In re Forfeiture of $180,975

• Decision Date: 03 July 2007
• Docket Number: Docket No. 127983. Calendar No. 1.
• Parties: In re FORFEITURE OF $180,975. People of the State of Michigan, Plaintiff-Appellee, v. $180,975 In United States Currency, Defendant, and Tamika Shante Smith, Claimant-Appellant, and Todd Fitzgerald Fletcher, Claimant.
• Court: Michigan Supreme Court

734 N.W.2d 489

478 Mich. 444

In re FORFEITURE OF $180,975 People of the State of Michigan, Plaintiff-Appellee, v. $180,975 In United States Currency, Defendant, and Tamika Shante Smith, Claimant-Appellant, and Todd Fitzgerald Fletcher, Claimant.

Docket No. 127983. Calendar No. 1.

Supreme Court of Michigan.

Argued March 6, 2007.

Decided July 3, 2007.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Juris Kaps, Prosecuting Attorney, and Michael J. Bedford and Lori Baughman Palmer, Assistant Prosecuting Attorneys, Paw Paw, for the people.

Karri Mitchell, Oak Park, for Tamika S. Smith.

David Gorcyca, President, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Lori Baughman Palmer, Assistant Prosecuting Attorney, Detroit, for amicus curiae Prosecuting Attorneys Association of Michigan.

Opinion

WEAVER, J.

In this case we consider the proper application of the exclusionary rule in a civil forfeiture proceeding in which the property subject to forfeiture has been illegally seized. We further consider whether In re Forfeiture of United States Currency, 166 Mich.App. 81, 420 N.W.2d 131 (1988), was correctly decided. In deciding these questions, we first hold that under Immigration & Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), illegally seized property is not immune from forfeiture. We also agree with the holding in United States v. $639,558, 293 U.S.App. D.C. 384, 387, 955 F.2d 712 (1992), that property subject to forfeiture that was illegally seized "is not `excluded' from the proceeding entirely." Instead, the illegally seized property "may be offered into evidence for the limited purpose of establishing its existence, and the court's in rem jurisdiction over it." Id.

Because we find that the exclusionary rule was never meant to preclude illegally seized property from a subsequent civil forfeiture proceeding involving that property, we hold that, in accord with In re Forfeiture of United States Currency and MCL 333.7521, as long as the order of forfeiture can be established by a preponderance of evidence untainted by the illegal search and seizure, the forfeiture is valid.

For the reasons summarized by the Court of Appeals in its decision affirming the circuit court's judgment and order, we agree with the Court of Appeals that the circuit court did not clearly err in finding that, although the money was illegally seized, there was a preponderance of untainted evidence to support a finding of civil forfeiture pursuant to MCL 333.7521(1)(f).

Accordingly, we affirm the Court of Appeals judgment and we further conclude that the Court of Appeals in In re Forfeiture of United States Currency reached the correct result.

FACTS

Claimant Tamika S. Smith was driving west on I-94 when she was stopped for speeding by Michigan State Trooper James Lass. Smith was traveling with her two small children in a rental car rented by her adult male passenger, claimant Todd F. Fletcher. Trooper Lass obtained photo identification in the form of a driver's license from both Smith and Fletcher and checked both licenses for outstanding warrants. Lass discovered that Smith's license had been suspended, and that Fletcher's license was valid, but that Fletcher had been identified as an individual to whom "officer safety caution" applied. After checking Fletcher's criminal history, Trooper Lass learned that Fletcher had been arrested previously for possession of cocaine and for weapons offenses. On the basis of this information, Trooper Lass returned to the rental car and apparently advised Smith that he was going to search the trunk of the rental car, in which Trooper Lass subsequently discovered a backpack containing $180,975 in cash.¹ Smith was cited for speeding and driving on a suspended license.²

The state filed a complaint for forfeiture of the currency discovered in the backpack pursuant to MCL 333.7521(1)(f). Before the forfeiture proceeding, claimant Smith filed a motion to suppress evidence of the backpack and its contents on the basis that the evidence was illegally seized in violation of the Fourth Amendment because Smith did not consent to the search of the rental car. The circuit court agreed with Smith, determined that there was no probable cause to search the trunk of the car, and granted Smith's motion to suppress.

