DEA/Tahoma Narcotics Enforcement Team v. One (1) 2001 BMW X5 VIN WBAFA53551lm75717

• Decision Date: 13 December 2011
• Docket Number: 40514-8-II
• Court: Washington Court of Appeals
• Parties: DEA/TAHOMA NARCOTICS ENFORCEMENT TEAM, Respondent, v. ONE (1) 2001 BMW X5 VIN WBAFA53551lm75717, Appellant/Defendant in Rem, ANGELA FINLEY, Appellant/Claimant.

DEA/TAHOMA NARCOTICS ENFORCEMENT TEAM, Respondent, v. ONE (1) 2001 BMW X5 VIN WBAFA53551lm75717, Appellant/Defendant in Rem, ANGELA FINLEY, Appellant/Claimant.

No. 40514-8-II

Court of Appeals of Washington, Division 2

December 13, 2011

UNPUBLISHED OPINION

Van Deren, J.

Angela Finley appeals (1) the administrative ruling that the Drug Enforcement Agency (DEA) and the Tahoma Narcotics Enforcement Team (TNET) lawfully seized her vehicle under RCW 69.50.505 and (2) the superior court's affirmation of the hearing examiner's determination. Among other challenges, Finley argues that the waiver of hearing and consent to forfeiture form that she signed violated due process and is unenforceable because she did not sign it knowingly intelligently, and voluntarily.

Because the original hearing examiner's findings of fact and conclusions of law were insufficient for us to review Finley's challenge to the signed waiver and consent's execution, we stayed this case and remanded it to a hearing examiner for entry of adequate findings and conclusions concerning Finley's execution of the waiver and consent form. After reviewing a second hearing examiner's findings and conclusions following a new hearing, we affirm the forfeiture based on Finley's waiver and consent.

FACTS

In the fall of 2006, the DEA and TNET (DEA/TNET) team was investigating narcotics trafficking by Kenneth Cage. Cage lived with his girl friend, Angela Finley. During the investigation, certain items of property—including a 2001 BMW in Finley's possession—were seized by local DEA agents. On November 8, 2006, Angela Finley signed a waiver of hearing and consent to forfeiture form, indicating her consent to the DEA/TNET's seizure of the 2001 BMW. The signed waiver and consent form stated:

CONSENT TO FORFEITURE:

I, Angela Finley have been advised that law enforcement/police authorities have seized personal property belonging to me, or under my control, under the drug laws of the State of Washington, RCW 69.50.505. The following property has been seized:

Property: 2001 BMW XS — WBAFA53551LM75717

WA License: WA 774-TTG

RIGHTS UNDER STATE LAW:

I am aware that I have the right to have the law enforcement/police agency formally file a forfeiture notice and proceed to hearing. I have the right to be provided notice of the action. I have the right to file a claim and contest the taking of this property. I have the right to have a hearing before the chief law enforcement officer or their designee. I understand that the law enforcement/police official would have to prove that the property which was seized was either used to facilitate a drug transaction, was equipment used to assist drug distribution or manufacture[, ] or was the proceeds of a drug transaction.

WAIVER OF RIGHTS:

Being fully advised of my rights and fully understanding [all of] the rights in the paragraph above, I make no claim to the property listed above. I admit that the property was properly seized. I WAIVE all my rights to any further notice. I WAIVE rights to any further hearing. No threats, promises or other inducements other than as set forth herein have been made to me as part of executing this consent.

CONSENT TO IMMEDIATE FORFEITURE:

I have been fully advised of all my rights. I hereby consent to immediate forfeiture of all the property listed above to TNET[ ]. I waive all rights that I may have under RCW 69.50.505.

Suppl. Administrative Record (AR) Findings of Fact and Conclusions of Law (Aug. 31, 2011) (FF/CL), attach. at 6 (Exhibit A) (boldface and underline omitted). But after signing the waiver, Finley requested a hearing to contest the vehicle's seizure and forfeiture. A hearing examiner conducted the forfeiture hearing on May 12, 2009.

At the first hearing, held at Finley's request, DEA Special Agent Stephen Ver Dow testified^[1] that he and DEA Special Agent Steve Taibi^[2] interviewed Finley on November 8, 2006. According to Ver Dow, he presented Finley with the waiver form, Finley read it, and he asked her whether she had any questions. Taibi testified that Finley asked no questions and verified Ver Dow's testimony.

