State v. One Single Family Residence at 1810 East Second Ave., Flagstaff, Ariz.
| Decision Date | 04 November 1997 |
| Docket Number | No. 1,CA-CV,1 |
| Citation | 969 P.2d 166,193 Ariz. 1 |
| Parties | STATE, of Arizona, Plaintiff-Appellee, v. ONE SINGLE FAMILY RESIDENCE AT 1810 EAST SECOND AVENUE, FLAGSTAFF, ARIZONA, more particularly described as: Sunnyside Farms all that portion of Lot 1 Tract 16A lying west of a straight line beginning at a point 62' west of the northeast corner of said lot to a point 50' west of the southeast corner of said lot; Lot 1 Tract 16A; one 1976 Toyota Station Wagon, Arizona license # AGG 149, VIN RT119033468; one 1978 Toyota Station Wagon, Arizona License # GTS 993, VIN MX36004643, Defendants, Wilson G. Wheatcroft and Janet M. Wheatcroft, Claimants-Appellants. 97-0029. |
| Court | Arizona Court of Appeals |
Appellant, Wilson G. Wheatcroft, acting on behalf of himself and the defendant res, appeals the superior court judgment ordering forfeiture of the above-referenced res to the Coconino County Attorney. 1 We reaffirm the longstanding rule that seizure of the res is a necessary first step for a trial court to have in rem jurisdiction in a forfeiture action. We hold that the state failed to seize the Appellant's residence for forfeiture, therefore, the superior court never obtained in rem jurisdiction over it. We further hold that the failure to give notice of pending forfeiture did not deprive the court of jurisdiction over the two vehicles.
Finally, we discuss whether there was sufficient evidence to forfeit the res and whether the forfeiture of the real property constituted an excessive fine. For the following reasons, we affirm in part and reverse in part.
Wilson and Janet Wheatcroft were arrested in the forest south of Flagstaff, where they were discovered tending marijuana plants. Law enforcement officials seized large numbers of marijuana plants and a 1976 Toyota station wagon, which had been outfitted with large tanks to water the marijuana plants. Police later executed a search warrant on the Wheatcrofts' residence in Flagstaff and seized numerous growing marijuana plants, along with literature on marijuana cultivation and various other marijuana paraphernalia.
About a week later, the Wheatcrofts were again arrested, this time at a marijuana cultivation site in the forest north of Flagstaff. Officers seized a 1978 Toyota station wagon in connection with this arrest.
On May 4, 1992, the state filed this judicial in rem forfeiture action seeking to forfeit the two automobiles and the residence. The Wheatcrofts filed an answer and a claim to the property. They later challenged the superior court's jurisdiction over the property, asserting the state's failure to seize the residence and failure to give proper notice under the forfeiture statutes as to the vehicles. They also defended on the merits, contending that the property was not subject to forfeiture because the state could not prove that the marijuana was being produced for pecuniary gain. The superior court determined that it had jurisdiction and ordered the property forfeited. This appeal followed. We have jurisdiction over Wilson Wheatcroft's appeal pursuant to Ariz.Rev.Stat. Ann. (A.R.S.) section 12-2101(B) (Supp.1996).
1. Did the state's failure to seize the residence for forfeiture deprive the superior court of in rem jurisdiction over it?
2. Did the failure to give notice of pending forfeiture deprive the superior court of in rem jurisdiction over the vehicles?
3. Was the state collaterally estopped from proving the claimants' crimes were committed for pecuniary gain?
4. Did the state present sufficient evidence that the claimants' crimes were committed for pecuniary gain?
5. Is the judgment of forfeiture invalid as an excessive fine under the rationale of State v. Leyva?
The main question presented in this appeal is whether the superior court gained jurisdiction over the defendant residence. Wheatcroft argues the state's failure to seize the residence for forfeiture means the court never acquired jurisdiction over it. See A.R.S. § 13-4306(B)(1) (1989). 3 The state argues that jurisdiction was proper because the real property is located in, and the conduct giving rise to forfeiture occurred in, Coconino County. See A.R.S. § 13-4303 (Supp.1996). According to the state, nothing more is required because section 13-4305 is permissive ("Property subject to forfeiture under this chapter may be seized for forfeiture ...")(emphasis added). The state is wrong. A reading of the entire section shows that the state must take an affirmative step to seize the property to acquire jurisdiction. A.R.S. § 13-4305.
Procedure in forfeiture actions is governed by A.R.S. sections 13-4301-4316 (1989 and Supp.1996). The attorney for the state may institute forfeiture proceedings against property that is subject to forfeiture. 4 A.R.S. § 13-4308. The state's attorney may proceed in three ways: (1) informal "uncontested" forfeiture, A.R.S. section 13-4309; (2) judicial in rem action, A.R.S. section 13-4311; or (3) a judicial in personam action, A.R.S. section 13-4312. Here, the county attorney decided to proceed against the res in an in rem action.
Section 13-4311 reads in pertinent part:
A. If a forfeiture is authorized by law, it shall be ordered by a court on an action in rem brought by the state pursuant to a notice of pending forfeiture or a verified complaint for forfeiture....
B. A civil in rem action may be brought by the state in addition to or in lieu of the civil and criminal in personam forfeiture procedures set forth in §§ 13-4312 and 13-4313 or the uncontested civil forfeiture procedures set forth in § 13-4309. Judicial in rem forfeiture proceedings are in the nature of an action in rem and are governed by the rules of civil procedure unless a different procedure is provided by law.
(Supp.1996) (italicized language added by Laws 1994, Ch. 219, § 12). Section 13-4306(B)(1) sets forth the procedure used to constructively seize property for forfeiture by a peace officer. It states:
B. If property is seized for forfeiture under § 13-4305 ... the seizing agency may ...
1. Place the property under constructive seizure by posting notice of seizure for forfeiture on it or by filing notice of seizure for forfeiture or notice of pending forfeiture in any appropriate public record relating to the property.
A.R.S. § 13-4306(B)(1) (emphasis added.)
The state argues that the trial court correctly concluded it had jurisdiction over the residence simply because it is located within the territorial jurisdiction of the court. This is wrong. As set forth in section 13-4306(B)(1), the res must also be brought before the court through proper seizure. Although section 13-4311 does not explicitly require seizure for forfeiture, the requirement is unquestionably a part of the statute.
The forfeiture statute contains a territorial limit on the superior court's jurisdiction. See A.R.S. § 13-4302. Further, the location of the property within the county is also pertinent to venue. See A.R.S. § 13-4303. However, these statutes do not authorize the superior court to act upon a particular res if it has not been brought before the court through proper process. To hold otherwise would lead to the absurd result that the superior court currently has jurisdiction over all property in the state and that the state need only file a forfeiture complaint to seize and forfeit the property.
Division Two of this court has also held that a court must have actual or constructive possession of the property to be forfeited to have in rem jurisdiction in a forfeiture proceeding. In re 1976 Porsche Auto. (State v. Jacobsen), 141 Ariz. 421, 422, 687 P.2d 946, 947 (App.1984) (). Although the state has ignored Jacobsen in its brief, it attempted to argue to the trial court that the case supported its position. It argued that Jacobsen stood for the proposition that the res must be within the territorial limits of the court in order for jurisdiction to exist (the automobile in Jacobsen was seized in New Mexico). Jacobsen addressed the location of the seizure, not whether the seizure was properly effected.
Appellant argues this court has held that the res must be brought before the court to sustain proper jurisdiction, citing In re $113,888, United States Currency (Rende v. State), 168 Ariz. 229, 232, 812 P.2d 1047, 1050 (App.1990). The state responds that we overruled Rende in In re One Single Family Residence and Real Property (State v. Sigman), 185 Ariz. 35, 912 P.2d 39 (App.1996). While it is true that Sigman overruled Rende, neither case addressed the initial seizure of the property. The Sigman court held that release of the res does not deprive the court of its jurisdiction. Sigman, 185 Ariz. at 39, 912 P.2d at 43. However, that holding does not change the fact that the state must initially seize the property.
This proposition is further supported by the United States Supreme Court's holding in Republic Nat'l Bank of Miami v. United States, 506 U.S. 80, 84, 113 S.Ct. 554, 557, 121 L.Ed.2d 474 (1992), citing inter alia, United States v. One Assortment of 89 Firearms, 465 U.S. 354, 363, 104 S.Ct. 1099, 1105, 79 L.Ed.2d 361 (1984); Taylor v. Carryl, 61 U.S. (20 How.) 583, 599, 15 L.Ed. 1028 (1857). In Republic National Bank, the Court reiterated the general rule that seizure is a prerequisite to the court's jurisdiction in an in rem civil forfeiture proceeding. Id.
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