State Of Washington v. Layne E. Huber ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
No. 79661-5-I
Respondent,
) DIVISION ONE
v.
)
LAYNE ELLIOTT HUBER, ) UNPUBLISHED OPINION
Appellant. ) FILED: August 12, 2019
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 “[biased on the totality
of the evidence, [t]he State has shown sufficient proof that the stolen items can
be returned back to the victims.”
No. 79661-5-1/2
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. Smaller
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No. 79661-5-1/3
items 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 the
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record 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 “[biased 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]
1 The reason for the State’s delay in responding to Huber’s motion is not
clear from the record.
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No. 7966 1-5-1/5
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
“[tjhe 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. $401333.44, 164 Wash. 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 the
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No. 79661-5-1/6
trial court’s denial of his motion, he does not assign error to any of the trial court’s
findings of fact. ~ State v. Roggenkamp, 115 Wash. 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), affd, 153 Wash. 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.” Roqcienkamp, 115 Wn.
App. at 943-44. We review de nova whether the trial court’s findings support its
conclusions of law. State v. Rooney, 190 Wash. 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
Wash. 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 to
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No. 79661-5-1/7
possession;
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 Wash. 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
fade evidence of that person’s entitlement.” Marks, 114 Wash. 2d at 734
(quoting United States v. Wright, 610 F.2d 930, 939 (D.C. Cir. 1979)).
Although CrR 2.3(e) does not provide any criteria for determining whether
the State has a superior right to possession, Washington courts have held that
the State can meet its initial burden of proving its right to possession by showing
that “(1) the defendant is not the rightful owner; (2) the property is contraband; or
(3) the property is subject to forfeiture pursuant to statute.” Alaway, 64 Wash. App.
at 798. The State can also meet its burden by proving by a preponderance of the
evidence that the property is stolen property. State v. Card, 48 Wash. App. 781,
790, 741 P.2d 65(1987).
Here, the trial court properly concluded that the State met its initial burden.
Specifically, the trial court found that since the initial June 2011 seizure,
“numerous items have already been returned to Mr. Huber” and that the items
remaining (other than the marijuana) are the ones identified as stolen in August
2011 at the property viewing. The trial court found that the property viewing was
open to the public, but also found that Liening testified that individuals were only
permitted to view items if they (1) provided proper identification, (2) provided
either a police report documenting that they were a victim of a burglary or a
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No. 79661-5-1/8
police agency case number, and (3) indicated that they had items stolen from
them that were similar in character to the items seized from Huber.2 Additionally,
the trial court found that individuals who identified items as being stolen from
them were required to sign paperwork documenting the specific item or items
identified. These unchallenged findings support the trial court’s conclusion that
the State satisfied its initial burden to prove its right to possession of the items
identified as stolen at the August 2011 property viewing. ~ Card, 48 Wash. App.
at 790 (State can satisfy initial burden by proving by a preponderance of the
evidence that the property at issue is stolen).
Once the State satisfied its initial burden, Huber was obligated to “come
forward with sufficient facts to convince the court of his right to possession.”
Marks, 114 Wash. 2d at 735. To that end, the trial court found that “Huber provided
an affidavit in which he claims that he operates a business that entails him
buying items from other individuals and selling the items to others.” The trial
court also found that Huber provided documentation of the nature of his
business. But most of the documentation was dated 2013, i.e., after the June
2 Finding of fact 7 begins with “Emily Liening testified that” and then
summarizes Lien ing’s testimony. As we recently explained, findings of fact that
merely summarize a witness’s testimony can be problematic:
A finding that a particular witness testified, “The stoplight was red”
is not the same as a finding of fact that the stoplight was red. A
finding of fact should be a determination rather than a mere
recitation.
. . If the trial court chooses to summarize the testimony
.
of a witness, the best practice is to clearly articulate whether the
court found that testimony credible.
State v. Coleman, 6 Wash. App. 2d 507, 516-17 n.40, 431 P.3d 514 (2018)
(citations omitted), review denied, 193 Wash. 2d 1005 (2019). Nevertheless,
because there was no contradictory testimony regarding the screening process,
we infer that the trial court found Liening’s testimony credible.
