This opinion was filed for record at t);oo& oJWJ. )8 221/1 c5.U,0wc- c{ SUSAN L. CARLSON ~I
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
) CITY OF SUNNYSIDE, ) ) Respondent, ) No. 93907-1 ) V. ) ) ENBANC ANDREAS GONZALEZ, ) ) Petitioner. ) Filed: JUN 2 ~J 2017 __________) YU, J.-- This case presents a highly fact-intensive question: Is there
substantial evidence that petitioner Andreas Gonzalez's car and money were
connected to drug manufacturing or distribution such that they are subject to
forfeiture? The Sunnyside Municipal Court, acting as a hearing examiner, said
yes. The Yakima County Superior Court, acting in its appellate capacity, said no
and reversed. The Court of Appeals, Division Three, held that the superior court
improperly reweighed the evidence, and therefore reversed and reinstated the
forfeiture order. We now reverse the Court of Appeals, vacate the forfeiture order,
and grant Gonzalez's request for attorney fees. City of Sunnyside v. Gonzalez, No. 93907-1
FACTUAL AND PROCEDURAL BACKGROUND
While driving in Sunnyside, Washington, Gonzalez was stopped for
speeding by Sergeant Scott Bailey. Gonzalez was driving a BMW with California
license plates. Sergeant Bailey noted that Gonzalez had two cell phones with him.
Although Gonzalez had a Washington driver's license, the car was registered in
California in another person's name. When asked who owned the car, Gonzalez
said it belonged to a friend and gave a name that did not match the registration.
Gonzalez testified that he gave the false name because "I was probably nervous,
scared I'm gonna end up being arrested." Tr. (Apr. 7, 2014) at 18.
Sergeant Bailey determined that Gonzalez's license was suspended and
therefore placed him under arrest. While Sergeant Bailey was waiting for another
officer to assist with impounding the car, one of Gonzalez's cell phones rang and,
at Gonzalez's request, Sergeant Bailey answered it. The caller was Gonzalez's
girlfriend, who asked if the car could be released to her, and Sergeant Bailey
refused. Gonzalez asked that his girlfriend be allowed to take possession of the
property left in the car, including about $6,000 in cash. At that point, Sergeant
Bailey became suspicious that Gonzalez was involved in criminal activity.
Officer Skip Lemmon then arrived with his canine partner to assist in the
impound process. Gonzalez gave consent to a search of the car, which turned up a
"[s]treet level amount, user amount" of cocaine and $5,940. Id. at 4-5. The canine
2 City of Sunnyside v. Gonzalez, No. 93907-1
alerted separately to both the cocaine and the money. Because the canine had not
been trained to alert for cash, Officer Lemmon believed that the alert indicated
there were controlled substances on the money. At trial on cross-examination,
Officer Lemmon "assume[ d]" that traces of drugs on cash could be transferred
through contact with counting and automatic teller machines, and "guess[ ed]" that
the federal government no longer relies on evidence of trace amounts of drugs
being found on cash for precisely that reason. Id. at 13.
Gonzalez never explained to Sergeant Bailey why he had so much money in
the car. However, during the search, Gonzalez did tell Sergeant Bailey that the car
actually belonged to Gonzalez himself and asked if that made a difference. At that
point, the officers suspected that both the car and the money were connected to an
illegal drug transaction. Sergeant Bailey testified that
from past experience or knowing and dealing with the situation, ... it's not uncommon that a person be selected or offered a job to drive a vehicle that has a contents or contraband from one place to the other place and they get x amount of money plus the vehicle they used to transport.
Id. at 7. Believing this to be Gonzalez's situation, the officers seized both the car
and the money, and the city of Sunnyside (City) sought forfeiture. Gonzalez had
no prior arrests or convictions for any drug-related activity, although he did
ultimately plead guilty in superior court to one charge of possession of a controlled
substance for the cocaine that was discovered in the car.
3 City of Sunnyside v. Gonzalez, No. 93907-1
Gonzalez testified at the forfeiture hearing. He explained that several days
earlier, he had gone to California to visit relatives with his friend Martin in
Martin's car. The relatives offered to sell their BMW to Gonzalez, who wanted to
buy it but did not have enough money with him. Martin agreed to lend Gonzalez
the money for the car if Gonzalez would pay him back as soon as they returned to
Washington. Gonzalez and Martin had returned to Washington only two days
before Gonzalez was pulled over, and the $5,940 was intended to pay Martin back.
Martin also testified, and his account was consistent with Gonzalez's.
