Jackson County v. $19,300 U.S. Currency

845 P.2d 1302, 118 Or. App. 60, 1993 Ore. App. LEXIS 133

• Court: Court of Appeals of Oregon
• Decided: February 3, 1993
• Docket: 90-3368-Z-5; CA A70408
• Status: Published

Opinion

De MUNIZ, J.

Claimants, Gerónimo and Maria Alvarez, appeal from a civil forfeiture judgment. They assign error to the court’s denial of their motion to set aside the judgment.

Claimants are married and reside in California. Gerónimo was stopped by police while driving a borrowed car on 1-5 near Talent, Oregon. Police searched the car and found a small quantity of cocaine in a gum wrapper in the ashtray. Gerónimo was also in possession of $19,300 in cash, and the police seized it. He denied that the cash was drug money and told the police that he had earned the money working at construction sites. A police report prepared in connection with the case indicated that Gerónimo was married and resided in California. Neither his wife’s name nor her address was listed in the report.

Gerónimo was personally served with a “Notice to Potential Claimant” when the police seized the money. An appropriate notice of the pending forfeiture of the money was published in the Medford Mail newspaper. Gerónimo did not file a timely claim with forfeiture counsel. Plaintiff proceeded under the summary procedures authorized in Oregon Laws 1989, chapter 791, section 6, and obtained ajudgment of civil forfeiture on October 15, 1990. See Multnomah County v. One 1984 Chevrolet Corvette, 115 Or App 276, 837 P2d 559 (1992). On March 15,1991, claimants filed a joint motion to set aside the judgment. Their motion was denied.¹

As an initial matter, plaintiff contends that “[Maria] is not a party to this proceeding.” We treat that contention as a motion to dismiss her as a party to this appeal and allow it. A forfeiture judgment obtained under the summary procedure authorized in Or Laws 1989, chapter 791, section 6, adjudicates only the ‘ ‘interest of a person who engages in prohibited conduct.” Maria was not a party to the underlying judgment, and it therefore did not adjudicate any interest that she may have in the money. Whatever claim she may have to the money could not have been asserted as a ground to set aside the judgment. She may not appeal from the judgment. ORS 19.020; Multnomah County v. $6,381 in U.S. Currency, 104 Or App 654, 802 P2d 705 (1990), rev den 311 Or 643 (1991).

Gerónimo had proper notice of the pending forfeiture, but did not file a timely claim. There was no error in denying his motion to set aside the judgment. City of Portland v. $4,345 U.S. Currency, 118 Or App 72, 845 P2d 1301 (1993).

Affirmed as to Gerónimo Alvarez; appeal dismissed as to Maria Alvarez.

1 In denying the motion, the court found:

“1. Claimant Gerónimo Alvarez was legally married to Maria Alvarez in 1989 in the State of California.

“2. Claimant Gerónimo Alvarez and Maria Alvarez live in California.

“3. Claimant Gerónimo Alvarez has lived in the United States since he was a few days old. Claimant Gerónimo Alvarez completed the 12th grade and attended community college.

“4. At the time the officers questioned claimant Gerónimo Alvarez, he stated he had earned the money working at construction sites. Claimant Gerónimo Alvarez never stated to police the money was earned by his wife.

“5. A box in the police reports indicated claimant Gerónimo Alvarez was married. The police report also indicated Mr. Alvarez lives in California.

“6. Plaintiff Jackson County did not know Gerónimo Alvarez’s wife’s name or whereabouts.

“7. Plaintiff served Gerónimo Alvarez personally with notice of intent to seize. Plaintiff published notice of seizure in accordance with HB 2282 Sec 6 (1).”