FILED OCTOBER 20, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
CITY OF SUNNYSIDE, ) No. 33262-4-111 ) Appellant, ) ) v. ) UNPUBLISHED OPINION ) ANDREAS GONZALEZ, ) ) Respondent. )
LAWRENCE-BERREY, J. -The City of Sunnyside (City) notified Andreas
Gonzalez of its intent to forfeit his car and approximately $6,000 in cash found on him
following a traffic stop. After a forfeiture hearing, Sunnyside Municipal Court Judge
Steven Michels found the car and cash were used and/or intended to be used in
furtherance of the sale of an illegal drug. He therefore ordered forfeiture of the property.
Mr. Gonzalez appealed to Yakima County Superior Court. That court determined that
Judge Michels abused his discretion and reversed the forfeiture order. The City appeals
to this court.
The City argues the superior court lacked subject matter jurisdiction because Mr.
Gonzalez failed to timely pay the appeal filing fee. The City also argues the superior No. 33262-4-III City of Sunnyside v. Gonzalez
court failed to apply the applicable standards of review and erred in interposing its own
view of the facts when it reversed the forfeiture order.
We hold that the superior court had subject matter jurisdiction because the time for
Mr. Gonzalez to perfect his appeal was tolled due to the failure of the forfeiture order to
notify Mr. Gonzalez of his right to appeal or the procedure for doing so. We, however,
hold that substantial evidence supported the findings in the forfeiture order. Because
appellate courts-including superior courts sitting in an appellate capacity-do not
reweigh evidence, the superior court erred when it reweighed the evidence. We,
therefore, reverse the superior court and reinstate the forfeiture order.
FACTS
As discussed below, the standard of review is whether there was substantial
evidence to support the findings in the original forfeiture order. We, therefore, present
the evidence and all reasonable inferences in favor of the party that prevailed at that level,
the City.
On September 1, 2013, the City seized Mr. Gonzalez's car and approximately
$6,000 in cash. Also on that day, the City served Mr. Gonzalez a notice of seizure and
intent to forfeit the property. The notice explained the forfeiture was because the
property was used or intended to be used in connection with a controlled substance
2 No. 33262-4-III City of Sunnyside v. Gonzalez
violation. The notice warned Mr. Gonzalez the property would be deemed forfeited
unless he notified the City within 45 days of seizure 1 of his right to the property. The
notice assured Mr. Gonzalez he would be afforded a reasonable opportunity to be heard in
accordance with Title 34 of the Revised Codes of Washington. On September 23, Mr.
Gonzalez timely notified the City of his claim to the seized property.
A hearing was scheduled for April 7, 2014, before Sunnyside Municipal Court
Judge Steven Michels. Both parties were represented by counsel at that hearing.
The City called Sunnyside Police Sergeant Scott Bailey. He testified that on
September 1, 2013, he stopped Mr. Gonzalez for speeding. Mr. Gonzalez was driving a
2001 BMW with California plates. When Sergeant Bailey approached Mr. Gonzalez, he
noticed Mr. Gonzalez was talking on his cell phone, and another cell phone was in the
car. On request, Mr. Gonzalez provided his license, registration, and proof of insurance.
Mr. Gonzalez had a Washington license, but the car had a California registration.
Sergeant Bailey noticed the name on the registration was not Mr. Gonzalez's. He asked
who owned the car, and Mr. Gonzalez said a friend. He asked who the friend was, and
Mr. Gonzalez said a name other than the listed registered owner.
1 The notice erroneously stated the 45 days runs from the date of seizure. Under RCW 69.50.505(4), the 45 days runs from the date the seizing agency provides statutory notice to the owner of the property.
3 No. 33262-4-III City of Sunnyside v. Gonzalez
Sergeant Bailey returned to his vehicle and conducted a driver's check. He learned
that Mr. Gonzalez's license was suspended. Mr. Gonzalez was placed under arrest for
driving with a suspended license. While waiting for a second officer to assist with
impounding the car, one of Mr. Gonzalez's phones rang, and he asked the sergeant to
answer it. The caller was Mr. Gonzalez's girlfriend. Eventually, Mr. Gonzalez said he
wanted his girlfriend to take possession of his personal items, which included a large
amount of cash, later determined to be $5,940. Mr. Gonzalez did not explain why he had
this amount of cash on him.
When the second officer arrived to assist with impounding the car, he arrived with
his canine partner. Sergeant Bailey gave Mr. Gonzalez his Ferrier 2 warnings, and Mr.
