State ex rel. Schillberg v. Everett Dist. Justice Court, Snohomish County

• Decision Date: 02 November 1978
• Docket Number: No. 45023,45023
• Citation: 585 P.2d 1177,90 Wn.2d 794
• Parties: The STATE of Washington, on the relation of Robert E. SCHILLBERG, Prosecuting Attorney, Respondent, v. EVERETT DISTRICT JUSTICE COURT, SNOHOMISH COUNTY, Arnold E. Zemple, Judge of the Everett District Court, Appellant.
• Court: Washington Supreme Court

Page 794

90 Wn.2d 794

585 P.2d 1177

The STATE of Washington, on the relation of Robert E SCHILLBERG, Prosecuting Attorney, Respondent, v. EVERETT DISTRICT JUSTICE COURT, SNOHOMISH COUNTY, Arnold E Zemple, Judge of the Everett District Court, Appellant.

No. 45023.

Supreme Court of Washington, En Banc.

Nov. 2, 1978.

Robert E. Schillberg, Pros. Atty., Everett, for appellant.

Kessler, Urmston & Sever, Keith L. Kessler, Seattle, for respondent.

ROSELLINI, Justice.

We are asked to determine the constitutionality of JCrR 2.10(e) providing for the return of property unlawfully seized.

David R. Allen was arrested in Lynnwood for possession of stolen property. In the back seat of his automobile were a number of items of merchandise, some of which matched the description of items taken that day from a store in Everett. The merchandise was seized. Allen was booked and jailed, and on the following day he was arraigned. An order was issued by the district court, which required his release on the following day if a complaint were not filed, and for the exoneration of his bail if no complaint had been filed at the end of 2 weeks. The release order appears to have been made pursuant to JCrR 2.03.

No complaint was filed, and 1 week after the date for exoneration of bail, Allen filed a motion for an order directing the release of the property which had been seized when he was arrested. The motion was accompanied by an affidavit of Allen's attorney, stating that his client had advised him that the items taken were legitimately in his possession, that he legitimately paid for such items and that he demanded their return. A copy of the motion was served on the Prosecuting Attorney for Snohomish County. Before the final hearing on the motion, copies were also served on the Cities of Lynnwood and Everett. That hearing was attended by attorneys for these three parties.

By affidavit, one of the arresting officers stated that a man who had been observed taking merchandise from the Everett store without paying for it was seen to enter a vehicle bearing the description and license number of Allen's car. The vehicle was seen later that day in a parking lot in Lynnwood. Boxes stacked in the back seat bore tags of the store from which merchandise had been taken.

The Everett city attorney stated in an affidavit that the official police reports had been forwarded to the Snohomish County prosecutor for possible prosecution, and that if he elected not to prosecute, the City of Everett would review the possibility of charging Allen with shoplifting or larceny and, in that event, would be using some of the merchandise as evidence.

Notwithstanding the substantial showing that the merchandise, or a part of it at least, had been stolen, notwithstanding the absence of any affidavit by Allen stating the facts upon which he claimed the right to possession, and in spite of the conclusory nature of his attorney's affidavit, the district court ordered the return of the merchandise. The prosecuting attorney applied to the superior court for a writ of certiorari which was granted. Holding unconstitutional JCrR 2.10(e), the rule pursuant to which the property was ordered returned, the superior court reversed the order of the district court. We granted direct review.

While the district court is the nominal appellant, Allen is the real party in interest on this appeal and it is his attorney who has argued it.

JCrR 2.10(e) provides:

(e) Motion for Return of Property. A person aggrieved by an unlawful search and seizure may move the court for the return of the property on the ground that the property was illegally seized and that he is lawfully entitled to possession thereof. If the motion is granted, the property shall be returned. If a motion for return of property is made or comes on for hearing after an indictment or information is filed in the court in which the motion is pending, it shall be treated as a motion to suppress.

It appears that both the district court and the superior court understood this rule to require the return of seized property to the party from whom it was unlawfully taken, even where his possession was unlawful. The district court evidently was not disturbed by such a provision, but the superior court held it unconstitutional, being of the opinion that it operates to deprive the true owner of his property without due process of law, where the property has been stolen by the person from whom it was seized. The defect, the court indicated, would be cured if the rule had a provision for notice to such claimants or to someone who would protect their interests. Such notice, in its opinion, was not required under JCrR 10.02, which provides:

Rule 10.02 Motions and applications Notice Service. Reasonable notice shall be given to the opposing party or attorney of record of all motions and applications other than those ex parte. Where a motion or application is supported by an affidavit, a copy of such affidavit shall be served with the motion or application.

As the superior court construed this provision, it requires notice only to parties of record.

As the author of these rules, this court, of course, is in a position to reveal the actual meaning which was sought to be conveyed. However, we approach them as though they had been drafted by the legislature, and give the words their ordinary meaning, reading the language as a whole and seeking to give effect to all of it.

We think the courts below did not take sufficient account of the burden placed upon a person moving the court for the return of property which has been taken from him in an unlawful search and seizure. He must prove not only that the search and seizure was illegal, but also that he is lawfully entitled to possession of the property seized. This means that he must offer proof sufficient to satisfy the court of his right to possession.

This rule, while not copied from Fed.R.Crim.P. 41(e), was patterned after it. Both provide that the motion can be made "on the ground that (the claimant) is lawfully entitled to possession." Cases decided under the federal rule, and at common law, hold that, even though the seizure was illegal, the party claiming the right to return of property cannot recover contraband or stolen goods. See 18 U.S.C.A. Rule 41(e); notes 456, 476. 79 C.J.S. Searches and Seizures § 113 (1952); 68 Am.Jur. 2d Searches and Seizures §§ 116 Et seq. (1973). The federal Advisory Committee on Rules states that the rule is a codification of existing law and practice. 18 U.S.C.A. Rule 41 at 483.

Cases interpreting this and similar state rules have consistently said that if ownership is disputed, the claimant must resort to a civil remedy to establish his claim. In other words, title is not to be determined in a criminal proceeding, where the only proper parties are the defendant or defendants and the state or other governmental body involved. One such case is United States v. Scott, 149 F.Supp. 837 (D.D.C.1957). The court in that case, having reason to believe from evidence adduced that the property unlawfully seized by officers was stolen, suppressed its use as evidence but refused to return the property to the defendant. Instead the court left it with the property custodian, without prejudice to the defendant's right to gain possession of it if he could establish the validity of his claim. In accord, Lawrence v. Mullins, 224 Tenn. 9, 449 S.W.2d 224 (1969); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

It should be clear, therefore, that the hearing and motion for return of property illegally seized is not a proceeding in which the court tries or adjudicates title. Due process is not violated, since property is not taken. The purpose of the hearing is to determine the right to possession, as between the claimant and the court or officers having custody of the property. And even so, the claimant must satisfy ...