IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON

STATE OFWASHINGTON, 

### ) No. 79661-5-I

Respondent, 

### ) DIVISION ONE v. 

### ) LAYNE ELLIOTT HUBER, 

### ) UNPUBLISHED OPINION

Appellant. 

### ) FILED: August 12, 2019
SMITH, J.

— Layne Huber appeals the trial court’s denial of his CrR 2.3(e) motion forthe return of propertyseized during a 2011 search. Although officers seized hundreds of items during the search, the only items at issue in this appeal
are items later identified as stolen by burglaryvictims who attended a property viewing conducted by law enforcement in August 2011. Because Huberfailed to prove that he was entitled to possession ofthose items, the trial court properly denied Huber’s CrR 2.3(e) motion. But because the purpose ofthe CrR 2.3(e) hearing was to determine the rightto possession solely as between Huber and the State, the trial court erred byfurther concluding thatthe items at issue could be returned to third partyvictims. Therefore, we affirm in part, reverse in part, and remand to the trial courtto vacate its conclusion that “[biased on the totality ofthe evidence, [t]he State has shown sufficient proofthatthe stolen items can be returned backto the victims.”No. 79661-5-1/2 FACTS In June 2011, officers from the Lacey Police Department (Lacey PD) and the Thurston County Sheriff’s Office (TCSO) conducted a search of Huber’s home in Olympia. Huber’s home is also the location of his company, Off-It Inc., which buys and sells used goods. The search was conducted pursuantto two warrants. The probable cause affidavitforthe firstwarrant stated that in May 2011, officers arrested a man named Kirk Morlan on suspicion of“numerous frauds and possession ofstolen property.” According to the affidavit, Morlan told officers that he “wanted to ‘come clean” and then took officers to more than 35 locations that he claimed to have burglarized. He also told officers that he would take the property he stole primarilyto two people—one ofwhom was Huber. The probable cause affidavit stated that Morlan also told officers that Huberwas his marijuana supplierand Morlan believed that Huberwas growing marijuana in a “big shop” on his property. Officers seized hundreds of items during the search, and on June 29, 2011, Huberwas charged with unlawful manufacture and possession of marijuana. In August 2011, Lacey PD and TCSO held a propertyviewing where items seized during the June 2011 search were displayed for identification purposes. Tim Arnold, a TCSO detective who was involved in the viewing, later described the setup forthe viewing as follows: The items were laid out in an area secured byfencing, cameras and a separate alarm system. This area was established in a TCSO facilitythat also was alarmed separately. The propertywas photographed and categorized priorto the viewing dates. Smaller
2No. 79661-5-1/3 items such asjewelrywere grouped into photographs. Computers were then set up outside the innersecure perimeter, so that individuals could viewthe photographs in an effortto identify any of theirstolen items. In orderforaccess to be granted to the viewing area, citizens needed to provide picture identification, a case numberfortheir original theft event, as well as a list ofthe items theywere attempting to identify and recover. The viewing was held overfourdays, with the firsttwo days reserved for victims of burglaries committed by Morlan. Emily Liening, a Lacey PD evidence custodian who was familiarwith the types of propertyseized from Huber, was at the viewing and screened all potential victims. She latertestified that [p]otential victims were told to provide a case or incident number and were asked questions about the type(s) of propertytheywere missing. Ifan individual was unable to provide a case number, or theirdate of loss was afterthe search warrant had been executed, orthe propertythey described did not match anything in the viewing theywere not permitted to enterthe facility orview any property. Liening also “testified that only individuals who provided a police report/police agency case number, proper identification, and items thatwere ofsimilar characterto items seized from Mr. Huberduring the search warrantwere allowed to actually viewthe property.” Arnold estimated that 250 people who came to the viewing were granted
some kind ofaccess. Those who identified items as belonging to them signed paperworkto documentthe specific items they identified. In September2012, Huber moved to suppress “all evidence” in his case. He argued thatthe warrants executed in June 2011 were not supported by probable cause, the information thatthe officers received from Morlan was not sufficiently contemporaneous orfact-specific, and the officers executing the June 2011 search failed to serve Huberwith anywarrant. It does not appearfrom the 3No. 79661-5-1/4