Gonzalez further explained that he had received money from both an
insurance settlement and unemployment compensation benefits after fracturing his
back four years ago. It is undisputed that Gonzalez had received more money from
unemployment compensation over the years than the $5,940 found in his car. The
amount of his insurance settlement is unknown. Gonzalez also testified that he
lived with his parents, who paid all of his expenses except that Gonzalez paid rent
"([i]naudible) when I can (inaudible) once a month." 1 Id. at 14.
1 As a follow-up question, Gonzalez's attorney asked, "So you don't have a mortgage payment,you don't have a rent payment (inaudible) correct?" Tr. (Apr. 7, 2014) at 15 (emphasis added). Gonzalez said, "Yes." Id. This seemingly inconsistent answer indicates that the (inaudible) words might have been important. Perhaps Gonzalez did mean that his settlement and unemployment compensation funds had become "depleted." City of Sunnyside v. Gonzalez, No. 33262-4-III, slip op. at 19 (Wash. Ct. App. Oct. 20, 2016) (unpublished), http ://www.courts.wa.gov/opinions/pdf/3 32624_ unp. pdf. However, perhaps Gonzalez meant that he used to pay rent when he was working but has not paid rent since fracturing his back.
4 City of Sunnyside v. Gonzalez, No. 93907-1
Finally, Gonzalez explained that the vehicle registration had not been in his
name because he had returned to Washington on Saturday, August 31, and could
not transfer title to himself before he was pulled over on Sunday, September 1.
Gonzalez did transfer title to himself a few days later. By the time of the hearing,
he had also registered the car and obtained a valid driver's license and insurance.
In closing argument, Gonzalez's attorney argued that most American
currency has trace amounts of illegal drugs on it, many people keep their money in
cash because they do not trust banks, and the reason Gonzalez had two cell phones
was because he was having an affair and did not want calls to or from his girlfriend
to show up on his regular phone.
The hearing examiner ruled in favor of the City. The hearing examiner's
initial letter decision noted that this was a "rather difficult" case in which "[t]here
was not one thing in itself' that was dispositive. Clerk's Papers (CP) at 67.
However, the final order found that the City had met its burden of proving that
Gonzalez's car and money were "used and/or intended to be used for a controlled
substance violation, specifically the furtherance of the sale of an illegal drug." Id.
at 70. The order specifically highlighted several facts:
1. There were 2[ ]cell phones found under the control of the claimant, Mr. Gonzalez, at the time he was stopped by officers; 2. Cocaine was found in the vehicle; 3. There was a large amount of cash in the vehicle, to wit $5,940.00;
5 City ofSunnyside v. Gonzalez, No. 93907-1
4. Officers testified that the cash was "coated" by enough cocaine so that the drug dog also alerted to the cash; 5. The vehicle, a 2001 BMW, was not in the name of the claimant at the time of the incident, however he had driven it from California just prior to being stopped; 6. The fact that the Claimant, Mr. Gonzalez, states he received money from an injury and from unemployment does not seem to explain all of the cash that was present.
Id. Gonzalez appealed to the Yakima County Superior Court.
After hearing oral argument, the superior court reversed, concluding that
"looking at the findings, even considering them as a whole, I don't think that a
reasonable person could find that the money and the vehicle were involved
somehow in narcotics trafficking based upon the record we have." Verbatim
Report of Proceedings (VRP) (Feb. 17, 2015) at 23-24.
The City appealed to the Court of Appeals, Division Three, which reversed
and reinstated the forfeiture order. 2 The Court of Appeals reasoned that "[b]ecause
appellate courts-including superior courts sitting in an appellate capacity-do not
reweigh evidence, the superior court erred when it reweighed the evidence." City
of Sunnyside v. Gonzalez, No. 33262-4-III, slip op. at 2 (Wash. Ct. App. Oct. 20,
2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/332624_unp.pdf.
The Court of Appeals also specifically disapproved of a published Division Two
2 The City also raised issues related to the superior court's jurisdiction and the applicable law governing its review. City o,fSunnyside, slip op. at 10, 13. Those issues are not before us.
6 City of Sunnyside v. Gonzalez, No. 93907-1
forfeiture case. Id. at 17 (discussing Valerio v. Lacey Police Dep 't, 110 Wn. App.
163, 39 P.3d 332 (2002)).
We granted Gonzalez's petition for review. Order Granting Review, City of
Sunnyside v. Gonzalez, No. 93907-1 (Wash. Mar. 8, 2017). Gonzalez's car is still
in the City's possession, and the City has represented that it will not sell or dispose
of the car until this case is completed. 3 VRP (Apr. 3, 2015) at 13.
ISSUES
A. Did the City produce substantial evidence to support the hearing
examiner's decision that Gonzalez's car and money were subject to forfeiture
pursuant to RCW 69.50.505?
B. Is either party entitled to attorney fees on review?
STANDARD OF REVIEW
Our review is governed by Title 34 RCW. RCW 69.50.505(5). We review
the original forfeiture order entered by the hearing examiner, not the order of
reversal entered by the superior court. King County v. Cent. Puget Sound Growth
Mgmt. 1-fr'gs Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000). Gonzalez bears the
3 After oral argument, the City filed a statement of additional authorities pursuant to RAP 10.8, citing United States v. $11,320.00, 880 F. Supp. 2d 1310 (N.D. Ga. 2012), and United States v. $22,991.00, 227 F. Supp. 2d 1220 (S.D. Ala. 2002). The City had referenced both cases during oral argument, but had not previously cited them in its briefing. Gonzalez moved to strike the statement of additional authorities, and the City did not respond. The City's additional authorities make no difference to our analysis, and we deny the motion to strike.
7 City of Sunnyside v. Gonzalez, No. 93907-1
burden of showing the forfeiture order was erroneous. RCW 34.05.570(1)(a).
Gonzalez challenges the forfeiture order on the basis that "[t]he order is not
supported by evidence that is substantial when viewed in light 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 [chapter
34.05 RCW]." Id. at (3)(e). Evidence is "substantial" if there "is 'a sufficient
quantity of evidence to persuade a fair-minded person of the truth or correctness of
the order."' King County, 142 Wn.2d at 553 (quoting Callecod v. Wash. State
Patrol, 84 Wn. App. 663,673,929 P.2d 510 (1997)).
ANALYSIS
The Uniform Controlled Substances Act, chapter 69.50 RCW, provides for
forfeiture of property that is connected to an intended or completed controlled
substances violation. RCW 69.50.505. Forfeiture is intended to deter and penalize
drug-related crimes by targeting the profits generated by the commercial
production and distribution of controlled substances. LAWS OF 1989, ch. 271,
§ 211; State v. Cole, 128 Wn.2d 262,274,276,906 P.2d 925 (1995). To further its
purpose, the statute generally does not contemplate forfeiture where the only
8 City of Sunnyside v. Gonzalez, No. 93907-1
violation is mere possession of a controlled substance; the violation usually must
involve drug manufacturing or transactions. 4 RCW 69.50.505(1)(b), (d), (g), (h).
Property connected to such a violation is "subject to seizure and forfeiture
and no property right exists in [it]." Id. at (1). The "seizing law enforcement
agency" (the City in this case) bears the burden "to establish, by a preponderance
of the evidence, that the property is subject to forfeiture." Id. at (5); see also City
of Walla Walla v. $401,333.44, 150 Wn. App. 360, 367-68, 208 P.3d 574 (2009).
There is not sufficient evidence to support forfeiture in this case. The
evidence presented could arguably support a finding that Gonzalez obtained his car
and money through some kind of unlawful means. However, there was no
evidence to support a finding that Gonzalez obtained his property through the
specific unlawful means of drug manufacturing or transactions as required by both
the plain language and the underlying purpose of the forfeiture statute. We
therefore reverse the Court of Appeals and vacate the forfeiture order.
1. Identifying the relevant statutory provision
Throughout these proceedings, the City has variously cited multiple
provisions of the forfeiture statute. CP at 59 (citing RCW 69.50.505); VRP (Feb.
17, 2015) at 17 (citing RCW "69.55.05(d) [sic]"); City of Sunnyside's Appellant
4 There are some exceptions, notably for the controlled substances themselves, which are of course subject to forfeiture based on mere possession. RCW 69.50.SOS(l)(a).
9 City a/Sunnyside v. Gonzalez, No. 93907-1
Br. at 14 (citing RCW 69.50.505(l)(d), (g)). On review to this court, both parties
appear to rely on only RCW 69.50.505(1)(g). Pet. for Review at 10-11; Answer in
Opp'n to Pet. for Review at 1; Pet'r Gonzalez's Suppl. Br. at 1. However, RCW
69.50.505(1)(g) has three distinct clauses, which allow forfeiture of the following:
[(1)] [a]ll moneys, negotiable instruments, securities, or other tangible or intangible property of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of this chapter ... ,
[(2)] 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 ... , and
[(3)] all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this chapter.[ 5J
It is not entirely clear which of these clauses is at issue. The hearing examiner
determined that the car and money were "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. This finding most closely resembles the language of clause (3) as
listed above. However, on review to this court and at oral argument, both
Gonzalez and the City frame the issue as whether there is substantial evidence that
the car and the money were "traceable" to drug transactions, apparently relying on
5 We have altered the formatting and added ordinal numbers in an effort to make the relevant portions of this long statutory provision easier to read.
10 City ofSunnyside v. Gonzalez, No. 93907-1
clause (2) as listed above. Pet. for Review at 1, 10; Answer in Opp'n to Pet. for
Review at 6.
Furthermore, the briefing from both parties appears to assume that forfeiture
is allowed pursuant to RCW 69.50.505(1)(g) for personal property if the property
is "traced as the proceeds of illegal drug activity." Pet. for Review at 1O; see also
Answer in Opp 'n to Pet. for Review at 6. While this assumption may be
appropriate as applied to the federal forfeiture statute, 21 U.S.C. § 881(a)(6), it is
inconsistent with the plain language of Washington's statute, which allows
forfeiture of personal property that was "acquired in whole or in part with
proceeds traceable to an exchange or series of exchanges in violation of this
chapter," RCW 69.50.505(1)(g) (emphasis added). There is no evidence that
Gonzalez acquired the car and money with the proceeds of a drug transaction; the
State's theory is that Gonzalez acquired the car and money as payment for his
participation in a drug transaction. Cf Tri-City Metro Drug Task Force v.
Contreras, 129 Wn. App. 648, 119 P.3d 862 (2005) (considering whether evidence
showed that personal property was acquired with proceeds of a drug transaction).
The statutory provision the parties point to simply does not line up with the facts
presented in this case.
We disapprove of this lack of clarity, which could be very problematic in
some cases, particularly in terms of providing proper notice to the claimant and
11 City of Sunnyside v. Gonzalez, No. 93907-1
defining the issues on review. See King County Dep 't ofPub. Safety v. 13627
Occidental Ave. S., 89 Wn. App. 554, 950 P.2d 7 (1998) (decision based largely on
differences in language between different provisions of the forfeiture statute).
However, the parties do not raise such concerns in this case, and their arguments
indicate that "traceable" is likely intended as shorthand for the general idea that
personal property must be adequately connected to drug activity in order to be
forfeited. We therefore evaluate whether forfeiture was appropriate pursuant to
any relevant part of the statute. See RCW 69.50.505(1)(d), (g).
2. There is not substantial evidence supporting forfeiture
We must first define the proper scope and standard of review because
Division Three in this case expressly disapproved of a published Division Two
forfeiture case. We reaffirm our long-standing precedent and hold that Division
Three's disapproval of Division Two's analysis was misplaced. On the merits, we
hold that there was not substantial evidence supporting forfeiture in this case.
a. There is no actual conflict regarding the scope and standard of appellate review
Despite the fact that the standard of review in this type of case is settled law,
Division Three in this case disapproved of a published Division Two case, which
Division Three characterized as improperly requiring the seizing law enforcement
agency to "disprove, to the appellate court's satisfaction, the claimant's
12 City of Sunnyside v. Gonzalez, No. 93907-1
assertions." City of Sunnyside, slip op. at 17 (discussing Valerio, 110 Wn. App.
163 ). We must resolve this apparent split. The question is not whether Division
Two reached the correct result in Valerio; that case was decided over 15 years ago,
and no party sought further review. The question is whether Valerio used the
correct analytical approach. We hold that it did.
As Division Three correctly noted, "[W]e do not reweigh evidence or
redetermine credibility" on review. Id. at 19. The parties are not required to prove
or "disprove" any factual issues at the appellate level. Id. at 17. However, our
function is not to automatically affirm the hearing examiner's decision either.
Appellate courts must be satisfied that the seizing law enforcement agency
presented '" a sufficient quantity of evidence to persuade a fair-minded person of
the truth or correctness of the [hearing examiner's] order,"' King County, 142
Wn.2d at 553 (quoting Callecod, 84 Wn. App. at 673), and the claimant must carry
the burden of showing otherwise, RCW 34.05.570(l)(a).
