People v. Hellis

Decision Date27 June 1995
Docket Number169707,Docket Nos. 169398
Citation211 Mich.App. 634,536 N.W.2d 587
PartiesPEOPLE of Michigan, Plaintiff-Appellant, v. Stephen Brian HELLIS, Defendant-Appellee. PEOPLE of Michigan, Plaintiff-Appellee, v. Stephen Brian HELLIS, a/k/a Stephen P. Hellis, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., Joyce F. Todd, Chief, Appellate Div., and Robert C. Williams, Asst. Pros. Atty., for the People.

Richard M. Lustig, Birmingham, for defendant on appeal.

Before HOLBROOK, P.J., and JANSEN and O'CONNELL, JJ.

O'CONNELL, Judge.

Defendant appeals as of right 1 his convictions by conditional guilty plea, People v. Reid, 420 Mich. 326, 362 N.W.2d 655 (1984), of three counts of possession with intent to deliver marijuana, M.C.L. § 333.7401(2)(c); M.S.A. § 14.15(7401)(2)(c), and one count of possession with intent to deliver 50 grams or more, but less than 225 grams, of cocaine, second offense, M.C.L. § 333.7401(2)(a)(iii); M.S.A. § 14.15(7401)(2)(a)(iii). We affirm the convictions.

The Oakland prosecutor appeals as of right, M.C.L. § 770.12; M.S.A. § 28.1109; People v. Vancil, 186 Mich.App. 665, 666, 465 N.W.2d 49 (1991), the leniency of the sentence imposed for the cocaine conviction. The trial court found what it believed to be "compelling and substantial reasons" warranting a "departure sentence" pursuant to M.C.L. § 333.7401(4); M.S.A. § 14.15(7401)(4). We affirm the sentence.

On December 5, 1992, defendant was pulled over by a South Lyon police officer for a minor traffic violation. When defendant rolled down the window of his car, the approaching officer detected a strong odor of marijuana. Subsequent searches of defendant and the car revealed hashish, hallucinogenic mushrooms, cocaine, $2,100 in cash, over 130 "baggies" containing marijuana, a triple beam scale, and other incriminating items. Defendant was placed under arrest for possession of marijuana.

Some of the items in the car were in cardboard boxes. Defendant admitted he was in the process of moving. On December 6, 1992, a search warrant for his condominium was issued and executed. The police executing the warrant discovered two one- pound bricks of marijuana, over 180 grams of cocaine, $35,000 in cash, a small amount of hashish, fifteen silver bars, and other items.

Soon after, a forfeiture action was commenced pursuant to M.C.L. § 333.7521; M.S.A. § 14.15(7521). That proceeding, distinct from the criminal proceedings currently appealed, culminated in entry of a consent judgment.

Two criminal prosecutions were initiated. First, in lower court no. 92-120205-FH, defendant was charged with possession with intent to deliver 50 grams or more, but less than 225 grams, of cocaine, second offense, M.C.L. § 333.7401(2)(a)(iii); M.S.A. § 14.15(7401)(2)(a)(iii), and possession with intent to deliver marijuana, M.C.L § 333.7401(2)(c); M.S.A. § 14.15(7401)(2)(c). In lower court no. 92-120206-FH, defendant was charged with two counts of possession with intent to deliver marijuana. 2

Defendant ultimately pleaded guilty to all four charges. For each of the three convictions of possession with intent to deliver marijuana, defendant was sentenced to six months' to eight years' imprisonment, to be served concurrently with each other but consecutively to the sentence for possession with intent to deliver cocaine. With respect to the cocaine conviction, defendant was sentenced to four to forty years' imprisonment. Although defendant was subject to a mandatory minimum sentence of ten years, M.C.L. § 333.7401(2)(a)(iii); M.S.A. § 14.15(7401)(2)(a)(iii), which was doubled pursuant to M.C.L. § 333.7413(2); M.S.A. § 14.15(7413)(2), the trial court set forth what it believed to be substantial and compelling reasons for departing from the statutory minimum sentence, M.C.L. § 333.7401(4); M.S.A. § 14.15(7401)(4).

Defendant appeals, presenting two arguments. First, he contends that his right against being placed twice in jeopardy was violated where he was criminally prosecuted after being subjected to forfeiture proceedings that were allegedly criminal rather than civil in nature.

