NOAH LEVINGSTON,
INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF DANIEL
W. LEVINGSTON, APPELLANT.
v.
WASHOE COUNTY, NEVADA, BY AND THROUGH THE SHERIFF OF WASHOE COUNTY,
RESPONDENT.
April 30, 1996
No. 26265
Appeal
from a final judgment in a civil forfeiture action. Second Judicial District
Court, Washoe County; Mills Lane, Judge.
Following
ex parte seizure of real property, based on alleged illegal drug activity,
county filed civil forfeiture complaint. The district court after conducting
bench trial, granted requested forfeiture. Appeal was taken. The supreme court
held that: (1) challenge to constitutional validity of civil forfeiture
statute would he considered for first time on appeal (2) ex parte
seizure of real property violated due process; (3) commencing civil
forfeiture proceeding after owners were convicted of drug offenses violated
double jeopardy, and (4) findings were required on whether forfeiture of
real estate was excessive fine.
Reversed
and remanded.
[Rehearing
pending]
Lynn
G. Pierce, Reno. for Appellant.
Richard
A. Gammick, District Attomey, Margaret Crowle_y, Deputy, Washoe County. for
Respondent.
'By
signing this form, Davenport indicated that he understood that he was waiving
his right to a jury trial, the right to hear and question witnesses, the right
to call witnesses in his behalf and the right to testify or not to testify. The
document is also signed by Davenport's attorney.
1.
APPEAL AND ERROR.
Constitutional
challenges to statute will he considered, even when raised for first time on
appeal.
2.
FORFEITURES.
Constitutional
validity of civil forfeiture statues would be considered, even though
challenge was raised for first time of appeal, NRS 179.1165, 453.305.
3.
FORFEITURES.
Civil
forfeiture statute authorizes government to seize property subject to
forfeiture, without notice. when probable cause exists that property is danger
to public health and safety. NRS 179.1165(2)(c).
4.
DRUGS AND NARCOTICS.
Real
property is subject to forfeiture under civil forfeiture statute if owner or
tenant uses real property to facilitate illegal possession, sale, and
trafficking of controlled substances. NRS 453.301(8).
5.
DRUGS AND NARCOTICS.
Mere
proof of drug transactions is not exigent circumstance required by due process
to justify pre‑hearing civil forfeiture of property; government must
show that less restrictive measures would not suffice to protect its interests.
U.S. CONST. amend 14; NRS 179.1165(2)(c).
6.
CONSTITUTIONAL LAW, DRUGS AND NARCOTICS.
County's
ex parte seizure of real property violated due process, even though authorized
by civil forfeiture statute. given that seizure affected fundamental right,
seizure without owner presenting any evidence of defenses created unacceptable
risk of unfair or mistaken deprivation, and illegal drug activities at property
were not exigent circumstances. U.S. CONST. amend. 14; NRS 179.1165(2)(c).
7.
FORFEITURES.
Illegal
seizure of property, standing alone, does not immunize property from civil
forfeiture if improperly obtained evidence is not used in forfeiture
proceeding. NRS 179.1165(2)(c).
8.
CONSTITUTIONAL LAW; DRUGS AND NARCOTICS.
Civil
forfeiture of real property used to facilitate possession, sale, and
trafficking in controlled substances did not violate due process, even though
ex parte seizure of property was illegal, given that use of property to
facilitate violation of controlled substances laws was proven without using
evidence tainted by illegal seizure. U.S. CONST. amend. 14; NRS 453.30](8).
9. DOUBLE JEOPARDY.
Civil
forfeiture of real property used to facilitate violation of controlled
substances laws was "punishment" and, thus, double jeopardy barred
forfeiture proceeding brought after property owners were prosecuted on drug
offenses; innocent owner defense applied and forfeiture was directly tied to
illegal drug activity. U.S. CONST. amend. 5. NRS 179.1164(2).
