Opinion
No. 53807-1-I
Filed: February 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-2-05051-2. Judgment or order under review. Date filed: 01/21/2004. Judge signing: Hon. Michael S. Spearman.
Counsel for Appellant/Cross-Respondent, James J. Jr Dore, Attorney at Law, 1122 W James St, Kent, WA 98032-8729.
Counsel for Respondent/Cross-Appellant, Kirk Charles Davis, Seattle City Attorneys Office, PO Box 94769, Seattle, WA 98124-4769.
A hearing examiner's findings of fact at a forfeiture hearing will not be overturned on appeal unless clearly erroneous. Here, the hearing examiner found that the evidence of Islando Marroquin's involvement in drug dealing and the timing of his deposits into the savings account established probable cause that the money in the savings account was the proceeds of or used or intended to be used in illegal drug activities. He also found that Marroquin's testimony that the money was obtained by legitimate means was not credible. Because the hearing examiner's findings that the seized money was the proceeds of or was used or intended to be used in illegal drug activities are not clearly erroneous, we affirm the order of forfeiture.
FACTS
In January 2001, Islando Marroquin was arrested after twice selling drugs to a confidential informant. Police obtained a search warrant for Marroquin's home after witnessing him return there directly after the second buy.
During the search, police discovered 51 grams of cocaine and 337 grams of heroin with a street value of approximately $45,000. On the floor of Marroquin's bedroom closet was a box containing 30.8 grams of the cocaine and 282.6 grams of the heroin that were divided into small packages. In the same closet as the narcotics, they also found a black fanny pack, which contained deposit slips and $700 in cash. They also recovered $1,420 from Marroquin's wallet when he was searched and two digital scales, 2.2 grams of marijuana, and plastic sandwich bags in the Marroquin's bedroom. In the center dash of one of Marroquin's vehicles they discovered 23.6 grams of black tar heroin.
Marroquin does not challenge the seizure of the $1,420 recovered from his wallet and the $700 found in the black fanny pack.
The deposit slips found alongside the narcotics revealed that the bank account had gradually grown to $63,713.44 in seven months from December 1999 to July 2000. The City served Marroquin with a Notice of Seizure and Intended Forfeiture for the money contained in the savings account, which Marroquin contested.
At the hearing, Marroquin testified that the seized money in the bank account represented his life's savings that had been inherited or earned through the sale of vehicles and truck driving. His son also testified on his behalf. The hearing examiner found Marroquin's testimony and his son's testimony to be contradictory and not credible. He concluded that given the totality of the circumstances, the City proved its case by a preponderance of the evidence. He found that the money was acquired in whole or in part from Marroquin's participation in drug trafficking, that it was furnished or intended to be furnished in exchange for a controlled substance, and that it was used or intended to be used to facilitate illegal drug transactions. As such, the examiner concluded that the money was forfeitable under former RCW 69.50.505(a)(7) (2003).
On appeal, the superior court affirmed the hearing examiner's forfeiture order. In so doing, the superior court found sufficient evidence to uphold the hearing examiner's findings that the money was furnished or intended to be furnished in exchange for a controlled substance and that it was used or intended to be used to facilitate illegal drug transactions. However, the superior court concluded that substantial evidence did not support the hearing examiner's finding that the money was proceeds traceable to illegal drug transactions.
Marroquin also challenged the sufficiency of the affidavits supporting the search warrant for the first time at the superior court. The superior court decided to address the issue for the first time on appeal and found against Marroquin. It concluded that there had been probable cause to issue the search warrant.
Marroquin now appeals the search warrant issue, the forfeiture issue and introduces a new issue challenging the sufficiency of the affidavits supporting the order of seizure. The City cross-appeals the superior court's conclusion that the money was not proceeds traceable to illegal drug trafficking.
ANALYSIS
In a forfeiture proceeding, the seizing agency has the initial burden of showing probable cause to believe that the items seized were the proceeds of or used or intended to be used in illegal drug activities. Probable cause may be shown by circumstantial evidence. `Once the agency meets its burden of proving probable cause, the claimant must then prove by a preponderance of the evidence that the property does not represent proceeds from drug sales.'