Second, defendant argues that the evidence upon which his convictions in 92-120205-FH were predicated should have been barred from being used against him because the search warrant by which that evidence was obtained was invalid. The trial court, although holding that the search warrant was issued without the prerequisite showing of probable cause, found that there exists a good-faith exception to the Michigan Constitution's search and seizure protections and refused to suppress the evidence.

We address each argument in turn.

I

Defendant first contends that the criminal prosecutions initiated against him placed him in double jeopardy because he had already been the subject of a forfeiture action stemming from the same incidents. His guilty pleas do not waive his double jeopardy rights. People v. Johnson, 396 Mich. 424, 440, 240 N.W.2d 729 (1976), cert. den. 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976).

The United States Constitution prohibits placing a defendant twice in jeopardy for a single offense, U.S. Const., Am.V; Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938), a protection that extends to state prosecutions. 3 Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). However, while successive or multiple criminal punishments are prohibited by the Fifth Amendment, a defendant may be subjected to both criminal and civil sanctions for the same act. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989).

The United States Supreme Court in three recent cases has altered hitherto accepted notions of the effect of monetary penalties for purposes of double jeopardy-based constitutional analysis. In Halper, supra, the Court held that a civil penalty for filing a false claim with the government, after a criminal conviction for the same act, violated double jeopardy protections where the amount of the fine bore no rational relationship to the government's loss. In that case, a medical laboratory company manager submitted sixty-five false claims for reimbursement under the federal Medicare program. Each false claim inflated an otherwise proper $3 demand for reimbursement to $12, resulting in overpayment of a total of $585.

The manager was indicted and convicted of sixty-five counts of submitting false claims in violation of 18 U.S.C. § 287. He was sentenced to two years' imprisonment and fined $5,000. Subsequently, the federal government brought a civil action under the False Claims Act, 31 U.S.C. §§ 3729-3731 (later amended), which in its then-applicable version imposed upon a person knowingly making a false statement so as to induce approval of a false claim a civil penalty of $2,000, plus an amount equal to twice the amount of damages sustained by the government, together with the costs of the civil action.

The federal district court considering the civil action granted summary judgment for the government on the issue of liability, but declined to allow the government the statutorily authorized recovery of more than $130,000, because that amount would bear no rational relationship to the government's actual losses of $585 plus its costs of investigating and prosecuting the case. Instead, the court awarded judgment for the government in the amount of $16,000, which it felt was adequate to make the government whole. On rehearing, the district court augmented that award by $1,170, the remaining statutory remedy of twice the government's actual losses, and allowed the government to tax its actual costs.

The Supreme Court unanimously held that the district court was correct in holding that the disparity between the $130,000-plus sanction called for by the False Claims Act and the district court's $16,000 approximation of the government's actual losses, costs, or expenses was sufficiently disproportionate that the sanction constituted a second punishment in violation of the double jeopardy clause. However, it remanded the case to the district court to permit the government to demonstrate that the trial court's assessment of the government's injuries was erroneous.

In Austin v. United States, 509 U.S. ----, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), the Eighth Amendment's excessive fines clause was held to apply to drug-related forfeitures of property. Notwithstanding that the legislation authorizing the in rem forfeiture action, 21 U.S.C. § 881(a)(4) and (a)(7), declared the proceedings to be civil, the Court held that for constitutional purposes, the forfeiture constituted payment to the sovereign as punishment for some offense and did not serve a solely remedial purpose, hence invoking the protection of the excessive fines clause of the Eighth Amendment. The Court remanded the case for consideration of the question whether the forfeiture at issue was constitutionally excessive.

The original forfeiture included the mobile home and automobile body shop of an individual convicted of four counts of violating South Dakota's drug laws, for which the state criminal court had sentenced the defendant to eight years' imprisonment. The Court further held that while its decision did not foreclose the possibility that the connection between the forfeited property and the offense might be relevant, it in no way intended to inhibit the lower courts from considering other factors in determining the excessiveness of the subsequent forfeiture penalty.

Finally, in Montana Dep't of Revenue v. Kurth Ranch, 511 U.S. ----, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), the Court found that Montana's assessment of a tax on possession and storage of dangerous drugs, in proceedings separate from state criminal prosecutions of drug...

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