10. DOUBLE JEOPARDY.
Double
jeopardy prohibits imposition of punishment for same conduct in separate
criminal and civil actions; actions must occur in single proceeding for
criminal and civil punishments may be imposed for same conduct. U.S. CONST.
amend. 5.
11.
CRIMINAL LAW.
Excessive
Fines Clause of United States Constitution applies to in rem civil forfeiture
proceedings. U.S. CONST. amend. 8.
12.
CRIMINAL LAW.
Civil
forfeiture of property used or intended to be used for drug activity is subject
to Excessive Fines Clause of United States Constitution, even if forfeiture
also serves some remedial purpose. U.S. CONST. amend. 8.
13.
DRUGS AND NARCOTICS.
On
remand in civil forfeiture proceeding against real property used to facilitate
violation of controlled substances laws, trial court was required to consider
whether forfeiture imposed excessive fine. U.S. CONST. amend. 8. NRS
453.301(8).
OPINION
Per
Curiam:
FACTS
Daniel
Levingston ("Daniel"), the owner of a home at 1361 East 10th Street
("the 10th Street home") in Reno, died intestate in June 1991. In
August 1991, appellant Noah Levingston ("Noah") was appointed
administrator of Daniel's estate. Daniel left four heirs‑Noah, Lula
Levingston ("Lula"), Rita Dennis ("Rita"), and David
Levingston ("David"). On April 28, 1993, the probate court ordered that
the 10th Street home be distributed among Lula, Rita and David. The probate
court also awarded Noah a $5,751.10 administrator's lien against the l0th
Street home. On June 20, 1994, the probate court reaffirmed its April 1993
order, ruling that the order was final and not subject to alteration.
After
Daniel’s death, the 10th Street home reportedly became a "crack"
house. At the trial below, respondent Washoe County ("Washoe")
presented evidence that extensive drug activity occurred at the 10th Street home
between May 1992 and May 1993. Part of the evidence included Rita's arrest at
the 10th Street home for being under the influence of cocaine. On October 1,
1992, Rita pleaded guilty to possession of a controlled substance. Rita also
admitted that drugs were being sold at the 10th Street home. David was arrested
at the l0th Street home and later pleaded guilty to possession of a controlled
substance for the purpose of sale. During Rita's and David's arrests, police
searched the l0th Street home and found drugs and paraphernalia that indicated
cocaine was being sold on the premises.
On
June 21, 1993, Washoe seized the 10th Street home based on the illegal drug
activity. Washoe did not formally notice the owners
of the 10th Street home, or provide a hearing, before the seizure.
Washoe filed a civil forfeiture complaint against the l0th Street home on June
22, 1993. Noah, as administrator of Daniel's
estate.,
answered the complaint. A bench trial was conducted in May 1994.
On
August 17, 1994, the district court issued an order granting Washoe the
requested forfeiture of the 10th Street home. In this appeal, Noah challenges
the district court's order by contending that Nevada's civil forfeiture
statutes violate the Due Process, Double Jeopardy, and Excessive Fines Clauses
of the United States Constitution. For the reasons stated below, we conclude
that the application of Nevada's forfeiture statutes in this case was
unconstitutional.
DISCUSSION
Ownership
of the 10th Street home
Noah
and the heirs of Daniel's estate did not properly appeal the April 1993 probate
court distribution when that distribution was made. See Breckenridge v.
Andrews, 88 Nev. 520, 524‑25, 501 P.2d 657, 660 (1972). Even so, Noah and
the beneficiaries of Daniel's estate had the opportunity to challenge the April
1993 distribution when the probate court reconsidered that order in June 1994.
After reviewing Noah's contentions in this appeal, we conclude that Noah did
not present sufficient evidence to challenge the propriety of the probate
court's April 1993 order. Accordingly, we conclude that when Washoe filed the
present forfeiture action, Lula, Rita and David were the owners of the 10th
Street home and Noah had an administrator's lien against the 10th Street home.1
1. Based on the record from the forfeiture proceedings
and the briefs filed for this appeal, it is clear that Noah is representing the
interests of Lula, Rita and David. Accordingly, this opinion will address the
interests of Lula, Rita and David in the 10th Street home.
