In Re Real Prop. Known as 3567 E. Alvord Rd. – 7/16/2020

September 2, 2020

Arizona Court of Appeals Division Two holds that a property used in the facilitation of drug sales is subject to forfeiture.

The state commenced an in rem forfeiture action against a parcel of property, alleging that one of the property’s joint owners had used the property in racketeering offenses involving criminal drug sales.  The owner filed a notice of claim and moved to stay the forfeiture pending resolution of his criminal charges.  When the owner plead guilty to the commission of several criminal offenses, including the possession of a dangerous drug for sale, the state renewed its forfeiture application and moved for summary judgment, which was granted.

On appeal, the property owner argued that seizing both the mobile home on the property and the parcel of land itself was an excessive fine in violation of the Eight Amendment.  The Court of Appeals disagreed and affirmed the trial court’s grant of summary judgment.

First, the Court explained that under Arizona’s forfeiture laws, A.R.S. §§ 13-4301 to -4315, property is subject to forfeiture if another statute allows for such remedy.  Here, A.R.S. § 13-2314(G) allowed the state to commence an in rem action to seek forfeiture of a property used to facilitate a racketeering offense.  Because the owner plead guilty, the state met its burden to show by clear and convincing evidence that the property was subject to forfeiture and the owner failed to show by a preponderance of the evidence that his interest was exempt from forfeiture.

Next, the Court explained that a civil forfeiture constitutes an excessive fine under the Eighth Amendment when it is “grossly disproportional to the gravity of the defendant’s offense,” factoring in the nature of the crime, the surrounding circumstances including the relationship to other criminal activities, the harm caused, and the maximum sentence and fine as well as the injury to the state.  Here, the fines for the owner’s crime amounted to up to $150,000, the owner gained money from his criminal enterprise, and the criminal enterprise required two separate law enforcement investigations whereas the property was valued at approximately $27,000.  Because there is a presumption that a forfeiture is constitutional if the value of the property is within the range of the fines set by the legislature, the Court found the forfeiture was not grossly disproportionate.

This case was issued on July 16, 2020, and following a motion to publish, was published on August 20, 2020.

Judge Eppich authored the opinion, in which Judge Espinosa and Judge Eckerstrom joined.