Michigan has long been terrible in terms of asset forfeiture. I mean, it’s a problem everywhere, but in Michigan, cops took cars as often as they took cash. Cars were taken from people simply because they happened to pass through areas “known for prostitution.” Cars were taken from people simply because passengers or other drivers happened to have some contraband in their possession.
The state tried to fix this by adding a conviction requirement for any seizure under $50,000. Of course, this made cops angry. Hilariously, it also made prosecutors angry, which is extremely weird since it’s literally their job to pursue convictions. Check this out this bit of cognitive dissonance that greeted the most recent attempt to mount forfeiture reforms in the state:
”Since a conviction is now required, it will make it extremely difficult to prosecute high level drug dealers,” Wayne County Prosecutor Kym Worthy said via email.
Unsurprisingly, Wayne County is one of the worst abusers of the state’s forfeiture laws. According to data collected by the Mackinac Center for Public Policy, nearly every car seized by Wayne County law enforcement had a retail value of less than $1,000. So, this wasn’t about disrupting any sort of serious criminal activity and more about adding to the misery of people already struggling to make ends meet.
In 2023, the Sixth Circuit Appeals Court declared the county’s forfeiture program unconstitutional. While it had plenty to say about the county’s reliance on low-ball seizures, the main problem it had with the program was the lack of due process — something that’s present in nearly every forfeiture program in the country.
Now, there’s another decision in place that’s going to make things a bit more difficult for the Wayne County kleptocracy. A class action lawsuit spearheaded by the Institute for Justice has secured another victory for Michigan residents and fans of actual justice everywhere.
This decision [PDF] will make it harder for law enforcement to use pretense to steal people’s stuff. And it was all pretense here, as detailed in the court’s recounting of the events leading up to this now-illegal seizure:
On June 24, 2019, claimant Stephanie Wilson was driving in the defendant vehicle with Malcolm Smith in the passenger seat when she was pulled over by Sergeant Chivas Rivers of the Wayne County Sheriff’s Office. Sergeant Rivers testified at his deposition that he had been surveilling a house on Lumley Street in Detroit for narcotics activity when he saw claimant and Smith drive up and park in front of that house. An unidentified man approached the passenger side of the defendant vehicle and reached his arm in through the window for what Sergeant Rivers believed to be a hand-to-hand drug transaction. After claimant drove away, Sergeant Rivers followed the defendant vehicle a short distance before effectuating a traffic stop on the basis of a failure to signal a turn. Sergeant Rivers testified that, when he pulled claimant over, she stated that she had driven Smith to the Lumley Street address to purchase drugs. Claimant has denied saying this. After speaking to claimant and Smith, Sergeant Rivers searched the defendant vehicle and found five empty syringes under the passenger seat but no other evidence of drugs. Although Sergeant Rivers averred that Smith stated that he had already used the syringes to inject heroin, it appears that the syringes were never tested for drug residue. Sergeant Rivers seized the defendant vehicle. Nearly four months later, the state initiated forfeiture proceedings pursuant to MCL 333.7521.
The two lower courts disagreed as to whether this forfeiture was justified. Wayne County claimed the forfeiture was legal due to its link to drug trafficking, even though no drugs were found in the vehicle. A dissenting opinion at the appellate level pointed out that purchasing a small amount of drugs “that were immediately consumed” (and that’s if you choose to believe the officer’s testimony) is not the same thing as drug trafficking. And if the alleged underlying alleged offense (one that was never pursued by the sheriff’s office or county prosecutors) doesn’t match the government’s assertions, forfeiture cannot be pursued.
State law says almost any vehicle can be seized if it’s linked — however tenuously — to drug trafficking. This vehicle couldn’t plausibly be linked to that crime. No drugs were found in the car. No one was arrested or even cited for the alleged moving violation. An officer found four syringes (that were never sent out for drug residue testing) and decided that was all he needed to steal someone’s car.
That’s not going to be enough going forward, says the Michigan Supreme Court:
The Court of Appeals’ reading glosses over the fourth element of the statute: “for the purpose of sale or receipt.” As with the word “transport,” this is a clause that cannot be understood without a direct object, an item to be sold or received, and once again, within the context of the statute, this clause can only plausibly refer to “property described in subdivision (a) or (b).” Therefore, it is not sufficient for illicit property to simply be transported within a conveyance—the statute requires that the illicit property be transported within a conveyance for the purpose that the property be sold or received.
In order to give full effect to the statute, then, all of these elements must be fulfilled simultaneously—there must be a conveyance used or intended to be used to transport illicit property that will be sold or received. To permit forfeiture on the basis of only some of the elements—for example, using a vehicle to transport an individual to a location to sell or receive illicit property without transportation of or an intent to transport that property, or transportation of property without an intent that it be sold or received—would fail to give meaning to the entirety of the statute and its plain language.
This means cops will need to have enough evidence of actual trafficking to support a forfeiture. And if they have enough evidence to do that, you’d think they’d have enough evidence to arrest someone, rather than just drive away with their car. But forfeiture has rarely been about fighting crime. It’s always been a crime of opportunity. The amount of abuse is only limited in most cases to officers’ imaginations.
Nearly five years after having it taken from her, Stephanie Wilson will finally get her car back. Others subjected to the same creative interpretation of the state’s trafficking statutes will have the same opportunity. As for Wayne County, its legalized theft program is now a bit less lucrative. Hopefully, this ruling will be followed by another attempt to reform the state’s forfeiture programs.