Consideration
of the constitutional issue
[Headnotes
1, 2]
Washoe
argues that this court should not consider the constitutional issues raised in
this appeal because they were not raised before the district court. However, in
McCullough v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983), we ruled that
issues of a constitutional nature may be addressed when raised for the first
time on appeal. This opportunity is necessary because "the privilege of
bringing every law to the test of the constitution belongs to the humblest citizen, who
owes no obedience to any legislative act, which transcends the constitutional limits." Justice
Joseph Story, Address to the Suffolk Bar (Sept, 4, 1821), in The Miscellaneous
Writings of Joseph Story 428 (James Monroe
and
Company, eds.. 1835). In this opinion, we will review whether NRS 179.1165 and
NRS 453.305 are constitutionally valid as applied in this case.
[Headnotes
3, 4]
Pursuant
to NRS 179.1165(c), the government may seize property that is subject to
forfeiture without notice if probable cause exists that the property is a
danger to public health and safety.2 Based on NRS 453.301(8), real
property is subject to forfeiture if an owner or tenant uses the real property
to facilitate a violation of the NRS provisions relating to the possession,
sale, and trafficking in controlled substances.3
Requirements
of due process
On
December 13. 1993, the United States Supreme Court addressed the constitutional
parameters of civil forfeiture laws in United States v. James Daniel Good Real
Property, 510 U.S. 43, 114 S. Ct. 492 (1993). Although Good Real Property was
filed after Washoe's complaint, it was decided before Washoe's complaint was
ruled upon. Accordingly, the holding in Good
2. NRS 179.1165 states the following:
179.1165 Seizure of property: Requirement of process.
1. Except as provided in subsection 2, property that
is subject to forfeiture may only be seized by a law enforcement agency upon
process issued by a magistrate having jurisdiction over the property.
2. A seizure of property may be made by a law
enforcement agency without process if:
(a) The seizure is incident to:
(1) An arrest;
(2) A search pursuant to a search warrant; or
(3) An inspection pursuant to a warrant for an
administrative inspection;
(b) The property is the subject of a final judgment in
a proceeding for forfeiture;
(c) The law enforcement agency has probable cause to
believe that the property is directly or indirectly dangerous to health or
safety, or
(d) The law enforcement agency has probable cause to
believe that the property is subject to forfeiture.
3. NRS 453.301 provides, in pertinent part, as follows:
453.301 Property subject to forfeiture. The following
are subject to forfeiture pursuant to NRS 179.1156 to 179.119, inclusive:
8. All real property and mobile homes used or intended
to be used by any owner or tenant of the property or mobile home to facilitate
a violation of the provisions of NRS 453.011 to 453.552, inclusive, except NRS
453.336, or used or intended to be used to facilitate a violation of a law of
any other jurisdiction which prohibits the same or similar conduct as
prohibited in NRS 453.011 to 453.552, inclusive, except NRS 453.336. . . .
Real
Property governed Washoe's forfeiture
action. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (a new rule for the
conduct of criminal prosecutions is applied retroactively in pending state
cases).4
4. We consider the constitutional protections afforded a
defendant in a civil forfeiture proceeding to be as fundamental as the
constitutional protections afforded a defendant in a criminal prosecution.
Therefore, the same rationale that mandates the retroactive application of a
new rule governing criminal prosecutions mandates the retroactive application
of a new rule governing civil forfeitures.
1.
Seizure of the 10th Street home
[Headnote
5]
Due process affords an individual notice and an opportunity to he
heard before the government can deprive him of property. Good Real Property, 510 U.S. at 48, 114 S. Ct. at
498. Mere proof of drug transactions is not in itself an exigent circumstance
that justifies the postponement of notice and a hearing. Id. at 62, 114 S. Ct.
at 505. “[T]he Government must show that less restrictive measures [other than
seizure]‑i.e., a lis pendens, restraining order, or bond ‑would
not suffice to protect the Government's interests.” Id.
