Throughout my entire career, I have witnessed first hand how county sheriff’s and county prosecutors abuse Michigan’s civil asset forfeiture laws. They are supposed to take away the instrumentalities and profits from drug dealers to keep them from operating. Instead, it has turned into law enforcement abuse commonly called “policing for profit.” They target certain types of cases and people whom they believe will be more likely to lead to the seizure of cash and valuable property.
Often times, they do not have enough evidence to get a warrant or even criminally prosecute the case. Then they settle a civil case to keep as much of the property or money as possible. A criminal case does not even have to be prosecuted or a conviction received. All forfeited funds are kept by law enforcement to spend on “law enforcement purposes” which can include increased pay in the form of “overtime,” “equipment” and “personal.”
The Michigan State Police executed a search warrant for the records of Macomb County Prosecutor, Eric Smith. It seems like the Oakland County Executive Mark Hackell, with whom they have a public dispute, complained that Smith was unlawfully misappropriating forfeited funds. This allegation illustrates the reason that there must be civil asset reform.
Forfeit assets and cash are supposed to be used for “law enforcement purposes,” which is extremely broad and vague. There are records to demonstrate that Smith was purchasing large sums of money on things like security upgrades, food and catering, country club retirement party and even “donations” to a non-profit. In February, the Macomb County Commissioners ordered a public audit. In April, Michigan State Police investigators took his office records. Things are not looking good for him
Controlled Substance Asset Forfeiture – Michigan Needs Reform
Michigan’s Civil Asset Forfeiture Laws were introduced primarily to take the things that drug dealers use to facilitate their crimes and to take the valuable property they may have purchased with the proceeds of their unlawful actions. Things like the vehicles in which they transport the drugs and the jewelry, cars or homes purchased with the illegal funds. Quite naturally, the law had to figure out what to do with the property. They decided it would go to law enforcement. This might have been the worst decision ever.
Law enforcement often seeks search warrants to search a home or business to recover evidence of a crime but what they are primarily seeking is cash. Unfortunately, there is something in the law called the “good faith exception” which means that even if the request warrant was not supported by enough evidence, as long it is demonstrated that they sought the warrant in good faith, the evidence recovered will still be used against the defendant and the property seized still remains subject to forfeiture. For this reason, law enforcement will always go to a judge or magistrate whom they believe is most likely to sign the warrant. That is why we frequently see a magistrate from another city sign a warrant for a search in a different city.
What is Subject to Forfeiture?
Michigan law permits the police to take (aka seize), without a hearing, conviction or even probable cause, property they “believe” was purchased with proceeds from drug dealing, or money received from drug dealing. It permits them to take any cash in “close proximity” to any amount of a controlled substance. The amount does not have to evidence an intent to sell. They can also seize any vehicle, plane or boat in which controlled substances were transported.
After the seizure, they hold that property until the owner files a written claim for its return. If a claim is not filed within 21 days, they keep it. If they file the claim, then a civil forfeiture action is started in court which can take months. Despite the strength of their evidence, over 95 percent of these cases get settled so the police almost always get something. It also does not matter if any underlying criminal case results in a conviction.
This law leads to a significant potential for abuse. Any vehicle that is traveling with any amount of a controlled substance like cocaine or a medication possessed without a prescription allows the police to take that vehicle. Evidence of drug dealing is not required.
Policing For Profit – Where the Money is Spent
In 2018, almost $12 million dollars was forfeit and nearly 8,000 vehicles were seized. There were also 5,800 instances of forfeiture involving controlled substances. Shockingly more than 2,200 of those offenses were for simple possession of a controlled substance and 519 of those for simple possession of marijuana. That is a complete travesty of justice. What is even worse is that now there is evidence to suggest that the agencies in receipt of these funds are misappropriating them.
Standard of Proof and Necessity of Conviction
During a civil forfeiture case, the police must prove by “clear and convincing” which means that there must be a firm believer in the truth of the allegations that the evidence that they seized property is subject to forfeiture. That is a much lower standard than in a criminal case where the police evidence must be proved beyond a reasonable doubt, the highest standard that exists. Even when the evidence of drug dealing is not strong enough to secure a criminal conviction, it may easily justify the taking of the accused property. A condition is not a prerequisite.
Pending Reform Legislation
On January 9, Michigan House Leader Jason Wentworth introduced House Bill 4001 which will require a conviction on the underlying offense for seizures valued at $50,000 and less. Still more needs to be done.
As long as the law enforcement agencies and the prosecuting attorney directly benefit from the funds, they are encouraged to violate the rights of those they seek to enforce the law. They will continue to target those they can take money from instead of those who are most dangerous to the public. Then they take that money and spend it as they please. This all needs to change. Hopefully, a raid on the Macomb County Prosecutor is a large step in that direction.
Attorney Morris has enjoyed a very successful and distinguished career as a trial lawyer providing high quality legal representation in the area of state and federal criminal defense for 20 years. He is known for his trial preparation by fellow attorneys, judges and clients alike. As a trial attorney, he is dedicated to attaining justice in every case, and is prepared to take on complex legal issues with success. Barton and his law firm pride themselves on obtaining results for their clients that other attorneys cannot.
Not only does Barton Morris have extensive experience, he also engages in continuing legal education to provide the highest quality legal services. Barton has received specialized scientific training through the American Chemical Society. He attended the prestigious Trial Lawyers College and serves on its Alumni Association Board of Directors. Barton Morris is also a board member of several distinguished legal associations including the Michigan Association of OWI Attorneys, and the DUI Defense Lawyer’s Association Justice Foundation. He is also an active member of the National Association of Criminal Defense Attorneys and has also graduated from their National Criminal Defense Trial College in Macon, Georgia.
Barton Morris was chosen as a Top Lawyer of Metro Detroit for 2012, 2013, 2014, 2019 and 2020 for DUI/DWI and criminal defense by DBusiness Magazine and Hour Magazine. Barton Morris was also chosen as a Super Lawyer in Criminal Defense for 2014-2020 and Barton Morris is the only Lawyer in Michigan designated by the American Chemical Society as a “Forensic Lawyer-Scientist”