State v. Huber

• Decision Date: 12 August 2019
• Docket Number: No. 79661-5-I,79661-5-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. LAYNE ELLIOTT HUBER, Appellant.

STATE OF WASHINGTON, Respondent, v. LAYNE ELLIOTT HUBER, Appellant.

No. 79661-5-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

August 12, 2019

UNPUBLISHED OPINION

SMITH, J. — Layne Huber appeals the trial court's denial of his CrR 2.3(e) motion for the return of property seized during a 2011 search. Although officers seized hundreds of items during the search, the only items at issue in this appeal are items later identified as stolen by burglary victims who attended a property viewing conducted by law enforcement in August 2011. Because Huber failed to prove that he was entitled to possession of those items, the trial court properly denied Huber's CrR 2.3(e) motion. But because the purpose of the CrR 2.3(e) hearing was to determine the right to possession solely as between Huber and the State, the trial court erred by further concluding that the items at issue could be returned to third party victims. Therefore, we affirm in part, reverse in part, and remand to the trial court to vacate its conclusion that "[b]ased on the totality of the evidence, [t]he State has shown sufficient proof that the stolen items can be returned back to the victims."

FACTS

In June 2011, officers from the Lacey Police Department (Lacey PD) and the Thurston County Sheriff's Office (TCSO) conducted a search of Huber's home in Olympia. Huber's home is also the location of his company, Off-It Inc., which buys and sells used goods. The search was conducted pursuant to two warrants. The probable cause affidavit for the first warrant stated that in May 2011, officers arrested a man named Kirk Morlan on suspicion of "numerous frauds and possession of stolen property." According to the affidavit, Morlan told officers that he "wanted to 'come clean'" and then took officers to more than 35 locations that he claimed to have burglarized. He also told officers that he would take the property he stole primarily to two people—one of whom was Huber. The probable cause affidavit stated that Morlan also told officers that Huber was his marijuana supplier and Morlan believed that Huber was growing marijuana in a "big shop" on his property.

Officers seized hundreds of items during the search, and on June 29, 2011, Huber was charged with unlawful manufacture and possession of marijuana.

In August 2011, Lacey PD and TCSO held a property viewing where items seized during the June 2011 search were displayed for identification purposes. Tim Arnold, a TCSO detective who was involved in the viewing, later described the setup for the viewing as follows:

The items were laid out in an area secured by fencing, cameras and a separate alarm system. This area was established in a TCSO facility that also was alarmed separately. The property was photographed and categorized prior to the viewing dates. Smalleritems such as jewelry were grouped into photographs. Computers were then set up outside the inner secure perimeter, so that individuals could view the photographs in an effort to identify any of their stolen items. In order for access to be granted to the viewing area, citizens needed to provide picture identification, a case number for their original theft event, as well as a list of the items they were attempting to identify and recover.

The viewing was held over four days, with the first two days reserved for victims of burglaries committed by Morlan. Emily Liening, a Lacey PD evidence custodian who was familiar with the types of property seized from Huber, was at the viewing and screened all potential victims. She later testified that

[p]otential victims were told to provide a case or incident number and were asked questions about the type(s) of property they were missing. If an individual was unable to provide a case number, or their date of loss was after the search warrant had been executed, or the property they described did not match anything in the viewing they were not permitted to enter the facility or view any property.

Liening also "testified that only individuals who provided a police report/police agency case number, proper identification, and items that were of similar character to items seized from Mr. Huber during the search warrant were allowed to actually view the property."

Arnold estimated that 250 people who came to the viewing were granted some kind of access. Those who identified items as belonging to them signed paperwork to document the specific items they identified.

In September 2012, Huber moved to suppress "all evidence" in his case. He argued that the warrants executed in June 2011 were not supported by probable cause, the information that the officers received from Morlan was not sufficiently contemporaneous or fact-specific, and the officers executing the June 2011 search failed to serve Huber with any warrant. It does not appear from therecord that the trial court ever ruled on Huber's motion.

On December 10, 2013, the court, on the State's motion, dismissed all charges against Huber with prejudice because the lead detective on Huber's case had passed away.

