Controlled Substance Forfeiture

Why do drug forfeitures?

Rational for drug forfeiture Take the profit out of drug dealing Allocate financial resources away from criminals and toward law enforcement

What is forfeiture?

What is forfeiture? It is an In Rem proceeding brought against property as opposed to a person. Lawsuit is against the property. It is a civil action where a jury trial is not allowed and the judge decides Constitutional rights apply

Types of Forfeitures Administrative Value under $50,000.00 Permits the forfeiture of property by operation of law Judicial Value $50,000.00 or more Always requires the filing of a civil lawsuit and judicial process

History of Forfeiture

Established by legislature 1978 Law has been amended 7 times since it was originally passed

Most recent changes in law 2017 was most recent amendment and this is the current law

Bond Requirement $50,000 or less Prior to the 2017 amendment, an Interested Party was required to file a bond in the amount of $250 or 10% of the value of the property seized – whichever was greater Amendment removed the bond requirement in its entirety. Now all an Interested Party needs to do is to file a written claim disputing the forfeiture

Standard of Proof Prior to the 2017 amendment, the standard of proof was a Preponderance of the Evidence meaning that scales must tip to one side Now the standard is Clear and Convincing

Standard of Proof Clear and Convincing: This means that must do more than merely persuade that the proposition is probably true. To be clear and convincing, the evidence must be strong enough to cause you to have a clear and firm belief that the proposition is true.

Grounds for Forfeiture When can you forfeit?

Controlled Substance Can forfeit controlled substance used in violation of the controlled substance act

Equipment Raw material or product Equipment of any kind Manufacturing Compounding Processing Delivering

Container Property used as a container for controlled substances or equipment Does NOT include houses or buildings but would include a safe for example

Conveyance Vehicle used to transport for the purpose of sale or receipt of property

Proceeds Any thing of value furnished in exchange for a controlled substance NOTE: Money found in close proximity to drugs is presumed to be subject to forfeiture Presumption may be rebutted by clear and convincing evidence

Pending Bills that WILL Change Existing Law

How will forfeiture change? Will require a conviction before can proceed with forfeiture Owner / Informant can waive the conviction requirement No civil discovery prior to criminal conviction Forfeiture case is on hold pending criminal matter Must obtain arrest warrant within 90 days of property seizure Need to submit cases to prosecution ASAP

US Supreme Court has changed law Timbs v Indiana (February 2019) Excessive fines clause of the 8th Amendment applies to the states via the 14th Amendment Timbs used his Land Rover to deliver a little over $200 in heroin. Land Rover was seized and forfeited. Land Rover was purchased with proceeds from his father’s life insurance proceeds Forfeiture was not proportional to Timbs’ crime

Why Forfeiture has Changed Current Culture

Public Perception

Public Perception

Legislation Senate Bill 2 (2019) House Bill No. 4001 and 4002 2nd bill introduced in the Senate House Bill No. 4001 and 4002 One or a combination of these bills will become the law in the very near future Backing of the Michigan Attorney General

Bad Police Work Bad police work makes for bad changes to the law Police have seized items they should not have which were not subject to forfeiture No justification or evidence for seizing items Seized items that just plain look bad, i.e., kids bikes, underwear, tennis shoes etc.

Pitfalls of Forfeiture

What NOT to do Improper seizure Improper property handling Make sure you have justification to seizing items and do not seize items that you do not want to see on the front page of the news paper Improper property handling If you lose it you buy it Improper oversight Supervisors need to be engaged and hands on when it comes to forfeiture

What NOT to do Improper record keeping Improper accounting standards Annual forfeiture report needs to be filed Improper accounting standards Checks and balances internally need to be in place Improper use of funds $ Improper field negation with property owner/interested party Do not keep prosecutor out of the loop Paying CI based on a percentage of seizure

How to do it Right

Best Practices Only seize things which you know you can justify in court Forfeiture is NOT personal Never seize property belonging to kids even if you knew it was purchased with drug money Collaboration with prosecutor You need the support of the prosecutor so establish a good working relationship with him/her Understand that prosecutor cannot do forfeiture free of charge and they are not required to file forfeiture actions

Best Practices Proper handling of property: must be secure, do NOT use property until it has been forfeited Proper oversight: policies, documentation, supervisor review, on scene supervision, regular training with prosecutor Proper record keeping: always keep a paper trail, subject to FOIA, standardized forms which comply with the law Proper accounting standards: your forfeiture account is subject to audits, deposit monies through your county treasurer – NEVER have a separate account not subject to county review

Best Practices Educate your County Board of Commissioners about forfeiture and how the money must be spent and how it is treated for budget purposes MCL 333.7524(1)(b)(ii) Forfeiture proceeds shall serve as a supplement to, and not a replacement for, funds otherwise budgeted for law enforcement purposes

Best Practices Appropriate use of forfeiture funds Retain property for official use Sell property with proceedings being used for Expenses of sale, i.e., auction Nonprofit organization whose primary activity is to assist law enforcement agencies with drug-related criminal investigations and obtaining information for solving crimes Law enforcement purposes

QUESTIONS ?