IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )

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LAYNE ELLIOTT HUBER, ) UNPUBLISHED OPINION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 for the return of property seized 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 burglary victims who attended a property

viewing conducted by law enforcement in August 2011. Because Huber failed to

prove that he was entitled to possession of those items, the trial court properly

denied Huber’s CrR 2.3(e) motion. But because the purpose of the CrR 2.3(e)

hearing was to determine the right to possession solely as between Huber and

the State, the trial court erred by further concluding that the items at issue could

be returned to third party victims. Therefore, we affirm in part, reverse in part,

and remand to the trial court to vacate its conclusion that “[biased on the totality

of the evidence, [t]he State has shown sufficient proof that the stolen items can

be returned back to 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 pursuant to two

warrants. The probable cause affidavit for the first warrant stated that in May

2011, officers arrested a man named Kirk Morlan on suspicion of “numerous

frauds and possession of stolen 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 primarily to two people—one of whom was Huber. The

probable cause affidavit stated that Morlan also told officers that Huber was his

marijuana supplier and Morlan believed that Huber was growing marijuana in a

“big shop” on his property.

Officers seized hundreds of items during the search, and on June 29,

2011, Huber was charged with unlawful manufacture and possession of

marijuana.

In August 2011, Lacey PD and TCSO held a property viewing 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 for the viewing as follows:

The items were laid out in an area secured by fencing, cameras

and a separate alarm system. This area was established in a

TCSO facility that also was alarmed separately. The property was

photographed and categorized prior to the viewing dates. Smaller

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No. 79661-5-1/3

items such as jewelry were grouped into photographs. Computers

were then set up outside the inner secure perimeter, so that

individuals could view the photographs in an effort to identify any of

their stolen items. In order for access to be granted to the viewing

area, citizens needed to provide picture identification, a case

number for their original theft event, as well as a list of the items

they were attempting to identify and recover.

The viewing was held over four days, with the first two days reserved for

victims of burglaries committed by Morlan. Emily Liening, a Lacey PD evidence

custodian who was familiar with the types of property seized from Huber, was at

the viewing and screened all potential victims. She later testified that

[p]otential victims were told to provide a case or incident number

and were asked questions about the type(s) of property they were

missing. If an individual was unable to provide a case number, or

their date of loss was after the search warrant had been executed,

or the property they described did not match anything in the viewing

they were not permitted to enter the facility or view any property.

Liening also “testified that only individuals who provided a police report/police

agency case number, proper identification, and items that were of similar

character to items seized from Mr. Huber during the search warrant were allowed

to actually view the property.”

Arnold estimated that 250 people who came to the viewing were granted

some kind of access. Those who identified items as belonging to them signed

paperwork to document the specific items they identified.

In September 2012, Huber moved to suppress “all evidence” in his case.

He argued that the warrants executed in June 2011 were not supported by

probable cause, the information that the officers received from Morlan was not

sufficiently contemporaneous or fact-specific, and the officers executing the June

2011 search failed to serve Huber with any warrant. It does not appear from the

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record that the trial court ever ruled on Huber’s motion.

On December 10, 2013, the court, on the State’s motion, dismissed all

charges against Huber with prejudice because the lead detective on Huber’s

case had passed away.

In July 2014, Huber moved pro se under CrR 2.3(e) for the return of

property seized from his home during the June 2011 search. The State

responded to Huber’s motion in March of 2017.1 In support of its response, the

State submitted declarations from Arnold and Liening in which they described the

August 2011 property viewing.

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 at the hearing and

described the August 2011 property viewing. Additionally, the court admitted into

evidence the “Property Identification” forms that were completed for individuals

who identified items at the property viewing and a master list, later compiled by

law enforcement, of the 28 victims who identified items at the viewing, along with

descriptions of items identified.

After the 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 proof that the stolen items can be

returned back to the victims” and that “[t]he documents that Mr. Huber have [sic]

1 The reason for the State’s delay in responding to Huber’s motion is not

clear from the record.

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No. 7966 1-5-1/5

provided to this Court are not sufficient proof that he has the right to possession

of the items that were stolen from the 28 victims” who identified stolen property at

the property viewing.

Huber moved for reconsideration, arguing that the court’s denial of his

motion amounted to an unconstitutional taking of property without due process,

and that the State was required to follow the statutory forfeiture process. The

trial court denied Huber’s motion for reconsideration. Huber appeals.