Gonzalez consented to a search of the car. The canine found a "user amount" of cocaine
in the car, and signaled that drug residue was present on the cash. Clerk's Papers (CP) at
10.
Sergeant Bailey learned that Mr. Gonzalez later claimed the $5,940 came from
unemployment payments. Without objection, Sergeant Bailey testified he reviewed
employment security records and learned Mr. Gonzalez had received $7,843 in
unemployment benefits since 2005.
2 State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).
4 No. 33262-4-111 City ofSunnyside v. Gonzalez
On cross-examination, counsel for Mr. Gonzalez asked the sergeant why he
believed the BMW and the cash were connected to illegal drug sales. Sergeant Bailey
answered:
Well, based upon ... your client [telling] me at the time of the stop, that the vehicle belonged to someone else [then] ... during the search, asking me if it made a difference that he owned the vehicle ... and then from past experience ... where it's not uncommon that a person be selected or offered a job to drive a vehicle that has ... contraband from one place to the other place and they get x amount of money plus the vehicle they used to transport. It's not an uncommon experience ....
CP at 13.
The second officer who arrived with the canine unit also testified at the forfeiture
hearing. He explained the cash with the drug residue was found in the driver's side door.
On cross-examination, the officer admitted that drug residue on cash is not uncommon.
And because cash passes from one person to another, residue does not mean that the
possessor of the cash is connected with drug sales.
Mr. Gonzalez also testified at the hearing. He testified he was employed for five
years at a local business, but ceased working there after he fractured his back in a car
accident. Thereafter, in about 2009, he settled his personal injury claim for an
unspecified amount. Other than that, for the past five years, his only source of income
was unemployment benefits. He testified he lived with his parents, and his parents paid
5 No. 33262-4-III City of Sunnyside v. Gonzalez
his expenses. He testified he paid his parents rent "when I can ... once a month." CP at
20.
Mr. Gonzalez also explained how he came into possession of the BMW. He
testified he and a friend went to California in his friend's car to visit some relatives.
Once in California, a relative offered to sell the BMW to him, but he did not have the
cash on him. Mr. Gonzalez testified his friend had the cash on him, loaned the cash to
him, and he bought the car. He then drove the car back to Washington with his friend and
towed his friend's car. He claimed he had recently returned to Washington when he was
stopped and had yet to register the car in his name. He also claimed that the $5,940 of
cash in the car was money he had saved from his settlement and unemployment benefits,
and was to repay his friend.
On cross-examination, Mr. Gonzalez admitted he gave the sergeant a false name
for the car's owner. He explained, "I was probably nervous, scared I'm gonna end up
being arrested." CP at 24.
Judge Michels issued a short written decision in favor of the City. A forfeiture
order was entered May 22, 2014, together with findings of fact and conclusions of law.
The findings of fact reiterated the factors discussed in Judge Michels' s short written
decision: (1) the presence of two cell phones in the car, (2) cocaine was found in the car,
6 No. 33262-4-III City of Sunnyside v. Gonzalez
(3) $5,940 in cash, (4) presence of enough cocaine on the cash to alert the canine, ( 5) the
car being registered to someone other than Mr. Gonzalez, and Mr. Gonzalez having
recently driven the car from California, and (6) the injury settlement and unemployment
benefits did not explain the amount of cash in the car. These factors preceded the
ultimate factual determination: "[T]he seized property, $5,940.00 U.S. Currency and a
2001 Silver 325! BMW, was used and/or intended to be used for a controlled substance
violation, specifically the furtherance of the sale of an illegal drug." CP at 70.
Mr. Gonzalez appealed the forfeiture order to Yakima County Superior Court. The
City sought to dismiss Mr. Gonzalez's appeal because Mr. Gonzalez had failed to pay the
appeal fee to the Sunnyside Municipal Court. The superior court denied the City's
motion, and permitted Mr. Gonzalez to pay the appeal fee so the merits of the appeal
could be determined. Mr. Gonzalez then paid the appeal fee to the municipal court. 3
The parties scheduled a hearing on the merits for February 17, 2015. The superior
court reversed the forfeiture order. In its conclusions of law, the court determined:
3. That there is no dispute as to Judge Michel's Findings of Fact and Conclusions ofLaw, numbers 1, 2, and 3.
5. There is no evidence that the US currency or the automobile
3The appeal fee was paid to the municipal court instead of the superior court because the parties believed the appeal process was governed by the Rules of Appeal for Courts of Limited Jurisdiction (RALJ).