Escamilla v. Tri-City Task Force, 100 Wn. App. 742, 751, 999 P.2d 625 (2000).
Escamilla, 100 Wn. App. at 751.
Escamilla, 100 Wn. App. at 752.
The central issue in this case is whether the hearing examiner's findings of fact were clearly erroneous. The examiner concluded that the funds were subject to forfeiture under former RCW 69.50.505(a)(7) because he found they were (1) proceeds traceable to an exchange or series of exchanges in violation of specified drug laws, (2) moneys furnished or intended to be furnished by any person in exchange for a controlled substance in violation of specified drug laws or (3) moneys used or intended to be used to facilitate any violation of specified drug laws.
Our review is de novo giving deference to the hearing examiner's factual determinations, using a clearly erroneous standard. The evidence in this case is damning. It shows that Marroquin was involved in large scale drug dealing and had a savings account that had recently grown to over $63,000 in just seven months.
Escamilla, 100 Wn. App. at 747.
At the hearing, Marroquin and his son attempted to show that the money represented Marroquin's life's savings that had been inherited or earned through the sale of vehicles and truck driving. However, the hearing examiner found that `he did not offer any evidence to connect the money that was in the bank account with any of the legitimate means of acquiring money.' Moreover, the examiner also found that Marroquin's `testimony was as contradictory as his son's testimony and not credible.' `Credibility is for the fact finder and is not subject to review.'
Escamilla, 100 Wn. App. at 752.
We find the hearing examiner's findings not to be clearly erroneous. Citing Escamilla, the examiner properly stated: `It is not necessary for the City to trace the exact funds used in drug transactions or separate the funds out from that which may have come from legitimate sources in order to establish probable cause when undocumented sums of cash were being deposited at the same time claimant was involved in large scale drug dealing.' Given the evidence of Marroquin's involvement in large scale drug dealing, the timing of the deposits, and Marroquin's inability to show the funds were acquired legitimately, it was not clearly erroneous for the examiner to find that the seized money was traceable to drug dealing.
The hearing examiner also was reasonable in finding that the money had been furnished or was intended to be furnished in exchange for a controlled substance. As the hearing examiner pointed out, Marroquin had been fronted a significant amount of cocaine and it was reasonable to conclude that the money in the savings account was to be used to pay off his debt to his supplier.
Finally, it was also reasonable for the hearing examiner to find that the money was the means by which Marroquin was financing his drug operation, as he had withdrawn $4,000 from this account one month prior to his arrest and had only $2,120 on him when he was arrested. Because the hearing examiner found Marroquin's testimony to be incredible, and found nothing in terms of evidence linking the money to legitimate sources, Marroquin failed in his burden to show by a preponderance of the evidence that the money did not represent proceeds from drug sales. The hearing examiner's findings were not clearly erroneous.
Marroquin also raises two issues that were not raised at the administrative hearing. Marroquin challenges the sufficiency of the evidence contained in the affidavits supporting the search warrant for Marroquin's home and the order seizing the money in Marroquin's savings account. Drug forfeiture hearings are governed by Title 34 RCW. Any appeals from the agency decision are heard under Title 34 RCW. Pursuant to RCW 34.05.554, `issues not raised before the agency may not be raised on appeal,' subject to a limited number of exceptions. Marroquin's issues meet none of these exceptions and we decline to address them as waived. The hearing examiner's decision is affirmed.
RCW 34.05.554 states:
(1) Issues not raised before the agency may not be raised on appeal, except to the extent that:
(a) The person did not know and was under no duty to discover or could not have reasonably discovered facts giving rise to the issue;
(b) The agency action subject to judicial review is a rule and the person has not been a party in adjudicative proceedings that provided an adequate opportunity to raise the issue;
(c) The agency action subject to judicial review is an order and the person was not notified of the adjudicative proceeding in substantial compliance with this chapter; or
(d) The interests of justice would be served by resolution of an issue arising from:
(i) A change in controlling law occurring after the agency action; or
(ii) Agency action occurring after the person exhausted the last feasible opportunity for seeking relief from the agency.
(2) The court shall remand to the agency for determination any issue that is properly raised pursuant to subsection (1) of this section.
GROSSE, KENNEDY and BECKER, JJ., concur.