Sam v. Okanogan County Sheriff's Office

¶33 Schultheis, A.C.J.

(dissenting) — Under former RCW 69.50.505(a)(7) (2001), a law enforcement agency may seize and retain by civil forfeiture any money “furnished or intended to be furnished by any person in exchange for a controlled substance.” The seizing agency must have probable cause to believe that the property was used or was intended to be used in violation of Washington’s Uniform Controlled Substances Act, chapter 69.50 RCW. Former RCW 69.50.505(b)(4). In a hearing challenging forfeiture, the seizing agency carries the burden of establishing that forfeiture is justified by a preponderance of the evidence. Former RCW 69.50.505(e). Because I conclude that the admissible evidence produced at the civil forfeiture hearing did not establish probable cause or sufficient evidence that the money found in the crashed airplane was to be exchanged for controlled substances, I respectfully dissent.

¶34 As indicated in Valerio v. Lacey Police Department, 110 Wn. App. 163, 176-77, 39 P.3d 332 (2002), to support probable cause for forfeiture, the seizing agency must show reasonable grounds for suspicion substantiated by circumstances that support a cautious person’s belief that the property was used or was intended for use in a controlled substances crime. The trial court here found that separating over $118,000 into bundles that could be paid to separate suppliers was consistent with recent cases of drug smuggling between the United States and Canada. In several findings of fact, the trial court found that this large amount of money and its packaging were not consistent with a legitimate transaction. Clerk’s Papers (CP) at 107, 109, 111. While I agree that the evidence establishes probable cause that Shura Lewton and David Nichols were involved in an illegal activity, I find insufficient evidence to connect that activity with narcotics. Valerio, 110 Wn. App. at 180-81.

¶35 The essential facts are that a large amount of packaged money was found in a crashed airplane that was equipped and operated in a manner that suggested an intent to transfer contraband. The only evidence suggesting a connection to controlled substances was a notepad that contained an entry of “3100 - 1 lb” and the fact that Mr. Nichols apparently used a small amount of marijuana recreationally. CP at 109. Large sums of packaged money are not enough alone to establish a narcotics transaction. See, e.g., United States v. $121,100.00 in U.S. Currency, 999 F.2d 1503, 1506-07 (11th Cir. 1993). And the trial court’s finding that the entry in the notepad indicates the purchase or sale of one pound of “B.C. Bud” for $3,100 is only inferentially supported by the evidence. CP at 109. Recreational use of marijuana does not support a reasonable belief that the occupants of the airplane were drug smugglers. See State v. Goodman, 150 Wn.2d 774, 783, 83 P.3d 410 (2004) (mere possession of a controlled substance is insufficient to establish the inference of intent to deliver).

¶36 Additional circumstantial evidence here—that the airplane was scheduled to fly to Canada, a known source of B.C. Bud—is also tenuous, because nothing in the evidence points to B.C. Bud as the objective of the flight. The smuggling of any number of other items to or from Canada is just as likely.

¶37 Under the facts of this case, the circumstantial evidence supports no more than a suspicion, not a reasonable belief, that the money found in the airplane had been used or would be used in smuggling controlled substances. Valerio, 110 Wn. App. at 182-83. Accordingly, I would reverse the civil forfeiture on this basis.

¶38 Moreover, I would conclude as a matter of law that the money could not be forfeited because there is no evidence that the purportedly interested owner—the estate of Mr. Lewton—had knowledge of any alleged criminal activity. Personal property may not be forfeited “to the extent of the interest of an owner, by reason of any act or omission which that owner establishes was committed or omitted without the owner’s knowledge or consent.” Former RCW 69.50.505(a)(7). Mr. Nichols’ estate made no claim on the money found in the airplane. Consequently, only Mr. Lewton could have had actual or constructive possession. Anthony Sam, the personal executor of Mr. Lewton’s estate, testified that Mr. Lewton did not use drugs and that he did not know why Mr. Lewton would have been flying to Canada on the day he died. Because the estate had no knowledge of Mr. Lewton’s criminal activity, its interest in the money should not have been forfeited. Id.

¶39 Finally, I note that the primary purpose of the civil forfeiture provision is “to deter drug crime by removing some of its profit incentive.” Moen v. Spokane City Police Dep’t, 110 Wn. App. 714, 720, 42 P.3d 456 (2002); see also Laws of 1989, ch. 271, § 211. In a case such as this, when the only suspected criminals were killed, forfeiture of the money found in their possession would serve no deterrent purpose.

Reconsideration denied January 16, 2007.