Policy: Asset Forfeiture Procedures

PURPOSE

To establish asset seizure and forfeiture procedures resulting from seizures of property pursuant to current law.

POLICY

The Michigan State University Police Department (Department) will actively enforce the Controlled Substances; Chop Shop; Gaming; and General Forfeiture “Omnibus” Acts. In such cases, asset seizure and subsequent forfeiture proceedings will be instituted according to State of Michigan and federal law. Whenever money or property assets are acquired through the forfeiture process, they will only be applied to legitimate law enforcement needs. Under no circumstances will officers select enforcement targets because of the expected financial gain accruing to the Department; enforcement strategies will not be based upon profit.

PROCEDURES

Narcotics Related Seizures for violations of the Controlled Substances Act (MCL 333.7521, et seq.)

When an officer determines through an on-scene investigation that assets possessed by a subject are likely the proceeds from violations of the Controlled Substances Act; including, but not limited to:

Any vehicle used or intended for use to transport or, in any manner facilitate the transportation for the purpose of sale or receipt of a controlled substance or equipment related thereto;

Except as provided below, a conveyance, including an aircraft, vehicle, or vessel used or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in this policy:

A conveyance used by a person as a common carrier in the transaction of business as a common carrier is not subject to forfeiture unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this article.

A conveyance is not subject to forfeiture by reason of any act or omission established by the owner of that conveyance to have been committed or omitted without the owner’s knowledge or consent.

A conveyance is not subject to forfeiture for a violation of section 7403 (2) (c) or (d), section 7404, or section 7341 (4).

A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party who neither had knowledge of; nor consented to the act or omission.

Anything of value, including but not limited to, money that is furnished or intended to be furnished in exchange for a controlled substance, traceable to an exchange for a controlled substance, or used or intended to be used to facilitate a violation of the Controlled Substances Act.

Any currency found in close proximity to a controlled substance or other property subject to forfeiture.

The officer’s investigation should be as thorough as possible, particularly in reference to how the subject came to be in possession of the asset(s), who owns the asset(s) or how the asset(s) were used. This should include determining identity information (e.g. employment status), the possibility of possessing the asset legitimately, and the total circumstances surrounding the seizure (e.g. time of day, purpose for possession of the asset, location of asset, etc).

The amount of a controlled substance possessed by a subject does not alone determine whether an asset is subject to seizure or subsequent forfeiture.

Drug paraphernalia, such as packaging, scales, and drug records can be contributing factors to justify the seizure of an asset(s).

Vehicles may not be seized for mere possession or use of a controlled substance. There must be other indications of drug trafficking present. Vehicles may be seized if they are used to facilitate a drug transaction.

Also consider the following factors when making a decision regarding forfeiture:

Probable cause exists for the seizure

The ability of the Department to securely store and account for the property

Whether the anticipated revenue for the Department is adequate to cover the costs of the forfeiture action

The effect the forfeiture will have on the operation of a criminal enterprise

The officer shall request permission from their supervisor prior to seizure of any assets.

General Requirements

If the total value of the property seized is over $50,000; no claim is necessary and the prosecutor must file a lawsuit.

The Notice of Seizure and Intent to Forfeit and Dispose of Property Form must notify the owner(s) that the state intends to forfeit and dispose of the property by delivering the written notice to the owner(s) of the property or sending it by certified mail.

If the Department cannot reasonably ascertain the name and address of the owner(s), a notice shall be published in a newspaper of general circulation in the county in which the property was seized, for ten (10) consecutive publishing days.

Unless all criminal proceedings involving or relating to the property have been completed, an attorney shall not institute forfeiture proceedings without the consent of the Ingham County Prosecutor’s Office or the Michigan Attorney General, depending on who is handling the criminal case.

Before disposing of property that is forfeited after the 20 day period of waiting, the Department must check to see if the criminal case is completed. If it is not completed, the Department must get written approval from the Ingham County Prosecutor or the Michigan Attorney General to dispose of the property.

An attorney for a person who is charged with a crime involving or relating to money seized shall be afforded a period of 60 days within which to examine the money that was seized. The 60-day period starts when notice is given that the property is going to be forfeited.

