Michigan holds 4-3, obviously incorrectly in my opinion, that an illegal seizure of cash being civilly forfeited is not subject to the exclusionary rule because One 1958 Plymouth Sedan v Pennsylvania, 380 U.S. 693 (1965), has been weakened sufficiently to allow the exclusionary rule to be applied to determine “jurisdiction” to forfeit [what a cover!]. This is a singularly bad opinion as described by the dissent, albeit artfully twisting the law, and is an example of result-oriented jurisprudence of the worst kind. One has to read it to believe it, so I provide a free link to it in the case name below. This case allows a bad search to be sanitized into legality for civil forfeiture because “The police officer’s main focus is not on obtaining evidence for a civil forfeiture action.” This, we all know, is false. [I’ve got clients that can testify to the virtually salivating police officer at the headlines and department kickback on the proceeds of the forfeiture. Officers are well trained in cash seizures. One would think these guys would know that; or are they conveniently just not noticing it?] In re Forfeiture of $180,975 in United States Currency, 478 Mich. 444, 734 N.W.2d 489 (2007):
In One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693; 85 S. Ct. 1246; 14 L. Ed. 2d 170 (1965), the United States Supreme Court held that the exclusionary rule applied to forfeiture proceedings because forfeiture proceedings are quasi-criminal in nature. In this case, the prosecutor has raised questions about the continuing viability of One 1958 Plymouth Sedan. However, the prosecutor has not appealed the suppression order and, therefore, this issue is not before us. Nevertheless, while One 1958 Plymouth Sedan has not been overruled and, thus, is still applicable, several subsequently decided cases indicate that the underpinnings of One 1958 Plymouth Sedan have been weakened.
. . .
As acknowledged by the Court of Appeals in In re Forfeiture of United States Currency, “the Michigan forfeiture statute [MCL 333.7521(1)(f)] closely parallels the analogous federal statute, 21 USC 881(a)(6).” 14 MCL 333.7521(1)(f) is contained within the controlled substances article of the Public Health Code. In summary, § 7521(1)(f) provides for the forfeiture of “any thing of value that is furnished or intended to be furnished in exchange for a controlled substance … in violation of this article [or] that is traceable to an exchange for a controlled substance, … or that is used or intended to be used to facilitate any violation of this article ….” Forfeiture proceedings under the administrative section of the Michigan Public Health Code are not within the offending police officer’s primary zone of interest. The primary goal of a police officer is to collect evidence to be used to convict a defendant in a criminal proceeding. The police officer’s main focus is not on obtaining evidence for a civil forfeiture action.
. . .
Because a basic purpose of a drug forfeiture proceeding is to establish that the item subject to forfeiture (here the $180,975 in cash) is connected to drug activity, a court cannot be forced to pretend that the cash does not exist. Nor must the court turn a blind eye to the conclusions one reaches when considering all of the circumstances surrounding its existence and its implications. Rather, we apply a commonsense approach to drug forfeiture hearings in which the item subject to forfeiture has been excluded from evidence: while the court may not consider the specific physical characteristics of the item itself, the court can consider evidence presented in relation to the fact of the item’s existence, such as the fact that claimant’s testimony about the money itself is questionable. This approach in no way redefines the judicially created exclusionary rule. Here, the court can consider the reliability of the claimant’s testimony concerning the money’s origin, its existence in her rental car, its intended purpose, the amount of the money in relation to her reported income, the fact that she was traveling along a known drug corridor in a rental car, and that she had rented several cars in the preceding weeks, and any other circumstantial factors not specifically related to the physical characteristics of the money.
CONCLUSION
We conclude that the exclusionary rule was not meant to immunize illegally seized property from a subsequent civil forfeiture proceeding in which the seized property is the subject of the proceeding. We hold that, in accord with In re Forfeiture of United States Currency and MCL 333.7521, as long as the forfeiture can be established by a preponderance of untainted evidence, the forfeiture is valid. Consequently, it was appropriate for the circuit court to proceed with the forfeiture hearing as long as the illegally seized currency was excluded from evidence. As summarized by the Court of Appeals in its opinion affirming the circuit court, a preponderance of independent evidence supported the forfeiture:
At trial, expert testimony was presented that I-94 is a primary “pipeline” for narcotic sales. Couriers carry large sums of money west on I-94 to purchase drugs in Chicago. The drugs are then transported and delivered east to Detroit and other eastern cities. Cash is the customary method of payment; cars are the most common form of conveyance; couriers frequently use rental cars; and the trips are quick. The evidence indicated that claimant was driving a rental car. Further, in the three-months before the stop, claimant had rented at least four cars for three days each, placed several hundred miles on each car, and did not recall where she had driven. Additionally, her tax records reflected that from 1998 through 2001, claimant generally earned between $4,000 and $5,000 a year. An expert opined that the large amount of cash claimant was transporting west on I-94 was consistent with claimant’s being a courier and intending to purchase drugs. [In re Forfeiture of $180,975, slip op at 2.]
