posted on March 16, 2015 by Willingham & Cote
by Troy Clarke, Criminal Law
Law enforcement is a costly enterprise, and many police departments rely in part on income generated from property forfeiture, especially forfeitures related to alleged drug dealing. In asset forfeiture actions, a court decides whether property seized by police during an arrest or search will be forfeited to the seizing agency, which can then sell the property and retain the proceeds.
Forfeiture actions are cases separate from criminal prosecutions. The forfeiture action itself combines aspects of civil and criminal proceedings. As in a civil action, a claimant seeking to recover seized property has no right to counsel and may be called as a witness. The governmental entity seeking forfeiture must prove its case by a preponderance of the evidence, which is a lower standard than the “proof beyond a reasonable doubt” required for a criminal conviction. The criminal aspect of the action means that property seized illegally may be excluded as evidence in the forfeiture action. A defense to forfeiture is that property was obtained independent of criminal activity or is owned by a claimant without knowledge of its involvement in criminal activity.
Asset forfeiture proceedings fall under the Controlled Substances Act (CSA), MCL 333.7521 et al., and omnibus forfeiture statutes, MCL 600.4701 et al. Most asset forfeiture actions are currently brought under the CSA, but actions under the omnibus statute are increasing. While no criminal conviction is required to forfeit property under the CSA, the omnibus statute does require conviction of a listed offense before property can be forfeited. Under the omnibus statute, property that is the proceeds of a specified crime or that is used to contribute to the commission of that crime is subject to forfeiture. Under the CSA, property linked to illegal drugs may be forfeited. Cash in close proximity to drugs and vehicles used to transport drugs may be forfeited. Under some circumstances, real property used as a location for drug sales may be forfeited.
While laws restricting the scope of civil forfeiture are the subject of current debate, forfeiture remains a significant and increasing source of law enforcement funding. According to the Michigan State Police, local police and the sheriff’s department in Ingham County reported property forfeitures valued at $2,410,808 in 2013. This was an increase of $1,935,138 from calendar year 2012.
If you have any questions in regard to civil forfeiture of assets under the Controlled Substances Act or omnibus forfeiture statutes, please contact our criminal law department at (517) 351-6200 or e-mail your questions to email@example.com.
This article is also published in the April 2015 edition of BRIEFS, the Ingham County Bar Association's official publication. Please use this link to access BRIEFS: https://user-hyrkhcd.cld.bz/ICBABriefs-April2015