In The Matter Of The Search Warrant For: 13811 Highway 99, Lynnwood, Wa , 194 Wash. App. 365 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of Search Warrant for No. 73446-6-I
13811 HIGHWAY 99, LYNNWOOD, DIVISION ONE
WASHINGTON; CITY OF LAKEWOOD.
PUBLISHED
FILED: June 6, 2016
Cox, J. — The superior courts of this state are vested with original subject
matter jurisdiction "in all cases and of all proceedings in which jurisdiction shall
not have been by law vested exclusively in some other court."1 A search warrant
may only issue on probable cause.2 Specifically, the affidavit supporting a
request for a warrant must set forth "sufficient facts to convince a reasonable
person of the probability the defendant is engaged in criminal activity and that
evidence of criminal activity can be found at the place to be searched."3
Here, Respondents Kum Im Lee and Yong R. Ludeman moved for return
of property in the Superior Court for Snohomish County. They claimed police
1 Const, art. IV, § 6.
2 State v. Lyons. 174 Wash. 2d 354, 359, 275 P.3d 314 (2012).
3 Id.
No. 73446-6-1/2
authorities unlawfully seized their property in that county. Their property was
seized pursuant to a warrant issued by the Lakewood Municipal Court,
purportedly based on a criminal prosecution in Pierce County.
We hold that the Snohomish County Superior Court had jurisdiction to
decide whether the property was lawfully seized and whether it should be
returned to the owners. That court properly determined that the seizure of the
property was without authority of law. The court also properly ordered the return
of the property to Lee and Ludeman. We affirm.
The City of Lakewood Police Department and other law enforcement
authorities conducted a joint investigation of suspected prostitution activity in
Pierce County. This investigation centered on the "Wellness Clinic," a City of Fife
massage parlor. Police suspected that workers there were providing sexual
services to clients.
Based on this investigation and surveillance of this clinic, the Lakewood
Police Department obtained a search warrant from the Lakewood Municipal
Court for the Wellness Clinic. Authorities first executed the warrant at the clinic.
They seized documents, arrested Su H. Jones, the owner of the clinic, and
interviewed two employees who worked there. The employees admitted
providing sexual services to clients. And one employee stated that Jones was
"well aware of the prostitution activities" at the clinic.
Thereafter, authorities searched Jones's home in Federal Way. They
seized additional documents there.
No. 73446-6-1/3
Based on the evidence uncovered in this investigation and the seizures at
the clinic and the residence, the Pierce County Prosecutor charged Jones in
Pierce County Superior Court with promoting prostitution in the second degree.
During the search of the Wellness Clinic, authorities seized a document
that referred to a business called King's Massage. Performing an Internet
search, authorities identified a King's Massage located in Lynnwood, Snohomish
County.
Authorities then began "a follow up investigation" of King's Massage.
Undercover officers from the Lakewood Police Department visited the business
to determine whether the employees there offered sexual services for payment.
On some of the undercover police visits, employees offered to do so.
Thereafter, a Lakewood detective applied to the Lakewood Municipal
Court for a warrant to search King's Massage in Lynnwood, Snohomish County.
The warrant sought evidence of second degree promoting prostitution.
According to the unchallenged finding of the superior court judge who heard the
motion for return of property, this warrant was sought to obtain additional
evidence for the prosecution of Jones, the defendant in the Pierce County felony
prosecution.4 The municipal court issued the warrant.
Lakewood police officers, assisted by federal authorities, executed the
warrant at King's Massage in Lynnwood. During the search, officers seized two
Lexus SUV vehicles, U.S. currency, financial documents, and other personal
property from Kum Lee and Yong Ludeman. The Lakewood Police Department
Clerk's Papers at 7.
No. 73446-6-1/4
later served Lee and Ludeman with notices of seizure and intended forfeiture of
the seized property.
Pursuant to CrR 2.3, Lee and Ludeman moved in Snohomish County
Superior Court for the return of their property. The City of Lakewood appeared,
opposing the motion. The superior court granted the relief sought.