If the Ingham County Prosecutor’s Office fails to sustain the burden of proof, the money is returned; plus any interest earned on the deposited money from an interest bearing account. This must be done not more than 14 days from the date the court issues a disposition order.

Property must be returned to the owner not more than 14 days after the occurrence of any of the following:

A warrant is not issued against the person for the commission of a crime within 90 days after the property was seized

All charges against the person relating to the commission of a crime are dismissed

The person charged with committing a crime is acquitted of the crime

In the case of multiple defendants, all persons charged with committing a crime are acquitted of a crime

Entry of a court order for the return of property

Include the following two headings in your police report

Probable Cause to Seize

Notice of Seizure and Intent to Forfeit and Dispose of Property Served

The completed original signed version of the Notice of Seizure and Intent to Forfeit and Dispose of Property Form goes with your report and a copy of the signed form is given to the owner or subject of the seizure.

Monetary Seizures

Police supervisors shall county all currency in the officer’s presence prior to issuing Notice of Seizure and Intent to Forfeit and Dispose of Property Form to subject or owner.

The Evidence Officer will maintain seized currency for the statutory times required for review by a claimant or owner; and after those times, the Evidence Technician shall turn that currency over to the Management Services Bureau Commander or designee, who will manage the money using current University and Department accounting procedures.

Vehicle Seizures

Vehicle forfeiture can be sought provided that the arrestee is either the actual owner or the constructive owner of the vehicle as described below.

For forfeiture purposes the owner of a vehicle is not just the registered owner whose name appears in LEIN. The owner may be any of the following:

A person who holds a legal title to the vehicle (registered owner)

Any person, firm, association, corporation renting a motor vehicle or having the exclusive use of that vehicle for a period greater than 30 days

Any person who has the immediate right of possession of a vehicle under an installment sale contract (purchasing or leasing a vehicle)

Prior to seizure, the investigating officer shall determine ownership of the vehicle. If the driver is not the owner:

Determine the relationship between the driver and owner

Determine the frequency with which the driver is allowed to use the vehicle

Determine if the owner is aware of the driver’s unlawful activity

Determine if the owner was previously notified that their property was being used for illegal purposes, i.e., written notification, prior seizure, etc.

Obtain statements made by the owner, suspect, or other witnesses

Obtain documentary evidence, i.e., previous body shop receipts, previous oil change receipts, etc.

The officer shall serve a Notice of Seizure and Intention to Forfeit and Dispose of Property Form upon the owner(s) or claimant(s) of the vehicle(s).

If in the officer’s opinion and/or statements by the owner(s) or claimant(s) that the value of the vehicle exceeds the $50,000 limit, no Notice of Seizure and Intention to Forfeit and Dispose of Property Form shall be completed because the Prosecutor’s Office is required to file a lawsuit

If an officer is not able to determine value of the vehicle at the time of the seizure, then the officer shall serve the Notice of Seizure and Intention to Forfeit and Dispose of Property Form on the owner(s) or claimant(s) of the vehicle(s); and note which actions were taken

If there is a question as to the ownership of the property, then a Notice of Seizure and Intention to Forfeit and Dispose of Property Form will be served to all parties claiming ownership of the property.

The description of the property on the Notice of Seizure of Property and Intent to Forfeit Form should be completed as specifically as possible, including the description of any currency, vehicle identification numbers (VINs) and other identifiers/serial numbers.

When vehicles are seized, the description should include the statement “and all property contained therein” concerning the contents of the vehicle

Proper procedures already described for seizing money or other property shall be followed

The Department’s vehicle inventory form should be completed according to Department policy for vehicle impounds.

Seized vehicles shall be stored at Department’s impound lot, unless special circumstances exist to store the vehicle in a different location.

Uncontested forfeited vehicles shall be sold at auction or converted to appropriate law enforcement use. This process shall be managed by the Department’s Management Services Bureau Commander, or designee.

Other property dispositions (non-vehicle)

Other property disposition shall follow proper disposition procedures for either sale or use for a law enforcement purpose.

Non-Controlled Substance Act Seizures

Michigan law allows the seizure and/or forfeiture of assets used in certain specifically enumerated crimes pursuant to MCL §600.4701, et seq.

