    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                        No. 70523-7-1
              Appellant/Cross Respondent,
                                                        DIVISION ONE
              v.

                                                        PUBLISHED OPINION
 NICHOLAS JAMES LONGO,

              Respondent/Cross Appellant.               FILED: February 9, 2015


      Appelwick, J. — The State appeals the superior court's suppression of evidence

and dismissal of criminal charges based on collateral estoppel from a related civil

forfeiture proceeding. Bellingham police officers found a marijuana grow operation in

Longo's home during the execution of a search warrant. The State brought criminal

charges and the city of Bellingham initiated a civil forfeiture proceeding against him. In

the civil forfeiture proceeding, Longo moved to suppress evidence of the marijuana. He

argued that the warrant was not supported by sufficient probable cause that his marijuana

grow operation violated the Washington State Medical Use of Cannabis Act.1 The district

court granted his motion to suppress and dismissed the civil forfeiture action.       The

superior court then found that it was bound under the collateral estoppel doctrine by the

district court's decision that the underlying warrant was not valid.    The superior court

suppressed the evidence and dismissed the criminal charges. We reverse and remand.

                                         FACTS


      On September 11, 2012, Bellingham police officers executed a warrant to search

Nicholas Longo's house.      Inside, they found 180 marijuana plants growing in a


      1 Chapter 69.51ARCW.
No. 70523-7-1/2




sophisticated operation including lights, watering systems, vents, and timers. They also

found several pounds of packaged marijuana, packaging materials, and a digital scale.

Longo was arrested and charged with one count of unlawful manufacturing of a controlled

substance - marijuana and one count of unlawful possession of a controlled substance

with intent to deliver. The city of Bellingham (City) also notified Longo that it sought

forfeiture of $6,350 seized during the search.

         In both the civil forfeiture proceeding and a criminal pretrial hearing, Longo moved

to suppress all evidence obtained as a result of the search. He argued that the 2011

amendments to the Washington State Medical Use of Cannabis Act (MUCA) made the

medical use of marijuana a lawful act, rather than an affirmative defense. Longo asserted

that, to lawfully search his house, officers needed probable cause that his suspected

marijuana growing was not authorized under MUCA.

         On January 18, 2013, the district court granted Longo's motion to suppress and

dismissed the forfeiture action. The City abandoned its appeal and the dismissal became

final.


         Longo then moved to dismiss his criminal case, arguing that the superior court was

collaterally estopped from reconsidering the validity of the search warrant. On June 18,

2013, the superior court granted Longo's motion to suppress on collateral estoppel

grounds. The court noted that it would have rejected Longo's probable cause argument.

         The State appeals, asserting that collateral estoppel is inappropriate here. Longo

cross appeals, arguing that we may affirm on probable cause grounds and requesting a

stay until the Washington Supreme Court considers the issue.
No. 70523-7-1/3




                                         DISCUSSION


  I.      Collateral Estoppel

       The State argues that the superior court erred in giving preclusive effect to the

district court's order granting Longo's motion to suppress. The State maintains that the

collateral estoppel doctrine is inapplicable in this context and to apply the doctrine here

contravenes public policy.

          Collateral estoppel is a judicially created doctrine designed to conserve judicial

resources and provide finality to litigants. State v. Barnes, 85 Wn. App. 638, 652-53, 932

P.2d 669 (1997). It bars relitigation of an issue in a subsequent proceeding involving the

same parties. Christensen v. Grant Cntv. Hosp. Dist. No. 1,152 Wn.2d 299, 306, 96 P.3d

957 (2004). The party against whom the doctrine is asserted must have had a full and

fair opportunity to litigate the issue in the first proceeding, jd. at 309.

       A party asserting collateral estoppel bears the burden of proving that (1) the issue

decided in the prior adjudication is identical to the one presented in the second

proceeding, (2) the prior adjudication ended in a final judgment on the merits, (3) the party

against whom the doctrine is asserted was a party or in privity with the party to the prior

adjudication, and (4) application of the doctrine does not work an injustice. JdL at 307.