The City appeals.
JURISDICTION AND VENUE
The threshold question before us is whether the Snohomish County
Superior Court had subject matter jurisdiction to hear this case. We hold that it
did.
Subject Matter Jurisdiction
"Our state constitution uses the term 'jurisdiction' to describe the
fundamental power of courts to act."5 It grants superior courts such jurisdiction in
several categories of cases.6 One such category is "in all cases and of all
proceedings in which jurisdiction shall not have been by law vested exclusively in
some other court."7
Our constitution defines and confines the power of the legislature to either
create or limit jurisdiction.8 "Any legislation, therefore, the purpose or effect of
which is to divest, in whole or in part, a constitutional court of its constitutional
5 ZDI Gaming, Inc. v. State ex rel. Wash. State Gambling Comm'n, 173
Wash. 2d 608, 616, 268 P.3d 929 (2012).
6id,
7 Const, art. IV, § 6.
8 ZDI Gaming. Inc.. 173 Wash. 2d at 616 (citing Const, art. IV, § 4, § 6, § 30(2).
No. 73446-6-1/5
powers, is void as being an encroachment by the legislative department upon the
judicial department."9
As the supreme court made clear in Marley v. Department of Labor &
Industries, there is a distinction between subject matter jurisdiction and a court's
authority to act in a particular matter:
"A judgment may properly be rendered against a party only if the
court has authority to adjudicate the type of controversy involved in
the action." We underscore the phrase "type of controversy" to
emphasize its importance. A court or agency does not lack subject
matter jurisdiction solely because it may lack authority to enter a
given order.
"The term 'subject matter jurisdiction' is often confused with a
court's "authority" to rule in a particular manner. This has led to
improvident and inconsistent use of the term."
A tribunal lacks subject matter jurisdiction when it attempts to
decide a type of controversy over which it has no authority to
adjudicate.
"[T]he focus must be on the words 'type of controversy.' If the type
of controversy is within the subject matter jurisdiction, then all other
defects or errors go to something other than subject matter
jurisdiction."1101
9 ]cL at 617 (quoting Blanchard v. Golden Age Brewing Co.. 188 Wash. 396,
415, 63 P.2d 397 (1936)).
10 Marlev v. Dep't of Labor & Indus.. 125 Wash. 2d 533, 539, 886 P.2d 189
(1994) (citations omitted) (alterations in original) (first quoting Restatement (Second)
of Judgments §11(1982); then quoting Robert J. Martineau, Subject Matter
Jurisdiction as a New Issue on Appeal: Reining in an Unruly Horse, 1988 B.Y.U. L.
Rev. 1,28).
No. 73446-6-1/6
We review de novo whether a particular court has jurisdiction.11 Whether
a court has jurisdiction "is a matter of law and does not depend on procedural
rules."12
We may affirm a lower court decision on any basis supported by the
record and the law.13
In order to determine whether the Snohomish County Superior Court had
subject matter jurisdiction to decide the motion to return property, we turn to the
state constitution's plain words.
Article IV, section 6 of the state constitution vests subject matter
jurisdiction in the superior courts of "all cases and of all proceedings in which
jurisdiction shall not have been by law vested exclusively in some other court."14
This broad grant of general subject matter jurisdiction controls here. That is
because the City cannot show that subject matter jurisdiction of this controversy
has been "exclusively" vested in the Lakewood Municipal court or any other
court. Thus, this case is the "type of controversy" that the superior court may
decide. Accordingly, Snohomish County Superior Court had subject matter
jurisdiction to decide the motion for return of property.
11 Shoop v. Kittitas County. 149 Wash. 2d 29, 33, 65 P.3d 1194 (2003).
12 ZDI Gaming. Inc.. 173 Wash. 2d at 617.
13 State v. Kellev. 64 Wash. App. 755, 764, 828 P.2d 1106 (1992).
14 (Emphasis added.)
