In re Forfeiture of 2000 GMC Denali & Contents

• Citation: 316 Mich.App. 562,892 N.W.2d 388
• Decision Date: 02 August 2016
• Docket Number: Docket No. 328547.
• Parties: In re FORFEITURE OF 2000 GMC DENALI AND CONTENTS.
• Court: Court of Appeal of Michigan (US)

316 Mich.App. 562

892 N.W.2d 388

In re FORFEITURE OF 2000 GMC DENALI AND CONTENTS.

Docket No. 328547.

Court of Appeals of Michigan.

Submitted July 6, 2016, at Detroit.

Decided Aug. 2, 2016, at 9:05 a.m.

William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and T. Lynn Hopkins, Assistant Prosecuting Attorney, for the city of Grand Rapids.

Pinsky, Smith, Fayette & Kennedy, LLP, Grand Rapids (by Sarah Riley Howard ), for Shantrese Kinnon.

Before: MURRAY, P.J., and SAWYER and METER, JJ.

MURRAY, P.J.

One of the most important principles contained in our federal Constitution is that neither the state nor federal governments can deprive citizens of their property without first providing them with due process of law. U.S. Const. Ams. V and XIV. That principle is put to the test here, where the claimant, Shantrese Kinnon, was precluded from fully challenging the government's seizing of her property, and later declaring it forfeited, without an opportunity to contest the action. Kinnon was unable to contest the seizure and resulting forfeiture of certain property because she could not afford to post the bond required by statute. She now appeals as of right the judgment of forfeiture. We affirm in part, reverse in part, and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Claimant's husband, Quinton Kinnon (Quinton), was arrested after he was seen by Grand Rapids Police Officers Tyler Smith and Lucas Nagtzaam engaging in a hand-to-hand drug transaction with an unidentified person. Upon arrest, Officer Nagtzaam retrieved from Quinton's person a bag containing hydrocodone pills. When confronted about the contents of the bag, Quinton told Officer Nagtzaam that the pills were Vicodin

and belonged to someone else. Quinton was also in possession of keys to a blue Cadillac, which was subsequently impounded and held for possible forfeiture.

After Quinton was arrested, Officer Ernest Stafford, familiar with Quinton as one of the "main suppliers" of drugs in the area, obtained a search warrant for Quinton's home. When executing the search warrant, officers found in the basement of the house a marijuana growing operation, which led to the seizure of 19 marijuana plants. In the kitchen, officers found measuring containers containing crack cocaine residue, two sandwich bags containing marijuana residue, and a sandwich bag containing a quarter ounce of marijuana. While executing the search warrant, officers seized a 2000 GMC Denali, a 1986 Chevrolet El Camino, a 2002 YZFR motorcycle, a Nexus tablet, and a Compaq laptop computer.

As a result of the search of her home, claimant was arrested. Upon claimant's arrest, $398 was seized from her purse. Claimant was subsequently charged with manufacturing marijuana, MCL 333.7401(2)(d)(iii ), and maintaining a drug house, MCL 333.7405(d), while at the same time, Quinton was charged with possession with the intent to deliver a controlled substance, MCL 333.7401(1), and maintaining a drug house.

Quinton and claimant were served with the required notices by plaintiff, the city of Grand Rapids, of its intent to forfeit the property that was seized. See MCL 333.7523(1)(a). Quinton did not post a bond on any of the property, and more than 20 days after receiving the notice, any interest he held in the items seized was administratively forfeited. See MCL 333.7523(1)(d). Claimant, however, did post a bond, but not the full amount to contest all the seized property. To be able to contest the validity of the forfeiture of all the property, claimant was required to post a $2,005 bond, but according to claimant, she could only afford to post a bond of approximately $1,100, as a result of her indigency. Detective Preston informed claimant that because she did not have sufficient funds to contest all the seized property, she would have to select items that she could afford to contest. As a result, claimant did not post a bond for the Cadillac, which required a $1,020 bond.

More than 20 days after claimant received her notice, plaintiff filed a complaint for forfeiture asserting that the 1986 El Camino, the 2000 GMC Denali, the motorcycle, the Compaq laptop computer, the Nexus tablet, and the $398 in cash were subject to forfeiture because the items were used or intended to be used to facilitate, or were proceeds from, a violation of the Controlled Substances Act, MCL 333.7201 et seq.