7 No. 33262-4-111 City ofSunnyside v. Gonzalez
were the "proceeds of narcotics transactions" RCW 69.50.505(g). 6. There was no testimony about the amount of illicit substance that could be on currency and trigger a response from a canine. 7. The auto was titled in the name of another at the time of his arrest but was titled in the defendant's name on September 5, 2014, four days later. 8. The record is devoid of any evidence that drug transactions were occurring. 9. The lower court abused its discretion in finding against the appellant.
CP at 106.
The City filed a motion for discretionary review, and alternatively argued it had an
appeal as a matter of right under RCW 69.50.505(5) and RCW 34.05.526. Our
commissioner ruled the City had an appeal as a matter of right. Mr. Gonzalez moved to
modify the commissioner's ruling. We denied his motion.
ANALYSIS
A. SUBJECT MATTER JURISDICTION
The City first argues that the superior court lacked subject matter jurisdiction to
consider Mr. Gonzalez's appeal. Subject matter jurisdiction is the authority to hear and
determine the class of action to which a case belongs. Bour v. Johnson, 80 Wn. App.
643, 64 7, 910 P .2d 548 ( 1996). If a court lacks subject matter jurisdiction it is "powerless
to pass on the merits of the controversy brought before it." Skagit Surveyors & Eng'rs,
LLC v. Friends of Skagit County, 135 Wn.2d 542, 556, 958 P.2d 962 (1998). A party
8 No. 33262-4-III City of Sunnyside v. Gonzalez
cannot waive subject matter jurisdiction, and may raise the issue of lack of subject matter
jurisdiction at any time. Id. Issues of subject matter jurisdiction are questions of law
reviewed de novo. Dougherty v. Dep 't ofLabor & Indus., 150 Wn.2d 310, 314, 76 P.3d
1183 (2003); Crosby v. Spokane County, 137 Wn.2d 296,301,971 P.2d 32 (1999).
1. Judge Michels was the de facto designee and the matter proceeded under the Administrative Procedure Act, chapter 34. 05 RCW
The Uniform Controlled Substances Act, chapter 69.50 RCW, provides for the
seizure and forfeiture by law enforcement agencies of many types of property used or
intended for use in connection with violations of its provisions. RCW 69.50.505(1). A
notice of seizure and intent to forfeit is required to be served on parties whose interests
the agency wants to forfeit. RCW 69.50.505(3). If a person notifies the agency in writing
of his or her claim of ownership within 45 days of being served with the agency's notice,
then the person must be afforded a reasonable opportunity to be heard. RCW
69.50.505(5).
The hearing is before the seizing agency's chief law enforcement officer, or that
officer's designee, unless the claimant timely seeks to have the hearing removed to a
court of competent jurisdiction. RCW 69.50.505(5). The court to which the matter is
removed is the district court if the matter in controversy is within the district court's
jurisdictional limit as set forth by RCW 3.66.020. RCW 69.50.505(5). If the proceeding
9 No. 33262-4-III City of Sunnyside v. Gonzalez
is not removed, the hearing proceeds under chapter 34.05 RCW, Washington's
Administrative Procedure Act (APA). RCW 69.50.505(5). Here, there is no record of
Mr. Gonzalez seeking to have the forfeiture hearing removed. Therefore, the City's chief
of police or his designee was required to serve as the hearing officer.
The parties disagree on whether Judge Michels was the city of Sunnyside's chief
of police's designee. Judge Michels had been conducting these forfeiture hearings for
several years, and there is no record of the City's chief of police ever appointing Judge
Michels.
But RCW 69.50.505(5) does not require a formal written designation. Nor was it
necessary for a present or past police chief to testify as to Judge Michels's authority. The
parties did not object to Judge Michels hearing the forfeiture proceeding prior to or
during the hearing. The parties have thus waived their right to judicial review of his
authority. Cf ML Park Place Corp. v. Hedreen, 71 Wn. App. 727, 736, 862 P.2d 602
(1993) (where a party voluntarily submits an issue to arbitration without challenging the
arbitrability of that issue, and where the merits are ruled on by the arbitrator, that party is
deemed to have waived his or her right to judicial review of the arbitrability issue).
Because Judge Michels conducted the forfeiture as the chief of police's de facto designee,
the AP A controls the procedure for this appeal.