6
No. 73446-6-1/7
The City appears to argue that RCW 2.20.030, on which it primarily relies,
somehow divests the superior court of subject matter jurisdiction. We reject this
untenable argument.
RCW 2.20.030 states:
Any district or municipal court judge, in the county in which
the offense is alleged to have occurred, may issue a search warrant
for any person or evidence located anywhere within the state.
Nothing in this statute purports to establish "exclusive" jurisdiction over
warrants in any of the municipal courts of this state. Even if this statute
purported to do so, it would be ineffective. That is because the legislature may
not divest superior courts of subject matter jurisdiction conferred by the state
constitution. Thus, the constitution's broad grant of general jurisdiction to
superior courts is unaffected by RCW 2.20.030.
The City also relies on CrRLJ 2.3(e) to argue that subject matter
jurisdiction to decide this matter was vested in the Lakewood Municipal Court.
But the existence of jurisdiction is not a procedural matter, thus jurisdiction does
not depend on this criminal procedural rule. Accordingly, CrRLJ 2.3(e) has no
bearing on whether, in this case, the trial court lacked subject matter jurisdiction
to decide this motion.
Authority to Decide This Motion
The City next argues that the motion for return of property should have
been made in the Lakewood Municipal Court. The City contends that court was
the only proper court to decide the issue because that court issued the warrant.
The City supports this argument by relying on the priority of action rule, which
No. 73446-6-1/8
was applied in Seattle Seahawks, Inc. v. King County.15 Because that reliance is
misplaced, we reject this argument.
Under the priority of action rule, "'the court which first gains jurisdiction of
a cause retains the exclusive authority to deal with the action until the
controversy is resolved.'"16 This rule applies where two actions share "identity" of
certain elements.17 "Generally, courts look to whether the actions share identity
of (1) subject matter, (2) parties, and (3) relief."18
We also look beyond these elements to the rule's underlying policy.19 The
underlying purpose of these three elements is to determine whether "'a decision
in one tribunal would bar proceedings in the other tribunal because of res
judicata.'"20
Here, the priority of action rule did not bar the Snohomish County Superior
Court from deciding this motion for return of property.
None of the three elements of identity are present. First, there is no
identity of subject matter. When the City of Lakewood sought a warrant, the only
15128 Wash. 2d 915, 916-17, 913 P.2d 375 (1996).
16 Bunch v. Nationwide Mut. Ins. Co., 180 Wash. App. 37, 41, 321 P.3d 266
(2014) (internal quotation marks omitted) (quoting City of Yakima v. Int'l Ass'n of Fire
Fighters. AFL-CIO. Local 469. Yakima Fire Fighters Ass'n, 117 Wash. 2d 655, 675, 818
P.2d 1076(1991)).
17 id,
18 Id,
19 Id, at 41-42.
20 Id. at 42 (quoting State ex rel. Evergreen Freedom Foundation v. Wash-
Education Ass'n. 111 Wash. App. 586, 607, 49 P.3d 894 (2002)).
8
No. 73446-6-1/9
issue before the municipal court was whether probable cause supported issuing
the warrant. While this issue was also before the superior court, there were
several additional questions before it. For example, the superior court had
claims whether the affidavit contained a false statement or material omission,
and whether the officers had exceeded the warrant's scope.
Second, there is no identity of parties. When the Lakewood Police
Department sought the warrant, there was no opposing party. And Ludeman and
Lee are not parties in the Pierce County prosecution of Jones.
Finally, there is no identity of relief. The Lakewood Municipal Court
determined whether to issue a warrant. The relief that the Snohomish County
Superior Court could order was the return of the property seized when executing
the warrant.
Additionally, res judicata would not apply here. Although the Lakewood
Municipal Court determined whether probable cause supported the warrant, res
judicata does not prevent another court from considering this question when
faced with a motion to suppress or a motion to return property. Accordingly,
applying the priority of action rule here would not further its purpose.