While Division Three may not have agreed with the result in Valerio,
Valeria's analysis did not exceed the proper scope of appellate review. Valerio
concerned the city of Lacey's attempt to obtain forfeiture of $58,300 in cash that
was found in the trunk of Mark Valerio's girlfriend's car. Valerio, 110 Wn. App.
at 165. The Court of Appeals questioned, but ultimately left intact, the lower
13 City of Sunnyside v. Gonzalez, No. 93907-1
court's determination that Valerio's explanations for how he obtained the money
were not credible. Id. at 179.
However, the Court of Appeals reversed the forfeiture order because the
only evidence connecting the money to illegal drug transactions was ( 1) a
statement by Valerio's girlfriend that Valerio was considering starting a drug
business and (2) the fact that a drug-sniffing dog had alerted to the money. Id. at
179-80. The girlfriend "had no actual knowledge of [Valerio's] involvement with
any drug business, past, present, or future," and Valerio had no known or suspected
history of any illegal drug activity. Id. at 179. There was no evidence indicating
the drug-sniffing dog could distinguish between trace amounts of drugs absorbed
by direct contact with the drugs themselves or by absorption from other sources,
and crime lab testing could not confirm the presence of any illegal drugs on the
money. Id. at 180. Given this scant evidence, the court held that "there was but
mere suspicion, not a reasonable, factual basis for belief that the money had been
used, or would be used[,] in drug-dealing." 6 Id. at 182.
Thus, the Valerio analysis rested on the lack of evidence supporting
forfeiture and not on improper credibility determinations, as Division Three
6 The prior version of the forfeiture statute at issue in Valerio required the seizing law enforcement agency to establish probable cause to seize the property, after which the burden shifted to the claimant to prove by a preponderance of the evidence that the property was not subject to forfeiture. Valerio, 110 Wn. App. at 176. The statlite has since been amended to place the burden of proof on the seizing law enforcement agency. LA ws OF 2001, ch. 168, § 1(e).
14 City of Sunnyside v. Gonzalez, No. 93907-1
suggested in this case. City of Sunnyside, slip op. at 17. There is no actual conflict
regarding the proper scope and standard of appellate review in forfeiture cases.
b. Substantial evidence does not support forfeiture
In the case before us, the hearing examiner's final order makes six
preliminary findings in support of its ultimate finding that Gonzalez's property is
subject to forfeiture. However, one of the preliminary findings is not supported by
substantial evidence, and the remaining preliminary findings, taken together, do
not provide substantial evidence supporting the ultimate finding that Gonzalez's
property was subject to forfeiture in accordance with RCW 69.50.505.
The preliminary finding that"[ o]fficers testified that the cash was 'coated'
by enough cocaine so that the drug dog also alerted to the cash" is not supported by
substantial evidence. CP at 70. Without question, there would be substantial
evidence to support a finding that the canine alerted to the cash, and the weight to
be afforded to that is to be decided by the hearing examiner, not an appellate
court. 7 However, the preliminary finding that was actually entered goes beyond
the evidence presented and rests on unreasonable inferences.
7 We do note, however, that a number of federal courts have questioned the probative value of a drug dog alerting to cash without proof that the dog can distinguish between cash that has had substantial contact with drugs and cash that has only trace amounts of drugs on it as the result of ordinary circulation. See, e.g., United States v. $30,060.00, 39 F.3d 1039, 1043 (9th Cir. 1994); United States v. $49, 790, 763 F. Supp. 2d 1160 (N.D. Cal. 2010).
15 City of Sunnyside v. Gonzalez, No. 93907-1
First, it is unreasonable to infer from the fact that the canine alerted to the
money that the money specifically had cocaine on it. The drug dog was trained to
alert for "[m]arijuana, cocaine, black tar, her [sic], heroin[], meth, and crack." Tr.
(Apr. 7, 2014) at 11. There was no evidence that the canine would alert differently
to different kinds of drugs, and there is no indication the cash was ever tested for
the presence of any specific drug. This is significant because the only controlled
substance found in Gonzalez's car was cocaine, not marijuana, heroin, or
methamphetamine.
Second, even though the word is in quotes in the hearing examiner's
decision, no one testified that Gonzalez's money was "'coated"' in anything. CP at
70. Officer Lemmon testified only that the canine alerted to the money and had
not been trained to alert for cash, leading to an assumption that there was "some"
amount of a controlled substance on the money. 8 Tr. (Apr. 7, 2014) at 12.
While this may seem like a small distinction, the hearing examiner's choice
of the word "'coated'" is significant when taken in context of this preliminary
finding as a whole. The finding is not simply that the canine alerted to the money
or that one could reasonably infer that the canine alerted to the money because
there was some controlled substance on it. Rather, the finding indicates that the
8 We also note that while this finding refers to "[o]fficers" in the plural, only Officer Lemmon provided any testimony regarding the canine. CP at 70.