The Chop Shop Act (MCL 750.535a(6)) covers where exigent circumstances exist that preclude obtaining a search warrant and there is probable cause to believe that the property was used or is intended to be used in violation of this section.

The Gaming Act (MCL 750.308) does not authorize the seizure of property with intent to forfeit from a gaming house without a search warrant. Property may be seized only for evidentiary purposes.

The General Forfeiture “Omnibus” Act has defined property subject to seizure as:

Proceeds of a crime or an instrumentality of a crime and the seizure is incident to a lawful arrest

The seizure is pursuant to a valid search warrant

The seizure is pursuant to an inspection under a valid administrative inspection warrant

There is probable cause to believe that the property is directly or indirectly dangerous to health or safety

Exigent circumstances exist that preclude the obtaining of a court order, and there is probable cause to believe that the property is the proceeds of a crime or an instrumentality of a crime

The property is the subject of a prior judgment in favor of this state in a forfeiture proceeding

Property may be subject to seizure under the following guidelines.

In such cases, that determination will be made by the Ingham County Prosecutor’s Office through coordination with the Investigative Division. The property may be seized, but no forms are filled out at the time of seizure. Examples of property that may be seized include:

All personal property that is the proceeds of a crime, the substitute proceeds of a crime, or an instrumentality of a crime

All real property that are proceeds of a crime or the substantial proceeds of a crime

NOTE: “Real Property” that is the primary residence of the spouse or children of the owner is not subject to forfeiture; unless, the spouse or children had prior knowledge or consented to the commission of the crime

The Ingham County Prosecutor does not conduct Operating While Impaired (OWI) vehicle forfeiture

Contested Seizure

Upon being served the Notice of Seizure and Intent to Forfeit and Dispose of Property Form the claimant must file a claim with the police agency that seized the property within 20 days.

The Department will provide to the person wishing to contest the seizure a copy of the Claim to Seized Property Form.

The Ingham County Prosecutor’s Office will oversee the civil forfeiture proceedings and notify the Department’s Court Officer when disposition has been completed.

Forfeiture Settlements

The Ingham County Prosecutor’s Office is responsible for determining if the property should be returned to the owner.

Equitable fees shall be determined by the Ingham County Prosecutor’s Office.

A Forfeiture Settlement Agreement Form will be completed by the Ingham County Prosecutor’s Office and signed as required by law.

A copy of the Forfeiture Settlement Agreement Form will be provided to the property owner and the Department’s Court Officer by the Ingham County Prosecutor’s Office.

Court Officer Duties

The Department’s Court Officer is to be notified of all dispositions of the forfeited vehicles and property to maintain the Department forfeiture spreadsheet.

A listing of all cases involving forfeiture shall be maintained by the Department’s Court Officer and reviewed by the Investigative Division Commander or designee.

The list shall include the report number, name of subject/owner served notice of forfeiture and date of service, description of property or money seized, date of seizure, date closed by the Ingham County Prosecutor’s Office, listing of MSU’s forfeited property, and disposition of property or money.

The Department’s Court Officer will then coordinate with the Department’s Evidence Technician, the Management Services Bureau Commander or designee, and the property owner for the distribution of said property outlined in the Forfeiture Settlement Agreement.

Investigative Division Commander or Designee as Forfeiture Supervisor

Ensure that all procedures for administrative forfeiture are followed.

Ensure that all seizures and forfeitures are reported to the Michigan State Police Grants and Community Services Division in a timely manner.

Report to the Chief or designee on all matters pertaining to forfeiture proceedings.

Prepare and maintain records on all property accruing to the agency as a forfeiture, as outlined in this policy; and retain those records for a minimum of three years.

Annually conduct an audit of all property seized, property subjected to forfeiture proceedings, property forfeited, or property disposed of; ensuring that such property is forfeited pursuant to applicable laws.

Distribution of Proceeds Received from Forfeiture of Assets

Proceeds from the Department’s cases will be managed by the Management Services Bureau Commander or designee who shall be notified by personnel finalizing those forfeitures; so they can do proper distribution and accounting for those proceeds.

Evidentiary Requirements

All seized property shall be managed as evidence according to current evidence procedures.