In sum, the priority of action rule did not bar the Snohomish County
Superior Court from deciding the motion to return property.
For these reasons, we conclude that the Snohomish County Superior
Court had authority to decide this motion. It was not divested of such authority
by either the statutory or case authority on which the City relies.
No. 73446-6-1/10
Venue
Here, although the City does not expressly use the term "venue" in its
briefing, it took the position at oral argument that venue in the Snohomish County
Superior Court was also wrong. The City is mistaken.
Parties sometimes imprecisely use the term "jurisdiction" to mean
something other than a court's fundamental power to act.21 "Where jurisdiction
describes the forum or location of the hearing, it is generally understood to mean
venue."22 These are two distinct concepts—a court may have jurisdiction though
it is not the proper venue.23
Venue is "'the place where the suit may or should be heard.'"24 Unlike
jurisdiction, venue is a procedural issue.25
In this case, the property in question was seized in Snohomish County,
albeit on the basis of a warrant issued by the Lakewood Municipal Court. Why
the respondents should have been required to travel to Pierce Countyto seek the
return of their property, which was seized in Snohomish County, is left
unexplained on any basis other than those we already rejected in this opinion.
CrR 2.3(e) of the Superior Court Criminal Rules, entitled "Motion for
Return of Property," provides:
21 ZDI Gaming, Inc., 173 Wash. 2d at 617.
22 Jd,
23 Dougherty v. Dep't of Labor & Indus.. 150 Wash. 2d 310, 315, 76 P.3d 1183
(2003).
24 Id, at 316 (quoting 77 Am. Jur. 2d Venue § 1, at 608 (1997)).
25 Id,
10
No. 73446-6-1/11
A person aggrieved by an unlawful search and seizure may move
the court for the return of the property on the ground that the
property was illegally seized and that the person is lawfully entitled
to possession thereof. If the motion is granted the property shall be
returned. If a motion for return of property is made or comes on for
hearing after an indictment or information is filed in the court in
which the motion is pending, it shall be treated as a motion to
suppress.
This rule provided a criminal procedural mechanism for the Snohomish
County Superior Court to hear the case. Under these circumstances, this court
was the proper venue.
The City argues that Lakewood Municipal Court was the only proper
venue. It relies on CrRLJ 2.3(e) for this argument. That rule provides that a
motion for return of property "shall be filed in the court which issued the
warrant."26
This argument is unpersuasive. The Criminal Rules for the Courts of
Limited Jurisdiction "govern the procedure in the courts of limited jurisdiction of
the State of Washington."27 Thus, they cannot apply to procedures in the
superior courts, which are governed by separate criminal rules.
The Superior Court Criminal Rules do not require that a motion to return
property be made in the court that issued the warrant.28 Thus, the fact that the
Lakewood Municipal Court issued the warrant in this proceeding is irrelevant.
26 CrRLJ 2.3(e).
27 CrRLJ 1.1.
28 CrR 2.3(e).
11
No. 73446-6-1/12
The City argues that under State v. Thomas,29 CrRLJ 2.3, rather than CrR
2.3, controls. The City is mistaken.
First, this argument ignores CrR 2.3's plain words, which we just
addressed.
Second, whether CrRLJ 2.3 or CrR 2.3 applied was not directly before the
supreme court in Thomas. That case involved a purported conflict between CrR
2.3 and RCW 69.50.509.30 But in that case, "the relevant provisions of [CrRLJ
2.3 and CrR 2.3] [we]re identical," thus "the distinction ma[de] no difference."31
Consequently, any discussion on which rule applied was dicta.
MOTION FOR RETURN OF PROPERTY
The City takes issue with the superior court's merits determination that
there was no probable cause for the Lakewood Municipal Court to issue the
warrant. We hold that issuance of the warrant was improper due to the lack of
probable cause.
