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Seizure Cases

Seizure Cases

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Published by: Finally Home Rescue on Jan 02, 2012
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2011-02-14 02:47:20Member OfflineRegistered: 2009-10-11Posts: 2,776State v. Alaway, 64 Wn.App. 796--------------------------------------------------------------------------------CASE SUMMARYPROCEDURAL POSTURE: Defendant sought review of the judgment of the Superior Court for Pacific County (Washington), which entered an order forfeiting property that was seized from hishome when he was arrested for growing marijuana.OVERVIEW: Defendant was arrested for growing marijuana. Pursuant to a valid search warrant,police confiscated a wide range of personal property from his home including tools, propanetanks, garbage cans, and gardening equipment. Defendant entered a plea of guilty to the charge.Several months after he entered his plea of guilty, the State filed a motion for an order forfeitingthe seized property. Defendant objected and filed a motion for the return of his property. The trialcourt found in favor of the State and ordered the forfeiture of most of the property. On appeal, thecourt reversed, finding that the state had failed to comply with the statutory requirements for forfeiture of personal property. The court found that the property was not contraband because itspossession did not constitute a crime. The court found that it was error for the trial court todetermine that it had an inherent power to dispose of the seized property because the power toorder forfeiture was purely statutory.OUTCOME: The court reversed.CORE TERMS: forfeiture, contraband, marijuana, seized property, seized, derivative, seizure,inherent power, common law, property used, longer needed, forfeiting, lawfully, grow, pipe, returnof property, rightful owner, subject to forfeiture, criminal activity, constitutes a crime, personalproperty, instrumentality, manufacturing, illegally, Criminal Law, statutory procedure, commissionof a crime, tool chest, hand-carved, deputiesLexisNexis® Headnotes Hide HeadnotesCriminal Law & Procedure > Sentencing > Forfeitures > General OverviewHN1Go to the description of this Headnote. Wash. R. Crim. P. 2.3(e) governs motions for thereturn of illegally seized property and also motions for the return of lawfully seized property nolonger needed for evidence. Wash. R. Crim. P. 2.3(e) does not set forth any criteria for determining when the State has a superior right of possession. A court may refuse to returnseized property no longer needed for evidence only if (1) the defendant is not the rightful owner;(2) the property is contraband; or (3) the property is subject to forfeiture pursuant to statute.Criminal Law & Procedure > Sentencing > Forfeitures > General OverviewHN2Go to the description of this Headnote. See Wash. R. Crim. P. 2.3(e).Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Goods Smuggling >General OverviewCriminal Law & Procedure > Search & Seizure > Search Warrants > Confidential Informants >General OverviewHN3Go to the description of this Headnote. "Contraband" has been defined as an object, the
possession of which, without more, constitutes a crime.Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > GeneralOverviewCriminal Law & Procedure > Sentencing > Forfeitures > General OverviewHN4Go to the description of this Headnote. Property that can be lawfully possessed but that thedefendant has used as the instrumentality of a crime has been labeled "derivative contraband".The owner of derivative contraband does not automatically lose his property interest, and that thegovernment must follow proper forfeiture procedures to divest him of that interest.Criminal Law & Procedure > Sentencing > Forfeitures > General OverviewHN5Go to the description of this Headnote. The State cannot confiscate property merely becauseit is derivative contraband, but instead must forfeit it using proper forfeiture procedures.Civil Procedure > Remedies > Forfeitures > HearingsCivil Procedure > Remedies > Forfeitures > Notice RequirementsCriminal Law & Procedure > Sentencing > Forfeitures > ProceedingsHN6Go to the description of this Headnote. Materials and equipment used in manufacturing anycontrolled substance are subject to seizure and forfeiture. Wash. Rev. Code § 69.50.505(a)(2).Notice must be given within 15 days of seizure. Wash. Rev. Code § 69.50.505(c). If the propertyis personal property, one claiming an interest in it then has 45 days to respond, and if a responseis made, a hearing must be held. Wash. Rev. Code § 69.50.505(d), (e).Criminal Law & Procedure > Sentencing > Forfeitures > ProceedingsHN7Go to the description of this Headnote. The power to order forfeiture is purely statutory.Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Delivery, Distribution &Sale > General OverviewCriminal Law & Procedure > Sentencing > Forfeitures > General OverviewHN8Go to the description of this Headnote. Wash. Rev. Code § 69.50.505 provides the exclusivemechanism for forfeiting property used in a defendant's marijuana growing operation.Hide Headnotes / SyllabusSUMMARY: Nature of Action: Personal property used in growing marijuana was seized at thetime its owner was arrested and charged. Seven months later, the State sought an order forfeitingthe property to the sheriff.Superior Court: The Superior Court for Pacific County, No. 88-1-00110-1, Joel M. Penoyar, J., onJuly 27, 1989, entered an order forfeiting the seized personal property.Court of Appeals: Holding that the property was not contraband, that the only basis for forfeiturewas statutory, and that the statutory procedure had not been followed, the court reverses theorder.HEADNOTESWASHINGTON OFFICIAL REPORTS HEADNOTESWA[1][1] Searches and Seizures — Return of Seized Property — Court Rule Under CrR 2.3(e),legally seized property no longer needed for evidence must be returned unless the personseeking its return is not the rightful owner, the property is contraband, or it is subject to forfeitureunder an appropriate statute.WA[2][2] Criminal Law — Contraband — What Constitutes — In General Contraband is an object,the possession of which, without more, constitutes a crime.
WA[3][3] Criminal Law — Contraband — Derivative Contraband — Forfeiture Property that islawful to possess and which is seized because of its use in committing a crime is derivativecontraband which cannot be retained by the State unless proper forfeiture procedures are used todeprive its owner of any ownership interest.WA[4][4] Forfeitures — Basis — Common Law or Statutory The forfeiture power of the State iswholly statutory.WA[5][5] Forfeitures — Instrumentalities of a Crime — Inherent Judicial Authority Courts do nothave the inherent power to order the forfeiture of property used in the commission of a crime.COUNSEL: Thomas A. Copland and Copland & Micheau, for appellant.Michael Sullivan, Prosecuting Attorney, and James A. Conley, Deputy, for respondent.JUDGES: Morgan, J. Petrich, C.J., and Alexander, J., concur.OPINION BY: MORGANOPINION[*797] [**592] James Alaway appeals an order forfeiting to the Pacific County Sheriff property thathe used for growing marijuana. We reverse.Alaway was arrested on October 6, 1988, after deputies uncovered his large marijuana growingoperation. At that time, the deputies seized a [***2] substantial amount of equipment and personalproperty as evidence. The seized property included a tool chest, handsaw, handtruck, severalpropane tanks, pumps, barrels, garbage cans, CO[2] tanks, a carpenter's square, fans, growlights, peat pots, a ladder, electric heaters, timers, switches, Mylar, humidifiers, weed sprayers,ventilators, metal pipe, personal photos, business cards, an address book, and a hand-carvedpipe. It is undisputed that the seizure was authorized by a valid warrant.On October 10, 1988, Alaway was charged with manufacturing marijuana. On February 17, 1989,he pleaded guilty and was sentenced. At that time, no action was taken with regard to forfeiture or return of the seized property.On May 30, 1989, the State moved for an order forfeiting the property to the sheriff. Alawayobjected and moved for return of all his property.On July 27, 1989, the court heard both motions. The State argued that the court had inherentpower to order how property used in criminal activity should be disposed of. It conceded thatstatutory forfeiture procedures had not been followed. See RCW 69.50.505.At the conclusion of the hearing, the court orally ruled [***3] that it had "inherent power in acriminal case to order destruction or disposal of the property that was seized [*798] which theState has established was used in criminal activity." It entered a written order confiscating most of the property. 1- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1 The court found that the hand-carved pipe, photos, business cards and the contents of the toolchest (except the crescent wrenches) had not been used in the marijuana growing operation.Thus, it ordered that they be returned to Alaway.- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -WA[1][1] The issue on appeal is whether the court erred by denying the defendant's motion for 

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