State v. Eleven Thousand Three Hundred Forty-Six Dollars & No Cents in United States Currency

777 P.2d 65, 1 A.L.R. 5th 1057, 1989 Wyo. LEXIS 168, 1989 WL 74082

• Court: Wyoming Supreme Court
• Decided: July 7, 1989
• Docket: No. 88-227
• Status: Published

Opinions

CARDINE, Chief Justice.

The State of Wyoming seized $11,346.00 from Terry Davis Jaeger and initiated civil forfeiture proceedings against the money, asserting that it had been used to facilitate the sale of certain controlled substances. The district court determined that the State had not established probable cause to believe that the money was used or intended to be used in violation of the Wyoming Controlled Substance Act of 1971, W.S. 35-7-1001 through 35-7-1057, and, therefore, granted Jaeger’s motion for summary judgment.

We affirm.

During the course of a narcotics investigation, the Gillette Police Department made three controlled purchases of methamphetamine. On each occasion the Department furnished “buy money” to a confidential informant with the intent of tracing the chain of transfers of that money to the ultimate supplier of the drugs. Surveillance teams observing the third purchase on April 13, 1987, followed that trail to Jaeger’s automotive repair shop. Officers approached Jaeger for identification and, as he produced his driver’s license, observed a large amount of currency in his wallet. At their request, Jaeger permitted the officers to inspect the money and compare it to photocopies of the bills which they had provided to their informant earlier that evening. No matches were found. Nevertheless, the officers detained Jaeger for nearly two hours, until they were able to match some of his money with photocopies of bills provided for two earlier methamphetamine purchases. He was then arrested and charged with one count of conspiracy to deliver a controlled substance.

Subsequently, on May 27,1987, the State brought an action under W.S. 35-7-1049 seeking forfeiture of the money seized from Jaeger. Jaeger filed a motion to suppress the money as evidence in the pending criminal action. The district court’s order granting that motion states, in pertinent part:

“1. That no probable cause existed for a search of Defendant or a seizure of evidence from Defendant and the Defendant did not consent to the search or seizure.

* * * * * *

“5. That the initial search of the Defendant was illegal, and since the product of that search formed the probable cause for the arrest, the arrest was illegal * * *

******

“That all evidence seized from the Defendant and any statements made by the Defendant either prior to or subsequent to his arrest are hereby suppressed * * * i)

Jaeger then filed, in the forfeiture proceeding, a motion for return of property pursuant to Rule 40(e), W.R.Cr.P., which provides in part:

“A person aggrieved by an unlawful search and seizure may move the district court for the county in which the property was seized for the return of the property and to suppress for use as evidence anything so obtained on the ground that (1) the property was illegally seized without warrant * * *. If the motion is granted the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence in any hearing or trial.”

He also filed a motion for summary judgment. In support of these motions, he argued that the State could not forfeit property unless it had been lawfully seized under the provisions of the forfeiture statute. Such a seizure could only occur, Jae-ger contended, where the State had probable cause to seize the property at the time of the seizure. The two grounds advanced for his claim that the State could not meet its burden of establishing probable cause to seize his money were:

(a) The issue had been conclusively determined to the detriment of the State pursuant to his motion to suppress evidence, so as to collaterally estop the State from relitigating the issue;

(b) The exclusionary rule required the suppression of evidence in both the criminal action and the forfeiture proceedings, thereby leaving the State no untainted evidence with which to prove its case.

After considering the parties’ briefs and after two separate hearings, the district court granted Jaeger’s summary judgment motion, explaining its ruling:

“The issues presented are — or the arguments presented are pretty narrow, and accordingly, my holding is equally narrow.

“The State’s arguments with respect to the requisites for collateral estoppel, that is, identity of parties and issues, seems to me to draw distinctions without differences. That’s particularly true with respect to the parties.

“It’s also true, it seems to me, with respect to the issues. Judge Judson determined that there was no probable cause. That was done in a prior hearing with a full opportunity for both sides to develop facts and present their arguments.

# # # * * *

“If there was not probable cause to search these people for the money about which we’re now fighting, then there isn’t probable cause to believe that the money itself is used or intended to be used in violation of this act. “Accordingly, the motion for summary judgment is granted.”

We agree.

Forfeiture under W.S. 35-7-1049 is appropriate only with respect to certain types of property which the legislature has deemed to be “subject to forfeiture.” Of the eight general categories of forfeitable property defined by subsection (a) of the statute, the State attempted to forfeit Jae-ger’s money pursuant to W.S. 35-7-1049(a)(viii), which provides for forfeiture of

“[a]ny property or other thing of pecuniary value furnished in exchange for a controlled substance in violation of this act including any proceeds, assets or other property of any kind traceable to the exchange and any money, securities or other negotiable instruments used to facilitate a violation of this act. Property used or furnished without the consent or knowledge of the owner is not forfeitable under this section to the extent of his interest.”

In addition to substantively limiting the scope of forfeiture to certain defined property, the legislature also imposed certain procedural restrictions on the State’s access to that remedy. Section 35-7-1049(b) provides:

“(b) Property subject to forfeiture under this act may be seized by any law enforcement officer of the state upon process issued by any district court or district court commissioner having jurisdiction over the property. Seizure without process may be made if:

“(i) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;

“(ii) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal, injunction or forfeiture proceeding based upon this act;

“(iii) The board or commissioner has probable cause to believe that the property was used or is intended to be used in violation of this act.” (emphasis added)

If subsection (b) is to be given any meaningful effect, it must be read to condition the State’s right to forfeiture. The legislature’s creation of a specific mode of exercising a power excludes all others. Hopkinson v. State, 704 P.2d 1323, 1326 (Wyo.1985); Attletweedt v. State, 684 P.2d 812, 816 (Wyo.1984). Furthermore, the clear language of the statute requires that these conditions which the legislature has statutorily imposed upon the seizure of property must exist at the time law enforcement officers make the seizure.