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No. 79661-5-119
2011 seizure, and “[n]either set of records attached to Mr. Huber’s declarations
connect specific property seized to his records.” Based on these findings, which
demonstrate at most that Huber was in the business of buying and selling used
goods, the trial court did not err by concluding that Huber failed to show his right
to possession of any specific items identified as stolen at the August 2011
property viewing. And because Huber failed to establish his right to possession,
the trial court did not err by denying his CrR 2.3(e) motion as to the items
identified as stolen at the August 2011 property viewing.
The trial court did err, however, by not only denying Huber’s motion, but
by going a step further and concluding that “[biased on the totality of the
evidence, [tjhe State has shown sufficient proof that the stolen items can be
returned back to the victims.” This is because the purpose of a CrR 2.3(e)
hearing is “to determine the right to possession as between the State and the
defendant.” Marks, 114 Wash. 2d at 735 (emphasis added). The hearing “is not a
proceeding in which the court tries or adjudicates title.” State ex. rel. Schillberci
v. Everett Dist. Justice Court, 90 Wash. 2d 794, 798, 585 P.2d 1177 (1978)
(emphasis added).3 For these reasons, although we affirm the trial court’s denial
of Huber’s CrR 2.3(e) motion, we reverse the trial court’s conclusion that “[t]he
State has shown sufficient proof that the stolen items can be returned back to the
victims.”
Huber offers several reasons why the trial court erred by denying his
~ Schillberci was decided under former JCrR 2.10(e), but because that rule
had substantially the same wording as CrR 2.3(e), Schillberq has been relied on
since in cases decided under CrR 2.3(e). See Marks, 114 Wash. 2d at 733.
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No. 79661-5-1/10
CrR 2.3(e) motion. First, he argues that the trial court erred by finding that the
State carried its initial burden under CrR 2.3(e). He points out that “there was no
testimony, affidavit or declaration from the jailhouse informant (Kirk Morlan) or
any alleged victim other than Layne Huber” and that “none of the seized property
was brought before the court.” But Huber’s argument is not persuasive, and
Schillberci is instructive on this point.
In Schillberq, David Allen moved for return of property that had been
seized from his car. Schillberq, 90 Wash. 2d at 795. In support of his motion, Allen
submitted an affidavit from his attorney “stating that his client had advised him
that the items taken were legitimately in his possession, that he legitimately paid
for such items and that he demanded their return.” Schillberq, 90 Wash. 2d at 795-
96. In response, the State submitted an affidavit from an officer stating “that a
man who had been observed taking merchandise from [a] store without paying
for it was seen to enter a vehicle bearing the description and license number of
Allen’s car.” Schillberci, 90 Wash. 2d at 796. The officer also testified that “[t]he
vehicle was seen later that day in a parking lot in Lynnwood” and that “[b]oxes
stacked in the back seat bore tags of the store from which merchandise had
been taken.” Schillberq, 90 Wash. 2d at 796. Based on this testimony, our
Supreme Court concluded that “[t]here was good reason to believe the property
may have been stolen, and the doubts on this matter were not resolved by the
affidavit of [Allen’s] attorney.” Schillberq, 90 Wash. 2d at 801. Accordingly, the
court upheld the denial of Allen’s motion for return of the seized property—even
without any direct testimony from victims or any indication that the allegedly
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No. 79661-5-I/Il
stolen goods were brought before the court. Schillberg, 90 Wash. 2d at 801.
Here, as in Schillberci, there is good reason to believe—even though there
was no testimony from individual victims and the seized items were not brought
before the court—that the property at issue may have been stolen. Specifically,
as discussed, the trial court found that individuals who had been prescreened as
victims of burglaries involving items similar to those seized from Huber then
identified specific items as belonging to them. The trial court did, as Huber points
out, observe that the State could have provided more convincing evidence in the
form of victim affidavits. And we agree. Indeed, perhaps this appeal could even
have been avoided had the State obtained victim affidavits, or had law
enforcement simply included a sworn statement on its property identification
forms. Nevertheless, there was sufficient reason, even without victim affidavits,
to conclude that the property identified by individual victims may have been
stolen based on the evidence that was presented and the court’s unchallenged
findings based thereon. Therefore, Huber’s argument fails.
Huber next contends that TCSO’s continued retention of the seized
property constitutes a de facto—and unconstitutional—forfeiture. Specifically, he
argues that CrR 2.3(e) does not provide any statutory authority for forfeiture and
that the State was required to provide notice and an opportunity to be heard
under RCW 10.105.010 and RCW 69.50.505, which are forfeiture statutes.
