State v. Clark
| Decision Date | 09 June 1994 |
| Docket Number | No. 60331-6,60331-6 |
| Citation | 875 P.2d 613,124 Wn.2d 90 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Robert Leroy CLARK, Petitioner. The STATE of Washington, Respondent, v. Linda Lee CLARK, Petitioner. CLALLAM COUNTY, a political subdivision of the State of Washington, Respondent, v. REAL PROPERTY KNOWN AS 183-D HOLGERSON ROAD, located in the City of Sequim, Washington, and all appurtenances and improvements thereon; Robert Leroy Clark and Linda Lee Clark, a marital community; and All Other Persons Or Parties Unknown Claiming Any Right, Title In Estate, Lien or Interest In the Real Property Described in the Complaint Herein, Petitioners. |
Steinborn & Associates, Jeffrey Steinborn, Reba Weiss, Barbara Bowden, Seattle, for petitioners.
David H. Bruneau, Clallam County Prosecutor, Robert W. Strohmeyer, Deputy, Port Angeles, for respondent.
David B. Smith, Alexandria, VA, Richard J. Troberman, Seattle, amici curiae, for petitioners on behalf of WA Ass'n of Crim. Defense Lawyers.
Norm Maleng, King County Prosecutor, Barbara A. Mack, Sr. Deputy, Patrick Sainsbury, Chief Deputy, Seattle, amici curiae, for respondent on behalf of WA Ass'n of Pros. Attys. and Atty. Gen.
Petitioners Robert Leroy Clark and Linda Lee Clark seek to reverse a Court of Appeals decision affirming both the civil forfeitures of their home and motorhome and the criminal convictions against them personally. Their petition for review raised the following questions: (1) Do the civil forfeitures of their home and/or motorhome, combined with criminal convictions against them, violate the state or federal prohibitions against the imposition of double jeopardy?; (2) Does the forfeiture of either their home or motorhome violate the state or federal constitutional prohibitions against excessive fines?; (3) Does the civil forfeiture statute pursuant to which the Clarks forfeited their home and motorhome violate the state constitutional or statutory protections of homesteads?; and (4) Did the Court of Appeals err in affirming the trial court's denial of a motion to suppress evidence?
We affirm.
In 1979 or 1980, Robert and Linda Clark purchased property in Sequim and began building a house on it. During the early 1980s, a neighbor of the Clarks, Robert Swanton, helped the Clarks grow marijuana in their garage. Around 1983, the relationship between Swanton and the Clarks deteriorated, and the Clarks began informing a Clallam County deputy of Swanton's alleged illegal activities.
In September 1989, Swanton contacted a deputy of the Clallam County Sheriff's Department about a marijuana operation in his neighborhood. The deputy referred Swanton to an officer with the Clallam County Drug Task Force. The officer spoke with Swanton and learned of the Clarks' marijuana operation. Based on affidavits and live testimony by Swanton and the officer, Judge Gary Velie issued a warrant to search the Clarks' property.
The search revealed approximately one hundred (100) marijuana plants and a scale in the Clarks' garage and main residence. Findings of Fact, at 2; Clerk's Papers (Clallam County v. Real Property Known as 183-D Holgerson Road), at 7. In the Clarks' motorhome, the police found a book on growing marijuana, a manual for a set of scales, and hollow beverage cans in which illegal drugs could be secreted. Findings of Fact, at 2; Clerk's Papers (Clallam County v. Real Property), at 7. Based on this evidence, Robert Clark was charged, under RCW 69.50.401(a) and (d) respectively, with unlawful possession with intent to manufacture or deliver a controlled substance and with unlawful possession of a controlled substance. At the same time, Clallam County instituted a civil forfeiture action against the Clarks' home, motorhome, and van. 1 Linda Clark was later charged under RCW 69.50.401(a) with unlawful possession with intent to manufacture or deliver a controlled substance.