10 No. 33262-4-III City of Sunnyside v. Gonzalez
2. Judge Michels 's forfeiture order did not comply with the APA, thus tolling Mr. Gonzalez's time to appeal
Mr. Gonzalez's right to seek review of Judge Michels's forfeiture order required
him to properly seek review within 30 days of that order in accordance with RCW
34.05.542(2). It also required him to comply with RCW 34.05.514(1). The provision
provides:
[P]roceedings for review under this chapter shall be instituted by paying the fee required under RCW 36.18.020 [to the superior court] and filing a petition in the superior court, at the petitioner's option, for (a) Thurston county, (b) the county of the petitioner's residence or principal place of business, or (c) in any county where the property owned by the petitioner and affected by the contested decision is located.
RCW 34.05.514(1).
Here, Mr. Gonzalez initially filed his appeal in municipal court and did not pay the
filing fee. Months later, he paid the filing fee to the municipal court and that court then
transferred its file to the superior court.
Ordinarily, if a petitioner does not comply with the terms of the APA, the superior
court does not have jurisdiction to hear an administrative appeal. City ofSeattle v. Pub.
Emp't Relations Comm 'n, 116 Wn.2d 923, 926-27, 809 P.2d 1377 (1991); see also Skagit
Surveyors, 135 Wn.2d at 556-57. However, if the hearing officer or the agency does not
comply with its own statutory obligations, the deadline for filing a petition for review is
11 No. 33262-4-III City of Sunnyside v. Gonzalez
tolled. See, e.g., Leson v. Dep't of Ecology, 59 Wn. App. 407,410, 799 P.2d 268 (1990)
(tolling the deadline for filing a petition for review due to the agency's failure to comply
with statutory mandates); Felida Neigh. Ass'n v. Clark County, 81 Wn. App. 155, 161,
913 P.2d 823 (1996) (same).
Mr. Gonzalez argues that Judge Michels's forfeiture order did not comply with the
terms of the APA. Specifically, he argues the order did not contain the statutorily
required notice of Mr. Gonzalez's appeal rights and the procedure for filing an appeal.
Courts review an order's compliance with the requirements of the AP A. RCW
34.05 .570(3 )( C).
The AP A requires every agency to "adopt as much of the model rules_ [of
procedure] as is reasonable under its circumstances." RCW 34.05.250. Chapter 10-08
WAC lays out the model rules of procedure for administrative hearings. The model rules
"supplement" the provisions of the AP A. WAC 10-08-001 ( 1). An agency may adopt a
procedural rule different than the model rules, but if it does so, it must provide an
explanation. RCW 34.05.250; WAC 10-08-001(2). Here, there is no evidence the city of
Sunnyside Police Department adopted any administrative procedural rules. Thus, the
model rules supplement the AP A and apply here.
The model rules of procedure provide that "Every decision and order, whether
12 No. 33262-4-111 City ofSunnyside v. Gonzalez
initial or final, shall ... [c]ontain a statement describing the available post-hearing
remedies." WAC 10-08-210(6) (emphasis added). "Because invariably there is a time
within which a petitioner must fulfill jurisdictional requirements, there is no principled
basis for allowing an agency to do less than the statute requires it to do before that time
begins to run." Leson, 59 Wn. App. at 410; see also Felida, 81 Wn. App. at 161: When
the agency's failure to comply with the APA causes a petitioner to not timely invoke the
jurisdiction of a reviewing court, the time for filing the petition may be equitably tolled.
Felida, 81 Wn. App. at 161-62.
Here, Judge Michels's forfeiture order did not notify Mr. Gonzalez of his
posthearing remedies, such as judicial review in superior court or direct review
to this court. See RCW 34.05.514 (procedure for seeking review in superior court);
RCW 34.05.518 (procedure for seeking direct review in Court of Appeals). Thus, the
forfeiture order does not comply with the model rules of procedure, specifically
WAC 10-08-210(6). Because the model rules are intended to supplement the APA,
failure to comply with the model rules is akin to failure to comply with the APA. For this
reason, the superior court had authority to equitably toll the time for Mr. Gonzalez so he
could pay the appeal filing fee. 4
4 An additional jurisdictional issue potentially presents itself: Mr. Gonzalez failed
13 No. 33262-4-III City of Sunnyside v. Gonzalez
B. SUBSTANTIAL EVIDENCE SUPPORTED JUDGE MICHELS'S FORFEITURE ORDER
When reviewing agency action under the AP A, a reviewing court sits in the same
position as the superior court and applies the APA standards directly to the administrative
record. Campbell v. Emp 't Sec. Dep 't, 180 Wn.2d 566, 571, 326 P.3d 713 (2014); Dep 't
of Ecology v. Douma, 147 Wn. App. 143, 151, 193 P.3d 1102 (2008); Bond v. Dep 't of
Soc. & Health Servs., 111 Wn. App. 566, 571, 45 P.3d 1087 (2002). Thus, this court
reviews the agency's order, not the decision of the superior court. See, e.g., Pal v. Dep 't
of Soc. & Health Servs., 185 Wn. App. 775,781,342 P.3d 1190 (2015); King County v.
Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000).
The party challenging the agency action has the burden of showing the invalidity
of the agency action. RCW 34.05.570(l)(a). Here, the superior court invalidated Judge
Michels' s forfeiture order on the grounds that there was no evidence that the seized items
were traceable to any drug transaction.
When reviewing an agency order, a court may set aside the order if, among other
reasons, "[t]he order is not supported by evidence that is substantial when viewed in light
to file his petition for review (which he termed a notice of appeal) in superior court. The City's assignment of error relating to its lack of jurisdiction argument narrowly challenges only the superior court's decision to allow Mr. Gonzalez to pay the appeal fee late. Although we have discretion to decide an issue beyond how it is framed in an assignment of error, we decline to do so here. Here, the City's failure to inform Mr. Gonzalez of his
14 No. 33262-4-111 City of Sunnyside v. Gonzalez
of the whole record before the court, which includes the agency record for judicial
review, supplemented by any additional evidence received by the court under this
chapter." RCW 34.05.570(3)(e).
The City had the original burden of establishing that the seized property
could be lawfully forfeited. The City sought to forfeit the seized property under
RCW 69.50.505(l)(g). That section provides:
(1) The following are subject to seizure and forfeiture and no property right exists in them:
(g) All ... tangible or intangible personal property, proceeds, or assets acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of this chapter or chapter 69.41 or 69. 52 RCW, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this chapter or chapter 69.41 or 69.52 RCW.
RCW 69.50.505 (emphasis added). If the record does not reflect any effort to trace the
proceeds to an illegal drug transaction, and the findings do not address the issue, there is
no basis for the forfeiture action. Tri-City Metro Drug Task Force v. Contreras, 129 Wn.
App. 648, 653, 119 P .3d 862 (2005); King County Dep 't of Pub. Safety v. Real Prop.
Known as 13627 Occidental Ave. S., 89 Wn. App. 554, 558-60, 950 P.2d 7 (1998).
In Contreras, law enforcement sought to seize personal property it believed was
posthearing remedies is the reason Mr. Gonzalez failed to correctly file his appeal.
15 No. 33262-4-III City of Sunnyside v. Gonzalez
linked to drug transactions. 129 Wn. App. at 651-52. At the forfeiture hearing, one of
the investigating detectives testified that Mr. Contreras's home and possessions seemed to
cost substantially more money than his legitimate income. Id. at 652. The detective
presented records documenting Mr. Contreras's income and his wife's income. Id. The
hearing examiner determined that the property was subject to forfeiture as proceeds of an
illegal drug transaction. Id. at 652-53. Mrs. Contreras appealed. Id. at 653. On review,
the appellate court noted that the record contained no evidence that traced the forfeited
property to an illegal drug transaction, and the hearing examiner's findings did not
address the issue. Id. Because the property was not traceable to an illegal drug
transaction, it was not subject to forfeiture. Id. The appeals court reversed the forfeiture
order and ordered that Mrs. Contreras's property be returned. Id. at 654; see also King
County Dep 't of Pub. Safety, 89 Wn. App. at 560-61 (reversing order for forfeiture and
ordering return of property due to lack of any evidence that seized property was traceable
to an illegal drug transaction).
