* State Of Washington, Petitioner/cross Resp App V. Nicholas Longo, Respondent/cross Pet.

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Appellant/Cross Respondent,
v.
NICHOLAS JAMES LONGO,
Respondent/Cross Appellant.
No. 70523-7-1
DIVISION ONE
PUBLISHED OPINION
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:
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