Probable Cause
A search warrant shall issue only on probable cause.32 An affidavit that
particularly identifies the place to be searched and items to be seized must
support the warrant.33 To establish probable cause, this affidavit must set forth
29121 Wash. 2d 504, 851 P.2d 673 (1993).
30 Id, at 507-08.
31 Id, at 508 n.2.
32 U.S. Const, amend. IV; Const, art. I, § 7.
33 State v. Maddox, 152 Wash. 2d 499, 509, 98 P.3d 1199 (2004).
12
No. 73446-6-1/13
sufficient facts to convince a reasonable person of the probability the defendant
is engaged in criminal activity and that evidence of criminal activity can be found
at the place to be searched.34 These facts must support the conclusion that the
evidence is probably at the premises to be searched at the time the warrant is
issued.35 "We evaluate affidavits 'in a commonsense manner, rather than
hypertechnically, and any doubts are resolved in favor of the warrant.'"36 But
"'the [reviewing] court must still insist that the magistrate perform his neutral and
detached function and not serve merely as a rubber stamp for the police.'"37
The issue here is whether the affidavit supporting the request for issuance
of the warrant for King's Massage in Snohomish County established probable
cause that evidence for the Pierce County prosecution of Jones for promoting
prostitution could be found at King's Massage. We conclude that it did not.
State v. Thein provides an analytical framework for deciding this issue.38
There, Stephen Thein was convicted of possession of marijuana with intent to
deliver and defrauding a utility after a search of his residence uncovered a
marijuana grow operation.39 Police believed he was a drug dealer based on an
34 Id, at 505.
35 Lyons. 174 Wash. 2d at 360.
36 jd, (guoting State v. Jackson. 150 Wash. 2d 251, 265, 76 P.3d 217 (2003)).
37 Id, (alteration in original) (internal quotation marks omitted) (quoting
Aguilar v. Texas. 378 U.S. 108, 111, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964)).
38138 Wash. 2d 133, 977 P.2d 582 (1999).
39 id, at 136.
13
No. 73446-6-1/14
earlier search performed at a different location.40 The affidavits supporting the
request for the warrant for his residence contained statements about the
common habits of drug dealers.41 The issue before the supreme court was
whether these statements supported probable cause to search his residence.
The court held that the statements failed to establish a nexus between illegal
drug activity in one location and Thein's residence at another location.42
Here, the affidavit (No. 15-30) the detective submitted to the Lakewood
Municipal Court to request the warrant for King's Massage is some 14 pages
long in this record. There is no mention of King's Massage until page nine of the
affidavit. That page refers to "Financial information connecting [Su] Jones to
King's Massage" that was among items seized when police searched the
Wellness Clinic and Jones's residence. There is no date or further description of
what this "financial information" was.
The affidavit goes on to describe Internet searches by police to determine
that a King's Massage is located in Lynnwood, Snohomish County.
The affidavit then describes that undercover officers began surveillance of
King's Massage "to see if [Su] Jones or any of the girls from the Fife location
were there." Significantly, there is nothing in the affidavit that shows that either
Jones or other women from the Wellness Clinic at the Fife location were at King's
Massage.
40 id,
41 Id, at 138-39.
42 Id. at 150.
14
No. 73446-6-1/15
The affidavit then states that women at both the Fife location and King's
Massage were from Korea, "which is not normal."
The other information of significance in the affidavit is that the detective
who signed it attested to searching the online Washington State Department of
Revenue State Business Record Database. According to him, the database
showed that Jones had been the sole proprietor of King's Massage "since 5-1-12
to the present [March 25, 2015]."
How this affidavit, read in a commonsense manner, establishes a nexus
between Jones promoting prostitution in Pierce County and the activities that
undercover officers observed at King's Massage in Snohomish County is not
satisfactorily explained. The surveillance by undercover officers never
established that either Jones or any of the women at the Fife location were at
King's Massage. The statement that women at both locations were from Korea
and that this is "not normal" adds nothing of analytical significance. And the
financial documents purporting to link the two locations are not sufficiently
described to show they were not stale information. In short, there was no
probable cause to support issuance of the warrant by the Lakewood Municipal
Court.