In Valerio v. Lacy Police Department, the city of Lacey seized $58,300 in cash,
made up of newer $100.00 bills placed in a safe found in the trunk of Mark Valeria's
girlfriend's car. 110 Wn. App. 163, 166, 39 P.3d 332 (2002). After the money was taken
to an evidence room, a drug canine repeatedly alerted to the money, indicating the
16 No. 33262-4-III City of Sunnyside v. Gonzalez
presence of drug residue. Id. At the forfeiture hearing, Mr. Valerio's ex-girlfriend
testified Mr. Valerio told her he wanted to start a drug-related business. Id. Also, an
officer testified that Mr. Valerio originally said the money was not his, and later changed
this story. Id. at 166, 168. At the hearing, Mr. Valerio claimed the money was his and he
had acquired it over time. Id. at 167. His tax returns however showed he earned $121 per
week from 1995 to 1998, and had gambling winnings of$16,000 in 1998. Id. at 169,
168 n.3. The trial court determined Mr. Valerio's explanations were unpersuasive. Id. at
168. Under RCW 69.50.505, the trial court found there was probable cause to believe the
seized money was used or would be used for drug dealing, and Mr. Valerio had failed to
satisfactorily refute the evidence. Id. Mr. Valerio appealed, and the appellate court
reversed. Id. at 175.
The Valerio court noted Mr. Valerio could have acquired the $58,300 from legal
sources, such as earnings and gambling (despite tax returns stating otherwise). Id. at 179.
The court also noted, without explanation, the drug canine could have alerted to odors
which the money "absorbed from sources other than contact with drugs." Id. at 181. The
Valerio court reversed the trial court because the city of Lacey could not disprove, to the
appellate court's satisfaction, the claimant's assertions. We question this decision and
will not rely on it.
17 No. 33262-4-III City ofSunnyside v. Gonzalez
In Sam v. Okanogan County Sheriff's Office, two people were killed when their
plane crashed in Okanogan County. 136 Wn. App. 220, 223, 148 P.3d 1086 (2006). Law
enforcement discovered the wrecked plane along with $118,134 in cash and property. Id.
The Okanogan County Sheriffs Office sought forfeiture of the cash and property. Id. at
224. At the forfeiture hearing, a detective testified and noted several oddities about the
plane. Id. at 224-25. For example, the plane's transponder was off, the passenger seats
were removed to make space for extra fuel tanks, extra cargo space had been added, the
plane had smaller than normal identifying letters and numbers, and a ledger was found
that appeared to document a number of drug transactions. Id. The only explanation
offered by the opposing party, with no apparent supporting evidence, was that the money
was part of an inheritance. Id. at 225. Taken as a whole, the appellate court found that
these facts showed the money was connected to drug activity and supported a forfeiture
order. Id. at 229-30.
Here, Judge Michels's forfeiture order sets forth six factors that support his
ultimate finding that the seized property "was used and/or intended to be used for a
controlled substance violation, specifically the furtherance of the sale of an illegal drug."
CP at 70. We must affirm the finding if it is supported by substantial evidence. City of
Walla Walla v. $401,333.44, 164 Wn. App. 236,255, 262 P.3d 1239 (2011). Substantial
18 No. 33262-4-111 City of Sunnyside v. Gonzalez
evidence is the quantum of evidence sufficient to persuade a rationale trier of fact. Id. at
256. Because we do not reweigh evidence or redetermine credibility, we must consider
the evidence and all reasonable inferences in the light most favorable to the City, the
party who prevailed before the trier of fact. Id.
Mr. Gonzalez recently returned from California in a car he did not own, and there
was a user's amount of cocaine found in the car, together with $5,940 in cash. Mr.
Gonzalez did not tell Sergeant Bailey the cash was repayment to a friend. And he lied
about who owned the car. Despite having received funds in the form of a personal injury
settlement and unemployment benefits during the past five years, he implied those funds
were depleted when he answered that he paid his parents rent ''when I can ... once a
month." CP at 20. Notably, Sergeant Bailey, a 15-year veteran of the city of Sunnyside
Police Department, testified the seized property could be traced to illegal drug sales. He
testified, based on his experience, it was not uncommon for a person to drive a car with
contraband from one place to another, and to receive money and the car as payment.
Judge Michels was entitled to consider the above factors and accept Sergeant Bailey's
testimony. Judge Michels did not have to believe Mr. Gonzalez's claim that while
visiting relatives in California his friend loaned him $6,000 in cash to buy a used BMW,
and they then towed his friend's car all the way back to Washington. Nor was Judge
19 No. 33262-4-III City of Sunnyside v. Gonzalez
Michels required to believe Mr. Gonzalez when he claimed he had $6,000 in cash saved
over the past five years to repay his friend. We conclude the ultimate fact-that the
seized property can be traced to the sale of illegal drugs-is supported by substantial
evidence. The superior court erred in reversing that finding and vacating the forfeiture
order. We reverse the superior court and reinstate the forfeiture order.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J.
WE CONCUR: