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# c5.U,0wc- c{ ~I SUSAN L. CARLSON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CITY OF SUNNYSIDE, Respondent, V. ANDREAS GONZALEZ, Petitioner. ) ) ) ) ) ) ) ) ) )



# __________ ) No. 93907-1
ENBANC
Filed: 

### JUN 2~J 

### 2017
YU, 

### J.-- This case presents a highly fact-intensive question: Is there substantial evidence thatpetitionerAndreas Gonzalez's car and money were connected to drug manufacturing or distribution suchthatthey are subjectto 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 ofAppeals, Division Three, held thatthe superior court improperlyreweighed the evidence, andtherefore reversed and reinstatedthe forfeiture order. We nowreverse the Court ofAppeals, 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 ScottBailey. Gonzalez was driving a BMWwith California license plates. SergeantBailey 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 belongedto 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 placedhim under arrest. While SergeantBailey was waiting for another officerto assist with impounding the car, one ofGonzalez's cell phones rang and, at Gonzalez's request, SergeantBailey answered it. The caller was Gonzalez's girlfriend, who asked ifthe car could be released to her, and SergeantBailey refused. Gonzalez asked that his girlfriend be allowed to take possession ofthe property left in the car, including about $6,000 in cash. At thatpoint, Sergeant Bailey became suspicious that Gonzalez was involved in criminal activity. Officer Skip Lemmonthen arrived withhis canine partnerto assist in the impound process. Gonzalez gave consentto a search ofthe car, which turned up a "[s]treet level amount, user amount" ofcocaine and $5,940. Id. at 4-5. The canine

2City of Sunnyside v. Gonzalez, No. 93907-1 alerted separately to boththe cocaine and the money. Because the canine had not been trained to alert for cash, OfficerLemmon believedthatthe alert indicated there were controlled substances on the money. Attrial on cross-examination, Officer Lemmon "assume[d]" thattraces ofdrugs 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 oftrace amounts ofdrugs being found on cash for precisely thatreason. Id. at 13. Gonzalez never explainedto Sergeant Bailey why he had so much money in the car. However, during the search, Gonzalez did tell SergeantBailey thatthe car actually belonged to Gonzalez himselfand asked ifthat made a difference. At that point, the officers suspected thatboththe car and the money were connectedto an illegal drug transaction. SergeantBailey testifiedthat from past experience or knowing and dealing with the situation,
... it's not uncommon that aperson be selected or offered ajobto drive a vehicle that has a contents or contraband from one place to the other place and they get x amount ofmoney plus the vehicle they used to transport. Id. at 7. Believing this to be Gonzalez's situation, the officers seizedboth the car and the money, and the city ofSunnyside (City) sought forfeiture. Gonzalez had
no prior arrests or convictions for any drug-related activity, althoughhe did ultimately plead guilty in superior court to one charge ofpossession ofa controlled substance for the cocaine that was discovered in the car.
3City of Sunnyside v. Gonzalez, No. 93907-1 Gonzaleztestified at the forfeiture hearing. He explained that several days earlier, he had gone to Californiato visit relatives with his friend Martin in Martin's car. The relatives offered to sell their BMWto Gonzalez, who wantedto buy it but did nothave enoughmoney with him. Martin agreed to lend Gonzalez the money for the car ifGonzalez wouldpay him back as soon as theyreturned to Washington. Gonzalez and Martinhad returned to Washington only two days before Gonzalez was pulled over, and the $5,940 was intendedto payMartin back. Martin also testified, and his account was consistent with Gonzalez's. Gonzalez further explainedthathe 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 overthe years than the $5,940 found inhis car. The amount ofhis insurance settlement is unknown. Gonzalez also testified thathe lived with his parents, who paid all ofhis expenses exceptthat Gonzalezpaid rent "([i]naudible) when I can (inaudible) once a month." 1 Id. at 14.