ANALYSIS

Denial of Motion for Return of Property

Huber argues that the 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 of the items identified as stolen at the August

2011 property viewing, the trial court did not err by denying Huber’s motion. That

said, because a CrR 2.3(e) hearing adjudicates the right to possession solely as

between the defendant and the State, the trial court did err by concluding that

“[tjhe State has shown sufficient proof that the stolen items can be returned back

to the victims.”

“Where the trial court has weighed the evidence, appellate review is

ordinarily limited to determining whether the trial court’s findings are supported by

substantial evidence and, if so, whether the findings in turn support the

conclusions of law.” City of Walla Walla v. $401333.44, 164 Wn. App. 236, 255-

56, 258-59, 262 P.3d 1239 (2011) (applying substantial evidence review to trial

court’s denial of CrR 2.3(e) motion). Here, although Huber assigns error to the

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No. 79661-5-1/6

trial court’s denial of his motion, he does not assign error to any of the trial court’s

findings of fact. ~ State v. Roggenkamp, 115 Wn. App. 927, 943, 64 P.3d 92

(2003) (general assignment of error insufficient to comply with RAP 10.3(g),

which requires a separate assignment of error for each 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 of the case”

and “[t]he appellate court’s function is . . . limited to determining whether the

findings of fact support the court’s conclusions of law.” Roqcienkamp, 115 Wn.

App. at 943-44. We review de nova whether the 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 court for the return of the property on the ground that the

property was illegally seized and that the person is lawfully entitled to possession

thereof.” Although the rule expressly refers only to unlawful searches and

seizures, Washington courts also apply the rule to motions for return of property

that was lawfully seized but no longer needed for evidence. State v. Alaway, 64

Wn. App. 796, 798, 828 P.2d 591 (1992).

In State v. Marks, our Supreme Court set forth the following four

“guidelines” for consideration of a 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 of their claimed

right to possession;

2. The purpose of this hearing is to determine the right to

possession as between the State and the defendant;

3. The State has the initial burden of proof to show right to

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No. 79661-5-1/7

possession;

4. Thereafter, the defendant must come forward with

sufficient facts to convince the court of his right to possession. If

such a showing is not made, it is the court’s duty to deny the

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 property from someone is prima

fade evidence of that 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 for determining whether

the State has a superior right to possession, Washington courts have held that

the State can meet its initial burden of proving its right to possession by showing

that “(1) the defendant is not the rightful owner; (2) the property is contraband; or

(3) the property is subject to forfeiture pursuant to statute.” Alaway, 64 Wn. App.

at 798. The State can also meet its burden by proving by a preponderance of the

evidence that the property is stolen property. State v. Card, 48 Wn. App. 781,

790, 741 P.2d 65(1987).

Here, the trial court properly concluded that the State met its initial burden.

Specifically, the trial court found that since the initial June 2011 seizure,

“numerous items have already been returned to Mr. Huber” and that the items

remaining (other than the marijuana) are the ones identified as stolen in August

2011 at the property viewing. The trial court found that the property viewing was

open to the public, but also found that Liening testified that individuals were only

permitted to view items if they (1) provided proper identification, (2) provided

either a police report documenting that they were a victim of a burglary or a

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No. 79661-5-1/8

police agency case number, and (3) indicated that they had items stolen from

them that were similar in character to the items seized from Huber.2 Additionally,

the trial court found 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 right to possession of the items

identified as stolen at the August 2011 property viewing. ~ Card, 48 Wn. App.

at 790 (State can satisfy initial burden by proving by a preponderance of the

evidence that the property at issue is stolen).

Once the State satisfied its initial burden, Huber was obligated to “come

forward with sufficient facts to convince the court of his right to possession.”

Marks, 114 Wn.2d at 735. To that end, the trial court found 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 of the nature of his

business. But most of the documentation was dated 2013, i.e., after the June

2 Finding of fact 7 begins with “Emily Liening testified that” and then

summarizes Lien ing’s testimony. As we recently explained, findings of fact that

merely summarize a witness’s testimony can be problematic:

A finding that a particular witness testified, “The stoplight was red”

is not the same as a finding of fact that the stoplight was red. A

finding of fact should be a determination rather than a mere

recitation. . . . If the trial court chooses to summarize the testimony

of a witness, the best practice is to clearly articulate whether the

court found that testimony 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 contradictory testimony regarding the screening process,

we infer that the trial court found Liening’s testimony credible.

