Forfeiture of 719 N. Main, In re

• Decision Date: 10 April 1989
• Docket Number: Docket No. 95345
• Parties: In re FORFEITURE OF 719 N. MAIN. PEOPLE of the State of Michigan ex rel. ARENAC COUNTY PROSECUTING ATTORNEY, Plaintiff-Appellee, v. 719 N. MAIN, OMER, Defendant, and William Sharon, Defendant-Appellant, and Vivian Sharon, Stanley Strelecki, and Mrs. Stanley Strelecki, Defendants. 175 Mich.App. 107, 437 N.W.2d 332
• Court: Court of Appeal of Michigan — District of US

Page 332

437 N.W.2d 332

In re FORFEITURE OF 719 N. MAIN PEOPLE of the State of Michigan ex rel. ARENAC COUNTY PROSECUTING ATTORNEY, Plaintiff-Appellee, v. 719 N. MAIN, OMER, Defendant and William Sharon, Defendant-Appellant and Vivian Sharon, Stanley Strelecki, and Mrs. Stanley Strelecki, Defendants.

Docket No. 95345.

175 Mich.App. 107, 437 N.W.2d 332

Court of Appeals of Michigan.

Submitted June 23, 1987.

Decided Feb. 22, 1989.

Released for Publication April 10, 1989.

[175 MICHAPP 108] O'Farrell, Basner, Smith & Popielarz by Rod O'Farrell, Saginaw, for defendant.

Before WAHLS, P.J., and MAHER and BOYLE, ^* JJ.

PER CURIAM.

William Sharon appeals as of right from an order directing the forfeiture of his real property at 719 N. Main, Omer, Michigan. We affirm.

A petition for forfeiture of the real property had been filed by the prosecuting attorney pursuant to M.C.L. Sec. 333.7521; M.S.A. Sec. 14.15(7521). The petition alleged that an undercover law enforcement officer had purchased cocaine from William Sharon at the [175 MICHAPP 109] residence located on the real property on two separate occasions and

"That said real property has been in close proximity to controlled substances and/or paraphernalia related to said controlled substances and/or was used or intended to be used to facilitate a violation of the controlled substance laws of this State and/or was used or intended to be used as a container to violate the controlled substance laws of this State."

The petition specified that William Sharon (Sharon) had been assigned a land contract vendee interest in the real property by Robert Sharon (who was deceased at the time the petition was filed) and Vivian Sharon, and that Robert and Vivian Sharon had purchased the property from Stanley and Julian Strelecki. The petition claimed that the land contract balance owed to the Streleckis was $604.59. Vivian Sharon, it was alleged, had an equitable interest in the property of $2,000.

At the hearing on the petition, David Gutierrez, a trooper with the Michigan State Police, testified that on December 11, 1984, he went to 719 N. Main, in Omer, Michigan, and purchased two grams of cocaine from Sharon for $250. Gutierrez further testified that he made a second purchase, of one-quarter ounce of cocaine for $700, from Sharon on February 6, 1985, at the residence. According to Gutierrez, on each occasion Sharon went to the rear of the house and returned with an oil can. Sharon unscrewed the top and took it off. The can was lined with plastic. The cocaine was inside in a plastic bag. Gutierrez also testified that Sharon stated, in his presence, that he sold dope for a living.

An order of forfeiture as to the real property located at 719 N. Main was entered on September [175 MICHAPP 110] 5, 1986. The court ordered that the property be forfeited to the Bay Arenac Narcotics Enforcement Team for disposal and that the forfeiture was effective against all legal and equitable owners except the Streleckis and Vivian Sharon.

Section 7521 of the Public Health Code, M.C.L. Sec. 333.7521; M.S.A. Sec. 14.15(7521), provides a penalty for the violation of Article 7 (the controlled substance article) of the code. It lists the property of the violator which is subject to forfeiture and the conditions which support a forfeiture.

Forfeiture of the real property owned by Sharon in the instant case was ordered pursuant to Sec. 7521(1)(f), which provides that the following property is subject to forfeiture:

"(f) Any thing of value that is furnished or intended to be furnished in exchange for a controlled substance or an imitation controlled substance in violation of this article, traceable to an exchange for a controlled substance or an imitation controlled substance in violation of this article, or used or intended to be used to facilitate any violation of this article including but not limited to money, negotiable instruments, or securities. To the extent of the interest of an owner, a thing of value is not subject to forfeiture under this subdivision by reason of any act or omission that is established by the owner of the item to have been committed or omitted without the owner's knowledge or consent. Any money that is found in close proximity to any property that is subject to forfeiture under subdivision (a), (b), (c), (d), or (e) shall be presumed to be subject to forfeiture under this subdivision. This presumption may be rebutted by clear and convincing evidence." (Emphasis added.)