1As a follow-up question, Gonzalez's attorney asked, "So you don'thave a mortgage payment,you don't have a rentpayment (inaudible) correct?" Tr. (Apr. 7, 2014) at 15 (emphasis added). Gonzalez said, "Yes." Id. This seemingly inconsistent answer indicates thatthe (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/332624
_unp.pdf. However, perhaps Gonzalez meant that he usedto pay rent when he was working buthas notpaid rent since fracturing his back. 4City of Sunnyside v. Gonzalez, No. 93907-1 Finally, Gonzalez explainedthatthe vehicle registrationhad notbeen in his
name because he hadreturned to Washington on Saturday, August 31, and could nottransfer title to himselfbefore he was pulled over on Sunday, September 1. Gonzalez didtransfer title to himselfa few days later. Bythe time ofthe 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 ofillegal drugs onit, manypeople keep their money in cash because they do nottrustbanks, and the reason Gonzalez hadtwo cell phones
was because he was having an affair and did not want calls to or from his girlfriend to showup onhis regularphone. The hearing examinerruled in favor ofthe City. The hearing examiner's initial letter decision noted that this was a "ratherdifficult" 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 thatthe City hadmetits burden ofproving that Gonzalez's car and money were "used and/or intendedto be used for a controlled substance violation, specifically the furtherance ofthe sale ofan illegal drug." Id. at 70. The order specifically highlighted several facts: 1. There were 2[ ]cell phones found underthe control ofthe claimant, Mr. Gonzalez, at the time he was stopped by officers; 2. Cocaine was found inthe vehicle; 3. There was a large amount ofcash inthe vehicle, to wit $5,940.00;

5City of Sunnyside 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 ofthe claimant at the time ofthe incident, however he had driven it from Californiajustprior 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 ofthe cash that was present. Id. Gonzalez appealed to the Yakima County Superior Court. Afterhearing oral argument, the superior court reversed, concluding that "looking at the findings, even considering them as a whole, I don'tthinkthat a reasonable person could find thatthe money and the vehicle were involved somehow in narcotics trafficking based upon the record we have." Verbatim Report ofProceedings (VRP) (Feb. 17, 2015) at 23-24. The City appealed to the Court ofAppeals, Division Three, which reversed and reinstated the forfeiture order. 2 The Court ofAppeals reasoned that "[b]ecause appellate courts-including superior courts sitting in an appellate capacity-do not reweigh evidence, the superior court erred when itreweighed 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 ofAppeals also specifically disapproved ofapublishedDivision Two

2 The City also raised issues related to the superior court'sjurisdiction and the applicable law governing its review. City o,fSunnyside, slip op. at 10, 13. Those issues are not before us. 6City of Sunnyside v. Gonzalez, No. 93907-1 forfeiture case. Id. at 17 (discussing Valerio v. LaceyPoliceDep '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 ofthe 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 subjectto forfeiture pursuantto RCW 69.50.505? B. Is eitherparty entitledto 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 enteredbythe hearing examiner, notthe order of reversal enteredby the superior court. King County v. Cent. PugetSound 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 ofadditional authorities pursuantto RAP 10.8, citing UnitedStates 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 Cityhad referenced both cases during oral argument, but had notpreviously cited them in its briefing. Gonzalez moved to strike the statement ofadditional 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. 7City of Sunnyside v. Gonzalez, No. 93907-1 burden ofshowing the forfeiture order was erroneous. RCW 34.05.570(1)(a). Gonzalez challenges the forfeiture order onthe basis that "[t]he order is not supported by evidence that is substantial when viewed in light ofthe whole record before the court, which includes the agency record forjudicial review, supplemented by any additional evidence received by the court under [chapter 34.05 RCW]." Id. at (3)(e). Evidence is "substantial" ifthere "is 'a sufficient quantity ofevidence to persuade a fair-minded person ofthe truth or correctness of the order."' King County, 142 Wn.2d at 553 (quoting Callecodv. 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 ofproperty that is connectedto 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 ofcontrolled 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