A
review of whether NRS 179.1165(c) violates the Due Process Clause requires an
inquiry into the interest affected by the seizure of real property, the risk of
erroneous seizure, and the government's interest in seizing real property
without a hearing. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
a. Interest affected by seizure of real property
[Headnote
6]
The seizure of real property affects the fundamental interest of our
citizenry in maintaining control over their residence and remaining free from
government interference. Fuentes v.
Shevin, 407 U.S. 67, 80‑81 (1972). The purpose of
due process is to protect that fundamental right from arbitrary
encroachments by minimizing unfair or mistaken deprivations of property. Id.
b. Risk of erroneous seizure
The practice of ex parte seizures presents an unacceptable risk of
unfair or mistaken deprivations of property. Good Real Propert v,
510 U.S. at 55, 114 S. Ct. at 501. Pursuant to NRS 179.1165, the government may seize property without presenting any
evidence of defenses the owner may have. The owner's first opportunity
to challenge the State's action in an adversarial
proceeding
may be months or even years after the initial seizure of property. In the
instant case, the owners of the 10th Street home waited almost fourteen months
for a district court ruling. In the event a district court refuses to grant a
requested forfeiture after months of property deprivation, that determination
does not cure the temporary deprivation of property that could have been
prevented by an earlier hearing. Connecticut v. Doehr, 501 U.S. 1, 15 (1991).
When
such interests are at stake, "[n]o better instrument has been devised for
arriving at truth than to give a person in jeopardy of serious loss notice of
the case against him and opportunity to meet it." Anti‑Fascist Comm.
v. McGrath, 341 U.S. 123, 171‑72 (1951) (Frankfurter, J. concurring)
(footnotes omitted). "The right to a fair and
open hearing is one of the rudiments of fair play assured to every litigant by
the Federal Constitution as a minimal requirement." Railroad
Comm'n. of Cal. v. Pacific Gas Co., 302 U.S. 388, 393 (1938).
c. The government's interest
The
government's interest in seizing real property before a forfeiture hearing
rests in the need to ensure the subject property is not sold, destroyed, or
used for illegal activity before forfeiture can become final. Good Real
Property, 510 U.S. at 58, 114 S. Ct. at 503. When property may be easily
transferred or hidden, frustrating the government's interest, a special need
for prompt action justifies postponement of notice and a hearing. CaleroToledo
v. Pearson Yacht Leasing Co.. 416 U.S. 663, 678 (1974). The government's
special need for prompt action is less apparent when real property is subject
to forfeiture. The government may prevent the sale of real property by filing a
notice of lis pendens or by obtaining an ex parte restraining order. Also, continued
illegal activity can he countered by search and arrest warrants. With these
means at the government's disposal, seizure of real property without notice or a hearing can only occur in the most exigent of circumstances.
We
conclude that exigent circumstances were not present in the case at bar. In
this case, Washoe argued that illegal drug activity was occurring at the 10th
Street home and that the drug activity was a threat to neighborhood safety.
However, we conclude that Washoe failed to show that the threat to neighborhood
safety justified the seizure of real property without notice or a hearing.
Accordingly, we conclude that Washoe's seizure of the 10th Street home pursuant
to NRS 179.1165(c) violated the Due Process Clause of the United States
Constitution. See Mathews, 424 U.S. at 335.
2.
