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No. 102,286 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. BLACK 1999 LEXUS ES300, VIN JT8BF28G6X5060235, Appellant.

SYLLABUS BY THE COURT

When considering whether a proposed civil property forfeiture is grossly disproportionate, the district court must consider the nonexclusive list of factors in K.S.A. 60-4106(c). In doing so, the court may consider related criminal conduct of the defendant in addition to the crimes specifically facilitated by the property subject to forfeiture.

Appeal from Johnson District Court; GERALD T. ELLIOTT, judge. Opinion filed January 7, 2011. Affirmed.

Jessica J. Travis, of the Travis Law Firm, L.L.C., of Olathe, and Kristi C. Hartmann, of Putnam & Hartmann, L.L.C., of Kansas City, Missouri, for appellant.

Steven J. Obermeier, assistant district attorney, and Stephen M. Howe, district attorney, for appellee.

Before LEBEN, P.J., PIERRON and BUSER, JJ.

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LEBEN, J.: After investigating Andrew Wurtz for dealing marijuana, the police

seized his 1999 Lexus ES300 and petitioned to forfeit it since he had used it for selling drugs. Wurtz stipulated that the car was properly subject to forfeiture but insisted that the forfeiture be limited in scope under K.S.A. 60-4106(c) because forfeiting the $8,000 car was grossly disproportionate to the $250 he had gained from the two drug sales conducted from the car.

But Wurtz' argument fails because the inquiry under K.S.A. 60-4106(c) considers all of the circumstances, including related criminal conduct not directly involving the car. The circumstances in Wurtz' case included: Police observing Wurtz possess and sell marijuana on several occasions in a year; Wurtz admitting to selling marijuana to his coworkers; and Wurtz also admitting that he routinely purchased what an officer called a dealer-level amount of the drug. The forfeiture of Wurtz' Lexus worth about $8,000 was not grossly disproportional to his repeated criminal conduct. Moreover, contrary to Wurtz' contentions, K.S.A. 60-4106(c) is not unconstitutionally vague because it provides objective factors to prevent courts from arbitrarily and discriminatorily applying the statute.

FACTUAL BACKGROUND

Because related criminal conduct can be considered when determining whether a forfeiture is grossly disproportionate, we must review Wurtz' activities in some detail.

The police had been investigating him for dealing marijuana since April 2007. A confidential informant had purchased marijuana from Wurtz at Wurtz' house, and the police had found marijuana in Wurtz' trash. Based on this information, the police obtained a search warrant for his house. On June 22, 2007, officers went to Wurtz' work

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to get a house key so they could execute the warrant. Wurtz followed them back to his house in his 1999 Black Lexus ES300, which the police then searched. The police found four bags of marijuana that weighed about 1/8th ounce each; the individual packaging suggested that Wurtz sold the drug for profit, and Wurtz admitted that he occasionally sold marijuana to his coworkers.

The police then searched his house and found more marijuana and a scale, which is typically used by those distributing and selling marijuana. Wurtz told the police that he bought about a pound of marijuana every 2 weeks. In this forfeiture proceeding, an officer testified that the amount was impossible for one person to consume in 2 weeks and more consistent with a midlevel dealer. The officer also concluded that the marijuana was a higher grade, hydroponic marijuana that sells for about 10 times the amount of regular marijuana. Based on his observations, the officer estimated the value of the marijuana found in the car to be $400.

The following June in 2008, a confidential informant bought marijuana from Wurtz twice in a gas station parking lot, once on June 11 and then a second time on June 23. Both transactions took place in Wurtz' Lexus. The informant paid Wurtz $130 in the first transaction and $120 in the second. Then on June 27, the informant and Wurtz engaged in a third deal, this time in the informant's car. Wurtz had walked to the rendezvous location--another gas station parking lot--from another parking lot near his work. This time, the informant paid $60 for the marijuana. The Lexus was not seen during this transaction.

A few days later, on July 3, 2008, the police seized Wurtz' Lexus for his use of it in selling marijuana. The State then petitioned for the car's forfeiture under the Kansas Standard Asset Seizure and Forfeiture Act. Before trial, the parties stipulated that the

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vehicle was subject to forfeiture; this left only the question of whether the forfeiture was grossly disproportionate to Wurtz' conduct, an inquiry the district court conducts pursuant to K.S.A. 60-4106(c). The district court found that the forfeiture of the car was not grossly disproportionate to Wurtz' repeated drug sales and the large potential penalty provided by statute--up to $300,000--for such sales. The court entered judgment against Wurtz and ordered that the car be released to the police department for its official use. Wurtz appealed.

Since Wurtz agreed that the State had grounds to forfeit the car, he has limited his arguments on appeal to the district court's decision that the forfeiture was not grossly disproportionate to his conduct and his claim that K.S.A. 60-4106(c) is unconstitutionally vague.

ANALYSIS

I. The Forfeiture of Wurtz' Lexus Was Not Grossly Disproportionate to His Conduct.

Although forfeiture proceedings are civil, they are penal in nature and thus subject to the excessive-fines clauses of the Kansas and the United States Constitutions. In re Tax Exemption Application of City of Wichita, 255 Kan. 838, 843, 877 P.2d 437 (1994); see Austin v. United States, 509 U.S. 602, 604, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993); Kan. Const. Bill of Rights,

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