In July 2014, Huber moved pro se under CrR 2.3(e) for the return of property seized from his home during the June 2011 search. The State responded to Huber's motion in March of 2017.¹ In support of its response, the State submitted declarations from Arnold and Liening in which they described the August 2011 property viewing.

In May 2017, after additional briefing from the State and from Huber, who had retained counsel, the trial court held an evidentiary hearing on Huber's CrR 2.3(e) motion. Both Liening and Arnold testified at the hearing and described the August 2011 property viewing. Additionally, the court admitted into evidence the "Property Identification" forms that were completed for individuals who identified items at the property viewing and a master list, later compiled by law enforcement, of the 28 victims who identified items at the viewing, along with descriptions of items identified.

After the hearing, the court denied Huber's motion and entered findings of fact and conclusions of law. The court concluded that "[b]ased on the totality of the evidence, [t]he State has shown sufficient proof that the stolen items can be returned back to the victims" and that "[t]he documents that Mr. Huber have [sic]provided to this Court are not sufficient proof that he has the right to possession of the items that were stolen from the 28 victims" who identified stolen property at the property viewing.

Huber moved for reconsideration, arguing that the court's denial of his motion amounted to an unconstitutional taking of property without due process, and that the State was required to follow the statutory forfeiture process. The trial court denied Huber's motion for reconsideration. Huber appeals.

ANALYSIS

Denial of Motion for Return of Property

Huber argues that the trial court erred by denying his CrR 2.3(e) motion. Because the trial court's unchallenged findings support its conclusion that Huber was not entitled to possession of the items identified as stolen at the August 2011 property viewing, the trial court did not err by denying Huber's motion. That said, because a CrR 2.3(e) hearing adjudicates the right to possession solely as between the defendant and the State, the trial court did err by concluding that "[t]he State has shown sufficient proof that the stolen items can be returned back to the victims."

"Where the trial court has weighed the evidence, appellate review is ordinarily limited to determining whether the trial court's findings are supported by substantial evidence and, if so, whether the findings in turn support the conclusions of law." City of Walla Walla v. $401,333.44, 164 Wn. App. 236, 255-56, 258-59, 262 P.3d 1239 (2011) (applying substantial evidence review to trial court's denial of CrR 2.3(e) motion). Here, although Huber assigns error to thetrial court's denial of his motion, he does not assign error to any of the trial court's findings of fact. See State v. Roggenkamp, 115 Wn. App. 927, 943, 64 P.3d 92 (2003) (general assignment of error insufficient to comply with RAP 10.3(g), which requires a separate assignment of error for each finding that a party contends was improperly made), aff'd, 153 Wn.2d 614, 106 P.3d 196 (2005). Therefore, the trial court's findings "become the established facts of the case" and "[t]he appellate court's function is . . . limited to determining whether the findings of fact support the court's conclusions of law." Roggenkamp, 115 Wn. App. at 943-44. We review de novo whether the trial court's findings support its conclusions of law. State v. Rooney, 190 Wn. App. 653, 658, 360 P.3d 913 (2015).

CrR 2.3(e) provides, "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 the person is lawfully entitled to possession thereof." Although the rule expressly refers only to unlawful searches and seizures, Washington courts also apply the rule to motions for return of property that was lawfully seized but no longer needed for evidence. State v. Alaway, 64 Wn. App. 796, 798, 828 P.2d 591 (1992).

In State v. Marks, our Supreme Court set forth the following four "guidelines" for consideration of a CrR 2.3(e) motion:

1. An evidentiary hearing is required under CrR 2.3(e) where the State and the defendant can offer evidence of their claimed right to possession;

2. The purpose of this hearing is to determine the right to possession as between the State and the defendant;

3. The State has the initial burden of proof to show right topossession;

4. Thereafter, the defendant must come forward with sufficient facts to convince the court of his right to possession. If such a showing is not made, it is the court's duty to deny the motion.

114 Wn.2d 724, 734-35, 790 P.2d 138 (1990). The State bears the initial burden of proof because "'[t]he seizure of property from someone is prima facie evidence of that person's entitlement.'" M...