Forfeiture of 1he 10th Street home
[Headnotes
7, 8]
The
illegal seizure of property, standing alone, does not immunize property from
forfeiture if improperly obtained evidence is not used in the forfeiture
proceeding. United States v. Property at 4492 S. Livonia Rd., Livonia, 889 F.2d
1258, 1265 (2d Cir. 1989); United States v. One (1) 1971 Harley‑Davidson
Motorcycle, 508 F.2d 351, 351‑52 (9th Cir. 1974). Accordingly, the
forfeiture order issued by the district court is not invalid despite the
illegal seizure of the l0th Street home if the evidence introduced at the
forfeiture proceeding was derived independently from the illegal seizure. See
John Bacall Imports, Ltd. v. United States, 412 F.2d 586 (9th Cir. 1969).
During
the forfeiture proceeding, Washoe had to prove that an owner or tenant of the
l0th Street home used the l0th Street home to facilitate a violation of
Nevada's controlled substances laws. NRS 453.30](8). Washoe presented evidence
that David and Rita were convicted of drug related offenses at the 10th Street
home. Washoe also presented evidence of other drug activities at the l0th
Street home. Therefore, Washoe proved the requirements for forfeiture of the
l0th Street home without using evidence tainted by the illegal seizure of the
l0th Street home.
We
conclude that despite Washoe's illegal seizure of the 10th Street home, the
forfeiture of the 10th Street home was not tainted by that illegal seizure
because the forfeiture was proven without the use of evidence gained through
the illegal seizure.
Protections
against double jeopardy
[Headnote
9]
The
longstanding protection flowing from the Double Jeopardy Clause is that
"no man shall be twice vexed for one and the same offense." Ex parte Lange, 85 U.S.
163, 168 (1873). In applying double
jeopardy scrutiny to Nevada's civil forfeiture statutes, we must address three
questions: (1) whether a civil forfeiture action constitutes punishment,
(2) whether forfeiture in this case was based upon acts previously
punished criminally, and (3) whether the civil forfeiture action and the
criminal prosecution were separate proceedings. See United States v.
$405,089.23 U.S. Currency. 33 F.3d 1210, 1216 (9th Cir. 1994).
“[T]he
determination whether a given civil sanction constitutes punishment in the
relevant sense requires a particularized assessment of the penalty imposed and
the purposes that the penalty may fairly be said to serve." United States
v. Halper, 490 U.S. 435. 448 (1989).
In
Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801
(1993),
the Court considered whether in rem civil forfeitures constitute punishment in
the context of the Excessive Fines Clause. In concluding that the federal
forfeiture statute constitutes punishment, the Austin Court indicated that
Congress' intent was to apply the statute only against culpable individuals.
Id. The Austin Court also referred to a United States Senate report on the
federal forfeiture statute stating the conventional criminal sanctions were
inadequate to deter and punish unlawful drug activities. Id. at 620, 113 S.
Ct. at 2811. Based upon these observations, the Austin Court concluded that the
federal forfeiture statutes "look more like punishment,
not less." Id. at 619.5
5. The reasoning that Austin applied in the excessive
fines context is equally applicable in double jeopardy analysis. See
$405,089.23 U.S. Currency, 33 F.3d at 1219.
As
with the statute reviewed in Austin, Nevada's forfeiture
statute looks more like punishment. The
innocent owner defense is recognized in forfeiture actions. Property is not subject
to forfeiture if the illegal act giving rise to the forfeiture was committed without
the knowledge, consent or wilful blindness of the owner. NRS 179.1164(2). Also, NRS chapter 179 ties forfeiture
actions directly to illegal drug activity.
This court has previously acknowledged that Nevada's civil
forfeiture statutes have an ancillary punitive effect. City of Sparks v. Nason, 107 Nev. 202, 204. 807 P.2d
1389, 1390 (1991). Further, we concluded in Desimone v. State, 111 Nev.
1221, 904 P.2d 1 (1995), that taxes and civil
penalties imposed pursuant to NRS chapter 372A constitute punishment.
With
respect to whether Washoe's forfeiture proceeding was based on acts that were
previously punished criminally, we conclude they were. David and Rita were
convicted of drug related offenses and served sentences pursuant to those
convictions. While Washoe presented evidence of other arrests and drug
activities at the l0th Street home, we conclude that the evidence of David's
and Rita's previous convictions were important to Washoe*s allegation regarding
drug activity.