In the present case, the State relies wholly upon subsection (b)(iii) to justify the seizure of Jaeger’s money. Accordingly, the State had a dual burden of proof. It ultimately had to prove that Jaeger’s money was traceable to the exchange of a controlled substance or otherwise used to facilitate a violation of the Wyoming Controlled Substances Act. However, as a threshold matter, the State also had to establish that either the Wyoming State Board of Pharmacy or the Attorney General had probable cause to believe that such was the case at the time the law enforcement officers seized that money. Jaeger asserted that the State was precluded from establishing its probable cause to seize his money by the prior contrary determination of that issue at his criminal suppression hearing. Since it could not establish one of the necessary conditions to forfeiture under the statute, Jaeger asserted, the State was not entitled to forfeit his money as a matter of law. He is correct only insofar as the State sought to impute, to the “board or commissioner,” any probable cause possessed by the police officers who seized his property.

The doctrine of collateral estoppel bars the parties to an action, and their privies, from contesting in a subsequent suit all issues which were actually litigated in the former action. That is, where the parties have had a full and fair opportunity to contest a question which is essential to the determination of their dispute, a final valid judgment on the merits of that dispute by a court of competent jurisdiction precludes the relitigation of that question by those parties and their privies. Matthews v. Fetzner, 768 P.2d 590, 592 (Wyo.1989); Delgue v. Curutchet, 677 P.2d 208, 213-214 (Wyo.1984).

The State, in this appeal, does not argue that the suppression order issued in Jae-ger’s criminal prosecution was not a final valid judgment. Rather, it argues that the agency of the State which appears as the nominal plaintiff in forfeiture is neither identical to nor in privity with the State’s agency that prosecuted Jaeger. Nevertheless, it would rely on facts within the knowledge of the Gillette Police Department and the Campbell County Prosecutor’s office to establish the “commissioner’s” probable cause to seize forfeitable property. To accept this argument and to thereby deny preclusive effect to the suppression order would be to elevate form over substance and permit the State to, incongruously, have its cake and eat it too. Not only do the forfeiture provisions of W.S. 35-7-1049 supplement and enhance the State’s enforcement of the criminal provisions of Wyoming’s Controlled Substances Act, W.S. 35-7-1001 through 35-7-1057, but we note in this case that the Deputy County and Prosecuting Attorney whose office handled Jaeger’s criminal prosecution was also appointed as Special Assistant Attorney General for purposes of initiating and conducting these forfeiture proceedings. There is sufficient identity of interest between these agents of the State to warrant the application of collateral es-toppel.

Anticipating that we would find such an identity of interest, the State alternatively argues that it had no opportunity to fully and fairly litigate the issues raised by the suppression hearing. The gravamen of this contention appears to be that the State, foreclosed from appealing an unfavorable verdict in a criminal case, could not fully contest the legal conclusions upon which the suppression order rested. The State asserts that it would therefore be unfair to collaterally estop the relit-igation of those issues in the forfeiture proceedings. We cannot agree. The State admitted at the suppression hearing that, at the time the police officers detained Jae-ger and seized the contested evidence, they had no probable cause to do so. We fail to see how the State could overcome this admission on appeal. Notwithstanding our doubts in that regard, had there been a reviewable deficiency in the suppression proceedings, the State was not foreclosed from pursuing such review either through a bill of exceptions, pursuant to W.S. 7-12-102 or a writ of certiorari. State v. Heiner, 683 P.2d 629, 632 (Wyo.1984). We therefore conclude that the State indeed had a full and fair opportunity to litigate the issues determined by the suppression order.

The State finally contends that the issues determined by that order differ from the issues raised in the forfeiture action and that collateral estoppel should not apply. The State is clearly mistaken. We are not concerned here with a suppression order which merely declared that the seizure of Jaeger’s money was unlawful. Such an order might properly issue, despite the State’s proof of probable cause, based on some deficiency in a warrant or the lack of such circumstances as would permit a war-rantless seizure. In the present case, however, the suppression order explicitly set forth the trial court’s finding that the officers seized Jaeger’s money without probable cause to believe that he or his money had been involved in a drug sale. To the extent that the State relies upon the knowledge of these police officers to establish that the “board or commissioner” had probable cause at the time of the seizure to believe Jaeger’s property was forfeitable, the identical issue must be determined as a prerequisite to the State’s right to forfeit the money. There is no contention that the issue of the officers’ probable cause was not actually litigated nor a contention that the issue was unnecessary to the suppression order. Thus, the district court in this forfeiture action correctly applied the doctrine of collateral estoppel to that issue.

This is not to say that the application of that doctrine is entirely determinative of the State’s right to relief. Jaeger only established through such means that the police officers who seized his money had no probable cause to believe that he or the money had been involved in a violation of the act. He did not conclusively establish that the “board or commissioner” had no such probable cause. He did, however, offer evidence of the prior suppression hearing in support of his summary judgment motion which carried the clear implication that no probable cause determination had been made prior to the seizure. Collateral estoppel in no way prevented the State from challenging that implication. Indeed, where the moving party has produced evidence which, if unchallenged, would entitle him to a summary judgment, the non-moving party must come forward with specific facts that establish a genuine issue for trial. Cordova v. Gosar, 719 P.2d 625, 635-36 (Wyo.1986). In this regard, the State had only to produce evidence that the “board or commissioner” possessed the requisite probable cause at the time of the seizure, independent of any knowledge of the Gillette Police Department. The State simply did not carry its burden of proof. The district court properly granted Jae-ger’s summary judgment motion.

Affirmed.