We review de novo whether collateral estoppel applies to bar relitigation of an issue. ]d.

at 305.


          Here, the first two prongs are clearly satisfied. First, the legal issue was the same

in both proceedings: whether the evidence should be suppressed, because there was

insufficient probable cause to support the search warrant.          Second, the district court

dismissed the forfeiture action pursuant to granting Longo's motion to suppress. The City
No. 70523-7-1/4




abandoned its appeal and the dismissal became final. This constitutes a final order. See

Barlindal v. City of Bonnev Lake. 84 Wn. App. 135, 142, 925 P.2d 1289(1996).

       The State argues that the third element, privity, is not present here. "Privity" is the

"connection or relationship between two parties, each having a legally recognized interest

in the same subject matter." Black's Law Dictionary 1394 (10th ed. 2014). In Barlindal.

the court found that Bonney Lake and Pierce County were in privity where the county

brought criminal charges against Barlindal and the city subsequently sought forfeiture of

his property. 84 Wn. App. 143-44. The court reasoned that both participated in the

acquisition of a search warrant and the subsequent search; either could have been the

seizing agency entitled to bring the forfeiture action; and both would have financially

benefited from an order of forfeiture.   Id. at 143. Likewise, in Barnes, the court found

privity between Clallam County, which initiated a forfeiture proceeding against Barnes,

and the State, which subsequently brought criminal charges against him. 85 Wn. App. at

652. The court noted that both entities were represented by the prosecutor; both relied

upon the same warrant and search; and either could have benefited from an order of

forfeiture, ]d.

       Here, however, there was no joint operation between the two entities. Only the

City obtained and executed the search warrant. By statute and on these facts, the City,

but not the State, was a seizing agency with the authority to commence forfeiture

proceedings. See RCW 69.50.505(3). Therefore, the prosecutor was not entitled to be

involved in—let alone have control over—the forfeiture proceeding. The only interest the

State had in the forfeiture was its statutory recovery of ten percent of the net proceeds
No. 70523-7-1/5




from forfeited property. See RCW 69.50.505(9)(a). This is insufficient to constitute a

mutuality of interests. The privity prong is not satisfied here.

       The State further argues that to apply the collateral estoppel doctrine here would

result in an injustice. It cites to Barnes, where the court considered similar facts and

concluded that "compelling public policy considerations" weighed against collateral

estoppel. 85 Wn. App. at 653. There, Clallam County sought forfeiture of property seized

from Barnes's home. jd. at 647-48. The trial court found insufficient evidence of criminal

behavior and dismissed the forfeiture, jd. The State then filed criminal charges against

Barnes. Id. Barnes moved for dismissal, arguing that collateral estoppel barred the

subsequent criminal prosecution. Id, The trial court denied his motion, jd. The Court of

Appeals affirmed, reasoning in part that

              The purpose of the criminal code is to protect the community from
       "conduct that inflicts or threatens substantial harm to individual or public
       interests." It does so, in part, by incarcerating the perpetrator. The
       community also has an interest in promoting respect for the law by providing
       just punishment.

              A civil forfeiture action may deter crime, but it cannot halt the
       defendant's criminal activity by incarcerating him. Nor does it satisfy the
       public policy of punishing the defendant in proportion to the seriousness of
       the offense and his criminal history.

|a\ at 653 (citations omitted) (quoting RCW 9A.04.020(1)(a)). Criminal prosecutions and

civil forfeiture proceedings have different purposes and provide the State with different

incentives. Compare RCW 9A.040.020(1)(a) with Laws of 1989, ch. 271, § 211. We find

this rationale compelling.

       Longo, on the other hand, urges this court to affirm under Barlindal, where the

court found that public policy compelled the application of collateral estoppel. 84 Wn.
No. 70523-7-1/6




App. at 145. But, the Barlindal court's reasoning is inapplicable on these facts. There,

the court focused on Bonney Lake's opportunity to present evidence and arguments in

the criminal proceeding, id. at 144. This was not the case here. The State was not a

party to the civil forfeiture proceeding. The Barlindal court also reasoned that it would

contravene public policy to allow multiple jurisdictions to bring separate forfeiture

proceedings. ]d.at145. Again, that is not a concern here. The State was not a seizing

agency and could not bring a separate forfeiture action against Longo.

