IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

CHIN FU CHEN and MY TIEU LAO, No. 57002-5-II

Petitioners,

v. UNPUBLISHED OPINION

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

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 

Filed

Washington State

Court of Appeals

Division Two

May 9, 2023
No. 57002-5-II

2

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 

residence2and 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 

 

1 Chen and Lao also request an award of attorney fees pursuant to RCW 69.50.505(6). Because 

they are not the prevailing party, they are not entitled to an award of attorney fees.

2 Chen and Lao are a married couple.
No. 57002-5-II

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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 
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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 
No. 57002-5-II

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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. Maddox, 152 Wn.2d at 509.

B. STALENESS ANALYSIS

Chen and Lao argue that the superior court and district court erred in concluding that the 

information in the affidavit supporting the search and seizure warrant regarding their bank 

accounts was not stale. We disagree.

The issue here is whether the facts stated in the warrant affidavit supported the 

determination that some of the proceeds Chen and Lao accumulated from their illegal activities 

between 2016 and January 2020 remained in their bank accounts in December 2020. See

Maddox, 152 Wn.2d at 506. We conclude that the common sense inference from the information 
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in the December 2020 affidavit is that illegal proceeds remained in the bank accounts at the time 

of the search and seizure.

First, Luciano’s affidavit supports the common sense conclusion that proceeds from 

illegal activities were in Chen and Lao’s bank accounts in January 2020. Luciano stated that 

from 2016 through 2019, Chen and Lao had $225,000 in unreported income, spent $72,000 more 

than their legitimate income on living expenses, and had $154,000 in increased cash on hand and 

asset acquisitions. Although Luciano did not specify the amount of increased cash on hand, he 

clearly concluded that there was some amount of cash on hand in the bank accounts that related 

to illegal activities.

Chen and Lao repeatedly claim that Luciano’s affidavit established that any illegal 

proceeds already had been spent by the end of 2019. But the affidavit language does not support 

this claim – Luciano did not state that Chen and Lao had spent all the illegal proceeds. In fact, 

he opined in the affidavit that “[a]ny bank balance represents illegal proceeds.” Clerk’s Papers at

42.

Second, Luciano’s affidavit supports the common sense conclusion that at least some 

proceeds from illegal activities remained in Chen and Lao’s bank accounts in December 2020. 

The parties debate whether Chen and Lao would have used the illegal proceeds or the legitimate 

income in the bank accounts to pay expenses during 2020. But this issue is immaterial because it 

is undisputed that Chen and Lao commingled the illegal proceeds and the legitimate income. As 

noted in Maddox, the type of property to be seized is an important factor regarding staleness. 

152 Wn.2d at 506. Once money is commingled in a bank account, it is impossible to determine 

the source of any particular amount. Because there was no practical distinction between Chen 

and Lao’s legitimate income and their illegal proceeds once they were commingled, the common 
No. 57002-5-II

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sense inference is that the money was spent on a pro rata basis. Therefore, unless the account 

balances went to zero at some point after January 2020, some of the illegal proceeds necessarily 

remained in those accounts.

We conclude that the information in the warrant affidavit supported a common sense 

determination that Chen and Lao had “continuing and contemporaneous possession” of at least 

some illegal proceeds in their bank accounts in December 2020. See Maddox, 152 Wn.2d at 506.

Therefore, we hold that the district court and the superior court did not err in concluding that the 

information supporting the December 2020 search and seizure warrant was not stale.

CONCLUSION

We affirm the superior court’s order affirming the district court’s forfeiture order.

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 

2.06.040, it is so ordered.

MAXA, J.

We concur:

CRUSER, A.C.J.

PRICE, J.