1. Controlled Substance Forfeiture

2. Why do drug forfeitures?

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

4. What is forfeiture?

6. 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

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

8. History of Forfeiture

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

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

11. 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

12. 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

13. 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.

14. Grounds for Forfeiture
When can you forfeit?

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

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

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

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

19. 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

20. Pending Bills that WILL Change Existing Law

21. 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

22. 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

23. Why Forfeiture has Changed
Current Culture

24. Public Perception

25. Public Perception

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

27. 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.

28. Pitfalls of Forfeiture

29. 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

30. 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

31. How to do it Right

32. 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

33. 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

34. 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 (1)(b)(ii)
Forfeiture proceeds shall serve as a supplement to, and not a replacement for, funds otherwise budgeted for law enforcement purposes

35. 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

36. QUESTIONS ?