State v. Lynch

• Decision Date: 31 December 1996
• Docket Number: No. 14814-9-III,14814-9-III
• Citation: 84 Wn.App. 467,929 P.2d 460
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Appellant, v. Gary Martin LYNCH, Respondent.

Page 467

84 Wn.App. 467

929 P.2d 460

The STATE of Washington, Appellant, v. Gary Martin LYNCH, Respondent.

No. 14814-9-III.

Court of Appeals of Washington,

Division 3,

Panel One.

Dec. 31, 1996.

[929 P.2d 461] Kevin M. Korsmo, Deputy Prosecuting Attorney, Spokane, for Appellant.

Frank V. Bartoletta, Sanger & Bartoletta, Spokane, Gwenna R. Wootress, Seattle, for Respondent.

MUNSON, Judge.

RCW 69.50.505 permits the seizure and forfeiture of property that is used to facilitate a violation of the Uniform Controlled Substances Act, RCW 69.50, or proceeds from a violation. In this case, we are asked to decide whether such a forfeiture is "punishment" for the purpose of the double jeopardy provisions of the federal and state constitutions, and therefore bars the subsequent prosecution of Gary M. Lynch for possession of cocaine. ¹ We hold it is not and affirm Mr. Lynch's conviction.

On the night of March 9, 1994, Mr. Lynch parked his 1989 Chevrolet Astro van on a street near the Ridpath hotel. At around 9 p.m., a Ridpath employee observed several youths breaking into the vehicle. She called the police, and Officer Eric Olsen of the Spokane Police Department responded.

Officer Olsen checked the van, which had "Spokane Punchboard" painted on the side of it, and found the sliding door was unlocked. When he opened the door, he saw bags of pull tabs. He testified it appeared the bags had been gone through or ransacked--they were "jumbled all over."

In an attempt to identify the vehicle's owner, Officer Olsen opened the van's front passenger door to look for registration documents. The first thing he saw was a cellular phone on the console with a checkbook visible beneath it. Officer Olsen moved the phone and picked up the checkbook, assuming it belonged to the van's owner and would have a name, address, and telephone number in it. He immediately noticed a baggy of bindles the checkbook had hidden from view. From his police experience, Officer Olsen knew that bindles commonly are used to package cocaine. He field tested the white powder inside one of the bindles and obtained a positive result for that drug.

As Officer Olsen conducted the field test, a man approached him, told him he knew the owner of the van and offered to go get him. In a short time, he returned with Mr. Lynch. Officer Olsen explained that he had entered the vehicle to find the owner's name and had discovered the bindles. He arrested Mr. Lynch, searched him incident to the arrest, and seized another bindle from Mr. Lynch's coat pocket.

The State charged Mr. Lynch with possession of cocaine. The Spokane police chief also instituted an in rem civil proceeding to forfeit the van and other items seized from Mr. Lynch at the time of his arrest. The chief obtained a decree of forfeiture on May 3, 1994, based on a finding the van was used to facilitate the crime of possession. The decree followed a hearing at which Mr. Lynch contested the forfeiture. Mr. Lynch also unsuccessfully moved in the criminal prosecution to suppress the cocaine Officer Olsen found in the van. He was convicted of possession on October 7, 1994, on stipulated facts. ²

Mr. Lynch appealed his conviction. While his appeal was pending, he moved the superior court to vacate the judgment and sentence and dismiss the possession charge on the ground the prior forfeiture constituted punishment for the same offense. As such, he argued the subsequent criminal conviction violated the state and federal constitutions' prohibition against double jeopardy. The superior court granted the motion on March 13, 1995. Thereafter, Mr. Lynch's appeal was dismissed, the State appealed the order vacating the conviction, and Mr. Lynch cross-appealed the court's denial of his motion to suppress.

THE STATE'S APPEAL

The statute under which the Spokane police chief obtained these forfeitures is RCW 69.50.505. It generally provides for the forfeiture of property used to facilitate the sale, delivery, or receipt of controlled substances, or of property that is the proceeds of such activity. RCW 69.50.505(a)(1)-(8). Subsection (b) of the statute sets forth the procedure for forfeitures. Seizure of property is by warrant or it may be without process if incident to an arrest or a search under a search warrant. RCW 69.50.505(b)(1). The law enforcement agency that seizes the property must give the property owner and those with an interest therein, notice of intent to forfeit within 15 days. RCW 69.50.505(c). If no person appears to contest the forfeiture, the property seized is deemed forfeited. RCW 69.50.505(d). ³ Otherwise, a hearing is held before the chief law enforcement officer of the seizing agency or his or her designee. The burden of producing evidence is upon the person claiming the property. RCW 69.50.505(e). (For the full text of RCW 69.50.505, see Appendix A to this opinion.)