[Headnote
10]
To
impose punishment for the same conduct in a criminal and civil action, the
actions must occur in a single proceeding.6
6. The federal circuit courts differ on what constitutes
a single proceeding. The United States Court of Appeals for the Ninth Circuit ruled that a forfeiture case and criminal case constitute the
same proceeding if they are brought in the same indictment and tried in the
same trial. $405,089.23 U.S.
Currency, 33 F.3d at 1216. The United States Court of Appeals for the Second
and Eleventh Circuits adopted a less rigid rule. According to those courts,
civil and criminal actions may be filed and docketed separately, but must be pursued simultaneously, as part of a "single, coordinated prosecution."
United States v. One Single Family Residence, 13 F.3d 1493, 1499 (11 th Cir.
1994); United States v. Millan, 2 F.3d 17, 20 (2nd Cir. 1993). Because Washoe’s
civil forfeiture proceeding failed both tests, this opinion does not address
what procedures constitute a single proceeding.
Halper,
490 U.S. at 450. Otherwise, only the first action
brought will stand while the second action brought will fall under the weight
of double jeopardy scrutiny. Desimone, 111 Nev. at 1230, 904 P.2d at 7.
Washoe's civil forfeiture action was clearly a separate legal proceeding that
subjected David and Rita to additional punishment for the same unlawful
activity.
Based
on the reasoning presented above, we conclude that the civil forfeiture
proceeding under review in the case at bar subjected Rita and David to double
jeopardy. Accordingly, to the extent the district court's forfeiture order
deprived Rita and David of their ownership interest in the 10th Street home,
that order is reversed.
Protection
against excessive fines
[Headnotes
11‑13]
The Excessive Fines Clause applies to in rem civil forfeiture
proceedings. Austin, 509 U.S. at 604, 113 S. Ct. at 2803. A
civil forfeiture of property used or intended to be used for drug activity is
payment to the sovereign for some offense and, therefore, is subject to the
Excessive Fines Clause even if the forfeiture also serves some remedial purpose.
Id. at 622, 113 S. Ct. at 2812. While we conclude that excessive fines analysis
applies to civil forfeiture actions, insufficient evidence was presented to the
district court to determine whether Washoe's forfeiture of the 10th Street home
violated the Excessive Fines Clause. Accordingly, we direct the district court
to consider on remand whether the forfeiture action in this case imposed an
excessive fine upon Lula. See id. As part of its inquiry, the district
court should consider whether Noah's lien upon the 10th Street home was a
property interest subject to forfeiture and, if it was, whether the forfeiture
of that lien was an excessive fine.
CONCLUSION
We
conclude that Washoe's seizure of the
10th Street home pursuant to NRS 179.1165(c) violated the Due Process Clause because it occurred without a pre‑seizure notice or hearing.
Notwithstanding Washoe's illegal seizure of the 10th Street home, however, we
conclude that the forfeiture of the 10th Street home was not tainted by
evidence from an illegal seizure.
With
respect to whether the civil forfeiture proceedings in this case punished Rita
and David for acts that were previously the basis of criminal punishment, we
conclude that they did. As such, the forfeiture of the 10th Street home was not
invalid because of the lack of a preseizure notice or hearing; it was unconstitutional because it subjected David and Rita
to double jeopardy. "[A]n unconstitutional Act . . . is, in legal contemplation,
as inoperative as though it had never been passed." Norton v.
Shelby County, 118 U.S. 425, 442 (1886). Accordingly, to the extent the
forfeiture order in this case deprived Rita and David of their interest in the
10th Street home, we reverse the district court's order.
With
respect to Lula's and Noah's interest in the 10th Street home, we remand this
case to the district court to determine whether Lula and Noah were aware of
criminal activity on the premises and, if so, whether the present forfeiture
order imposed an excessive fine on Lula or Noah.