While the circuit court ruled that the $180,975 in currency was suppressed, the court allowed the prosecutor to introduce other evidence during the forfeiture proceeding. Specifically, the prosecutor presented evidence to show that Smith was a drug courier and that the $180,975 seized by Trooper Lass had been intended for the purchase of illegal drugs. The prosecutor submitted evidence that in the three months before Smith was stopped for speeding, Smith had rented several different rental cars at least four times for three days each time; that she had driven for several hundred miles on each occasion, but could not recall where she had driven; and that Smith's tax records indicated that she generally earned between $4,000 and $5,000 a year and had no income in 2002, the year when she was stopped for speeding.

In addition, an expert in the area of illegal drug trafficking testified that I-94, the highway on which Smith was driving when she was stopped, is a recognized major drug corridor between Detroit and Chicago, with large amounts of cash found in rental cars traveling west, and large amounts of illegal drugs recovered in rental cars going east. The circuit court further found that Smith's explanation of how she came to be traveling with $180,975 in cash was neither consistent nor credible. Ultimately, the court ruled in favor of forfeiture, concluding that, even when the illegally seized evidence is excluded, the prosecutor established by a preponderance of the evidence that the money was intended to buy illicit drugs.

Claimant Smith appealed, and the Court of Appeals, finding no clear error, affirmed the forfeiture.³ Smith sought leave to appeal the Court of Appeals decision, and we granted leave to appeal to consider "(1) the proper application of the exclusionary rule in a forfeiture proceeding in which the property subject to forfeiture has been illegally seized, and (2) whether In re Forfeiture of United States Currency, 166 Mich.App. 81, 420 N.W.2d 131 (1988), was correctly decided."⁴

STANDARD OF REVIEW

This Court reviews de novo questions of law. Cowles v. Bank West, 476 Mich. 1, 13, 719 N.W.2d 94 (2006). The proper application of the exclusionary rule in a civil forfeiture proceeding is a question of law subject to review de novo. People v. Stevens (After Remand), 460 Mich. 626, 631, 597 N.W.2d 53 (1999). A trial court's decision in a forfeiture proceeding will not be overturned unless it is clearly erroneous.⁵ A finding is clearly erroneous where, although there is evidence to support it, the reviewing court is firmly convinced that a mistake has been made.⁶

ANALYSIS

Application of the Exclusionary Rule to Civil Forfeiture under MCL 333.7521

A forfeiture proceeding pursuant to MCL 333.7521(1)(f) is a proceeding in rem. As such, the item that is the subject of the forfeiture proceeding is the "offender" and the "claimant" is the owner, or perhaps only a possessor, of the item in question. As the United States Supreme Court explained in Various Items of Personal Property v. United States:⁷

It is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient. In a criminal prosecution it is the wrongdoer in person who is proceeded against, convicted and punished. The forfeiture is no part of the punishment for the criminal offense. Origet v. United States, 125 U.S. 240, 245-247, 8 S.Ct. 846, 31 L.Ed. 743 (1888).

In One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965), the United States Supreme Court held that the exclusionary rule applied to forfeiture proceedings because forfeiture proceedings are quasicriminal in nature. In this case, the prosecutor has raised questions about the continuing viability of One 1958 Plymouth Sedan. However, the prosecutor has not appealed the suppression order and, therefore, this issue is not before us. Nevertheless, while One 1958 Plymouth Sedan has not been overruled and, thus, is still applicable, several subsequently decided cases indicate that the underpinnings of One 1958 Plymouth Sedan have been weakened.

For example, when the United States Supreme Court was presented with the question whether to exclude evidence from a federal civil tax proceeding on the basis that the evidence was obtained by a state law-enforcement officer relying in good faith on a defective warrant, the Court declined to extend the exclusionary rule to the federal proceeding.⁸ In so holding, the Court recognized that the primary purpose of the exclusionary rule, which is a judicially created remedy, is to deter future unlawful police conduct. As such, courts impose the exclusionary rule in criminal proceedings to deter police officers from making future illegal searches and seizures. Thus, the United States Supreme Court recognized that to further extend the exclusionary rule would not be prudent given that "the additional marginal deterrence provided by forbidding a different sovereign from using the evidence in a civil proceeding surely does not outweigh the cost to society of extending the rule to that situation."⁹

In Pennsylvania Bd. of Probation & Parole v. Scott, 524 U.S. 357, 363, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998), the United States Supreme Court explained that it has "repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials." Additionally, the Supreme Court has declined to apply the exclusionary rule when the proceedings fall outside the offending officer's...