Huber’s argument fails for three reasons.
First, although Huber is correct that CrR 2.3(e) provides no statutory
authority forforfeiture, Statev. Roberts, 185Wn. App. 94, 339 P.3d 995 (2014),
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No. 79661-5-1/12
the case on which he relies for that proposition, involved a trial court’s order of
forfeiture in connection with a criminal conviction. Specifically, in Roberts, the
trial court handwrote “‘[f]orfeit any items seized by law enforcement” on the
defendant’s judgment and sentence. Roberts, 185 Wash. App. at 96. The
appellate court addressed CrR 2.3(e) merely to reject the State’s argument that
the trial court’s forfeiture order should be upheld because CrR 2.3(e) provided
the defendant a vehicle to request return of his property. Roberts, 185 Wash. App.
at 96. Here, unlike in Roberts, the court did not order forfeiture. Therefore,
Roberts is inapposite.
Second, the two out-of-state cases on which Huber relies are
unpersuasive. In Awaya v. State, a Hawaii case, the relevant question before the
court was whether, in the absence of any proof that currency seized from the
defendant was contraband, the State of Hawaii could continue to retain the
currency while it decided whether to file an action. 5 Haw. 547, 705 P.2d 54, 61
(1985). And in State v. Davis, a Utah case, the court observed that the
problematic statute under which the State of Utah had retained the defendant’s
property gave “no provision for a hearing, and the prosecutor, rather than a
judicial officer, is the sole arbiter of the ownership of property.” 769 P.2d 840,
844 (Utah Ct. App. 1989). Here, unlike in Awaya, the State has presented
evidence that the items Huber seeks were stolen. And unlike the statute at issue
in Davis, CrR 2.3(e) requires an evidentiary hearing to determine the right to
possession. Marks, 114 Wash. 2d at 735. Therefore, Awaya and Davis do not aid
Huber.
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No. 79661-5-1/13
Third, and as previously discussed, a CrR 2.3(e) hearing is limited to
determining “the right to possession as between the State and the defendant.”
Marks, 114 Wash. 2d at 735. Also as discussed, it is not a hearing to adjudicate
title. Schillberci, 90 Wash. 2d at 798. Therefore, “[d]ue process is not violated,
since property is not taken.” Schillberq, 90 Wash. 2d at 798. To this end, because
we reverse the portion of the trial court’s order in which it deemed the State’s
evidence sufficient to prove that the property at issue can be returned to the
individual victims, we do not further consider Huber’s constitutional argument,
i.e., that the trial court’s order deprived him of property without due process. See
State v. Bassett, 198 Wash. App. 714, 722 n.8, 394 P.3d 430 (2017) (“Where we
can fairly resolve a case on nonconstitutional grounds, we will avoid deciding
constitutional questions.”), affd, 192 Wash. 2d 67, 428 P.3d 343 (2018).
Huber next contends that the trial court erred by denying his CrR 2.3(e)
motion without considering the legality of the underlying seizure. He relies on
CrR 2.3(e) to support his argument, pointing out that the rule expressly applies
only to an “unlawful search and seizure.” (Emphasis added.) But as discussed,
Washington courts have applied CrR 2.3(e) both to unlawfully and to lawfully
seized property. Alaway, 64 Wash. App. at 798 (“In Washington, CrR 2.3(e)
governs motions for the return of illegally seized property and also motions for
the return of lawfully seized property no longer needed for evidence.” (footnote
omitted)). And under CrR 2.3(e), a defendant who is not entitled to lawful
possession of property is not entitled to its return—even if the underlying seizure
was unlawful. CrR 2.3(e) (“A person aggrieved by an unlawful search and
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No. 79661-5-1/14
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.” (emphasis added)). In other words, once the trial court determined that
Huber was not entitled to possession of the property that had been identified as
stolen, it was not necessary to decide whether the underlying seizure was lawful.
Huber’s reliance on CrR 2.3(e)’s reference to “unlawful search and seizure” is
misplaced, and the trial court did not err by declining to consider the legality of
the underlying search.
Huber next argues that his challenge to the legality of the underlying
search is properly before this court—even if the trial court did not rule on it—
because (1) it can be raised for the first time on appeal under RAP 2.5(a)(3),
(2) constitutional questions are questions of law that we review de novo, and (3)
he properly preserved the issue for appeal by repeatedly raising it before the trial
court. But Huber’s arguments ignore the principle of judicial restraint, which
dictates that when resolution of an issue effectively disposes of a case, we
should not reach any other issues, particular constitutional ones. Wash. State
Farm Bureau Fed’n v. Greqoire, 162 Wash. 2d 284, 307, 174 P.3d 1142 (2007); see
also Gersema v. Allstate Ins. Co., 127 Wash. App. 687, 697, 112 P.3d 552 (2005)
(“A reviewing court should not decide a constitutional issue unless it is absolutely
necessary to the determination of the case.”). Here, we resolve Huber’s appeal
by (1) concluding that Huber’s CrR 2.3(e) motion was properly denied based on
his failure to prove his right to possession of the property as against the State
and (2) reversing the trial court’s conclusion that the property at issue could be
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No. 79661-5-1/15
returned to victims. Therefore, we need not decide whether the underlying
search was lawful.
Huber next asserts that “where there is a right, there is a remedy” and
that if we decline to consider the legality of the underlying search, law
enforcement would have a “free pass” to violate fundamental constitutional rights.
But if Huber seeks a remedy for what he alleges was an illegal search and
seizure, a civil action—not a CrR 2.3(e) motion—is the proper vehicle for seeking
that remedy. Therefore, Huber’s argument is unpersuasive.
As a final matter, Huber makes a passing reference in his opening brief to
the fact that marijuana plants seized during the June 2011 search have not been
returned to him. To the extent that this passing reference was intended as
argument, it does not merit consideration. See Holland v. City of Tacoma, 90
Wash. App. 533, 538, 954 P.2d 290 (1998) (“Passing treatment of an issue or lack
of reasoned argument is insufficient to merit judicial consideration.”).
Motion for Reconsideration
Huber argues that the trial court erred by denying his motion for
reconsideration. “Motions for reconsideration are addressed to the sound
discretion of the trial court and a reviewing court will not reverse a trial court’s
ruling absent a showing of manifest abuse of discretion.” Wilcox v. Lexington
Eye Inst., 130 Wash. App. 234, 241, 122 P.3d 729 (2005). Here, for reasons
already discussed, the trial court did not abuse its discretion by declining to
reconsider its denial of Huber’s CrR 2.3(e) motion. And because we reverse the
portion of the trial court’s order concluding that the allegedly stolen items can be
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No. 79661-5-1/16
returned to individual victims, we need not consider whether the trial court erred
by not reconsidering that conclusion. ``Wash. State Farm Bureau Fedn, 162
Wash. 2d at 307 (declining to address additional issues on appeal when resolution
of one issue effectively disposed of case.)
Attorney Fees
Huber argues that he is entitled to an award of attorney fees under
RAP 18.1. We disagree.
A party requesting fees under RAP 18.1 is required to provide argument
and citation to authority “to advise the court of the appropriate grounds for an
award of attorney fees as costs.” Stiles v. Kearney, 168 Wash. App. 250, 267, 277
P.3d 9 (2012).
Here, Huber first argues that he is entitled to attorney fees under
RCW 69.50.505(6). But that statute authorizes an award of fees to a claimant
that substantially prevails in a forfeiture proceeding. For reasons already
discussed, this is not a forfeiture (or de facto forfeiture) proceeding. Therefore,
Huber is not entitled to fees under RCW 69.50.505(6).
Huber next argues that he is entitled to fees under 42 U.S.C. §~ 1 983 and
1988. Those statutes provide that courts have discretion to award prevailing
party fees in a civil action under 42 U.S.C. § 1983 for the deprivation of certain
rights occurring under color of law. CI~ Maytown Sand & Gravel, LLC v. Thurston
County, 198 Wash. App. 560, 566, 592-93, 395 P.3d 149 (2017) (awarding attorney
fees under42 U.S.C. §~ 1983 and 1988 in civil action that involved section 1983
claims for violation of substantive due process), reversed h~ on other
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No. 79661-5-1/17
grounds, 191 Wash. 2d 392, 423 P.3d 223 (2018). But this is nota civil action
under 42 U.S.C. § 1983, so Huber is not entitled to fees under 42 U.S.C. §~ 1983
and 1988 here.
We affirm in part, reverse in part, and remand to the trial court to vacate its
conclusion that “[biased on the totality of the evidence, [t]he State has shown
sufficient proof that the stolen items can be returned back to the victims.”
Q3ii4&~ @/.
WE CONCUR: