# City of Lake Oswego v. $23,232.23 in Cash

> Court of Appeals of Oregon · May 1, 1996 · 140 Or. App. 520

URL: https://www.frixlaw.com/law-library/cases/9579272

## Case

- **Full name:** CITY OF LAKE OSWEGO, a Municipal Corporation, Clackamas County, Oregon, Respondent, v. $23,232.23 IN CASH, Motorola Pager, Defendants, and RODNEY S. MITUNIEWICZ, Appellant
- **Court:** Court of Appeals of Oregon
- **Decided:** May 1, 1996
- **Citations:** 140 Or. App. 520; 916 P.2d 865; 1996 Ore. App. LEXIS 641
- **Precedential status:** Published
- **Opinion:** Concurrence by Edmonds
- **Judges:** Muniz, De Muniz, Edmonds, Haselton, Armstrong, Riggs, Leeson
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9579272

## Opinion text

EDMONDS, J.,
concurring.
Pretrial, claimant moved to dismiss the city’s action in part on the ground that it violated claimant’s right against double jeopardy under Article I, section 12, of the Oregon *539 Constitution and the Fifth Amendment to the United States Constitution, because it exposed him to multiple punishments for the same offense. 1 Claimant argued before the trial court:
“In the instant case, claimant has already been tried and convicted of the conduct upon which the instant forfeiture is predicated. He has been sentenced for that offense. Both the Oregon and United States Constitution prohibit his being placed again in jeopardy for that offense. Claimant is entitled to dismissal because the instant prosecution violates his rights against double jeopardy.”
The trial court denied claimant’s motion, and this appeal resulted. In United States v. Dixon, 509 US 688 , 113 S Ct 2849, 2856 , 125 L Ed 2d 556 (1993), the court held that double jeopardy protection applies both to successive punishments and to successive prosecutions for the same criminal offense. The court stated:
“In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the ‘same-elements’ test, the double jeopardy bar applies. The same-elements test, sometimes referred to as the ‘Blockburger’ test [Blockburger v. United States, 284 US 299, 304 , 52 S Ct 180, 182 , 76 L Ed 306 (1932)], inquires whether each offense contains an element not contained in the other. If not, they are the ‘same offense’ and double jeopardy bars additional punishment and successive prosecution.” (Citation omitted.)
In this case, claimant offered evidence that he had been prosecuted for possession of heroin in Washington County. 2 The city’s complaint in this civil forfeiture case alleged, in part:
*540 “4.
“On or about May 11, 1991, in the County of Washington, State of Oregon, authorized agents of the Lake Oswego Police Department lawfully seized defendants, $23,232.23 in cash and Motorola pager, on behalf of plaintiff, City of Lake Oswego, under the authority of 1989 Oregon Laws, Ch. 791, pursuant to arrest, and probable cause.
“5.
“Defendant property was in the possession of Rodney Steven Mituniewicz, claimant, at the time of seizure.
“6.
“On or about May 11, 1991, defendants, $23,232.23 in cash and Motorola pager, were used and/or intended to be used to commit and facilitate the:
“1) possession of heroin, a controlled substance; and/or
“2) delivery of heroin[ 3 ]
“in violation of ORS 475.992 and subject to civil forfeiture under 1989 Oregon Laws, Ch. 791. * * *”
At the hearing, the city offered evidence that claimant was stopped by a police officer on Interstate 5 for exceeding the maximum speed limit. In the course of the investigation, claimant was observed stuffing bundles of cash down the front of his pants. The officer requested permission to search claimant, and claimant advised the officer that he had $23,000 and that if he was going to jail, he did not want to leave the money in the car. The officer discovered that claimant’s driver’s license was revoked and placed him under arrest for driving while revoked. In a search incident to an arrest, the officer discovered a small, clear plastic wrap with a dark brown substance. The dark brown substance was subsequently identified as tar heroin. Claimant admitted to the police officers that the substance was his. Later, during an interview with the police, claimant told the officers that the $23,000 in cash came from a hispanic male named Jose who *541 lived in the Vancouver, Washington, area, that he had previously delivered a kilogram of cocaine to Jose, and that the $23,000 was the purchase price for the cocaine. When he was stopped, claimant said he was in the process of taking the $23,000 to another person in the Wilsonville area. There is no evidence that the small amount of tar heroin that defendant had in his possession was somehow related to the cocaine transaction.
It is apparent from the evidence elicited at the pretrial hearing that the possession of the tar heroin on May 11, 1991, for which claimant was criminally charged, is a discrete criminal act from the use of the cash and pager involved in the delivery of cocaine, the conduct at issue in the forfeiture proceeding. Thus, the cash and the pager were directly related to claimant’s prior delivery of a different controlled substance. Moreover, claimant was never charged in the Washington County criminal case with the delivery of a controlled substance. Because the forfeiture proceeding involved different conduct than the conduct that was the subject of the previous criminal action, the $23,232.23 and the pager were subject to forfeiture, no double jeopardy attached. Possession of a controlled substance and delivery of a controlled substance are separate offenses involving distinct elements. 4 The application of the Blockburger “same-elements” test 5 *542 makes it clear under these circumstances that the Double Jeopardy Clause of the Fifth Amendment and Article I, section 12, are not implicated.