16 City of Sunnyside v. Gonzalez, No. 93907-1
hearing examiner believed that the amount of controlled substances on Gonzalez's
money was significantly greater than one would find on money that had not been
used in a drug transaction. CP at 70 ("the cash was 'coated' by enough cocaine so
that the drug dog also alerted to the cash" (emphasis added)). There was no
evidence presented to support such a finding.
We therefore evaluate whether there was substantial evidence supporting
forfeiture in light of the following remaining findings:
1. There were 2[ ]cell phones found under the control of the claimant, Mr. Gonzalez, at the time he was stopped by officers; 2. Cocaine was found in the vehicle; 3. There was a large amount of cash in the vehicle, to wit $5,940.00;
5. The vehicle, a 2001 BMW, was not in the name of the claimant at the time of the incident, however he had driven it from California just prior to being stopped; 6. The fact that the Claimant, Mr. Gonzalez, states he received money from an injury and from unemployment does not seem to explain all of the cash that was present.
Id. It is clear that the hearing examiner determined that Gonzalez's testimony was
not credible, and we defer to that determination. This credibility determination,
along with the fact that Gonzalez had multiple cell phones, thousands of dollars in
cash without a substantial source of income, and a car with out-of-state plates that
was not registered in his name, could support a reasonable inference that he had
17 City of Sunnyside v. Gonzalez, No. 93907-1
obtained the car and the money through some unlawful means, or at least in some
way that he would not admit to publicly.
However, the City's burden was not merely to show that Gonzalez's
property was connected to some illegal or untoward activity. It was required to
prove, by a preponderance of the evidence, that Gonzalez's car and money were
specifically connected to drug manufacturing, transactions, or distribution. The
only preliminary finding that is supported by substantial evidence and relates in
any way to controlled substances is the undisputed finding that cocaine was found
in the car. The cocaine was described as a "[s]treet level amount, user amount,"
Tr. (Apr. 7, 2014) at 5, "definitely less than an eighth of an ounce," id. at 6, of
"crack cocaine," id. at 12, that was in a "cigarette pack" in the car's center console,
id. at 13. There was no other paraphernalia to indicate that Gonzalez had separated
this cocaine from a distribution-level amount. Gonzalez was clearly guilty of
possession, but there was no evidence that his drug-related activities ever had or
ever would include drug manufacturing, transactions, or distribution.
Allowing forfeiture under these circumstances would mean that a person's
property may be subject to forfeiture if it is connected to possession of even a
small amount of a controlled substance. The statute's plain language, however,
targets the profits of drug manufacturers and distributors, not the property of end-
level users who are guilty of nothing more than mere possession. Even if the
18 City of Sunnyside v. Gonzalez, No. 93907-1
hearing examiner did not believe that Gonzalez obtained his property legally, there
is no evidence that he obtained it as payment for participating in drug transactions.
We therefore reverse the Court of Appeals and vacate the forfeiture order.
B. Gonzalez is entitled to attorney fees on review
Both parties requested attorney fees at the Court of Appeals, which are
"considered as continuing requests at the Supreme Court." RAP 18.1 (b ).
Gonzalez substantially prevails on review and is thus clearly entitled to reasonable
attorney fees, so we grant his request. RCW 69.50.505(6); RAP 18.l(a). The City,
meanwhile, points to no applicable law that would allow it to recover attorney fees,
so we deny its request.
CONCLUSION
Even where the question is limited to whether substantial evidence supports
a finding by a mere preponderance of the evidence, appellate review must be
sufficiently robust to ensure that an order of forfeiture is in fact supported by
substantial evidence so as not to deprive people of significant property rights
except as authorized by law. This is particularly important in the forfeiture context
because an individual may lose valuable property even where no drug crime has
actually been committed, and because the government has a strong financial
incentive to seek forfeiture because the seizing law enforcement agency is entitled
to keep or sell most forfeited property. RCW 69.50.505(7).
19 City of Sunnyside v. Gonzalez, No. 93907-1
The Court of Appeals erred in holding that the forfeiture order in this case
was supported by substantial evidence. We therefore reverse the Court of Appeals,
vacate the forfeiture order, and grant Gonzalez's request for reasonable attorney
fees.
20 City of Sunnyside v. Gonzalez, No. 93907-1
WE CONCUR:
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