State v. Black 1999 Lexus ES300

• Decision Date: 07 January 2011
• Docket Number: No. 102,286.,102,286.
• Citation: 244 P.3d 1274
• Parties: STATE of Kansas, Appellee, v. BLACK 1999 LEXUS ES300, VIN JT8BF28G6X5060235, Appellant.
• Court: Kansas Court of Appeals

244 P.3d 1274

STATE of Kansas, Appellee,

v.BLACK 1999 LEXUS ES300, VIN JT8BF28G6X5060235, Appellant.

No. 102,286.

Court of Appeals of Kansas.

Jan. 7, 2011.

Syllabus by the Court

When considering whether a proposed civil property forfeiture is grossly disproportionate, the district court must consider the nonexclusive list of factors in K.S.A. 60-4106(c). In doing so, the court may consider related criminal conduct of the defendant in addition to the crimes specifically facilitated by the property subject to forfeiture.

Jessica J. Travis, of the Travis Law Firm, L.L.C., of Olathe, and Kristi C. Hartmann, of Putnam & Hartmann, L.L.C., of Kansas City, Missouri, for appellant.

Steven J. Obermeier, assistant district attorney, and Stephen M. Howe, district attorney, for appellee.

Before LEBEN, P.J., PIERRON and BUSER, JJ.

LEBEN, J.

After investigating Andrew Wurtz for dealing marijuana, the police seized his 1999 Lexus ES300 and petitioned to forfeit it since he had used it for selling drugs. Wurtz stipulated that the car was properly subject to forfeiture but insisted that the forfeiture be limited in scope under K.S.A. 60-4106(c) because forfeiting the $8,000 car was grossly disproportionate to the $250 he had gained from the two drug sales conducted from the car.

But Wurtz' argument fails because the inquiry under K.S.A. 60-4106(c) considers all of the circumstances, including related criminal conduct not directly involving the car. The circumstances in Wurtz' case included: Police observing Wurtz possess and sell marijuana on several occasions in a year; Wurtz admitting to selling marijuana to his coworkers; and Wurtz also admitting that he routinely purchased what an officer called a dealer-level amount of the drug. The forfeiture of Wurtz' Lexus worth about $8,000 was not grossly disproportional to his repeated criminal conduct. Moreover, contrary to Wurtz' contentions, K.S.A. 60-4106(c) is not unconstitutionally vague because it provides objective factors to prevent courts from arbitrarily and discriminatorily applying the statute.

FACTUAL BACKGROUND

Because related criminal conduct can be considered when determining whether a forfeiture is grossly disproportionate, we must review Wurtz' activities in some detail.

The police had been investigating him for dealing marijuana since April 2007. A confidential informant had purchased marijuana from Wurtz at Wurtz' house, and the police had found marijuana in Wurtz' trash. Based on this information, the police obtained a search warrant for his house. On June 22, 2007, officers went to Wurtz' work to get a house key so they could execute the warrant. Wurtz followed them back to his house in his 1999 Black Lexus ES300, which the police then searched. The police found four bags of marijuana that weighed about 1/8th ounce each; the individual packaging suggested that Wurtz sold the drug for profit, and Wurtz admitted that he occasionally sold marijuana to his coworkers.

The police then searched his house and found more marijuana and a scale, which is typically used by those distributing and selling marijuana. Wurtz told the police that he bought about a pound of marijuana every 2 weeks. In this forfeiture proceeding, an officer testified that the amount was impossible for one person to consume in 2 weeks and more consistent with a midlevel dealer. The officer also concluded that the marijuana was a higher grade, hydroponic marijuana that sells for about 10 times the amount of regular marijuana. Based on his observations, the officer estimated the value of the marijuana found in the car to be $400.

The following June in 2008, a confidential informant bought marijuana from Wurtztwice in a gas station parking lot, once on June 11 and then a second time on June 23. Both transactions took place in Wurtz' Lexus. The informant paid Wurtz $130 in the first transaction and $120 in the second. Then on June 27, the informant and Wurtz engaged in a third deal, this time in the informant's car. Wurtz had walked to the rendezvous location—another gas station parking lot—from another parking lot near his work. This time, the informant paid $60 for the marijuana. The Lexus was not seen during this transaction.

A few days later, on July 3, 2008, the police seized Wurtz' Lexus for his use of it in selling marijuana. The State then petitioned for the car's forfeiture under the Kansas Standard Asset Seizure and Forfeiture Act. Before trial, the parties stipulated that the vehicle was subject to forfeiture; this left only the question of whether the forfeiture was grossly disproportionate to Wurtz' conduct, an inquiry the district court conducts pursuant to K.S.A. 60-4106(c). The district court found that the forfeiture of the car was not grossly disproportionate to Wurtz' repeated drug sales and the large potential penalty provided by statute—up to $300,000—for such sales. The court entered judgment against Wurtz and ordered that the car be released to the police department for its official use. Wurtz appealed.

Since Wurtz agreed that the State had grounds to forfeit the car, he has limited his arguments on appeal to the district court's decision that the forfeiture was not grossly disproportionate to his conduct and his claim that K.S.A. 60-4106(c) is unconstitutionally vague.

ANALYSIS

I. The Forfeiture of Wurtz' Lexus Was Not Grossly Disproportionate to His Conduct.

Although forfeiture proceedings are civil, they are penal in nature and thus subject to the excessive-fines clauses of the Kansas and the United States Constitutions. In re Tax Exemption Application of City of Wichita, 255 Kan. 838, 843, 877 P.2d 437 (1994); see Austin v. United States, 509 U.S. 602, 604, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); Kan. Const. Bill of Rights, § 9; U.S. Const. Amend. VIII. K.S.A. 60-4106(c) seeks to prevent an excessive-fines violation by limiting the forfeiture's scope when the forfeiture becomes "grossly disproportionate to the nature and severity of the owner's conduct."

The statute includes a list of nonexclusive factors for the court to consider when making this determination:

"(1) The gain received or expected to be received by an owner from conduct that allows forfeiture; (2) the value of the property subject to forfeiture; (3) the extent to which the property actually facilitated the criminal conduct; (4) the nature and extent of the owner's knowledge of the role of others in the conduct that allows forfeiture of the property and efforts of the owner to prevent the conduct; and (5) the totality of the circumstances regarding the investigation." K.S.A. 60-4106(c)(1)-(5).

Wurtz contends that the district court erred in considering the drug transactions that involved Wurtz but did not involve the car; that the court should have used the car's retail value in making its determination; and that the forfeiture was grossly disproportionate to the nature and severity of Wurtz' conduct given the car's high retail value and the two small-dollar drug sales.

We must accept the district court's factual findings when substantial evidence supports them; we then ask whether the findings support the district court's legal conclusions. Kansas Highway Patrol v. 1985 Chevrolet Astro Van, 24 Kan.App.2d 841, 844, 954 P.2d 718 (1998). We do not reweigh evidence or assess witness credibility. 1985 Chevrolet Astro, 24 Kan.App.2d at 844, 954 P.2d 718. In deciding the ultimate legal issues here, which includes the interpretation of K.S.A. 60-4106(c), we must make an independent decision without any required deference to the district court.Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007).

We will first discuss the three statutory factors most implicated in this case. We will then evaluate all of the factors as a whole.

Wurtz' Gain, the Lexus' Facilitation of the Criminal Conduct, and the Overall Circumstances

First, Wurtz' actual gain from the observed sales in his Lexus was only $250. But Wurtz' additional conduct and admissions indicate that his drug-dealing activities were ongoing and that he thus expected to gain a lot more from those activities through the use of his Lexus. The police found $400 worth of marijuana in the car in June 2007. At that time, Wurtz admitted to buying dealer-level amounts of the drug and admitted that he sold the drug to his coworkers. More high-grade marijuana was found in his house. A year later, he was still engaging in sales of the drug, some of which were in conducted in the Lexus.

Wurtz insists that it's improper to consider the two events not involving the vehicle—the drugs found in a search of his house and the sale in the informant's car—when deciding whether the forfeiture was proportional. He maintains that we cannot consider these events since they couldn't be a basis for forfeiting the vehicle, i.e., the car didn't "facilitate" the criminal conduct in those instances. The State argues that the vehicle was used to facilitate these transactions since it could be inferred that Wurtz needed his Lexus to transport the marijuana to his home and to transport himself to the last confidential informant drug buy.

Both parties unduly limit the inquiry that must be made under K.S.A. 60-4106(c). Whether the car facilitated the criminal conduct determines if it can be forfeited in the first place—an inquiry conducted pursuant to K.S.A. 60-4105. Here, the parties have already stipulated that Wurtz' Lexus was subject to forfeiture.

On the other hand, a plain reading of K.S.A. 60-4106(c) reveals that it doesn't require the court to limit its grossly disproportionate analysis to only those instances that the forfeiture property facilitated. The "extent to which the property actually facilitated the criminal conduct" is only one of several factors to be considered; the statute instructs that we also consider the nature and severity of the owner's conduct and "the totality of the circumstances regarding the investigation." "Investigation" is broad enough to encompass the...