record thatthe trial court ever ruled on Huber’s motion. On December 10, 2013, the court, on the State’s motion, dismissed all charges against Huberwith prejudice because the lead detective on Huber’s
case had passed away. In July 2014, Huber moved pro se under CrR 2.3(e) forthe return of property seized from his home during the June 2011 search. The State responded to Huber’s motion in March of2017.1 In support of its response, the State submitted declarations from Arnold and Liening in which they described the August 2011 propertyviewing. In May 2017, after additional briefing from the State and from Huber, who had retained counsel, the trial court held an evidentiary hearing on Huber’s CrR 2.3(e) motion. Both Liening and Arnold testified atthe hearing and described the August 2011 propertyviewing. Additionally, the court admitted into evidence the “Property Identification” forms thatwere completed for individuals who identified items atthe propertyviewing and a master list, later compiled by law enforcement, ofthe 28 victims who identified items atthe viewing, along with descriptions of items identified. Afterthe hearing, the court denied Huber’s motion and entered findings of fact and conclusions of law. The court concluded that “[biased on the totality of the evidence, [t]he State has shown sufficient proofthatthe stolen items can be returned backto the victims” and that “[t]he documents that Mr. Huber have [sic]

1 The reason forthe State’s delay in responding to Huber’s motion is not clearfrom the record. 4No. 79661-5-1/5

provided to this Court are not sufficient proofthat he has the rightto possession ofthe items thatwere stolen from the 28 victims” who identified stolen property at the propertyviewing. Huber moved for reconsideration, arguing thatthe court’s denial of his motion amounted to an unconstitutional taking of propertywithout due process, and thatthe Statewas required to followthe statutoryforfeiture process. The trial court denied Huber’s motion for reconsideration. Huber appeals. ANALYSIS Denial of Motion for Return of Property Huber argues thatthe trial court erred by denying his CrR 2.3(e) motion. Because the trial court’s unchallenged findings support its conclusion that Huber
was not entitled to possession ofthe items identified as stolen atthe August 2011 propertyviewing, the trial court did not err by denying Huber’s motion. That said, because a CrR 2.3(e) hearing adjudicates the rightto possession solely as between the defendant and the State, the trial court did err by concluding that “[tjhe State has shown sufficient proofthatthe stolen items can be returned back to the victims.” “Where the trial court has weighed the evidence, appellate review is ordinarily limited to determining whetherthe trial court’s findings are supported by substantial evidence and, ifso, whetherthe findings in turn supportthe conclusions of law.” City ofWalla Walla v. $401333.44, 164 Wn. App. 236, 255- 56, 258-59, 262 P.3d 1239 (2011) (applying substantial evidence reviewto trial court’s denial of CrR 2.3(e) motion). Here, although Huber assigns errorto the

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trial court’s denial of his motion, he does not assign errorto any ofthe trial court’s findings offact. ~ State v. Roggenkamp, 115 Wn. App. 927, 943, 64 P.3d 92 (2003) (general assignment oferror insufficient to complywith RAP 10.3(g), which requires a separate assignment oferrorforeach finding that a party contends was improperly made), affd, 153 Wn.2d 614, 106 P.3d 196 (2005). Therefore, the trial court’s findings ‘become the established facts ofthe case” and “[t]he appellate court’s function is

. . . limited to determining whetherthe findings offact supportthe court’s conclusions of law.” Roqcienkamp, 115 Wn. App. at 943-44. We review de nova whetherthe trial court’s findings support its conclusions of law. State v. Rooney, 190 Wn. App. 653, 658, 360 P.3d 913 (2015).CrR 2.3(e) provides, “A person aggrieved by an unlawful search and seizure may move the courtforthe return ofthe property on the ground thatthe propertywas illegallyseized and thatthe person is lawfully entitled to possession thereof.” Although the rule expressly refers onlyto unlawful searches and seizures, Washington courts also applythe rule to motions for return of property thatwas lawfullyseized but no longer needed forevidence. State v. Alaway, 64 Wn. App. 796, 798, 828 P.2d 591 (1992). In State v. Marks, our Supreme Court setforth the following four “guidelines” forconsideration ofa CrR 2.3(e) motion:

1. An evidentiary hearing is required under CrR 2.3(e) where the State and the defendant can offer evidence oftheir claimed rightto possession; 2. The purpose ofthis hearing is to determine the right to possession as between the State and the defendant; 3. The State has the initial burden of proofto show rightto 6No. 79661-5-1/7 possession; 4. Thereafter, the defendant must come forward with sufficientfacts to convince the court of his right to possession. If such a showing is not made, it is the court’s dutyto denythe motion. 114 Wn.2d 724, 734-35, 790 P.2d 138 (1990). The State bears the initial burden of proof because “[t]he seizure of propertyfrom someone is prima fade evidence ofthat person’s entitlement.” Marks, 114 Wn.2d at 734 (quoting United States v. Wright, 610 F.2d 930, 939 (D.C. Cir. 1979)). Although CrR 2.3(e) does not provide any criteria fordetermining whether the State has a superior rightto possession, Washington courts have held that the State can meet its initial burden of proving its rightto possession by showing that “(1) the defendant is notthe rightful owner; (2) the property is contraband; or (3) the property is subjectto forfeiture pursuantto statute.” Alaway, 64 Wn. App. at 798. The State can also meet its burden by proving by a preponderance ofthe evidence thatthe property is stolen property. State v. Card, 48 Wn. App. 781, 790, 741 P.2d 65(1987). Here, the trial court properly concluded thatthe State met its initial burden. Specifically, the trial courtfound that since the initial June 2011 seizure, “numerous items have already been returned to Mr. Huber” and thatthe items remaining (otherthan the marijuana) are the ones identified as stolen in August 2011 atthe propertyviewing. The trial courtfound thatthe propertyviewing was open to the public, but also found that Liening testified that individuals were only permitted to view items ifthey (1) provided proper identification, (2) provided either a police report documenting thattheywere a victim ofa burglary or a

7No. 79661-5-1/8

police agency case number, and (3) indicated thatthey had items stolen from them thatwere similar in characterto the items seized from Huber.2 Additionally, the trial courtfound that individuals who identified items as being stolen from them were required to sign paperwork documenting the specific item or items identified. These unchallenged findings support the trial court’s conclusion that the State satisfied its initial burden to prove its rightto possession ofthe items identified as stolen atthe August 2011 propertyviewing. ~ Card, 48 Wn. App. at 790 (State can satisfy initial burden by proving by a preponderance ofthe evidence thatthe property at issue is stolen). Once the State satisfied its initial burden, Huberwas obligated to “come forward with sufficientfacts to convince the court of his rightto possession.” Marks, 114 Wn.2d at 735. To that end, the trial courtfound that “Huber provided
an affidavit in which he claims that he operates a business that entails him buying items from other individuals and selling the items to others.” The trial court also found that Huber provided documentation ofthe nature of his business. But most ofthe documentation was dated 2013, i.e., afterthe June

2 Finding offact 7 begins with “Emily Liening testified that” and then summarizes Liening’s testimony. As we recently explained, findings offactthat merely summarize a witness’s testimony can be problematic: Afinding that a particularwitness testified, “The stoplightwas red” is not the same as a finding offactthatthe stoplightwas red. A finding offact should be a determination ratherthan a mere recitation.

. . . Ifthe trial court chooses to summarize the testimony ofa witness, the best practice is to clearly articulate whetherthe courtfound thattestimony credible. State v. Coleman, 6 Wn. App. 2d 507, 516-17 n.40, 431 P.3d 514 (2018) (citations omitted), review denied, 193 Wn.2d 1005 (2019). Nevertheless, because there was no contradictorytestimony regarding the screening process, we inferthatthe trial courtfound Liening’s testimony credible. 8No. 79661-5-119

2011 seizure, and “[n]either set of records attached to Mr. Huber’s declarations connect specific property seized to his records.” Based on these findings, which demonstrate at mostthat Huberwas in the business of buying and selling used goods, the trial court did not err by concluding that Huberfailed to show his right to possession ofany specific items identified as stolen atthe August 2011 propertyviewing. And because Huberfailed to establish his right to possession, the trial court did not err by denying his CrR 2.3(e) motion as to the items identified as stolen atthe August2011 propertyviewing. The trial court did err, however, by not only denying Huber’s motion, but by going a step furtherand concluding that “[biased on the totality ofthe evidence, [tjhe State has shown sufficient proofthatthe stolen items can be returned backto the victims.” This is because the purpose ofa CrR 2.3(e) hearing is “to determine the rightto possession as between the State and the defendant.” Marks, 114 Wn.2d at 735 (emphasis added). The hearing “is nota proceeding in which the courttries or adjudicates title.” State ex. rel. Schillberci