In United States v. Ursery, --- U.S. ----, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), the United States Supreme Court held that "in rem civil forfeitures [under 21 U.S.C.A. § 881 (West 1996) and 18 U.S.C.A. § 981 (West 1996) ⁴] are neither 'punishment' nor criminal for purposes of the Double Jeopardy Clause." (For full text of 21 U.S.C.A. § 881, see Appendix B to this opinion.) Ursery, --- U.S. at ----, 116 S.Ct. at 2149. The court specifically reaffirmed United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984), and applied the two-part inquiry contained there: One, did the Congress intend the forfeiture statute to be criminal or civil? Two, are the proceedings so punitive in fact as to persuade the Court the forfeiture proceeding is criminal in nature, despite congressional intent? Ursery, --- U.S. at ----, 116 S.Ct. at 2147. ⁵

With regard to the first inquiry, the Court reiterated that in rem proceedings, which target the property and not the owner, have traditionally been civil proceedings. Ursery, --- U.S. at ----, 116 S.Ct. at 2147. As evidence Congress intended the forfeitures to be civil proceedings, the Court cited the procedural mechanisms provided for in the laws: actual notice is unnecessary when the government cannot identify an interested party, a summary administrative proceeding can dispose of the action if no party files a claim, and the burden of proof shifts to the claimant once the government has shown probable cause for forfeiture. Ursery, --- U.S. at ---- - ----, 116 S.Ct. at 2147-48.

With regard to the second inquiry, 89 Firearms, 465 U.S. at 365, 104 S.Ct. at 1106, stated that " ' "[o]nly the clearest proof" ' that the purpose and effect of the forfeiture are punitive will suffice to override Congress' manifest preference for a civil sanction." Ursery, --- U.S. at ----, 116 S.Ct. at 2148, concluded the forfeiture proceedings under the two federal statutes are not "so punitive in form and effect as to render them criminal despite Congress' intent to the contrary." The "most significant" reason was the statutes' nonpunitive goals--to encourage property owners to take care in managing their property so as not to permit it to be used for an illegal purpose, and to ensure that persons do not profit from their illegal acts. Ursery, --- U.S. at ---- - ----, 116 S.Ct. at 2148-49. The Court also considered the fact the statutes do not require scienter. While it recognized both statutes have innocent owner exceptions, it held more was required to show Congress' intent was to punish. Further, although deterrence is one purpose of the statutes, that purpose serves both remedial and punitive goals. Ursery, --- U.S. at ----, 116 S.Ct. at 2149. ⁶

Ursery is binding with respect to Mr. Lynch's double jeopardy rights under the federal constitution. The remaining question is whether our state constitution's prohibition against double jeopardy is more protective. Specifically, is there a legitimate rationale for interpreting our double jeopardy provision as more protective than the federal provision, insofar as it relates to whether a proceeding is punishment? As of this writing, only one Washington case has decided that issue. ⁷ Division Two of the Washington Court of Appeals in Tellevik v. Real Property Known as 6717 100th Street S.W., 83 Wash.App. 366, 371, 921 P.2d 1088 (1996) held that "the state double jeopardy clause offers no more protection than the federal one." It cited as authority the Washington Supreme Court's opinion in State v. Gocken, 127 Wash.2d 95, 896 P.2d 1267 (1995). ⁸

In Gocken, the court held, in a six person majority, that our state constitution's double jeopardy provision is no more protective than the federal provision, insofar as it concerns the question of whether two prosecutions are for the "same offense." ⁹ At issue there was whether this state should follow the United States Supreme Court's reversal of its position taken in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). See United States v. Dixon, 509 U.S. 688, 696-697, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556 (1993), which overruled Grady. Grady applied the broader "same conduct" test for determining whether the second prosecution was for the same offense. Dixon reversed and held the "same elements" test (as set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)) was the proper test for that determination.

Gocken applied the Gunwall ¹⁰ criteria in analyzing whether our state constitution is more protective and requires application of the broader "same conduct" test to determine if a later prosecution is for the same offense. Gocken concluded the Gunwall factors did not support a holding the state provided greater protection than that found in the federal double jeopardy provision. Hence, it interpreted the state provision the same as the United States Supreme Court interpreted the federal provision in Dixon. Specifically, the "same elements" test applies in determining whether successive prosecutions violate Const. art. I,...