       Furthermore, this case presents a different scenario than in Barlindal. Here, the

civil forfeiture preceded the criminal prosecution.    This is a crucial distinction.   The

prosecutor has the constitutional and statutory authority to prosecute all criminal actions

in which the State or county is a party. Wash. Const, art. XI, § 5; RCW 36.27.020(4).

Applying collateral estoppel in this context would allow a municipality to preempt that

authority and foreclose an otherwise proper prosecution by the State. And, it could

provide a strategic incentive for defendants to seek expedited forfeiture proceedings with

the intent to foreclose the prosecution of criminal charges. We think the legislature would

be shocked to find that the civil forfeiture proceedings it established to deter crime would

instead preclude prosecution.     See Laws of 1989, ch. 271, § 211.         The legislature

certainly did not intend such a result.

       Clearly, public policy considerations weigh against applying collateral estoppel in

this context. Application of the doctrine could also force the State to choose between fully

litigating guilt in civil proceedings—defeating the purpose of the expedited forfeiture

process and depleting already scarce prosecutorial resources—or abandoning civil

forfeitures altogether.   In the administrative context, several Washington cases have
No. 70523-7-1/7



addressed these concerns and found that public policy dictates against collaterally

estopping criminal prosecution.2 See, e.g., State v. Vasquez, 148 Wn.2d 303, 317-18,

59 P.3d 648 (2002) (driver's license revocation); State v. Williams, 132 Wn.2d 248, 257-

58, 937 P.2d 1052 (1997) (welfare fraud); State v. Cleveland. 58 Wn. App. 634, 643-44,

794 P.2d 546 (1990) (dependency proceeding).

         We conclude that applying collateral estoppel would work an injustice against the

State independent of whether the State and the City were in privity. We hold that collateral

estoppel is not available to preclude a criminal prosecution based on an evidentiary ruling

in a civil forfeiture proceeding. We reverse the superior court's dismissal of Longo's

criminal case on the basis of collateral estoppel.

 II.     Longo's Cross Appeal

         Longo asserts that the superior court erred in dismissing his probable cause

argument.      But, this court has since rejected the assertion that officers must have

probable cause not only of marijuana use, but of a violation of medical marijuana law.

State v. Reis. 180 Wn. App. 438, 440, 322 P.3d 1238 (2014). review granted,          Wn.2d

       , 336 P.3d 1165 (2014); State v. Ellis, 178 Wn. App. 801, 807, 327 P.3d 1247 (2014).

         The Washington Supreme Court granted review in Reis on October 9, 2014.

Longo requests that we stay his cross appeal until the Supreme Court resolves the issue.

We may order a stay if we are convinced the stay is necessary to avoid undue prejudice



         2 We acknowledge the distinction between administrative proceedings and civil
forfeitures, which are quasi-criminal in nature. SeeDeeterv. Smith, 106 Wn.2d 376, 378,
721 P.2d 519 (1986). But, these cases raise concerns that apply equally in the forfeiture
context. And, although the district court's ruling was a purely legal decision made by a
trial judge, it nonetheless interfered with the prosecutor's authority to pursue criminal
prosecutions.
No. 70523-7-1/8




to a party's prosecution or defense of a matter. In re Marriage of Herridqe, 169 Wn. App.

290, 302, 279 P.3d 956 (2012). The party requesting a stay must make out a clear case

of hardship or inequity in being required to go forward. King v. Olympic Pipe Line Co.,

104 Wn. App. 338, 350, 16 P.3d 45 (2000). Longo does not demonstrate a clear case of

hardship or inequity. We decline to stay Longo's cross appeal.

      We reverse and remand for further proceedings consistent with this opinion.




WE CONCUR:




 )/)4<_//\aa^ f. Y                                 Xl^l<Jk>




                                                                                   o,



                                                                               CD
                                                                               ;




                                               8