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No. 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 most that Huber was in the business of buying and selling used

goods, the trial court did not err by concluding that Huber failed to show his right

to possession of any specific items identified as stolen at the August 2011

property viewing. And because Huber failed 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 at the August 2011 property viewing.

The trial court did err, however, by not only denying Huber’s motion, but

by going a step further and concluding that “[biased on the totality of the

evidence, [tjhe State has shown sufficient proof that the stolen items can be

returned back to the victims.” This is because the purpose of a CrR 2.3(e)

hearing is “to determine the right to possession as between the State and the

defendant.” Marks, 114 Wn.2d at 735 (emphasis added). The hearing “is not a

proceeding in which the court tries 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 For these 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 proof that the stolen items can be returned back to the

victims.”

Huber offers several reasons why the trial court erred by denying his

~ Schillberci was decided under former JCrR 2.10(e), but because that rule

had substantially the same wording 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.

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No. 79661-5-1/10

CrR 2.3(e) motion. First, he argues that the trial court erred by finding that the

State carried its initial burden under CrR 2.3(e). He points out that “there was no

testimony, affidavit or declaration from the jailhouse informant (Kirk Morlan) or

any alleged victim other than Layne Huber” and that “none of the 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 property that had been

seized from his car. Schillberq, 90 Wn.2d at 795. In support of his motion, Allen

submitted an affidavit from his attorney “stating that his client had advised him

that the items taken were legitimately in his possession, that he legitimately paid

for such items and that he demanded their return.” Schillberq, 90 Wn.2d at 795-

96. In response, the State submitted an affidavit from an officer stating “that a

man who had been observed taking merchandise from [a] store without paying

for it was seen to enter a 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 later that day in a parking lot in Lynnwood” and that “[b]oxes

stacked in the back seat bore tags of the 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 matter were not resolved by the

affidavit of [Allen’s] attorney.” Schillberq, 90 Wn.2d at 801. Accordingly, the

court upheld the denial of Allen’s motion for return of the seized property—even

without any direct testimony from victims or any indication that the allegedly

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No. 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 testimony from 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 court found that individuals who had been prescreened as

victims of burglaries involving items similar to those seized from Huber then

identified specific items as belonging to them. The trial court did, as Huber points

out, observe that the State could have provided more convincing evidence in the

form of victim 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 without victim affidavits,

to conclude that the 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 argument fails.

Huber next contends that TCSO’s continued retention of the seized

property constitutes a de facto—and unconstitutional—forfeiture. Specifically, he

argues that CrR 2.3(e) does not provide any statutory authority for forfeiture and

that the State was required to provide notice and an opportunity to be heard

under RCW 10.105.010 and RCW 69.50.505, which are forfeiture statutes.

Huber’s argument fails for three reasons.

First, although Huber is correct that CrR 2.3(e) provides no statutory

authority forforfeiture, Statev. Roberts, 185Wn. App. 94, 339 P.3d 995 (2014),

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No. 79661-5-1/12

the case on which he relies for that 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’s judgment and sentence. Roberts, 185 Wn. App. at 96. The

appellate court addressed CrR 2.3(e) merely to reject the State’s argument that

the trial court’s forfeiture order should 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 order forfeiture. 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

court was whether, in the absence of any proof that currency seized from the

defendant was contraband, the State of Hawaii could continue to retain the

currency while it decided whether to file an action. 5 Haw. 547, 705 P.2d 54, 61

(1985). And in State v. Davis, a Utah case, the court observed that the

problematic statute under which the State of Utah had retained the defendant’s

property gave “no provision for a hearing, and the prosecutor, rather than a

judicial officer, is the sole arbiter of the ownership of property.” 769 P.2d 840,

844 (Utah Ct. App. 1989). Here, unlike in Awaya, the State has presented

evidence that the items Huber seeks were stolen. And unlike the statute at issue

in Davis, CrR 2.3(e) requires an evidentiary hearing to determine the right to

possession. Marks, 114 Wn.2d at 735. Therefore, Awaya and Davis do not aid

Huber.