v. Everett Dist. Justice Court, 90 Wn.2d 794, 798, 585 P.2d 1177 (1978) (emphasis added).3 Forthese reasons, although we affirm the trial court’s denial of Huber’s CrR 2.3(e) motion, we reverse the trial court’s conclusion that “[t]he State has shown sufficient proofthatthe stolen items can be returned backto the victims.” Huber offers several reasons whythe trial court erred by denying his

~ Schillberci was decided underformerJCrR 2.10(e), but because that rule had substantiallythe samewording as CrR 2.3(e), Schillberq has been relied on since in cases decided under CrR 2.3(e). See Marks, 114 Wn.2d at 733. 9No. 79661-5-1/10

CrR 2.3(e) motion. First, he argues thatthe trial court erred byfinding thatthe State carried its initial burden under CrR 2.3(e). He points outthat “there was no testimony, affidavit or declaration from thejailhouse informant (Kirk Morlan) or any alleged victim otherthan Layne Huber” and that “none ofthe seized property
was brought before the court.” But Huber’s argument is not persuasive, and Schillberci is instructive on this point. In Schillberq, David Allen moved for return of propertythat had been seized from his car. Schillberq, 90 Wn.2d at 795. In support of his motion, Allen submitted an affidavitfrom his attorney “stating that his client had advised him thatthe items taken were legitimately in his possession, that he legitimately paid forsuch items and that he demanded their return.” Schillberq, 90 Wn.2d at 795- 96. In response, the State submitted an affidavit from an officerstating “that a man who had been observed taking merchandise from [a] store without paying for itwas seen to entera vehicle bearing the description and license number of Allen’s car.” Schillberci, 90 Wn.2d at 796. The officer also testified that “[t]he vehicle was seen laterthat day in a parking lot in Lynnwood” and that “[b]oxes stacked in the back seat bore tags ofthe store from which merchandise had been taken.” Schillberq, 90 Wn.2d at 796. Based on this testimony, our Supreme Court concluded that “[t]here was good reason to believe the property may have been stolen, and the doubts on this matterwere not resolved bythe affidavit of [Allen’s] attorney.” Schillberq, 90 Wn.2d at 801. Accordingly, the court upheld the denial ofAllen’s motion for return ofthe seized property—even without any directtestimonyfrom victims or any indication thatthe allegedly

10No. 79661-5-I/Il

stolen goods were brought before the court. Schillberg, 90 Wn.2d at 801. Here, as in Schillberci, there is good reason to believe—even though there
was no testimonyfrom individual victims and the seized items were not brought before the court—that the property at issue may have been stolen. Specifically,
as discussed, the trial courtfound that individuals who had been prescreened as victims of burglaries involving items similarto those seized from Huberthen identified specific items as belonging to them. The trial court did, as Huber points out, observe thatthe State could have provided more convincing evidence in the form ofvictim affidavits. And we agree. Indeed, perhaps this appeal could even have been avoided had the State obtained victim affidavits, or had law enforcement simply included a sworn statement on its property identification forms. Nevertheless, there was sufficient reason, even withoutvictim affidavits, to conclude thatthe property identified by individual victims may have been stolen based on the evidence that was presented and the court’s unchallenged findings based thereon. Therefore, Huber’s argumentfails. Huber next contendsthatTCSO’s continued retention ofthe seized property constitutes a de facto—and unconstitutional—forfeiture. Specifically, he argues that CrR 2.3(e) does not provide any statutory authorityforforfeiture and thatthe State was required to provide notice and an opportunityto be heard under RCW 10.105.010 and RCW 69.50.505, which are forfeiture statutes. Huber’s argumentfails forthree reasons. First, although Huber is correctthat CrR 2.3(e) provides no statutory authorityforforfeiture, Statev. Roberts, 185Wn. App. 94, 339 P.3d 995 (2014),

