858 (1987) (quoting Malland v. Dep't. of Ret. Sys., 103 Wash.2d 484, 489, 694 P.2d 16 (1985)).

¶ 11 The cash here is subject to forfeiture under Washington's Uniform Controlled Substances Act. Forfeiture proceedings under RCW 69.50.505 "are quasi criminal in nature since their purpose is to penalize individuals who participate in the illegal transportation of controlled substances." Deeter v. Smith, 106 Wash.2d 376, 378, 721 P.2d 519 (1986); accord, Franklin v. Klundt, 50 Wash.App. 10, 746 P.2d 1228 (1987), overruled on other grounds by Thompson v. Dep't. of Licensing, 138 Wash.2d 783, 798, 982 P.2d 601 (1999). The Fourth Amendment's exclusionary rule applies to forfeiture proceedings and so precludes the use of illegally obtained evidence in those proceedings. Deeter, 106 Wash.2d at 379, 721 P.2d 519.

¶ 12 At least two cases have applied collateral estoppel to forfeiture proceedings. In Barlindal v. City of Bonney Lake, the State pursued criminal proceedings against a defendant after seizing cash, drugs, and firearms from his home. 84 Wash.App. 135, 925 P.2d 1289 (1996). The court in the criminal trial concluded that the search of Mr. Barlindal's home and the seizure of his possessions were unlawful and suppressed the evidence resulting from the search. Id. at 137-38, 925 P.2d 1289. The court in the forfeiture proceeding followed the determination from the criminal proceeding and excluded the evidence seized during the unlawful search. Id. at 138, 925 P.2d 1289. The Court of Appeals affirmed. The court concluded that the exclusionary rule prohibits the use of unlawfully obtained evidence in a civil forfeiture proceeding and agreed that collateral estoppel precluded reconsideration of whether the evidence was legally seized from Mr. Barlindal's home. Id. at 141-42, 925 P.2d 1289.

¶ 13 In City of Des Moines v. Personal Property Identified as $81,231 in United States Currency, the trial court adopted the findings from the suppression hearing in the criminal trial. 87 Wash.App. 689, 943 P.2d 669 (1997). There, the court concluded that the warrantless search and seizure of money and personal property was legal. Id. And the Court of Appeals affirmed the trial court's decision that a conclusive determination of the search and seizure issue in the criminal trial collaterally estopped the claimant from challenging the seizure in the civil forfeiture proceeding. Id. at 700, 943 P.2d 669.

¶ 14 Here, the City agrees that the forfeiture cannot be based on the unlawful search and seizure. The City urges instead that the court may consider the seized money "for the limited purpose of establishing its existence, and the court's in rem jurisdiction over it." Six Hundred Thirty-Nine Thousand Five Hundred and Fifty-Eight Dollars, 955 F.2d 712, 293 U.S.App. D.C. at 387 n. 5. We agree. The City also urges that there is sufficient untainted evidence to support a finding that the money was used for or gained from drug sales. The question, then, is whether genuine issues of material fact remain on both the ownership and source of the money seized. Hisle v. Todd Pac. Shipyards Corp., 151 Wash.2d 853, 860, 93 P.3d 108 (2004).

ISSUES OF MATERIAL FACT

¶ 15 Mr. Ibarra-Raya contends that the money is his and that the only factual disputes are over whether the money is the product of drug activity. The City responds that Mr. Ibarra-Raya has no standing to challenge forfeiture of the money because he did not show that the money was his and, indeed, denied that the money was his. And the City argues that it made the necessary showing that the money was the result of drug trafficking.

¶ 16 We review summary judgment orders de novo. Id. We view the evidence in a...