Chin Fu Chen v. Atkins

1

CHIN FU CHEN and MY TIEU LAO, Petitioners, v. CHUCK E. ATKINS, Sheriff of Clark County, CLARK COUNTY SHERIFF'S OFFICE, and CLARK COUNTY, WASHINGTON, Respondents.

In the Matter of the Forfeiture of Personal Property to wit: Bank of America Account #7024: $5,963.47 Bank of America Account #1451: $75,429.42 Bank of America Account #8810: $7,685.18

No. 57002-5-II

Court of Appeals of Washington, Division 2

May 9, 2023

UNPUBLISHED OPINION

Maxa J.

Chin Fu Chen and My Tieu Lao appeal the superior court's order affirming the district court's forfeiture order regarding funds from their bank accounts that the Clark County Sheriff's Office (CCSO) seized as proceeds from an illegal cannabis grow operation. The seizure occurred pursuant to a search and seizure warrant for Chen and Lao's bank accounts that was issued 11 months after law enforcement shut down Chen and Lao's grow operation.

Chen and Lao argue that probable cause did not support the search and seizure warrant because the information in the affidavit supporting the warrant was stale. We hold that the superior court did not err by concluding that the information in the affidavit was not stale. Accordingly, we affirm the superior court's order affirming the district court's forfeiture order.^[1]

FACTS

Background

In January 2020, law enforcement executed a search warrant at Chen and Lao's residence^[2] and uncovered a sophisticated cannabis production operation. Law enforcement seized 115 cannabis plants, 31 pounds of processed cannabis, $6,300 in cash, equipment involved in growing, processing, and packaging cannabis, and financial documents. Nothing in the record suggests that the cannabis operation continued after January 2020.

In December 2020, John Luciano - a financial investigator for the CCSO - submitted an affidavit supporting a warrant for the seizure of Chen and Lao's bank accounts. Luciano obtained financial records from Chen and Lao's bank to distinguish between legitimate income and illegal proceeds and to establish the disposition of illegal funds.

Luciano's affidavit alleged that his investigation had determined that approximately $60,000 of unreported income was deposited into Chen and Lao's bank accounts each year from 2016 to 2019 for a total of approximately $225,000 of unreported income. During this same period, Chen and Lao both received legitimate income reported on W-2 forms that was deposited into the bank accounts and commingled with the unreported income.

In addition, Luciano alleged that account records showed that Chen and Lao's personal living expenses exceeded their W-2 reported income by approximately $72,000. And their cash on hand and asset acquisitions increased by approximately $154,000. The affidavit stated that Chen and Lao admitted that they had no other sources of legitimate income other than their W-2 income and they received no cash gifts. Luciano opined that any balance remaining in the bank accounts would be illegal proceeds.

A superior court judge issued a warrant to search and seize proceeds from violations of the controlled substances and money laundering statutes from three of Chen and Lao's bank accounts. The judge issued the warrant based on a review of Luciano's affidavit.

Pursuant to the warrant, the CCSO seized amounts in three of Chen and Lao's bank accounts totaling $89,078.07. The CCSO sent Chen and Lao a Notice of Seizure and Intended Forfeiture regarding the seized funds. Chen and Lao contested the forfeiture and removed the proceeding to district court.

District Court Proceedings

In district court, Chen and Lao moved for summary judgment arguing among other things that the bank account funds could not properly be forfeited to the CCSO because the information supporting the search and seizure warrant was stale. The district court reviewed the December 2020 affidavit and concluded that the information supporting the warrant was not stale. Accordingly, the court denied the motion.

The CCSO subsequently relinquished any claim to $30,242 of the seized funds, which represented the increase in account balances between January and December 2020. After an evidentiary hearing, the district court ordered that the remaining $58,835 would be forfeited. Superior Court Proceedings

Chen and Lao appealed to the superior court, arguing among other things that the district court erred by concluding that the information supporting the search and seizure warrant was not stale. The superior court reviewed the December 2020 affidavit and concluded that the information was not stale because the warrant affidavit clearly established a continuing and contemporaneous possession of illegal proceeds from the cannabis operation. Accordingly, the superior court affirmed the district court's forfeiture order.

Chen and Lao sought discretionary review in this court of the superior court's affirmance of the district court's forfeiture order, raising several issues. A commissioner of this court granted discretionary review regarding the staleness issue only.

ANALYSIS

A. Legal Principles

Both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution require probable cause to support the issuance of a search warrant. See State v. Gudgell, 20 Wn.App. 2d 162, 174, 499 P.3d 229 (2021) (Fourth Amendment); State v. Ollivier, 178 Wn.2d 813, 846, 312 P.3d 1 (2013) (article 1, section 7). "Probable cause exists when the affidavit in support of the search warrant 'sets forth facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime may be found at a certain location.'" Gudgell, 20 Wn.App. 2d at 174 (quoting State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999)).

A search warrant that has become stale at the time of its issuance or execution is invalid. See State v. Friedrich, 4 Wn.App. 2d 945, 955, 425 P.3d 518 (2018). Whether information in a search warrant affidavit is stale depends on the circumstances of each case. State v. Lyons, 174 Wn.2d 354, 361-62, 275 P.3d 314 (2012). Some length of time naturally passes between observations of suspected criminal activity and the presentation of an affidavit to an issuing magistrate or judge. Id. at 360. But when the passage of time is so prolonged that it is no longer probable that a search will uncover evidence of criminal activity, the information underlying the affidavit is deemed stale. Id. at 360-61.

The test for staleness is based on common sense and requires consideration of the totality of the circumstances. State v. Maddox, 152 Wn.2d 499, 506, 98 P.3d 1199 (2004). "[I]nformation is not stale for purposes of probable cause if the facts and circumstances in the affidavit support a commonsense determination that there is continuing and contemporaneous possession of the property intended to be seized." Id. The passage of time is only one factor to be considered along with other relevant circumstances. Id. Other factors for assessing staleness include the nature and scope of the alleged criminal activity, the length of the activity, and the type of property to be seized. Id.

We review a trial court's assessment of probable cause de novo, giving deference to the magistrate's determination. State v. Denham, 197 Wn.2d 759, 767, 489 P.3d 1138 (2021). We consider only the information contained in the affidavit supporting probable cause. State v. Neth 165 Wn.2d 177, 182, 196 P.3d 658 (2008). We resolve all doubts in favor of the warrant's validity. Madd...