“Property that is subject to forfeiture under [Article 7 of the PHC] or pursuant to [MCL 333.7521] may be seized upon process[1] issued by the circuit court having jurisdiction over the property. Seizure without process may be made under any of the following circumstances:
(a) Incident to a lawful arrest, pursuant to a search warrant, or pursuant to an inspection under an administrative inspection warrant.
(b) The property is the subject of a prior judgment in favor of this state in an injunction or forfeiture proceeding under [Article 7 of the PHC] or pursuant to [MCL 333.17766a2].
(c) There is probable cause to believe that the property is directly or indirectly dangerous to health or safety.
(d) There is probable cause to believe that the property was used or is intended to be used in violation of [Article 7 of the PHC] or [MCL 333.17766a].” MCL 333.7522.
Unless a criminal proceeding involving or relating to the property has ended in a conviction, property may be seized under MCL 333.7522 but not be subject to forfeiture under MCL 333.7521 or disposition under MCL 333.7524. MCL 333.7521a(1). However, there are several exceptions to the criminal conviction requirement. See Section 11.11(A) for a full discussion.
A.Probable Cause to Seize Property
“In a forfeiture proceeding, the probable cause which the government must show is ‘a reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion.’”People v McCullum, 172 Mich App 30, 35 (1988), quoting United States v $22,287 United States Currency, 709 F2d 442, 446-447 (CA 6, 1983). See also In re Forfeiture of United States Currency, 164 Mich App 171, 178 (1987) (holding that probable cause exists when the facts “would induce a fair-minded person of average intelligence and judgment to believe that the statute [regarding such forfeiture] was violated”). Circumstantial evidence may be sufficient to establish probable cause to support forfeiture. McCullum, 172 Mich App at 35-36.
The protection against unreasonable searches and seizures provided by US Const, Am IV applies to civil forfeiture proceedings. One 1958 Plymouth Sedan v Pennsylvania, 380 US 693, 696-697 (1965). Accordingly, illegally seized evidence is generally not admissible in a forfeiture action. In re Forfeiture of United States Currency, 166 Mich App 81, 88 (1988), citing One 1958 Plymouth Sedan v Pennsylvania, 380 US 693 (1965). However, “property subject to forfeiture that was illegally seized ‘is not excluded from the proceeding entirely.’ Instead the illegally seized property ‘may be offered into evidence for the limited purpose of establishing its existence, and the court’s in rem jurisdiction over it.’” In re Forfeiture of $180,975, 478 Mich 444, 447 (2007), quoting United States v $639,588, 293 US App DC 384, 387 (1992).
Further, “the exclusionary rule was never meant to preclude illegally seized property from a subsequent civil forfeiture proceeding involving that property[;]” accordingly, “as long as the order of forfeiture can be established by a preponderance of the evidence[3] untainted by the illegal search and seizure, the forfeiture is valid.” In re Forfeiture of $180,975, 478 Mich at 447. According to the Court:
“[T]he illegal seizure of property does not immunize it from forfeiture, and . . . illegally seized property that is the subject, or ‘res,’ of the forfeiture proceeding may be offered into evidence for the limited purpose of establishing its existence and the court’s in rem jurisdiction over it. . . . [I]llegally seized property is forfeitable under MCL 333.7521 as long as the forfeiture can be supported by a preponderance of untainted evidence.
While illegally seized evidence itself is physically excluded, it is not entirely excluded from the forfeiture proceeding. However, questions concerning this excluded evidence should be limited to the circumstances surrounding its existence. For example, in the case of illegally seized cash, the state should not be permitted to exploit the search by asking how the money was packaged, or whether evidence of drugs was detected on the money. In addition, any other legally obtained evidence may be introduced to support the forfeiture.” In re Forfeiture of $180,975, 478 Mich at 460.
In In re Forfeiture of $180,975, 478 Mich at 470-471, even though the cash subject to forfeiture was physically inadmissible, evidence established that the claimant’s behavior was not “ordinary and innocent” with regard to the cash. The untainted evidence included the claimant’s inability to offer a credible explanation for having such a large sum of cash in the rental car she was driving along a corridor known for drug trafficking, her history of repeated car rentals, the absence of any evidence in support of the claimant’s intended use of the cash, and the fact that the claimant’s negligible taxable earnings made it unlikely that she had the ability to produce such an income. Id. at 465-470.
1 MCL 333.7522 does not define the term process.
2 MCL 333.17766a, repealed in 2002, pertained to the use, possession, or delivery of androgenic anabolic steroids.
3 Note that a clear and convincing evidence burden of proof applies to forfeiture proceedings commenced under Article 7 of the PHC on or after January 18, 2016. MCL 333.7521(2); see 2015 PA 154. Before 2015 PA 154 amended MCL 333.7521 to specify the plaintiff’s burden of proof, the government had to prove its case by a preponderance of the evidence. In re Forfeiture of $25,505, 220 Mich App 572, 574 (1996).