For this reason, I submit that it is unnecessary to reach the issue which the majority and the dissents consider dispositive. It would appear that the majority agrees that double jeopardy does not apply when the offense on which the double jeopardy claim is based does not contain the same legal elements as the previous prosecution. However, it states that
“the argument that the delivery charge has different elements than the possession charge is foreclosed by [United States v. $405,089.23 U.S. Currency, 33 F3d 1210 (9th Cir 1994)] ■ City’s pleadings in the forfeiture proceeding allege claimant’s violation of ORS 475.992 as one ground for the forfeiture, and, as in [United States v. Sherett, 877 F Supp 519 (D or 1995)], it is immaterial that City could have constructed the forfeiture case to omit that allegation.” 140 Or App at 531.
$405,089.23 U.S. Currency is inapposite. It did not address a situation in which the forfeiture proceeding was based on different conduct than the conduct that was the subject of the earlier criminal prosecution. That court stated:
“The forfeiture complaint in this case was based on precisely the same conduct addressed in the claimant’s criminal case, and it sought to forfeit title to the claimants’ property on the basis of precisely the same violations of the same statutes. In short, this civil forfeiture action and the claimants’ criminal prosecution addressed the identical violations of the identical laws[.]” Id. at 1216.
Similarly, Sherrett involved a situation in which some of the allegations in an earlier forfeiture action were identical to the charges in the criminal indictment. The court held that double jeopardy was implicated only as to the charges that were duplicated, and that the necessary predicate for double jeopardy arising out of either multiple prosecutions or multiple punishment is that the elements of the criminal charges and the allegations in the forfeiture complaint must be the same. When that predicate is absent as here, the rule is not implicated. Consequently, the majority *543 and the dissents both err by focusing on issues not necessary to the determination of this case.
For that reason, I concur only in the result that the majority reaches.
Claimant makes the same argument under both provisions and does not argue that a different test applies under the Oregon Constitution, nor does he make a double or former jeopardy argument under any Oregon statute.
In State v. Mituniewicz, 125 Or App 41 , 864 P2d 1359 (1993), claimant was charged with the possession of a small amount of tar heroin that was seized from his pocket after he was arrested for felony driving while revoked in Washington County. We held that the search and seizure were not reasonably related to the reason for the claimant’s arrest, that the search was not incident to a valid inventory search and that the inevitable discovery rule did not apply. Accordingly, we reversed the conviction for possession of the tar heroin after the hearing in this case was held.
The majority is correct when it holds that the allegation of delivery of heroin and the proof of delivery of cocaine did not cause claimant any prejudice in defending the forfeiture claim. The city’s evidence came from claimant’s own admission.
See State v. Sargent, 110 Or App 194 , 822 P2d 726 (1991) (discussing the differing elements of delivery and possession of a controlled substance and concluding that the two do not merge as a matter of law).
The Blockburger test continues to be the test employed by other courts. For instance, in U.S. v. Chick, 61 F3d 682 (9th Cir 1995), the defendant/claimant’s surveillance equipment was forfeited in a civil proceeding because the equipment was used for unlawful interception of electronic communications. After the forfeiture proceeding defendant/claimant was charged with selling and conspiring to sell illegally modified satellite descramblers. The defendant/claimant argued that the charges placed him in double jeopardy. The 9th Circuit applied the Blockburger same-elements test and concluded:
“The civil forfeiture proceeding only required proof that the seized electronic equipment was used to intercept electronic communications in violation of 18 U.S.C. § 2511 . The civil forfeiture proceeding did not require proof that Chick conspired to assemble, possess or sell satellite descrambler modules or that Chick sold illegally modified satellite descramblers. Therefore, applying the ‘Blockburger test’ to the record before us, we find that the counts contained in the superseding indictment were based on distinctly different offenses from the offense which underlies the civil forfeiture action involving electronic equipment belonging to Chick.” 61 F3d at 687 . (Footnotes omitted; emphasis supplied.)
See also U.S. v. Sherrett, 877 F Supp 519 (D Or 1995).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9579272. Public record. Not legal advice.