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No. 79661-5-1/13

Third, and as previously discussed, a CrR 2.3(e) hearing is limited to

determining “the right to possession as between the State and the 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 of the trial court’s order in which it deemed the State’s

evidence sufficient to prove that the property at issue can be returned to the

individual victims, we do not further consider Huber’s constitutional argument,

i.e., that the trial court’s order deprived him of property without 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 that the trial court erred by denying his CrR 2.3(e)

motion without considering the legality of the underlying seizure. He relies on

CrR 2.3(e) to support his argument, pointing out that the rule expressly applies

only to an “unlawful search and seizure.” (Emphasis added.) But as discussed,

Washington courts have applied CrR 2.3(e) both to unlawfully and to lawfully

seized property. Alaway, 64 Wn. App. at 798 (“In Washington, CrR 2.3(e)

governs motions for the return of illegally seized property and also motions for

the return of lawfully seized property no longer needed for evidence.” (footnote

omitted)). And under CrR 2.3(e), a defendant who is not entitled to lawful

possession of property is not entitled to its return—even if the underlying seizure

was unlawful. CrR 2.3(e) (“A person aggrieved by an unlawful search and

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No. 79661-5-1/14

seizure may move the court for the return of the property on the ground that the

property was illegally seized and that the person is lawfully entitled to possession

thereof.” (emphasis added)). In other words, once the trial court determined that

Huber was not entitled to possession of the property that had been identified as

stolen, it was not necessary to decide whether the 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 consider the legality of

the underlying search.

Huber next argues that his challenge to the legality of the underlying

search is properly before this court—even if the trial court did not rule on it—

because (1) it can be raised for the first time on appeal under RAP 2.5(a)(3),

(2) constitutional questions are questions of law that we 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 of judicial restraint, which

dictates that when resolution of an issue effectively disposes of a case, we

should not reach any other issues, particular constitutional 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., 127 Wn. App. 687, 697, 112 P.3d 552 (2005)

(“A reviewing court should not decide a constitutional issue unless it is absolutely

necessary to the determination of the 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 right to possession of the property as against the State

and (2) reversing the trial court’s conclusion that the property at issue could be

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No. 79661-5-1/15

returned to victims. Therefore, we need not decide whether the underlying

search was lawful.

Huber next asserts that “where there is a right, there is a remedy” and

that if we decline to consider the legality of the underlying search, law

enforcement would have a “free pass” to violate fundamental constitutional rights.

But if Huber seeks a remedy for what he alleges was an illegal search and

seizure, a civil action—not a CrR 2.3(e) motion—is the proper vehicle for seeking

that remedy. Therefore, Huber’s argument is unpersuasive.

As a final matter, Huber makes a passing reference in his opening brief to

the fact that marijuana plants seized during the June 2011 search have not been

returned to him. To the extent that this passing reference was intended as

argument, it does not merit consideration. See Holland v. City of Tacoma, 90

Wn. App. 533, 538, 954 P.2d 290 (1998) (“Passing treatment of an issue or lack

of reasoned argument is insufficient to merit judicial consideration.”).

Motion for Reconsideration

Huber argues that the trial court erred by denying his motion for

reconsideration. “Motions for reconsideration are addressed to the sound

discretion of the trial court and a reviewing court will not reverse a trial court’s

ruling absent a showing of manifest abuse of discretion.” Wilcox v. 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 of the trial court’s order concluding that the allegedly stolen items can be

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No. 79661-5-1/16

returned to individual victims, we need not consider whether the 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

of one issue effectively disposed of case.)

Attorney Fees

Huber argues that he is entitled to an award of attorney fees 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 of the appropriate grounds for an

award of attorney fees as costs.” Stiles v. Kearney, 168 Wn. App. 250, 267, 277

P.3d 9 (2012).

Here, Huber first argues that he is entitled to attorney fees under

RCW 69.50.505(6). But that statute authorizes an award of fees 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 under 42 U.S.C. §~ 1 983 and

1988. Those statutes provide that courts have discretion to award prevailing

party fees in a civil action under 42 U.S.C. § 1983 for the deprivation of certain

rights occurring under color 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 for violation of substantive due process), reversed h~ on other

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No. 79661-5-1/17

grounds, 191 Wn.2d 392, 423 P.3d 223 (2018). But this is nota civil action

under 42 U.S.C. § 1983, so Huber is not entitled to fees under 42 U.S.C. §~ 1983

and 1988 here.

We affirm in part, reverse in part, and remand to the trial court to vacate its

conclusion that “[biased on the totality of the evidence, [t]he State has shown

sufficient proof that the stolen items can be returned back to the victims.”

Q3ii4&~ @/.

WE CONCUR: