State v. REAL PROPERTY AT 633 EAST 640 NORTH

• Decision Date: 19 January 2000
• Docket Number: No. 980117.,980117.
• Citation: 2000 UT 17,994 P.2d 1254
• Parties: STATE of Utah, Plaintiff and Appellee, v. REAL PROPERTY AT 633 EAST 640 NORTH, OREM, UTAH, Defendant, Linda Cannon, Appellant.
• Court: Utah Supreme Court

994 P.2d 1254

2000 UT 17

STATE of Utah, Plaintiff and Appellee, v. REAL PROPERTY AT NORTH, OREM, UTAH, Defendant, Linda Cannon, Appellant.

No. 980117.

Supreme Court of Utah.

January 19, 2000.

James Taylor, Laura Cabanilla, Provo, for plaintiff.

Randall Gaither, Salt Lake City, for appellant.

HOWE, Chief Justice:

¶ 1 Linda Cannon appeals from a trial court-ordered forfeiture of her real property located at 633 East 640 North in Orem, Utah (the "defendant property"), following her conviction for several drug-related offenses. She contends that the forfeiture violated constitutional prohibitions against double jeopardy and excessive fines. She also assigns as error the trial court's taking judicial notice on remand of the final disposition of criminal proceedings arising out of two later searches of the defendant property, alleging that the trial court thereby violated her constitutional due process rights.

¶ 2 This matter is before us for the second time. On Cannon's previous appeal, we remanded the case to the trial court for an entry of findings of fact and conclusions of law regarding her constitutional claims. See State v. 633 East 640 North, 942 P.2d 925 (Utah 1997). We refer the reader to our opinion in that case for a full recitation of the relevant facts. Briefly stated, following a seizure of narcotics, drug paraphernalia, and related monies found during a warranted search (the "first warranted search"), the Utah County attorney, on behalf of the State of Utah, brought this action to forfeit the defendant property pursuant to Utah Code Ann. § 58-37-13, the Utah Controlled Substances Act ("UCSA"). In the next eighteen months, two additional searches — and additional seizures of drugs and drug paraphernalia — were conducted. A jury convicted Cannon on several drug charges stemming from the first search.¹ After undergoing a sixty-day evaluation in the Utah State Prison's Diagnostic Unit, the trial court placed her on probation and ordered her to enter and complete a drug treatment program.

¶ 3 Following a hearing, the trial court ordered the forfeiture of the defendant property, valued at between $71,272.30 and $80,000.00. Cannon subsequently appealed the forfeiture order to this court. We affirmed the trial court's rulings; however, we remanded the case for an entry of findings of fact and conclusions of law on the constitutional challenges so that we could address the trial court's alleged violations of Cannon's constitutional protections against excessive fines and double jeopardy.

¶ 4 On remand, both Cannon and the State filed proposed findings of fact and conclusions of law; Cannon also filed a request for oral argument. The trial court denied the request for oral argument and signed the State's findings of fact and conclusions of law, taking judicial notice of the second and third searches of the defendant property and the resolution of resultant criminal charges against her. Cannon now appeals, claiming her state and federal constitutional due process protections² against excessive fines³ and double jeopardy⁴ have been violated.

ANALYSIS

I. FORFEITURE AS AN "EXCESSIVE FINE"

¶ 5 Cannon contends that the trial court-ordered forfeiture of her residence violated her state and federal constitutional protections against the imposition of excessive fines. However, because Cannon fails to support her state constitutional arguments with any substantive analysis, these arguments do not warrant separate analysis under the Utah Constitution. Accordingly, we decide this case on the basis of the United States Constitution alone. See State v. 392 South 600 East, 886 P.2d 534, 539 n. 7 (Utah 1994); State v. Spurgeon, 904 P.2d 220, 224 n. 2 (Utah Ct.App.1995).

¶ 6 Because the law in Utah is unsettled, our holding today sets forth the analysis for use in future forfeiture cases under the Excessive Fines Clause. In doing so, we draw upon the following cases: United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998); United States v. 6380 Little Canyon Road, 59 F.3d 974 (9th Cir. 1995); 392 South 600 East, 886 P.2d at 542 (quoting United States v. 9638 Chicago Heights, 27 F.3d 327, 331 (8th Cir.1994)).

¶ 7 Before turning to Cannon's specific arguments, it is first necessary to examine the history of excessive fines analysis. The United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed...." U.S. Const. amend. VIII. The historical foundation and reasoning behind current excessive fines analysis has been well documented elsewhere; a brief history is sufficient for our purposes here.⁵

¶ 8 In Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), the United States Supreme Court held that the Excessive Fines Clause applied to drug-related forfeitures of property. Id. at 622, 113 S.Ct. 2801. The Court, however, declined to establish a specific test to determine when a forfeiture should be considered constitutionally excessive, deciding instead to "allow the lower courts to consider that question in the first instance." Id. at 622-23, 113 S.Ct. 2801 (citations omitted). Justice Scalia proposed that the sole measure of excessiveness should be the relationship between the defendant property and the offense, i.e., the property's "instrumentality." Id. at 627-28, 113 S.Ct. 2801 (Scalia, J., concurring). The majority considered Scalia's "instrumentality test," but stated: "We do not rule out the possibility that the connection between the property and the offense may be relevant, but our decision today in no way limits [lower courts] from considering other factors in determining whether the forfeiture of ... property was excessive." Id. at 623 n. 15, 113 S.Ct. 2801.

¶ 9 Since Austin, "there has been little uniformity both within and between the circuits as to the appropriate test to determine excessiveness. In order to promote uniformity, it is desirable to standardize the analysis used to determine when specific forfeitures violate the Excessive Fines Clause." Caione, supra note 5 at 1095; see also United States v. 427 & 429 Hall St., 853 F.Supp. 1389, 1397-98 & nn.16-19 (M.D.Ala.1994) (noting existence of cases adopting each of following tests: pure instrumentality, pure proportionality, multifactor, and a combined instrumentality and proportionality test). In Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998), however, the United States Supreme Court clarified the requisite standard. Realizing the inherent subjectivity and imprecision in judicial determinations of the gravity of an offense, and examining how the legislature has treated constitutional excessiveness in other contexts, the Court rejected a strict proportionality test in favor of a "gross disproportionality standard." Bajakajian, 524 U.S. at 329, 118 S.Ct. 2028.

¶ 10 We have addressed the issue of forfeitures as excessive fines on only a few occasions. In the most recent instance — pre-Bajakajian — we followed the suggestion in Austin that "the connection between the defendant property and the offense is the beginning point, rather than the sole criterion, in determining whether a forfeiture is constitutionally excessive." 392 South 600 East, 886 P.2d at 542 (citation omitted). We declined to establish any further steps in the analysis, stating that as future situations arise in which an instrumentality analysis is not dispositive, we would address additional factors at that time. See id. at 542.

¶ 11 Now, the Bajakajian opinion provides us with the second prong to our excessive fines test merely hinted at in 392 South 600 East, namely, gross disproportionality. The Ninth Circuit prescribed a similar two-prong test in 6380 Little Canyon Road, 59 F.3d 974 (9th Cir.1995) ("6380 Little Canyon Road"). There, the court indicated that "instrumentality is a threshold test.... If the government succeeds in showing a substantial connection between the property ... and the offense, then the claimant has the burden to show that forfeiture of his property would be grossly disproportionate given the nature and extent of his criminal culpability." Id. at 985 (footnotes omitted).

¶ 12 We similarly hold that the threshold test in real property forfeitures⁶ is whether the defendant property is an instrumentality of the offense. If instrumentality is proven, we must then examine whether the ordered forfeiture is "grossly disproportionate" to the offense. However, because in the instant case we rest our decision on gross disproportionality, we will assume for purposes of discussion, but not decide, that the instrumentality test has been satisfied.

¶ 13 We now examine whether the forfeiture is grossly disproportionate to the gravity of the offense. In 392 South 600 East, we stated: "As future cases present situations in which the instrumentality analysis is not dispositive, we can address other factors that may be comprehended by an excessive fines analysis." 392 South 600 East, 886 P.2d at 542. One of the "future cases" we foresaw is now before us. Fortunately, because of Bajakajian, we are no longer left entirely to our own devices in addressing what these "other factors" may be.

¶ 14 The Bajakajian court clarified the excessiveness analysis, rejecting strict proportionality and adopting instead a "gross disproportionality" standard, declaring:

In applying this standard, the district courts in the first instance, and the courts of appeals, reviewing the proportionality determination de novo, must compare the amount of the forfeiture to the gravity of the defendant's offense. If the amount of the forfeiture is grossly disproportional to the gravity of the defendant's offense, it is unconstitutional.

524 U.S. at 331, 118 S.Ct. 2028 (footnotes omitted). This, then, provides the second prong for future excessiveness analyses.

1. The test in theory

¶ 15 The individual factors Bajakajian set forth to determine the gravity of a specific offense are...