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the case on which he relies forthat proposition, involved a trial court’s order of forfeiture in connection with a criminal conviction. Specifically, in Roberts, the trial court handwrote “‘[f]orfeit any items seized by law enforcement” on the defendant’sjudgment and sentence. Roberts, 185 Wn. App. at 96. The appellate court addressed CrR 2.3(e) merely to rejectthe State’s argumentthat the trial court’s forfeiture ordershould be upheld because CrR 2.3(e) provided the defendant a vehicle to request return of his property. Roberts, 185 Wn. App. at 96. Here, unlike in Roberts, the court did not orderforfeiture. Therefore, Roberts is inapposite. Second, the two out-of-state cases on which Huber relies are unpersuasive. In Awaya v. State, a Hawaii case, the relevant question before the courtwas whether, in the absence ofanyproofthat currencyseizedfrom the defendantwas contraband, the State of Hawaii could continue to retain the currencywhile it decided whetherto file an action. 5 Haw. 547, 705 P.2d 54, 61 (1985). And in State v. Davis, a Utah case, the court observed thatthe problematic statute underwhich the State of Utah had retained the defendant’s property gave “no provision for a hearing, and the prosecutor, ratherthan a judicial officer, is the sole arbiter ofthe ownership of property.” 769 P.2d 840, 844 (Utah Ct. App. 1989). Here, unlike in Awaya, the State has presented evidence thatthe items Huberseeks were stolen. And unlike the statute at issue in Davis, CrR 2.3(e) requires an evidentiary hearing to determinethe right to possession. Marks, 114 Wn.2d at 735. Therefore, Awaya and Davis do not aid Huber.

12No. 79661-5-1/13 Third, and as previouslydiscussed, a CrR 2.3(e) hearing is limited to determining “the right to possession as between the State andthe defendant.” Marks, 114 Wn.2d at 735. Also as discussed, it is not a hearing to adjudicate title. Schillberci, 90 Wn.2d at 798. Therefore, “[d]ue process is not violated, since property is not taken.” Schillberq, 90 Wn.2d at 798. To this end, because
we reverse the portion ofthe trial court’s order in which it deemed the State’s evidence sufficientto prove thatthe propertyat issue can be returned to the individual victims, we do notfurther consider Huber’s constitutional argument, i.e., thatthe trial court’s order deprived him of propertywithout due process. See State v. Bassett, 198 Wn. App. 714, 722 n.8, 394 P.3d 430 (2017) (“Where we can fairly resolve a case on nonconstitutional grounds, we will avoid deciding constitutional questions.”), affd, 192 Wn.2d 67, 428 P.3d 343 (2018). Huber next contends thatthe trial court erred by denying his CrR 2.3(e) motion without considering the legality ofthe underlying seizure. He relies on CrR 2.3(e) to support his argument, pointing out thatthe rule expressly applies onlyto an “unlawful search and seizure.” (Emphasis added.) But as discussed, Washington courts have applied CrR 2.3(e) both to unlawfully andto lawfully seized property. Alaway, 64 Wn. App. at 798 (“In Washington, CrR 2.3(e) governs motions forthe return of illegally seized property and also motions for the return of lawfully seized property no longer needed forevidence.” (footnote omitted)). And under CrR 2.3(e), a defendantwho is not entitled to lawful possession of property is not entitled to its return—even ifthe underlying seizure
was unlawful. CrR 2.3(e) (“A person aggrieved by an unlawful search and

13No. 79661-5-1/14

seizure may move the courtforthe return ofthe property on the ground thatthe propertywas illegallyseized and thatthe person is lawfully entitled to possession thereof.” (emphasis added)). In otherwords, once the trial court determined that Huberwas not entitled to possession ofthe propertythat had been identified as stolen, itwas not necessaryto decide whetherthe underlying seizure was lawful. Huber’s reliance on CrR 2.3(e)’s reference to “unlawful search and seizure” is misplaced, and the trial court did not err by declining to considerthe legality of the underlying search. Huber next argues that his challenge to the legality ofthe underlying search is properly before this court—even ifthe trial court did not rule on it— because (1) it can be raised forthe firsttime on appeal under RAP 2.5(a)(3), (2) constitutional questions are questions of lawthatwe review de novo, and (3) he properly preserved the issue for appeal by repeatedly raising it before the trial court. But Huber’s arguments ignore the principle ofjudicial restraint, which dictates thatwhen resolution ofan issue effectively disposes ofa case, we should not reach any other issues, particularconstitutional ones. Wash. State Farm Bureau Fed’n v. Greqoire, 162 Wn.2d 284, 307, 174 P.3d 1142 (2007); see also Gersema v. Allstate Ins. Co., 127Wn. App. 687, 697, 112 P.3d 552 (2005) (“A reviewing court should not decide a constitutional issue unless it is absolutely necessaryto the determination ofthe case.”). Here, we resolve Huber’s appeal by (1) concluding that Huber’s CrR 2.3(e) motion was properly denied based on his failure to prove his rightto possession ofthe property as against the State and (2) reversing the trial court’s conclusion thatthe property at issue could be