The City's arguments on probable cause are not helpful. In its opening
brief, it states:
Under the facts developed in the investigation, and as [the
detective] related in his affidavit in support of the warrant, he had a
basis to believe that human trafficking offenses (specifically,
promoting prostitution) occurred in Pierce County. He further
believed, and the Lakewood Municipal Court judge determined that
15
No. 73446-6-1/16
there was probable cause to believe that evidence of those
offenses was located in Snohomish County.[43]
Similarly, in its reply brief, the City states:
Here, the warrant was valid under RCW 2.20.030. It was
issued by a Pierce County-based court to investigate crimes
occurring in Pierce County, and in fact, prosecuted in Pierce
County Superior Court.'441
These conclusory statements are simply insufficient to show the required
nexus for probable cause. There simply is no showing of how the search of
King's Massage would produce evidence of any crime prosecuted in Pierce
County against Jones. In sum, there was no probable cause to issue the warrant
to search King's Massage.
Return of Property
The City also takes issue with the court's return of the illegally seized
property to Lee and Ludeman. This challenge is without merit.
Under CrR 2.3(e), "A person aggrieved by an unlawful search and seizure
may move the court for the return of the property on the ground that the property
was illegally seized and that the person is lawfully entitled to possession thereof."
"The seizure of property from someone is prima facie evidence of that
person's entitlement."45 And it is the State's burden to prove a greater right of
possession.46 "Only ifthe [government] agency can make a substantial showing
43 Brief of Appellant, City of Lakewood at 12 (citation omitted).
44 Reply Brief of Appellant at 17.
« Citv of Walla Walla v. $401.333.44. 164 Wash. App. 236, 247, 262 P.3d 1239
(2011).
46 id,
16
No. 73446-6-1/17
that the property does not belong to the defendant is the defendant required to
show the court sufficient facts of his right to possession."47
The Lakewood Police Department served Lee and Ludeman with notices
of seizure and intended forfeiture for the property taken in this case. These
notices state that the police department seized Lee and Ludeman's personal
property. Thus, this seizure from Lee and Ludeman was prima facie evidence of
their right to possession.
Additionally, Lee and Ludeman supported their motion with various
documents, including a bill of sale indicating that Lee owned King's Massage;
Lee's car insurance for the seized vehicle; and Ludeman's car registration.
The City's briefing fails to cite to any evidence in the record showing that it
had a superior right to possession. Instead, it argues that it is entitled to the
property because "[possession pursuant to a search warrant gives rise to a
prima facie claim of possession."48 But the case it cites does not support this
proposition. Rather, that case states that "seizure of property from someone is
prima facie evidence of that person's entitlement'49 Additionally, even if we
accepted this proposition, we decline to hold that possession pursuant to an
invalidwarrant is prima facie evidence of right to possession.
47
Id.
48 Brief of Appellant, City of Lakewood at 15 (citing Citv of Walla Walla. 164
Wash. App. at 247).
49 Citv of Walla Walla, 164 Wash. App. at 247 (emphasis added).
17
No. 73446-6-1/18
Thus, the superior court properly ordered the property returned to Lee and
Ludeman.
RCW 2.20.030
The City argues that RCW 2.20.030 authorized the Lakewood Municipal
Court, which is located in Pierce County, to issue the warrant to seize property in
Snohomish County. Lee and Ludeman disagree, arguing that State v.
Davidson50 dictates otherwise. Because we have concluded that the affidavit
supporting the request for the warrant did not establish probable cause, we need
not resolve this dispute.
Similarly, we decline to address the parties' other arguments that are not
necessary to our resolution of the case.
We affirm the orders on appeal.
OdaJ.
WE CONCUR:
^[7;a26 Wash. App. 623, 613 P.2d 564 (1980).
18