Forfeiture of U.S. Currency, In re, Docket No. 99008

• Decision Date: 23 November 1988
• Docket Number: Docket No. 99008
• Parties: In re FORFEITURE OF UNITED STATES CURRENCY. PEOPLE of the State of Michigan ex rel. WAYNE COUNTY PROSECUTING ATTORNEY, Plaintiff-Appellee, v. U.S. CURRENCY and Miscellaneous Items Named in a Search Warrant, Defendants, and Carrie Jones, Claimant-Appellant. 172 Mich.App. 200, 431 N.W.2d 437
• Court: Court of Appeal of Michigan — District of US

Page 437

431 N.W.2d 437

In re FORFEITURE OF UNITED STATES CURRENCY PEOPLE of the State of Michigan ex rel. WAYNE COUNTY PROSECUTING ATTORNEY, Plaintiff-Appellee, v. U.S. CURRENCY and Miscellaneous Items Named in a Search Warrant, Defendants and Carrie Jones, Claimant-Appellant.

Docket No. 99008.

172 Mich.App. 200, 431 N.W.2d 437

Court of Appeals of Michigan.

Submitted April 11, 1988.

Decided Aug. 30, 1988.

Released for Publication Nov. 23, 1988.

[172 MICHAPP 201] John D. O'Hair, Pros. Atty., John L. Thompson, Deputy Chief, Sp. Operations, and A. George Best, II, Asst. Pros. Atty., for plaintiff-appellee.

Buckfire & Buckfire, P.C. by David Buckfire, Southfield, for claimant-appellant.

Before DANHOF, C.J., and MAHER and SIMON, ^* JJ.

PER CURIAM.

Claimant, Carrie Jones, appeals as of right from a Wayne Circuit Court order compelling the forfeiture of Jones' interest in $28,088 and other miscellaneous items named in a search warrant[172 MICHAPP 202] pursuant to M.C.L. Sec. 333.7521 et seq.; M.S.A. Sec. 14.15(7521) et seq. We affirm.

On December 10, 1985, the Wayne County Federal Task Force executed a search warrant at 459 East Euclid in Detroit. The warrant authorized the seizure of controlled substances, proceeds from the trafficking of controlled substances, paraphernalia and records related thereto, and firearms used to protect the controlled substances. In addition, the warrant authorized the seizure of items establishing the residency and control of 459 East Euclid, which was described in the warrant as a "two story two family dwelling." The basis for the warrant was information obtained from a confidential informant on the use of 459 East Euclid to store controlled substances and proceeds and the task force's surveillance of that address as well as two other addresses on Delmar Street, which were believed to be the distribution point for the controlled substances.

Carrie Jones was present during the search of 459 East Euclid, and it is not disputed that she resided in the lower level of that address. When executing the warrant, officers were required to break through locked iron gates at the entrance of two bedrooms on the lower level. Heroin, paraphernalia and records relating to the trafficking of controlled substances, firearms, money, and other items were seized.

The prosecutor then commenced a statutory forfeiture process against the items seized, and Jones responded by moving to quash the search warrant, suppress all physical evidence seized from her premises, and for the return of all the evidence. On April 7, 1986, the trial court denied Jones' motion to quash the search warrant and suppress the evidence, which was argued solely on the basis of the information contained in the warrant. [172 MICHAPP 203] On February 19, 1987, the forfeiture hearing was held, with Jones' attorney stipulating to the admission of all facts necessary for the prosecutor to establish a prima facie case of forfeiture. Jones' attorney also asserted that he could not rebut the stipulated-to evidence because Jones declined to appear and would not testify. Based on this record, the trial court ordered the forfeiture of all items seized to the extent of Jones' interest.

On appeal, Jones seeks the return of the property seized from her residence on the basis that the warrant was not supported by probable cause and was overly broad. The prosecutor argues that the search warrant was valid and further contests this Court's jurisdiction and Jones' standing in this forfeiture action. Since the jurisdictional and standing issues are preliminary to all other issues we must decide, they shall be considered first.

The prosecutor's objection to this Court's jurisdiction was first raised in a motion to dismiss, which was denied by a panel of this Court for lack of merit. On appeal, the prosecutor continues to argue that this Court lacks jurisdiction because, it is claimed, the order of forfeiture was executed on March 11, 1987, thereby resulting in the release of the "res." Based on the record before us, we must disagree.