Reviewing the circuit court’s findings, under the “totality of circumstances,” we agree with the Court of Appeals that the circuit court did not clearly err in determining that although the money had been illegally seized, there was a preponderance of untainted evidence to support a civil forfeiture pursuant to MCL 333.7521(1)(f).
Accordingly, we affirm the Court of Appeals judgment below and we further conclude that the Court of Appeals in In re Forfeiture of United States Currency reached the correct result.
The dissent:
B. MAJORITY’S REDEFINITION OF EXCLUSIONARY RULE
While the majority purports to apply this law, it effectively redefines the law to avoid the necessary consequences of the exclusionary rule. It does this through its central assertions that the use of suppressed evidence “should be limited to the circumstances surrounding its existence,” ante at 16, that the court must not “turn a blind eye to the conclusions one reaches when considering all of the circumstances surrounding [the suppressed evidence’s] existence and its implications,” ante at 18, and that “while the court may not consider the specific physical characteristics of the item itself, the court can consider evidence presented in relation to the fact of the item’s existence, for example the fact that claimant’s testimony about the money itself is questionable,” ante at 19. The majority also effectively redefines this law through its conclusion that “the court can consider the reliability of the claimant’s testimony concerning the money’s origin, its existence in her rental car, its intended purpose, the amount of the money in relation to her reported income, … and any other circumstantial factors not specifically related to the physical characteristics of the money,” ante at 19, and that “the trial court could properly consider the implications of the presence of such a large amount of cash in the vehicle.” Ante at 20-21. Apparently, all that the majority would exclude from consideration is the color of the currency and the Presidents who are pictured on it.
However, as noted, suppressed evidence is admissible only to “establish its existence,” not “the circumstances surrounding its existence” or their “implications.” While we may consider the fact that the excluded property subject to forfeiture exists, as a consequence of the suppression, we may not rely on any other information relating to this property, such as the place where it was found, its value, its physical characteristics, or any explanation regarding its origin or intended use, to sustain the property’s forfeiture. The “establishment of its existence” exception to suppression is required to allow identification of the defendant property and to justify the court’s jurisdiction over the property. Because suppressed evidence is inadmissible for broader purposes, LoCicero, supra at 508, the majority’s new rule, which allows the “surrounding circumstances” of the illegally seized property and their “implications” to be considered, constitutes an incorrect reading of the law.
. . .
C. MAJORITY’S RELIANCE ON IRRELEVANT CASES
I cannot recall an opinion of this Court that employs caselaw as much to obscure as to illuminate. The several dozen cases cited in the majority opinion, with a single exception, either stand for undisputed propositions of law or are irrelevant to the question whether the “surrounding circumstances” and “implications” of illegally seized property may be considered to support a forfeiture. With that single exception, the cases cited by the majority can fairly be characterized as standing for three distinct propositions of law–none of which is in dispute and none of which actually supports the rule announced by the majority. These propositions of law may be stated as follows: (1) illegally seized property may only be offered into evidence for the limited purpose of establishing its existence and the court’s jurisdiction over it; (2) illegally seized property may still be forfeited, as long as the forfeiture is supported by sufficient untainted evidence; and (3) the circumstances surrounding the lawful seizure of property, such as the amount or value of the property, a claimant’s lack of legitimate income, the place where the property was seized, and a claimant’s false statements, can be relied on to support a forfeiture.
Comment: The dissent should have taken majority more to task and not been as kind. If I were on that court, I would have been far less kind than the dissenters here. For any state Supreme Court to state that “The police officer’s main focus is not on obtaining evidence for a civil forfeiture action” is just plain false. Either this court has its head in the sand or somewhere else or it is lying. They are utterly oblivious that police officers are trained to seize cash, and most, if not all, states divide the money up with the seizing department, which then uses it to supplement its budget. I’ve paid forfeiture to counties that went into the courthouse remodeling fund or to buy new police cars. And four members of the Michigan Supreme Court buy into the notion that grabbing cash from even innocent holders is not the “main focus.” If it is not a part of their main focus, why do they do it, and then go on local TV with all the cash on a table for a photo op and brag about their good deeds? The Michigan Supreme Court has either bought into a scam or are they willingly going along with one. They note that the “Prosecuting Attorneys Association of Michigan (PAAM)” filed an amicus brief in support of getting to keep the money. And they do not even question the motives of PAMM to get in on the money?
All in all, a wonderful opinion for just before Independence Day to remind us of how the law can be an instrument of oppression.