719 N. Main was forfeited, therefore, as a thing of value which was used to facilitate a violation of Article 7.

[175 MICHAPP 111] Sharon asserts on appeal that Sec. 7521(1)(f) is vague in violation of the federal and state due process clauses. U.S. Const. Am. XIV, Sec. 1; Const. 1963, art. 1, Sec. 17. Sharon failed to raise this constitutional issue below and, thus, the issue has been waived. People v. United States Currency, 158 Mich.App. 126, 130, 404 N.W.2d 634 (1986). See also Petterman v. Haverhill Farms, Inc., 125 Mich.App. 30, 33-34, 335 N.W.2d 710 (1983). This issue was not preserved for appeal and that should be outcome determinative. However, even if the issue had been preserved, it has no merit.

A statute may be challenged for vagueness on three grounds: (1) that it does not provide fair notice of the conduct proscribed; (2) that it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed; and (3) that its coverage is overbroad and impinges on First Amendment freedoms. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Woll v. Attorney General, 409 Mich. 500, 533, 297 N.W.2d 578 (1980); People v. Howell, 396 Mich. 16, 20, 238 N.W.2d 148 (1976).

In testing the statute against a void for vagueness claim, the words of the statute should be given their ordinary meaning. People v. Anderson, 119 Mich.App. 325, 330, 326 N.W.2d 499 (1982); People v. Jackson, 140 Mich.App. 283, 287, 364 N.W.2d 310 (1985), lv. den. 423 Mich. 859 (1985).

First, the contested portion of Sec. 7521(1)(f), i.e., "[a]nything of value ... used to facilitate any violation of this article," must give a person of ordinary intelligence notice of the conduct which will give rise to the imposition of the penalty. See United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954), and People v. Dempster, 396 Mich. 700, 715, 242 N.W.2d 381 (1976). The reasoning[175 MICHAPP 112] behind this requirement is the idea that people are free to choose their own conduct; they may direct their own actions and, therefore, they should be given the opportunity to know what conduct will be penalized. Grayned, supra.

Certainly the ordinary meaning of "anything of value" would include real property. While real property is not expressly named in Sec. 7521, the forfeiture of real property is clearly contemplated. See Sec. 7523(3) of the code, M.C.L. Sec. 333.7523(3); M.S.A. Sec. 14.15(7523)(3), which provides:

"(3) Title to real property forfeited under this article shall be determined by a court of competent jurisdiction. A forfeiture of real property encumbered by a bona fide security interest is subject to the interest of the secured party who neither had knowledge of nor consented to the act or omission."

The term "violation of this article" in Sec. 7521(1)(f) is also readily understandable and provides notice that a violation of a controlled substance provision would support forfeiture.

The critical portion of the contested phrase seems to be "used to facilitate any violation." The American Heritage Dictionary of the English Language (New College ed. 1976), p. 469, defines "facilitate" as to "make easier." Notice is provided in the statute by the ordinary meaning of the word "facilitate." Notice is provided that property used to aid the violation of controlled substance laws is subject to forfeiture. There is no meritorious constitutional claim here on the notice ground.

Second, the contested phrase must provide standards for enforcing and administering the laws in order to ensure that enforcement is not arbitrary or discriminatory; basic policy decisions should not [175 MICHAPP 113] be delegated to policemen, judges, and juries for resolution on an ad hoc and subjective basis. Grayned, supra. We believe that the provision in question was sufficiently structured so that the circuit court was not permitted unlimited discretion in forfeiture. The circuit court could only order forfeiture of property used to aid in the violation of controlled substance laws.

Third, the phrase may not be overbroad in that it prohibits constitutionally protected behavior as well as unprotected behavior; i.e., an overbroad statute is one which is likely to "chill" constitutionally protected behavior. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Overbreadth does not depend upon the particular facts at hand; a challenger does not have to show his innocence in order to attack a statute for overbreadth. Woll, supra. Traditionally, overbreadth is generally associated with behavior protected by the First Amendment. However, the overbreadth doctrine applies to any state abridgement of constitutionally protected fundamental rights. Detroit v. Sanchez, 18 Mich.App. 399, 171 N.W.2d 452 (1969); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).

The phrase in question does not penalize constitutionally protected behavior; only violations of narcotics laws result in forfeiture under the statute. Thus, the phrase is not overbroad.

We conclude that, on the merits, Sharon's claim of unconstitutionality must fail because there is no identifiable interest protected by the void-for-vagueness doctrine which is implicated by the statute in this case or its application in this seizure.

A second issue raised on appeal is whether the evidence supports a finding that the residence (real property) was used to facilitate a...