Finley's testimony was somewhat different. She testified that she was outside her mother's home when two vehicles "swooped in." AR at 410153. Ver Dow and Taibi contacted her Finley told them that "she knew why they were there " and that Taibi "wanted to arrest her on the spot." AR at 410153. After she allowed the two agents inside the house, she called her mother, Kathleen Schwartz. When Finley asked the agents whether she needed an attorney one agent told her that he "could not say yes or no" but, if she did consult an attorney, he "would need to arrest her." AR at 410154. An agent further advised her that if she would not answer questions, she could not be interviewed and she would be arrested.

Finley stated that, at the agents' request, she drove to the DEA office. While she was there, one of the agents threatened her by telling her that another individual had been previously arrested in her car and, because she was driving the same car, she might also be arrested. When the agents finished questioning Finley, one of the agents told her that she was "not leaving with the veh[icle]." AR at 410155.

With regard to her signing the waiver and consent form, Finley testified that, after escorting her outside and allowing her to remove her personal items from the vehicle, an agent told her that DEA was seizing the vehicle, that the vehicle was forfeited and would be sold at an auction, and he handed her a clipboard with a "receipt" that she needed to sign. AR at 410155. There were two pages attached to the clipboard; the top page "looked like a receipt" to Finley—which she signed—and then the agent "flipped" the clipboard and she signed again on the second page. AR at 410155-156.

Kathleen Schwartz testified that Finley called her and asked her to come home because "DEA" was there. AR at 410152. When Schwartz arrived, "officers were there." AR at 410152. Schwartz spoke with an unidentified agent, who said that the DEA wanted Finley to come in for an interview but that she was not being taken to jail and that they had "no interest" in her. AR at 410153.

Based on the above testimony, the original hearing examiner found:

The DEA/TNET conducted a large scale investigation into narcotics trafficking by Kenneth Cage. . . . Cage lived with [his girlfriend], Angela Finley. During the course of the investigation certain items of property [including] the 2001 BMW were seized pursuant to RCW 69.50.505. . . . Finley was found to have executed a document entitled "Waiver of Hearing and Consent to Forfeiture" that was signed and dated on November 8, 2006.

Clerk's Papers (CP) at 5. The hearing examiner concluded:

1.) The Hearing[ ] Examiner has jurisdiction over the proceedings as set forth in [RCW] 69.50.505.

2.) There is probable cause to believe that this property was seized and is subject to forfeiture in accordance with [RCW] 69.50.505.

3.) [Finley] executed a signed waiver of hearing and consent to forfeiture.

CP at 5. The superior court affirmed the hearing examiner's decision.

After hearing oral argument and finding the record insufficient to review Finley's execution of the waiver and consent form we stayed the case and remanded the matter for entry of adequate findings and conclusions regarding Finley's execution of the waiver and consent form. On remand, a different hearing officer presided, who took additional testimony on August 16, 2011. Finley did not appear and her attorney appeared telephonically.

The testimony adduced at the second hearing included testimony from a Department of Corrections supervisor and DEA Task Force Officer Michael Poston, as well as Ver Dow. Poston stated that, at Ver Dow's request, he contacted Finley in person at her mother's home on November 8, 2006, and told her that Ver Dow wanted to interview her concerning a criminal investigation. DEA regulations did not permit Poston to escort Finley in his car, so she followed him to the DEA office in her own car.

Ver Dow testified that he and Taibi introduced themselves to Finley when she arrived at DEA's office. They interviewed her in the "regular interview room, " which was "right off the front entrance" to the office. Suppl. AR FF/CL, attach. at 7 (Report of Proceedings Aug. 16 2011 (RP)) at 15. They had no probable cause to arrest Finley, had no intent to arrest her, and only wanted to speak with her.

Before beginning the interview, Ver Dow read Finley her Miranda^[3] rights in English, but advised her that she was not under arrest. Finley acknowledged her rights and stated that she was willing to speak with Ver Dow and Taibi. Her proficiency in speaking, listening, and conversing during the interview was "perfectly fine"; her answers were "fairly clear and concise"; and she displayed no indication of medical, drug, alcohol, or mental health issues. Suppl. AR FF/CL, attach. at 7 (RP at 16-17).

During the interview, Finley indicated that Cage had purchased the car she was driving with cash. Ver Dow presented the waiver and consent form to Finley in the interview room. He explained to her that DEA was going to seize the car because it had determined during its investigation of Cage that he had purchased the car with drug sale proceeds. Ver Dow made no promises, threats, or inducements to have Finley sign the waiver and consent form. He stated that she "seemed kind of indifferent" to the forfeiture and did not verbally contest it before signing the form. Suppl. AR FF/CL, attach at 7 (RP at 21). After Finley signed the form, Ver Dow allowed her to go outside and gather her belongings from the car and presented her with a receipt, which she signed. Finley did not ask any questions or "indicate any...