8City of Sunnyside v. Gonzalez, No. 93907-1 violation is mere possession ofa controlled substance; the violationusually must involve drug manufacturing or transactions. 4 RCW 69.50.505(1)(b), (d), (g), (h). Property connectedto such a violation is "subjectto 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 ofthe evidence, thatthe property is subjectto forfeiture." Id. at (5); see also City ofWalla 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 ofunlawful means. However, there was no evidence to support a finding that Gonzalez obtainedhis property through the specific unlawful means ofdrug manufacturing or transactions as required by both the plain language and the underlying purpose ofthe forfeiture statute. We therefore reverse the Court ofAppeals and vacate the forfeiture order. 1. Identifying the relevant statutory provision Throughoutthese proceedings, the City has variously cited multiple provisions ofthe forfeiture statute. CP at 59 (citing RCW 69.50.505); VRP (Feb. 17, 2015) at 17 (citing RCW "69.55.05(d) [sic]"); City ofSunnyside's Appellant

4 There are some exceptions, notably for the controlled substances themselves, which are ofcourse subjectto forfeiture based onmere possession. RCW 69.50.SOS(l)(a). 9City a/Sunnyside v. Gonzalez, No. 93907-1 Br. at 14 (citing RCW 69.50.505(l)(d), (g)). Onreview to this court, bothparties appearto rely on only RCW 69.50.505(1)(g). Pet. for Review at 10-11; Answer in Opp'nto 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 ofthe following: [(1)] [a]ll moneys, negotiable instruments, securities, or other tangible or intangible property ofvalue furnished or intendedto be furnished by any personin exchange for a controlled substance in violation ofthis chapter
... , [(2)] all tangible or intangible personal property, proceeds, or assets acquired in whole orinpartwithproceeds traceable to an exchange or series ofexchanges in violation ofthis chapter
... , and [(3)] all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation ofthis chapter.[5J It is not entirely clear which ofthese clauses is at issue. The hearing examiner determinedthat the car and money were "used and/or intendedto be used for a controlled substance violation, specificallythe furtherance ofthe sale ofan illegal drug." CP at 70. This finding most closely resembles the language ofclause (3) as listed above. However, onreviewto this court and at oral argument, both Gonzalez andthe City frame the issue as whetherthere is substantial evidence that the car andthe money were "traceable" to drug transactions, apparentlyrelying on

5We have altered the formatting and added ordinal numbers in an effort to make the relevant portions ofthis long statutoryprovision easier to read. 10City of Sunnyside v. Gonzalez, No. 93907-1 clause (2) as listed above. Pet. for Review at 1, 10; Answer in Opp'nto Pet. for Review at 6. Furthermore, the briefing from bothparties appears to assume that forfeiture is allowed pursuant to RCW 69.50.505(1)(g) for personal property ifthe property is "traced as the proceeds ofillegal drug activity." Pet. for Review at 1O; see also Answer in Opp'nto 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 ofWashington's statute, which allows forfeiture ofpersonal property that was "acquired in whole or inpartwith proceeds traceable to an exchange or series ofexchanges in violation ofthis chapter," RCW 69.50.505(1)(g) (emphasis added). There is no evidence that Gonzalez acquired the car and money with theproceeds of a drug transaction; the State's theory is that Gonzalez acquired the car and money aspayment for his participation in a drug transaction. Cf Tri-City Metro Drug TaskForce v. Contreras, 129 Wn. App. 648, 119 P.3d 862 (2005) (considering whether evidence showed thatpersonal property was acquiredwith proceeds ofa drug transaction). The statutory provisionthe parties pointto simply does not line up with the facts presented in this case. We disapprove ofthis lack ofclarity, which could be very problematic in
some cases, particularly interms ofproviding propernotice to the claimant and

