In re Forfeiture of $275

576 N.W.2d 431, 227 Mich. App. 462
CourtMichigan Court of Appeals
DecidedJanuary 23, 1998
DocketDocket No. 190350
StatusPublished

This text of 576 N.W.2d 431 (In re Forfeiture of $275) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Forfeiture of $275, 576 N.W.2d 431, 227 Mich. App. 462 (Mich. Ct. App. 1998).

Opinions

Neff, J.

Claimant Cedrick Budd Spearman appeals as of right from the circuit court’s order of forfeiture pursuant to MCL 33.7521(1)00; MSA 14.15(7521)(l)(f). We reverse.

[464]*464I

Approximately $275 was seized from claimant as a result of a police investigation of trespassing activity outside Palmer’s Party Store in Grand Rapids.1 As members of the Neighborhood Patrol Unit approached a group of people gathered in front of the store, a woman (later identified to be Cynthia McKinney) who had been leaning against the store near the fourteen-year-old claimant began to walk away from the group at a quick pace. McKinney, who had what appeared to be a bag in her left hand, made a motion toward her mouth, consistent with an attempt to conceal crack cocaine or other contraband by swallowing it. As an officer grabbed McKinney, she attempted to chew and swallow what appeared to be a bag containing approximately ten to fifteen lumps of crack cocaine.2 A search of McKinney revealed no other evidence of concealed crack cocaine or money. No exchange of drugs for money was observed.

Meanwhile, other police officers focused their attention on claimant, who had been standing approximately three feet from McKinney. The officers observed no interaction between claimant and McKinney, and claimant made no gestures and had nothing in his hands. Claimant was advised that the officers were investigating a trespassing complaint at the [465]*465store, and he consented to being searched.3 Claimant had no weapons or drugs in his possession; however, in his pocket was $275 in currency, folded in half in one large bundle. When asked, claimant could not advise the officers how much money he had, and explained that his mother had given him the money to purchase some clothes.

The Grand Rapids Police Department initiated forfeiture proceedings. At the hearing, testimony was presented that McKinney’s possession of ten to fifteen lumps of crack cocaine was characteristic of a drug dealer. Also, the court was advised that it was common for McKinney not to have money on her, because drug dealers often work in teams so that one person handles the drugs and one handles the money. Further, testimony was presented that the bundle of cash recovered from claimant’s pocket was significant because drug dealers commonly keep money stacked with larger denominations toward the back, with smaller denominations in front, all folded together.

Claimant testified at the hearing that his mother had given him three $100 bills to replace clothing that had been stolen in a break-in at his house. Claimant’s mother corroborated this testimony, explaining that she had given claimant a portion of her income tax return. Claimant testified that he had repaid $25 that he had borrowed from his grandmother, and then changed the other two $100 bills at Palmer’s. This assertion was contradicted by the owners of the [466]*466store, who testified that not only did claimant not change the large bills at their store, but also that it was against their strict policy to do so.

In its opinion ordering forfeiture of the $275 discovered in claimant’s possession, the circuit court determined that the police properly conducted an investigative stop when they observed a group of people violating a “no trespassing” order. The court further found that, pursuant to a valid search of claimant, the police were justified in seizing the money. Finally, the court found that the money was in “close proximity” to the drugs found on McKinney and that the police reasonably found a substantial connection between the money found on claimant and the illegal drug transaction. Accordingly, the court ordered the money forfeited. Claimant now appeals.,

n

Pursuant to the controlled substances article of the Public Health Code, the following property is subject to forfeiture:

• Any thing of value that is furnished or intended to be furnished in exchange for a controlled substance . . . 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 or section 17766a including, but not limited to, money, negotiable instruments, or securities. To the extent of the interest of an owner, a thing of value is not subject to forfeiture under, this subdivision by reason of any act or omission that -is established by the owner of the item to have been committed or omitted without the owner’s knowledge or consent. Any money that is found in close proximity to any property that is subject to forfeiture under subdivision (a), (b), (c), (d), or (e) shall be presumed to be subject to forfeiture under this subdivision. This presump[467]*467tion may be rebutted by clear and convincing evidence. [MCL 333.7521(1)00; MSA 14.15(7521)(l)(f).]

Forfeiture proceedings are in rem civil proceedings, and the prosecution has the burden of proving its case by a preponderance of the evidence. In re Forfeiture of $25,505, 220 Mich App 572, 574; 560 NW2d 341 (1996). We review the trial court’s findings of fact for clear error, giving regard to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it. In re Forfeiture of $19,250, 209 Mich App 20, 29; 530 NW2d 759 (1995).

A

In the present case, the circuit court determined that forfeiture was warranted because the prosecution had established, by a preponderance of the evidence, that the $275 seized from claimant was substantially connected to the sale of crack cocaine. We disagree.

In order for an asset to be ordered forfeited because it was used or was intended to be used to facilitate a violation of the controlled substances act, the trial court must find a substantial connection between that asset and the underlying criminal activity. In re Forfeiture of $5,264, 432 Mich 242, 262; 439 NW2d 246 (1989). Although a connection to a specific drug sale need not be shown, the assets must be traceable to drug trafficking. In re Forfeiture of $1,159,420, 194 Mich App 134, 146; 486 NW2d 326 (1992). “In contrast, property that has only an incidental or fortuitous connection to the unlawful activity is not subject to forfeiture.” Id.

When he was stopped and searched by the police, claimant was standing approximately three feet from [468]*468McKinney in an area well known for drug trafficking. McKinney possessed enough cocaine to support the presumption that she was selling it. See People v Ray, 191 Mich App. 706, 708; 479 NW2d 1 (1991). Although testimony was presented that the growing trend is for drag dealers to work in teams in which one person holds the drags and another holds the money, absolutely no interaction was observed between claimant and McKinney. No drag transaction or suspected drag transaction was observed involving either claimant or McKinney. Indeed, the two could have been complete strangers to one another. We find that “drag profile” evidence of this sort is of little value where, as here, there is no other persuasive evidence linking claimant to drag-related activity.

Claimant was in possession of $275, arguably a large amount of money for a fourteen-year-old boy, but hardly enough to suggest that the money was related to drag trafficking. The fact that the money was folded and in order by denomination is completely innocuous.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Ray
479 N.W.2d 1 (Michigan Court of Appeals, 1991)
Limon v. State
685 S.W.2d 515 (Supreme Court of Arkansas, 1985)
In Re Forfeiture of $5,264
439 N.W.2d 246 (Michigan Supreme Court, 1989)
People v. Jones
506 N.W.2d 542 (Michigan Court of Appeals, 1993)
In Re Forfeiture of $1,159,420
486 N.W.2d 326 (Michigan Court of Appeals, 1992)
People v. United States Currency
404 N.W.2d 634 (Michigan Court of Appeals, 1986)
In re Forfeiture of $18,000
471 N.W.2d 628 (Michigan Court of Appeals, 1991)
In re Forfeiture of $19,250
530 N.W.2d 759 (Michigan Court of Appeals, 1995)
In re Forfeiture of $25,505
560 N.W.2d 341 (Michigan Court of Appeals, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
576 N.W.2d 431, 227 Mich. App. 462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-forfeiture-of-275-michctapp-1998.