Forfeiture of U.S. Currency, In re
| Decision Date | 14 March 1988 |
| Docket Number | Docket No. 92272 |
| Citation | 166 Mich.App. 81,420 N.W.2d 131 |
| Parties | In re FORFEITURE OF UNITED STATES CURRENCY. 166 Mich.App. 81, 420 N.W.2d 131 |
| Court | Court of Appeal of Michigan — District of US |
[166 MICHAPP 83] Alvan P. Knot, Acting City Atty., and Catherine A. Emerson, Associate City Atty., Lansing, for plaintiff-appellee.
Abood, Abood & Rheaume, P.C. by William E. Rheaume, Lansing, for Kenneth Williams.
Before DANHOF, C.J., and DOCTOROFF and GREEN, * JJ.
Kenneth Williams appeals as of right from an Ingham Circuit Court order compelling forfeiture of $30,632.41 to the City of Lansing pursuant to M.C.L Sec. 333.7521(1)(f); M.S.A. Sec. 14.15(7521)(1)(f). We remand this case for rehearing.
This appeal involves an incident that occurred on April 7, 1983, at 6500 Aurelius Road in Lansing. At that time, officers executing a search warrant on the premises seized various controlled substances, together with $30,632.41 in cash. Williams was arrested.
On April 6, 1983, a police officer, David Wilcox, arrested an individual (hereinafter the informant) in a separate drug investigation in East Lansing.
At about 3:00 p.m. on April 7, Wilcox telephoned Michigan State Police Officer Paul Whitford to tell him that the informant had admitted selling one hundred tablets of morphine for $800 to a black female named San at Williams' address and had purchased $200 worth of heroin from San.
[166 MICHAPP 84] Officer Whitford then put this information into an affidavit for a search warrant. The affidavit also stated that Whitford had learned from another police officer, Robert Fisher, about two purchases of heroin from San at Williams' address during August and September, 1982. Whitford further stated that Williams had been convicted of delivery of cocaine.
In the affidavit, it was also stated that Whitford learned from Officer Rick Burgess that Burgess had learned from a confidential informant that a person named "Ken" was currently selling controlled substances "at a house on the west side of Aurelius Road, just south of Interstate 96."
Based upon the affidavit, a 54th District Court judge signed a search warrant on April 7, 1983. Officer Whitford executed it immediately. As a result, drugs and money were confiscated. Williams and another person were arrested for violating the controlled substances act, M.C.L. Sec. 333.7101 et seq.; M.S.A. Sec. 14.15(7101) et seq., for possession with intent to deliver marijuana and possession of methamphetamine, ethchlorvynol, phenmetrazine, dextroproxyphene, less than fifty grams of heroin and less than fifty grams of methadone.
On April 20, 1983, the City of Lansing filed a complaint for forfeiture and a motion to show cause. The show cause hearing was adjourned pending disposition of the underlying criminal charges against appellant.
On October 25, 1983, an Ingham Circuit Court judge granted Williams' motion to suppress evidence in the criminal case. He ordered all controlled substances to be barred from evidence and all other goods, chattels, articles and property that was seized to be returned to Williams. The criminal charges against Williams were dismissed; no appeal was taken from the order of dismissal.
[166 MICHAPP 85] On September 4, 1984, prior to the commencement of the separate forfeiture hearing, the City of Lansing moved that the previously suppressed evidence from the criminal proceeding be admitted into evidence and requested that the validity of the search warrant be relitigated. The judge denied the motion, indicating that he did not have the prior judge's opinion stating the bases for the ruling and could not relitigate the matter. Notwithstanding his denial of the motion, the judge relied on United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and allowed much testimony relative to the the good faith conduct of the police in executing the search warrant.
Following the testimony of officers Whitford and Wilcox, Lansing Police Officer Paul Klein testified that, during a previous investigation into the murder of Williams' father, Williams told police that his father had sold drugs after seeing Williams make good money doing it.
Another Lansing officer testified that, when Williams was shot in 1982, he told police the shooting was drug related.
Williams took the stand and testified that the police officers had assured him that what he had told them about his father's murder was strictly confidential and only for the purposes of the murder investigation. He further indicated that he did not say anything to the police about his own drug activity. During cross-examination, it came out that, in 1978, Williams was convicted pursuant to a plea-bargain agreement on a cocaine-related charge.
When asked about the seized money, Williams indicated that $15,000 to $20,000 of it had been a gift from his parents to pay off the mortgage on his home. At that time, his parents were retired [166 MICHAPP 86] and on Social Security. He indicated further that he had not worked since he was shot in March of 1982 and that he collected $609 per month in Social Security, $146 per month in disability benefits, and $250 to $300 per month in rental income.
In an April 14, 1986, opinion, the circuit judge ordered that the seized money be forfeited on the ground that the city had established probable cause to find that the money had been connected with controlled substances.
Williams first argues that the forfeiture of the money was improper because illegally-seized evidence cannot be the subject of a forfeiture action.
The City of Lansing sought forfeiture of the money pursuant to M.C.L. Sec. 333.7521(1)(f); M.S.A. Sec. 14.15(7521)(1)(f), which provides:
Except with regard to the "close proximity" presumption, the Michigan forfeiture statute closely parallels the analogous federal statute, 21 U.S.C. Sec. 881(a)(6). 1 However, although the federal forfeiture statute utilizes a probable cause standard of proof, a party asserting a claim for forfeiture under the Michigan statute has the burden of proving his case by a preponderance of the evidence. People v. United States Currency, 158 Mich.App. 126, 130, 404 N.W.2d 634 (1986), citing Blue Cross & Blue Shield of Michigan v. Governor, 422 Mich. 1, 89, 367 N.W.2d 1 (1985), reh. den. 422 Mich. 1206 (1985), app. dis. 474 U.S. 805, 106 S.Ct. 40, 88 L.Ed.2d 33 (1985). Proof by a preponderance of the evidence requires that the factfinder believe that the evidence supporting the existence of the contested fact outweighs the evidence supporting its nonexistence. See Martucci v. Detroit Police Comm'r, 322 Mich. 270, 274, 33 N.W.2d 789 (1948).
Since the 1982 addition of subsection (f) to M.C.L. Sec. 333.7521(1); M.S.A. Sec. 14.15(7521)(1), Michigan courts have not decided the specific question whether [166 MICHAPP 88] property seized pursuant to a search warrant which is subsequently held invalid may still be subject to forfeiture under the Michigan forfeiture statute. However, this Court has stated that property and monies described in the analogous federal statute are subject to forfeiture even where the seizure of the property subject to the forfeiture is subsequently found to be unlawful. Michigan State Police v. 33d District Court, 138 Mich.App. 390, 395, 360 N.W.2d 196 (1984).
In the instant case, Williams relies on One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965), for the proposition that illegally seized property cannot be subject to forfeiture. He errs in this regard, as did the circuit court when it cited that case for the same proposition. One 1958 Plymouth Sedan holds that evidence and property illegally seized cannot be used in a forfeiture proceeding, and not that the illegally seized property cannot be forfeited.
The decision in United States v. "Monkey" a Fishing Vessel, 725 F.2d 1007, 1012 (C.A. 5, 1984), addressing forfeiture of illegally seized property under federal law, is instructive:
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