After denying the allegations in the complaint and obtaining counsel, claimant filed a motion to intervene seeking to add the Cadillac to the proceedings on the basis that the bond requirement denied her access to the courts and that she was denied an opportunity to be heard because she could not afford the bond requirement. Claimant also asserted that the bond requirement violated her right to equal protection because it allowed individuals with resources to contest forfeitures, while denying those without financial resources such an opportunity. Claimant requested that she be allowed to contest the forfeiture of her Cadillac without posting a bond.

In response, plaintiff argued that Michigan's civil asset forfeiture scheme was constitutional. Specifically, plaintiff relied on People v. Any and All Monies, unpublished opinion per curiam of the Court of Appeals, issued November 12, 1996 (Docket No. 185677), 1996 WL 33348848, for the proposition that the statute did not infringe on an indigent claimant's right to due process or equal protection. In addition, plaintiff asserted that while the Michigan statute does not have a provision allowing for waiver of the bond requirement, a claimant may still petition the court under MCR 2.109(B)(1) to waive the bond requirement.¹

The trial court heard arguments on claimant's motion to intervene and, relying on Any and All Monies, held that the forfeiture statute was constitutional. The trial court subsequently entered an order denying claimant's motion to intervene.

The case then proceeded to trial. After receiving evidence and entertaining arguments, the trial court found that plaintiff failed to establish a connection between the criminal activity and the $398 in cash found in claimant's purse at the time of her arrest, the El Camino, the Compaq laptop computer, and the Nexus tablet. On the other hand, the trial court found that a significant nexus existed between the underlying criminal activity, the Denali, and the motorcycle. In addition, the trial court found that the innocent-owner defense was inapplicable because claimant was not the owner of the vehicles and because she had knowledge of the criminal activity. The trial court thereafter entered a judgment of forfeiture, forfeiting the 2000 GMC Denali and the motorcycle. This appeal ensued.

II. ANALYSIS

A. CONSTITUTIONALITY OF MICHIGAN'S CIVIL ASSET FORFEITURE SCHEME

Claimant asserts that the trial court abused its discretion by denying her motion to intervene because in doing so, she was denied due process and equal protection of the law.² More specifically, she argues that Michigan's bond requirement, as applied to her, deprived her of her property rights in the 2006 Cadillac without according her an opportunity to be heard solely because she could not afford the statutorily required bond.

1. CONSTITUTIONAL REVIEW

A party challenging the constitutionality of a statute has the burden of proving the law's invalidity. Gillette Commercial Operations North America & Subsidiaries v. Dep't of Treasury, 312 Mich.App. 394, 414–415, 878 N.W.2d 891 (2015). The challenging party must overcome a heavy burden because "[s]tatutes are presumed to be constitutional, and we have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent." Mayor of Cadillac v. Blackburn,

306 Mich.App. 512, 516, 857 N.W.2d 529 (2014). When interpreting a statute, our primary goal is to "give effect to the intent of the Legislature." Superior Hotels, LLC v. Mackinaw Twp., 282 Mich.App. 621, 628, 765 N.W.2d 31 (2009). To do so, we examine the plain language of the statute itself, and "[i]f the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted." Whitman v. City of Burton, 493 Mich. 303, 311, 831 N.W.2d 223 (2013).

A constitutional challenge to the validity of a statute can be brought in one of two ways: by either a facial challenge or an as-applied challenge. This is an as-applied challenge, meaning that claimant has alleged " ‘a present infringement or denial of a specific right or of a particular injury in process of actual execution’ of government action." Bonner v. City of Brighton, 495 Mich. 209, 223 n. 27, 848 N.W.2d 380 (2014), quoting Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 71 L.Ed. 303 (1926). "The practical effect of holding a statute unconstitutional ‘as applied’ is to prevent its future application in a similar context, but not to render it utterly inoperative." Ada v. Guam Society of Obstetricians and Gynecologists, 506 U.S. 1011, 1012, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992)(Scalia, J., dissenting). See also United States v. Frost, 125 F.3d 346, 370 (C.A.6, 1997).³

2. MICHIGAN'S FORFEITURE LAW

Under Michigan's civil asset forfeiture scheme, "a conveyance"—which includes a vehicle—"used or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of [a controlled substance]" is subject to forfeiture. MCL 333.7521(1)(d). Property that is subject to forfeiture may be seized without process when it is seized incident to a lawful arrest or pursuant to a search warrant. MCL 333.7522(a). When property is seized without process, and the total value of the property seized does not exceed $50,000, the local unit of government that seized the property shall notify the owner of the property that the property has been seized and that the local unit of government intends to forfeit and dispose of the property by delivering...