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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Forfeiture of $45,513 in United States Currency Under the Uniform Controlled Substances Act, RCW 69.50.505, LARRY HOWARD, Appellant v. KING COUNTY SHERIFF, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 63096-2-I DIVISION ONE UNPUBLISHED OPINION

FILED: April 12, 2010

Appelwick, J. -- Howard appeals the civil forfeiture of $45,513 under the Uniform Controlled Substances Act, chapter 69.50 RCW, ordered by the King County Sheriff's Office hearing examiner. Howard asserts various errors made by the hearing examiner, including failure to dismiss on timeliness grounds, failure to include certain evidence in the record, failure to find justification for the stop and extension of the stop, failure to exclude certain evidence, failure to perform a proportionality analysis under the Eighth Amendment, failure to require that the currency forfeited be traced to a specific drug transaction, and lack of substantial evidence for the forfeiture finding. We affirm. FACTS On May 25, 2007, King County Sheriff's Deputy Kevin Savage observed Larry Howard driving while passing him in SeaTac, Washington. Howard looked

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surprised and nervous to see the deputy. The deputy observed Howard turn immediately into a Shell gas station, initiating his signal just before the turn. The deputy believed this to be a violation of RCW 46.61.305 (requiring initiation of a turn signal 100 feet before turning). While maintaining visual contact, the deputy ran Howard's license plate number, discovering an outstanding warrant. The deputy approached Howard, who had gotten out of his vehicle at the Shell station, and asked his name. The deputy notified Howard about the traffic

infraction and the warrant hit. He noticed that Howard had his identification in one hand and something white in the other. Howard refused to turn over his identification. Despite the deputy's instructions to the contrary, Howard reached into his vehicle. In response, the deputy "stood him up" against the vehicle and saw a golf ball sized rock of what he suspected to be cocaine in Howard's hand. Howard resisted and reached for the deputy's weapons. He also

attempted to break up and discard the suspected cocaine by throwing it in bushes and into a storm drain. After subduing Howard, the deputy searched Howard incident to arrest and found $45,221 in cash distributed around Howard's person. Some of the currency was in $5,000 bundles, packaged for so long that the currency had molded together. The deputy also located two cell phones on Howard. Officers performed an extensive search of the vehicle, finding items which indicated that Howard may have been living in the car. Officers also found

additional suspected cocaine, cash, and a knife in Howard's passenger

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compartment. Officers located a pistol in the trunk. The officers discovered no drug paraphernalia on Howard or in the car. The deputy field tested the white substance and it tested positive for cocaine. A drug dog identified the bag

containing the money taken from Howard for narcotics. The King County Sheriff's Office (KCSO) seized the $45,513 and scheduled it for forfeiture under RCW 69.50.505. Howard made a claim of

ownership on July 6, 2007. The KCSO sent the notice of hearing on September 7, 2007. The hearing occurred on September 21, 2007, which was 77 days after Howard made his claim. At the administrative hearing, the deputy was the only witness for KCSO. Howard appeared only through his attorney. Howard provided no evidence or oral argument. Howard marked an aerial image of the area of the arrest as an exhibit but never offered it into evidence. He presented a legal brief, which was untimely under the notice of hearing.1 After objection from the KCSO and

discussion with the hearing examiner, Howard agreed to present the brief as his motion for reconsideration. The hearing examiner orally concluded that the

money was forfeited to the KCSO, and entered written findings of fact, conclusions of law, and order of forfeiture, consistent with the oral decision. Howard appealed to the King County Superior Court, which affirmed the
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The notice of hearing included deadlines established by the prosecutor, which required certain things to occur prehearing. Procedural rules under which the hearing proceeded were not made part of the record nor did the notice of hearing refer to the procedural rules the KCSO operated under. Howard has not challenged the authority under which the notice was entered nor the requirements of the notice. Because Howard has not challenged the notice nor its issuance, we assume the notice is valid.

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administrative order. Howard timely appealed here. DISCUSSION I. Standard of Review We apply the standards of the Washington Administrative Procedure Act (APA), chapter 34.05 RCW, directly to the agency record in reviewing agency adjudicative proceedings2. William Dickson Co. v. Puget Sound Air Pollution Control Agency, 81 Wn. App. 403, 407, 914 P.2d 750 (1996). Howard has not assigned error to any findings of fact, so they are verities on appeal. Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 407, 858 P.2d 494 (1993). We review only whether the findings support the conclusions of law. Fuller v. Dep't of

Employment Sec., 52 Wn. App. 603, 605, 762 P.2d 367 (1988). On questions of law, our review is de novo. Escamilla v. Tri-City Metro Drug Task Force, 100 Wn. App. 742, 747, 999 P.2d 625 (2000), abrogated on other grounds by In re Forfeiture of One 1970 Chevrolet Chevelle, 166 Wn.2d 834, 840 n.1, 215 P.3d 166 (2009)). Where construction of a statute is required, that is a question of law reviewed de novo. City of Pasco v. Pub. Employment Relations Comm'n, 119 Wn.2d 504, 507, 833 P.2d 381 (1992). II. Timely Hearing The first issue is whether the hearing was timely. Howard asserts that a full adversarial hearing on the forfeiture of personal property must be held within
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Howard appealed to this court for review of the superior court orders. However, review is properly of the hearing examiner's order of forfeiture and order denying claimant's motion for reconsideration.

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45 days. Citing Tellevik v. 31641 West Rutherford Street, 120 Wn.2d 68, 838 P.2d 111, 845 P.2d 1325 (1992) (Tellevik I), and Tellevik v. 31641 West Rutherford Street, 125 Wn.2d 364, 884 P.2d 1319 (1994) (Tellevik II), he argues that, because the seizing agency may transfer or convey seized property within 90 days for real property and 45 days for personal property, a hearing must occur within those respective time periods.3 As a threshold issue, Howard assigns error to the hearing examiner's failure to provide a written ruling regarding the timeliness issue. Howard cites no law requiring written rulings rather than merely a record of the ruling, whether oral or written.4 The record below demonstrates that the hearing examiner orally ruled that the hearing was timely, because the KCSO gave Howard notice of the hearing within 90 days. The hearing examiner did not err by not providing a written ruling regarding the timeliness issue. Hearings on the seizure of personal property under RCW 69.50.505 are heard under the APA, chapter 34.50 RCW. See RCW 69.50.505(5). The APA requires that the agency commence a hearing within 90 days. RCW

34.05.419(1)(b). Commencement occurs when the agency notifies a party that a prehearing conference, hearing, or other stage of an adjudicative proceeding will be conducted. RCW 34.05.413(5). Tellevik I and Tellevik II do not require a different result. In re Forfeiture of One 1988 Black Chevrolet Corvette Auto., 91
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Howard filed his claim within 45 days of the seizure by the KCSO. Howard provides citation only to the irrelevant provisions of RCW 34.05.562(2)(a) and .562(2)(c), which allow remand for failure to complete the record.

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Wn. App. 320, 323

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