State v. Alaway

• Decision Date: 02 April 1992
• Docket Number: No. 13294-0-II,13294-0-II
• Citation: 64 Wn.App. 796,828 P.2d 591
• Parties: The STATE of Washington, Respondent, v. James ALAWAY, Appellant.
• Court: Washington Court of Appeals

Page 796

64 Wn.App. 796

828 P.2d 591

The STATE of Washington, Respondent, v. James ALAWAY, Appellant.

No. 13294-0-II.

Court of Appeals of Washington,

Division 2.

April 2, 1992.

Review Denied June 30, 1992.

Thomas A. Copland, Copland & Micheau, Aberdeen, for appellant.

Michael Sullivan, Pros. Atty., and James A. Conley, Deputy Pros. Atty., South Bend, for respondent.

MORGAN, Judge.

James Alaway appeals an order forfeiting to the Pacific County Sheriff property that he used for growing marijuana. We reverse.

Alaway was arrested on October 6, 1988, after deputies uncovered his large marijuana growing operation. At that time, the deputies seized a substantial amount of equipment and personal property as evidence. The seized property included a tool chest, hand saw, hand truck, several propane tanks, pumps, barrels, garbage cans, CO2 tanks, a carpenter's square, fans, grow lights, peat pots, a ladder, electric heaters, timers, switches, mylar, humidifiers, weed sprayers, ventilators, metal pipe, personal photos, business cards, an address book, and a hand carved pipe. It is undisputed that the seizure was authorized by a valid warrant.

On October 10, 1988, Alaway was charged with manufacturing marijuana. On February 17, 1989, he pled guilty and was sentenced. At that time, no action was taken with regard to forfeiture or return of the seized property.

On May 30, 1989, the State moved for an order forfeiting the property to the sheriff. Alaway objected and moved for return of all his property.

On July 27, 1989, the court heard both motions. The State argued that the court had inherent power to order how property used in criminal activity should be disposed of. It conceded that statutory forfeiture procedures had not been followed. See RCW 69.50.505.

At the conclusion of the hearing, the court orally ruled that it had "inherent power in a criminal case to order destruction or disposal of the property that was seized which the State has established was used in criminal activity." It entered a written order confiscating most of the property. ¹

The issue on appeal is whether the court erred by denying the defendant's motion for return of property and, conversely, by granting the State's motion to retain and sell the property. In Washington, CrR 2.3(e) ² governs motions for the return of illegally seized property and also motions for the return of lawfully seized property no longer needed for evidence. State v. Marks, 114 Wash.2d 724, 790 P.2d 138 (1990); State v. Pelkey, 58 Wash.App. 610, 794 P.2d 1286 (1990); State v. Card, 48 Wash.App. 781, 741 P.2d 65 (1987). CrR 2.3(e) does not set forth any criteria for determining when the State has a superior right of possession. According to federal authority, ³ a court may refuse to return seized property no longer needed for evidence only if (1) the defendant is not the rightful owner; (2) the property is contraband; or (3) the property is subject to forfeiture pursuant to statute. See, e.g., United States v. Farrell, 606 F.2d 1341, 1347 (D.C.Cir.1979); United States v. Wright, 610 F.2d 930, 939 (D.C.Cir.1979); United States v. Wilson, 540 F.2d 1100, 1101 (D.C.Cir.1976); United States v. Brant, 684 F.Supp. 421, 423 (M.D.N.C.1988).

The State does not argue that Alaway is not the rightful owner of the property. He owned the property when the State seized it, and there are no third party claims against it.

The State does argue that Alaway was not entitled to return of the property because it was contraband. "Contraband" has been defined by the United States Supreme Court as "an object, the possession of which, without more, constitutes a crime." One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965); see also Farrell 606 F.2d at 1344; Davis v. Fowler, 504 F.Supp. 502, 505 (D.C.Md.1980). The fact that tools, building materials, and gardening supplies were used to grow marijuana does not cause possession of those items to be a crime. Therefore, the property in issue here was not contraband.

The State further argues even if the property was not contraband in and of itself, Alaway still was not entitled to its return because he used it to grow marijuana. Property that can be lawfully possessed but that the defendant has used as the instrumentality of a crime has been labelled "derivative contraband." United States v. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. at 699, 85 S.Ct. at 1250, 14 L.Ed.2d at 174; Cooper v. City of Greenwood, Miss., 904 F.2d 302, 305 (5th Cir.1990); Farrell, 606 F.2d at 1344. The federal courts agree that the owner of derivative contraband does not automatically lose his property interest, and that the government must follow proper forfeiture procedures to divest him of that interest. United States v. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. at 699, 85 S.Ct. at 1250; Cooper, 904 F.2d at 305; Farrell, 606 F.2d at 1344; Davis v. Fowler, 504 F.Supp. at 505; see also United States v. Wright, 610 F.2d at 939; Farrell, 606 F.2d at 1345-46; United States v. Lane Motor Co., 199 F.2d 495 (10th Cir.1952), aff'd, 344 U.S. 630, 73 S.Ct. 459, 97 L.Ed. 622 (1953); Brant, 684 F.Supp. at 424. In conformance with these cases, we hold that the State cannot confiscate property merely because it is derivative contraband, but instead must forfeit it using proper forfeiture procedures.

Washington has a statutory forfeiture procedure. Materials and equipment used in manufacturing any controlled substance are subject to seizure and forfeiture. RCW 69.50.505(a)(2). Notice must be given within 15 days of seizure. RCW 69.50.505(c). If the property is personal property, one claiming an interest in it then has 45 days to respond, and if a response is made, a hearing must be held. RCW 69.50.505(d), (e).

The State concedes that it did not comply with this statutory procedure. It argues, however, that Washington courts have inherent authority to order the forfeiture of property used in the commission of a crime, even without statutory authorization. In response, Alaway argues that Washington's forfeiture statute is exclusive and that unless statutory procedures are followed, a Washington court cannot order forfeiture.

Every jurisdiction that has considered the question has held that the power to order forfeiture is purely statutory. ⁴ United States v. Farrell, supra; United States v. Lane Motor Co., 199 F.2d 495, 496 (10th Cir.1952), aff'd, 344 U.S. 630, 73 S.Ct. 459, 97 L.Ed. 622 (1953); Ghisolfo v. United States, 14 F.2d 389 (9th Cir.1926); Davis v. Fowler, 504 F.Supp. 502 (D.C.Md.1980); Brant, 684 F.Supp. at 424; State of Connecticut v. Anonymous, 35 Conn.Supp. 659, 406 A.2d 6 (1979); State of Connecticut v. One 1960 Mercury Station Wagon, 5 Conn.Cir. 1, 240 A.2d 99 (1968); People v. Barenfeld, 21 Cal.Rptr. 501, 203 Cal.App.2d 166 (1962); Utah Liquor Control Comm'n v. Wooras, et al, 97 Utah 351, 93 P.2d 455 (1939); Prudential Ins. Co. v. Rice, 52 N.E.2d 624, 626, 222 Ind. 231 (1944). The only case to arise in Washington is in accord. United States v. Two Hundred and Sixty Seven Twenty Dollar Gold Pieces and One McLaughlin Auto, 255 F. 217 (W.D.Wa.1919). Scholarly authorities also establish that the United States has never had a common law of forfeiture, and that since colonial times, forfeiture in this country has existed only by virtue of statute. Smith, Modern Forfeiture Law v. Policy: A Proposal for Reform, 19 Wm. & Mary L.Rev. 661 (1978); Finkelstein, The Goring Ox: Some Historical Perspectives on Deodands Forfeiture, Wrongful Death, and the Western Notion of Sovereignty, 46 Temp.L.Q. 169, 183 (1973) (in depth history of law of forfeiture); cf. O.W. Holmes, The Common Law, 34-35 (1881). In...