11City of Sunnyside v. Gonzalez, No. 93907-1 defining the issues on review. See King CountyDep 't of Pub. Safety v. 13627 OccidentalAve. S., 89 Wn. App. 554, 950 P.2d 7 (1998) (decisionbased largely on differences in language between differentprovisions ofthe forfeiture statute). However, the parties do notraise such concerns in this case, and their arguments indicate that "traceable" is likely intended as shorthand for the general ideathat personal property mustbe adequately connectedto drug activity in order to be forfeited. We therefore evaluate whether forfeiture was appropriate pursuant to any relevant part ofthe 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 ofreviewbecause Division Three in this case expressly disapproved ofa publishedDivision Two forfeiture case. We reaffirm our long-standing precedent and hold that Division Three's disapproval ofDivision Two's analysis was misplaced. Onthe merits, we hold thatthere 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 ofreview in this type ofcase is settled law, Division Three in this case disapproved ofapublishedDivision 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

12City of Sunnyside v. Gonzalez, No. 93907-1 assertions." City of Sunnyside, slip op. at 17 (discussing Valerio, 110 Wn. App. 163). We mustresolve 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 correctanalytical approach. We holdthat it did. As Division Three correctly noted, "[W]e do notreweigh evidence or redetermine credibility" on review. Id. at 19. The parties are notrequired to prove
or "disprove" any factual issues at the appellate level. Id. at 17. However, our function is notto automatically affirm the hearing examiner's decision either. Appellate courts must be satisfiedthatthe seizing law enforcement agency presented '"a sufficient quantity ofevidence to persuade a fair-minded person of the truth or correctness ofthe [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 ofshowing otherwise, RCW 34.05.570(l)(a). While Division Three may not have agreed with the result in Valerio, Valeria's analysis did not exceedthe proper scope ofappellate review. Valerio concerned the city ofLacey's attempt to obtain forfeiture of$58,300 in cash that
was found in the trunk ofMark Valerio's girlfriend's car. Valerio, 110 Wn. App. at 165. The Court ofAppeals questioned, but ultimately left intact, the lower

13City of Sunnyside v. Gonzalez, No. 93907-1 court's determination that Valerio's explanations for howhe obtainedthe money
were not credible. Id. at 179. However, the Court ofAppeals 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 "hadno actual knowledge of[Valerio's] involvement with any drug business, past, present, or future," and Valerio had no known or suspected history ofany illegal drug activity. Id. at 179. There was no evidence indicating the drug-sniffing dog could distinguish betweentrace amounts ofdrugs absorbed by direct contact with the drugs themselves or by absorption from other sources, and crime lab testing could not confirm the presence ofany 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 beliefthat the money had been used, or would be used[,] in drug-dealing."6 Id. at 182. Thus, the Valerio analysis rested onthe lack ofevidence supporting forfeiture and not on improper credibility determinations, as DivisionThree

6 Theprior version ofthe forfeiture statute at issue in Valerio required the seizing law enforcement agency to establishprobable cause to seize the property, after whichthe burden shifted to the claimant to prove by a preponderance ofthe evidence that the property was not subjectto forfeiture. Valerio, 110 Wn. App. at 176. The statlite has since been amended to place the burden ofproofonthe seizing law enforcement agency. LAws OF 2001, ch. 168, § 1 ( e). 14City 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 ofappellate 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 ofits ultimate finding that Gonzalez's property is subjectto forfeiture. However, one ofthe 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 subjectto 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 thatthe canine alerted to the cash, and the weight to be afforded to that is to be decided bythe 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 offederal courts have questioned the probative value ofa drug dog alerting to cash without proofthat the dog can distinguish between cash that has had substantial contact with drugs and cash that has only trace amounts ofdrugs on it as the result ofordinary circulation. See, e.g., UnitedStates v. $30,060.00, 39 F.3d 1039, 1043 (9th Cir. 1994); UnitedStates v. $49, 790, 763 F. Supp. 2d 1160 (N.D. Cal. 2010). 15City of Sunnyside v. Gonzalez, No. 93907-1 First, it is unreasonable to infer from the fact that the canine alertedto the money thatthe money specifically had cocaine on it. The drug dog was trained to alert for "[m]arijuana, cocaine, blacktar, her [sic], heroin[], meth, and crack." Tr. (Apr. 7, 2014) at 11. There was no evidence thatthe canine would alert differently to different kinds ofdrugs, and there is no indication the cash was ever tested for the presence ofany specific drug. This is significantbecause 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 thatthe canine alerted to the money and had notbeentrained to alert for cash, leading to an assumption that there was "some" amount ofa controlled substance onthe money. 8 Tr. (Apr. 7, 2014) at 12. While this may seem like a small distinction, the hearing examiner's choice ofthe word "'coated'" is significant whentaken in context ofthis preliminary finding as a whole. The finding is not simply thatthe 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