The Clallam County Superior Court found Robert Clark guilty of both criminal charges against him and sentenced him to 8 months in jail and $5,170 in fines. Judgment and Sentence, at 3-4; Clerk's Papers (State v. Robert Clark), at 6-7. In a separate proceeding, the court found Linda Clark guilty of the criminal charge against her and sentenced her to 90 days in jail and $5,188.50 in fines. Judgment and Sentence, at 3-4; Clerk's Papers (State v. Linda Clark), at 6-7. Following a third trial, the court denied Clallam County civil forfeiture of the Clarks' van but permitted the forfeitures of their home and motorhome. The Court of Appeals consolidated the criminal and civil actions, Ruling dated March 26, 1991, and affirmed all three decisions. State v. Clark, 68 Wash.App. 592, 844 P.2d 1029 (1993). We granted the Clarks' petition for review. State v. Clark, 121 Wash.2d 1028, 854 P.2d 641 (1993).
The Clarks contend the combination of criminal punishment and civil forfeitures of their home and motorhome violates their respective state and federal constitutional rights against double jeopardy. We do not reach their state constitutional claim inasmuch as it was not properly raised. 2
The double jeopardy clause of the federal constitution reads: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ...". U.S. Const. amend. 5. This provision is applicable to states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). However, we do not find that the forfeiture of the Clarks' home and motorhome combined with criminal convictions against the Clarks personally offends the double jeopardy clause of the federal constitution.
Determination of whether the federal double jeopardy clause proscribes any given state action begins with consideration of the meanings of two critical phrases of the federal double jeopardy clause: (1) "jeopardy of life or limb"; and (2) "same offense". 3 Protection against "jeopardy of life or limb" protects defendants against multiple "punishments" for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds in Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); see also State v. Laviollette, 118 Wash.2d 670, 826 P.2d 684 (1992). Since it is uncontested the criminal convictions constitute "punishment", we examine the issue whether civil forfeiture of either or both the Clarks' home and motorhome pursuant to RCW 69.50.505(a) constitutes "punishment". For the reasons which follow, we conclude each of the forfeitures is "punishment" for purposes of federal double jeopardy analysis.
The United States Supreme Court recently concluded a nearly identical federal civil forfeiture statute 4 imposes punishment. Austin v. United States, --- U.S. ----, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). In addition to the virtual identity in the description of property subject to forfeiture, both the state provision and the federal analogue permit the state to forcibly forfeit private property without process by a mere showing of probable cause, 5 and both contain similar innocent owner exceptions. 6 Because of the near identity of the federal and state forfeiture statutes, in language and in effect, we interpret the two as having similar implications for purposes of federal double jeopardy analysis. See Bellevue v. Cashier's Check for $51,000.00 & $1,130.00 in U.S. Currency, 70 Wash.App. 697, 855 P.2d 330 (1993).
Several additional reasons compel our conclusion the forfeitures are punishment under the federal double jeopardy clause. The government claims civil forfeiture under RCW 69.50.505(a) is not punishment because the statute is remedial in nature. It asserts the civil forfeiture statute was designed to serve two remedial purposes: to compensate the government for its costs in prosecuting drug offenses and to deprive people of instrumentalities of crimes. It also notes that the state provision is more remedial than its federal counterpart. Finally, the government argues Austin is inapplicable since the Austin Court addressed the meaning of "punishment" within the context of the Eighth Amendment rather than the Fifth Amendment. We disagree with each of these assertions.
The fact a statute might provide the government with compensation for its costs in prosecuting drug offenses is not dispositive. Under United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), a forfeiture statute must be solely remedial to escape characterization as "punishment" under the federal double jeopardy clause. Our Court of Appeals understood Halper to hold that if the statute is at all remedial, then the statute cannot be characterized as punitive. State v. Clark, 68 Wash.App. at 603, 844 P.2d 1029. This reading is incorrect. Halper states in relevant portion: "a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment ...". (Italics ours.) 490 U.S. at 448. The Legislature and courts of this state have both declared the Washington civil forfeiture statute to be at least partially punitive. The Legislature has declared "the forfeiture of real assets ... will provide a significant deterrent to crime by removing the profit incentive of drug trafficking, and will provide a revenue source that will partially defray the large costs incurred by government as a result of these crimes". (Italics ours.) Laws of 1989, ch. 271, Subpart C, § 211, p. 1298. In Deeter v. Smith, 106 Wash.2d 376, 378, 721 P.2d 519 (1986), we also noted the purpose of the state civil forfeiture statute is to "penalize individuals who participate in [activities involving] controlled substances". In addition, as the Austin Court explained:
The value of the conveyances and real property...
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