Forfeiture proceedings are in rem civil proceedings. People v. United States Currency, 158 Mich.App. 126, 130, 404 N.W.2d 634 (1986). The general rule in such proceedings is that possession or control over the subject matter or res of the action is essential to the court's jurisdiction to render a judgment. 47 Am.Jur.2d, Judgments, Secs. 1064-1065, pp. 130-131. The judgment operates directly on the res and has no force other than that arising from the jurisdiction over the res. Id., Sec. 1069, p 133.

Under the Michigan forfeiture statute, M.C.L. Sec. [172 MICHAPP 204] 333.7523(2); M.S.A. Sec. 14.15(7523)(2), the court has jurisdiction over the res, despite the possession of the res by the seizing agency, with control being retained by the court by subjecting the agency's custody of the res to the order and judgment of the court. The court here issued a final forfeiture order under the statute and we have jurisdiction to review the order under MCR 7.203(A). Thus, contrary to the prosecutor's contention, we do have jurisdiction. The federal cases relied on by the prosecutor, although seeming to support the notion that an execution of the judgment deprives both the lower and appellate courts of jurisdiction, are really concerned with the concept of mootness. Compare United States v. $57,480.05 United States Currency, 722 F.2d 1457 (CA 9, 1984), with Alyeska Pipeline Service Co v. The Vessel Bay Ridge, 703 F.2d 381, 384 (CA 9, 1983), cert. dis. 467 U.S. 1247 (1984), cited at 722 F.2d 1458. An important test for mootness in Michigan, as in Alyeska, supra, at p. 384, is whether an event occurs which renders it impossible for the reviewing court, if it should decide in favor of the party, to grant any relief. Schumacher v. Tidswell, 138 Mich.App. 708, 717, 360 N.W.2d 915 (1984).

If, as the prosecutor claims, the judgment was properly executed, then there would be no res subject to the court's control to return to Jones and a dismissal based on mootness would be justified. Under these circumstances, and because an appeal will not ordinarily stay the effect or enforceability of the judgment, it is incumbent upon a claimant such as Jones to obtain a stay of the judgment if she desires to seek a return of the res on appeal. See MCR 7.209.

Nevertheless, we decline to dismiss for mootness. While an issue not addressed in the trial court can be considered on appeal if necessary to a proper [172 MICHAPP 205] determination of the case, this is so only if the record contains all the facts necessary to determine the claim. Trail Clinic, PC v. Bloch, 114 Mich.App. 700, 711-712, 319 N.W.2d 638 (1982), lv. den. 417 Mich. 959 (1983). The record before us does not support the prosecutor's allegation that the judgment was executed and no motion for remand to develop a record on the disposition of the res was made. See MCR 7.211(C)(1). Accordingly, we will consider the other issues raised on appeal.

With regard to the prosecutor's challenge to Jones' standing to seek the return of the seized items, we decline to consider this issue since it was not raised below and no cross-appeal was filed. Compare People v. Smith, 420 Mich. 1, 11, n 3, 360 N.W.2d 841 (1984) (standing issue addressed when raised for the first time on appeal by the appellant and necessary to a proper determination of the case), with Kordich v. Butler Aviation Detroit, Inc., 103 Mich.App. 566, 567-570, 303 N.W.2d 238 (1981) (appellee's claim not preserved for review where no cross-appeal was filed), and Burns v. Rodman, 342 Mich. 410, 70 N.W.2d 793 (1955) (appellee's claim as to the reasons presented to, but rejected by, the trial court as support for the judgment in his favor can be considered on appeal). In passing, we point out that the Michigan forfeiture statute, M.C.L. Sec. 333.7523(1)(b); M.S.A. Sec. 14.15(7523)(1)(b), requires the claimant to have a personal interest in the property which is the subject of the forfeiture. The stipulated factual record in this case contains no stipulation as to the amount of Jones' interest in any of the items seized and, thus, does not support her claim that she is entitled to the return of the property.

The sole issue raised by Jones concerns the validity of the search warrant. Jones argues that the property, particularly the money, was illegally [172 MICHAPP 206] seized and, therefore, should be returned. As the prosecutor points out, however, Jones' attorney stipulated to the...