8We also note that while this finding refers to "[o]fficers" in the plural, only Officer Lemmonprovided any testimony regarding the canine. CP at 70. 16City of Sunnyside v. Gonzalez, No. 93907-1 hearing examiner believed thatthe amount ofcontrolled substances on Gonzalez's money was significantly greaterthan one would find on moneythathad not been used in a drug transaction. CP at 70 ("the cash was 'coated' by enough cocaine so thatthe drug dog also alerted to the cash" (emphasis added)). There was no evidence presentedto support such a finding. We therefore evaluate whetherthere was substantial evidence supporting forfeiture in light ofthe following remaining findings: 1. There were 2[ ]cellphones found underthe control ofthe claimant, Mr. Gonzalez, at the time he was stopped by officers; 2. Cocaine was found in the vehicle; 3. There was a large amount ofcash in the vehicle, to wit $5,940.00; 5. The vehicle, a 2001 BMW, was notinthe name ofthe claimant atthe time ofthe incident, however he had driven it from Californiajustpriorto being stopped; 6. The fact thatthe Claimant, Mr. Gonzalez, states hereceived money from an injury and from unemployment does not seem to explain all ofthe cashthat was present. Id. It is clearthat 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 ofdollars in cash without a substantial source ofincome, and a car with out-of-state plates that
was notregistered in his name, could support a reasonable inference that he had

17City of Sunnyside v. Gonzalez, No. 93907-1 obtained the car and the money through some unlawful means, or at least in some way thathe 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 ofthe evidence, that Gonzalez's car and money were specifically connectedto drug manufacturing, transactions, or distribution. The only preliminary finding that is supportedby 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 ofan ounce," id. at 6, of "crack cocaine," id. at 12, that was in a "cigarettepack" in the car's center console, id. at 13. There was no otherparaphernaliato indicate that Gonzalezhad separated this cocaine from a distribution-level amount. Gonzalez was clearly guilty of possession, butthere 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 aperson's property may be subjectto forfeiture ifit is connectedto possession ofeven a small amount ofa controlled substance. The statute's plain language, however, targets the profits ofdrug manufacturers and distributors, not the property ofendlevel users who are guilty ofnothing more than mere possession. Even ifthe
18City of Sunnyside v. Gonzalez, No. 93907-1 hearing examiner did notbelieve that Gonzalez obtainedhis property legally, there is no evidence that he obtained it as payment for participating in drug transactions. We therefore reverse the Court ofAppeals and vacate the forfeiture order. B. Gonzalez is entitledto attorney fees on review Bothparties requested attorney fees at the Court ofAppeals, 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 lawthat would allow itto 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 ofthe evidence, appellate review mustbe sufficiently robust to ensure that an order offorfeiture is in fact supportedby substantial evidence so as not to deprive people ofsignificantproperty rights except as authorized by law. This is particularly important inthe forfeiture context because an individual may lose valuable property even where no drug crime has actually been committed, and becausethe 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).

19City of Sunnyside v. Gonzalez, No. 93907-1 The Court ofAppeals erred in holding thatthe forfeiture order in this case
was supportedby substantial evidence. We therefore reverse the Court ofAppeals, vacate the forfeiture order, and grant Gonzalez's request for reasonable attorney fees.

20City of Sunnyside v. Gonzalez, No. 93907-1

WE CONCUR: 

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