14No. 79661-5-1/15

returned to victims. Therefore, we need not decide whetherthe underlying search was lawful. Huber next asserts that “where there is a right, there is a remedy” and that ifwe decline to considerthe legality ofthe underlying search, law enforcementwould have a “free pass” to violate fundamental constitutional rights. But if Huberseeks a remedyforwhat he alleges was an illegal search and seizure, a civil action—not a CrR 2.3(e) motion—is the propervehicle forseeking that remedy. Therefore, Huber’s argument is unpersuasive. As a final matter, Huber makes a passing reference in his opening briefto the factthat marijuana plants seized during the June 2011 search have not been returned to him. To the extentthatthis passing reference was intended as argument, it does not merit consideration. See Holland v. City ofTacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998) (“Passing treatment ofan issue or lack of reasoned argument is insufficientto meritjudicial consideration.”). Motion for Reconsideration Huber argues thatthe trial court erred by denying his motion for reconsideration. “Motions for reconsideration are addressed to the sound discretion ofthe trial court and a reviewing courtwill not reverse a trial court’s ruling absent a showing of manifest abuse ofdiscretion.” Wilcoxv. Lexington Eye Inst., 130 Wn. App. 234, 241, 122 P.3d 729 (2005). Here, for reasons already discussed, the trial court did not abuse its discretion by declining to reconsider its denial of Huber’s CrR 2.3(e) motion. And because we reverse the portion ofthe trial court’s order concluding thatthe allegedly stolen items can be

15No. 79661-5-1/16

returned to individual victims, we need not considerwhetherthe trial court erred by not reconsidering that conclusion. ~~Wash. State Farm Bureau Fedn, 162 Wn.2d at 307 (declining to address additional issues on appeal when resolution ofone issue effectively disposed ofcase.) Attorney Fees Huber argues that he is entitled to an award ofattorneyfees under RAP 18.1. We disagree. A party requesting fees under RAP 18.1 is required to provide argument and citation to authority “to advise the court ofthe appropriate grounds foran award ofattorneyfees as costs.” Stiles v. Kearney, 168 Wn. App. 250, 267, 277 P.3d 9 (2012). Here, Huberfirst argues that he is entitled to attorney fees under RCW69.50.505(6). Butthat statute authorizes an award offees to a claimant that substantially prevails in a forfeiture proceeding. For reasons already discussed, this is not a forfeiture (or de facto forfeiture) proceeding. Therefore, Huber is not entitled to fees under RCW 69.50.505(6). Huber next argues that he is entitled to fees under42 U.S.C. 

### §~ 1 983 and 1988. Those statutes provide that courts have discretion to award prevailing partyfees in a civil action under42 U.S.C. 

### § 1983 forthe deprivation ofcertain rights occurring undercolor of law. CI~ Maytown Sand & Gravel, LLC v. Thurston County, 198 Wn. App. 560, 566, 592-93, 395 P.3d 149 (2017) (awarding attorney fees under42 U.S.C. 

### §~ 1983 and 1988 in civil action that involved section 1983 claims forviolation ofsubstantive due process), reversed h~ on other

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grounds, 191 Wn.2d 392, 423 P.3d 223 (2018). Butthis is nota civil action under42 U.S.C. 

### § 1983, so Huber is not entitled to fees under42 U.S.C. 

### §~ 1983 and 1988 here. We affirm in part, reverse in part, and remand to the trial courtto vacate its conclusion that “[biased on the totality ofthe evidence, [t]he State has shown sufficient proofthatthe stolen items can be returned backto the victims.”



# Q3ii4&~@/. WE CONCUR: