Aug 24, 2016 | Blog, Forfeiture, News
Michigan police agencies seized some $23.9 million last year from suspected drug traffickers, according to a forfeiture report released by the Michigan State Police.
Subtracting costs and shares of assets paid out to partnering organizations, state law enforcement agencies netted $20.4 million, according to data disclosed last month in the Michigan State Police 2015 Asset Forfeiture Report. Those numbers are about even with what MSP declared in its report covering 2013, when $24.3 million in assets were seized, netting $20.2 million. In 2012, $26.5 million in assets were forfeited, with $22 million netted.
However, figures from Michigan’s drug asset forfeiture program, which focuses on the seizure of cash and property assets of drug traffickers obtained through illegal activity, may be undercounted.
Of the 686 law enforcement agencies in Michigan that were sent a Government Asset Forfeiture Report form, 56 agencies failed to respond (there is no penalty for not responding), said Shanon Banner, a spokeswoman with the Michigan State Police.
Of the responding agencies, 332 reported asset forfeitures and 298 reported none.
Not a single county prosecutor’s office of the 69 that filed reports with the state reported asset forfeitures; prosecutors in 14 of Michigan’s 83 counties did not file reports.
Prosecutors in Wayne, Oakland and Macomb counties did write reports, Banner said.
The vast majority of forfeitures proceeded via “administrative forfeiture” rather than the circuit court system.
Among local police agencies, 81 percent of cases were handled by administrative forfeiture. Among multijurisdictional task forces, the proportion of cases handled that way was 72 percent.
Some 70 percent of Michigan State Police forfeiture proceedings were handled this way, as were 85 percent of those initiated by the state’s 83 sheriff’s offices.
Victor Fitz, Cass County prosecutor and immediate past president of the Prosecuting Attorneys Association of Michigan, explained the administrative asset forfeiture procedure: When property is seized, its owner is sent notice and can contest the seizure within 20 days. If that happens, the case proceeds through the circuit court system. If the owner fails to do so, he or she forfeits ownership to the seizing agency.
Asset forfeitures are a civil, not criminal, process, Fitz said, because the target is property, not an individual. That’s why property can be seized even when criminal charges are not filed.
“A lot of times, people don’t want to throw good money after bad” by pursuing a court hearing they will likely lose, Fitz said.
The current standard for asset forfeitures is “a preponderance of the evidence.”
But if the forfeiture reform passed unanimously by the Michigan Senate last week becomes law, that standard will shift to “clear and convincing evidence.” That is above a preponderance but below the “beyond a reasonable doubt” standard required in criminal cases.
Gov. Rick Snyder’s signature is the last remaining hurdle to the measure becoming law, and he is “starting a thorough review before making a decision how to proceed,” spokesman Dave Murray said Friday.
The Prosecuting Attorneys Association of Michigan supports the Senate reform, Fitz said, along with its reporting requirements. A higher standard and additional transparency should ensure that seizures “remain viable” as a law enforcement tool, he said.
A move to a clear and convincing standard would be a “step in the right direction,” said defense attorney William Maze, who has worked dozens of asset forfeiture cases in Wayne County. But Maze said a better reform would be barring forfeiture proceedings until after a conviction has been obtained.
One of Maze’s clients was visiting a friend in Detroit when police came to serve a drug search warrant. Because the woman was present when the warrant was served, police swept her into the action and filed notice to seize her car. Maze was able to get the car back, but pointed to that example as an abuse of the forfeiture system.
Oakland County Sheriff Michael Bouchard said his office works “hand in glove” with Oakland County Prosecutor Jessica Cooper in forfeiture matters.
The prosecutor’s office handles all sheriff’s office forfeiture cases in circuit court, and Bouchard said the offices take a conservative approach. He cited the case of an Oakland County business that was selling drugs, but also had legitimate business income. The sheriff’s office did not push for seizure of the business due to that legitimate income.
Bouchard was an advocate for the reform the Legislature passed. He believes the “clear and convincing evidence” standard demands a “tangible connection to criminality” that will lessen abuses.
“Being in the room doesn’t mean there’s a nexus” to illegal activity, Bouchard said.
In written testimony to the House Judiciary Committee in May, Ashley Duval spoke in favor of forfeiture reform.
Duval’s family farm was seized via forfeiture after a 2011 Drug Enforcement Agency raid. The family had been growing medical marijuana at the farm.
In addition to the farm, police seized “cars, medical records, cameras, video recorders, computers, guns” and more. Though Ashley Duval was never charged with a crime, her father and brother were charged and convicted, and the authorities lumped their property together. Duval wrote of feeling hopeless in the face of a seizure that would be costly to fight.
“Asset forfeiture laws need to be completely redone,” Duval wrote. “That day (of the raid) was one of the most heartbreaking, brutal days ever, watching (police) take what they wanted and not being able to do a darn thing about it.”
In Macomb County, local police seized more than $2 million in 2014, down almost $700,000 from 2013. The county sheriff’s office seized $181,619 in assets, up almost $23,000 from the previous year.
In Oakland County, local police seized just less than $1.8 million in assets in 2014, up more than $345,000 from 2013. The sheriff’s office seized $393,845 in 2014, up $32,682 from 2013.
In Wayne County, local police seized $5 million in assets in 2014, down almost $1 million from 2013. The sheriff’s office seized $525,754 in assets, down $108,000 from the year before.
Paul Walton, chief assistant to Cooper in Oakland County, said a change in the burden of proof “would make no difference in the way we proceed” in forfeiture cases. Only specialists staff the office’s asset forfeiture unit. If it’s a business in danger of being seized, the office asks for records to see if there is legitimate income.
“We’re not in it for the money,” he said. “There’s always a proportionality argument” in forfeiture cases, Walton said, meaning that what’s seized is the proceeds of criminal behavior, not property taken on a hunch or because someone was in the wrong place at the wrong time.
“That power is a pretty big sword to wield,” Walton said.
James David Dickson, The Detroit News 11:55 p.m. EDT October 10, 2015
Aug 22, 2016 | Blog, Forfeiture, News
Westland — Marijuana and pizza may be a popular combination, but the state Court of Appeals ruled last week it isn’t enough to warrant police seizure of property.
The state appellate court overturned the forfeiture of a car after ruling the driver didn’t use the vehicle to buy marijuana found by police, but instead received the weed as a tip for delivering a pizza.
The 2-1 decision came down Thursday, a day after House Bill 4499, part of a seven-bill package seeking to reform the state’s forfeiture laws, was passed by the Michigan Senate, 38-0. The Michigan House of Representatives in June approved the measure 104-5.
The Westland case began with an April 2013 traffic stop, during which Westland police officer Robert Fruit found a gram of marijuana on the driver, Linda Ross.
“Linda worked as a delivery driver and had received the marijuana as a tip earlier in the day after delivering a pizza to a customer,” the State Court of Appeals decision said.
The 2007 Ford Focus was seized under civil forfeiture laws that allow authorities to confiscate property that’s used to commit crimes. Ross’ father, Steven Ross, hired attorney William Maze, who specializes in forfeiture cases, to fight the case.
“At a forfeiture trial, Fruit testified that Linda told him, upon her arrest, that she purchased the marijuana from a customer to whom she had delivered a pizza,” the appellate court decision said.
“However, Linda testified, and the trial court found credible, that she received the marijuana as a tip for delivering pizza and that she did not intend to go to the customer’s house in order to purchase the marijuana.”
Maze said: “The question in this case was, did she use the car to purchase marijuana? If not, then they can’t seize the car. Possession of a drug isn’t enough.”
While Wayne Circuit Judge Robert Colombo agreed with Maze’s contention that mere possession of marijuana isn’t enough to warrant a seizure, the judge ruled Ross’ vehicle was used for the purpose of receiving the drug, and, thus, subject to forfeiture.
Appellate judges Michael F. Gadola and Jane M. Beckering overturned the lower court’s decision, with Judge Kathleen Jenson dissenting.
“Despite Linda’s testimony that she sometimes received marijuana as a tip from various customers, there was no evidence that she expected to receive it on this particular occasion, that this particular customer had given her marijuana before, or that she was motivated to go to the customer’s house by anything other than a delivery call,” the appeals court said.
“According to plaintiff and the trial court’s perspective, the fact that ‘the car was used to receive marijuana’ because marijuana was placed into it established — on its own — that Linda used the vehicle for the purpose of receiving marijuana. By that logic, a vehicle would be subject to forfeiture in all cases of mere possession.”
Assistant Wayne County Prosecutor Maria Miller said: “We are in the process of determining whether we will appeal this or not.”
Westland police declined to comment.
Michigan police agencies seized $23.9 million last year from suspected drug traffickers, according to a Michigan State Police report released last month.
However, that figure is likely low, since 56 agencies failed to respond to a Government Asset Forfeiture Report Form. Of the agencies that did respond, 332 reported asset forfeitures and 298 reported none.
Police are not required to file an annual report with the state detailing their forfeitures, although the proposed laws, which are awaiting Gov. Rick Snyder’s signature, would make it mandatory.
Bill 4499 would increase the burden of proof required to forfeit property in drug and public nuisance cases. Instead of the current threshold of “preponderance of the evidence,” the law would require “clear and convincing” evidence that the forfeited property was used to commit a crime.”
George Hunter, The Detroit News 1:54 p.m. EDT October 13, 2015
Jul 29, 2016 | Blog, Criminal Defense Attorney Michael Komorn, Forfeiture, Medical Marijuana Attorney Michael Komorn
Trying to understand why prosecutors in St. Clair County, Michigan, suddenly decided to drop their case against Ginnifer Hency, a medical marijuana patient and caregiver, and return the property that police seized from her home, I obtained several court documents from Shyler Engel, her appellate attorney.
The documents clarify why prosecutors decided to charge her in the first place, why a judge dismissed the charges, and why the prosecutors appealed that decision. But their avowed reason for withdrawing that appeal—a recent ruling by the Michigan Supreme Court interpreting the Michigan Medical Marihuana Act (MMMA)—makes even less sense in light of these details.
Hency was caught up in a raid of the DNA Wellness Center in Kimball Township by the St. Clair County Drug Task Force on July 28, 2014. Police found six ounces of marijuana in her backpack, which was well within the 15-ounce legal limit for her and the five patients she assists.
But a sheriff’s deputy reported that Hency told him she planned to swap the marijuana with another registered caregiver, Dale Shattuck, for the same amount of a different strain that was more suitable for her patients. The alleged plan for a swap that never actually happened was the basis for accusing her of possession with intent to deliver, since the MMMA does not explicity allow caregiver-to-caregiver transfers of marijuana.
On May 18, after four days of hearings, District Judge David Nicholson dismissed the charges against Hency, concluding that any violation of the law was “de minimis”:
There is sufficient evidence to believe that [Hency] intended to deliver the six ounces of marijuana she had in her backpack…in exchange for a like amount to be delivered to her by Dale Shattuck. There is no evidence that would be admissible against Dale Shattuck that he knew of Hency’s intentions or that he participated in any plan to make such a swap. The court is of the opinion that the violation is de minimis. The sequence would be as follows: Two people each have legal possession of six ounces of marijuana. They trade those amounts so that each now possesses six ounces of marijuana, an amount that would be legally held based on caregiver cards each held and the patient cards assigned to each of them. While arguably the act of exchanging the amounts held would constitute a delivery, the court is of the opinion that under these conditions the mutual delivery was not a change in position such as there would be in an exchange of an amount of marijuana for money or any other tangible asset.
On June 19, St. Clair County Senior Assistant Prosecuting Attorney Amy Stover appealed Nicholson’s decision, arguing that it was an “abuse of discretion.” Engel and Michael Komorn, Hency’s trial lawyer, responded on July 7, arguing that Stover was applying the wrong standard of review. Nicholson’s decision should be reversed only if it was “clear error,” they said, and it wasn’t:
The record reflects that [Hency], if she had even made the statement regarding the exchange, was going to exchange the strain of marijuana for a different strain of marijuana for her registered qualifying patients. Accordingly, she was engaged in medical use under the Act, and her actions were protected. Should the MMMA not specifically permit a delivery or transfer to a non registered and qualifying patient, but it was for the benefit of the registered qualifying patients, then that violation of the MMMA is de minimis.
In her August 4 motion to withdraw her office’s appeal, Stover cited the Michigan Supreme Court’s July 27 decision in People v. Hartwick and People v. Tuttle. But it’s not clear how that decision affected the prosecution’s chances of winning its appeal or prevailing at trial. The ruling dealt with three main issues: a patient/caregiver’s right to a pretrial immunity hearing, the impact of prohibited conduct on the legal status of marijuana-related activities that would otherwise be permitted, and the affirmative defense that is available to unregistered as well as registered patients and caregivers. But the court did not change the criteria for immunity, which are spelled out in the MMMA, and it did not address the legality of caregiver-to-caregiver transfers.
Engel summarizes the sequence of events this way:
District Court judge offers cryptic opinion throwing out Hency’s case. Prosecutor appeals.
I write a reply. Prosecutor doesn’t respond to my brief on appeal. Prosecutor dismisses case first court date after my brief is filed. Between the time my reply is filed and the first date on appeal, Michigan Supreme Court publishes Hartwick/Tuttle. Prosecutor says it compels dismissal. No way.
Stover said her office was reassessing about 20 cases in light of Hartwick/Tuttle. If Hency’s case is any indication, the connection between the reassessment and the Michigan Supreme Court’s decision is pretty tenuous. It seems more likely that the negative publicity surrounding profit-driven raids of medical marijuana patients, which has led to serious talk of forfeiture reform in the state legislature, has encouraged local officials to de-escalate their crackdown.
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Jun 24, 2016 | Blog, Forfeiture, Medical Marijuana Attorney Michael Komorn, Michigan Medical Marijuana Act, News, Recent Victories
GRAND RAPIDS, MI – State police crime labs intentionally misrepresent marijuana oil and edibles as having unknown origins, a tactic that can turn a misdemeanor possession charge into a felony and remove protections for Michigan’s medical marijuana users, a federal lawsuit claims.
Maxwell Lorincz of Spring Lake and three others from the east side of Michigan are seeking class-action status in a lawsuit filed this week in U.S. District Court in Detroit against state police Col. Kriste Kibbey Etue and Inspector Scott Marier, interim director of the Forensic Science Division.
They allege the state police Forensic Division, in concert with the Prosecuting Attorney’s Association of Michigan, or PAAM, established a policy to report marijuana-based edibles and oils as, at least potentially, having an unknown origin if no visible plant material is present.
The active ingredient in marijuana, THC, could then be declared a synthetic substance.
“At least one reason for the policy change was to better establish probable cause to arrest medical marijuana patients, obtain forfeiture of their assets, charge them with crimes they did not commit, and to allow felony charges against others for what is at most a misdemeanor,” Farmington Hills attorney Michael Komorn said in the lawsuit.
State police would not comment with legal action pending, spokeswoman Shanon Banner said.
‘No conspiracy,’ prosecutor says of medical marijuana patient’s charge
GRAND HAVEN, MI — The Ottawa County prosecutor says he is not out to overcharge Michigan Medical Marijuana Act cardholders who run afoul of state law. Prosecutor Ron Frantz offered the comments as he responded to criticism about a felony charge against a Spring Lake man who holds a medical marijuana card. Max Lorincz is charged with possession of…
The lawsuit also names Oakland County Sheriff Michael Bouchard and his forensic sciences lab commander as defendants for also allegedly designating oils and edibles as Schedule 1 THC, without any qualification as to its origin.
Undersheriff Michael McCabe, who reviewed the lawsuit that has yet to be served, said the sheriff’s laboratory has received high marks and was recently re-accredited by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board.
“Our testing procedures are above and beyond reproach,” he told The Grand Rapids Press and MLive.
“As far as we’re concerned, the lawsuit, in regards to Oakland County Sheriff’s Office, it’s garbage.”
He said his agency has not talked to state police or the prosecutors’ association – or the Oakland County prosecutor – about its procedures.
“We report the test results,” he said. “Charging decisions are made by the prosecutor’s office independently.”
Lorincz, a medical-marijuana patient, is joined in the lawsuit by Oakland County residents Brandon Shoebe, a licensed medical marijuana caregiver, and Cantrell Carruthers, a licensed caregiver and patient, and Livingston County resident Jason Poe, a licensed patient.
The lawsuit focuses primarily on Lorincz’s case. He was arrested last year after police found residue of oil extracted from marijuana while responding to a medical call at his northern Ottawa County home. Lorincz presented his medical-marijuana documentation, but the sample was sent to a crime lab in Grand Rapids for testing.
Max Lorincz is charged with a two-year felony.
Lorincz was charged with possession of marijuana. He insisted he had immunity. He says prosecutors threatened to charge him with a felony of possession of synthetic THC, and did just that when he refused to plead to the misdemeanor.
A Forensic Division scientist testified he could not tell if the THC sample came from a plant or was synthetic.
Prosecutors argued that the charge was appropriate because crime lab workers determined the origin of the THC sample was unknown because no plant material was present.
Ottawa County Circuit Judge Ed Post dismissed the case.
Prosecutor Ronald Frantz wrote then: “The court’s decision turned on definitions and statutory language that we believed supported the charge as written. The District Court judge found our interpretation to be correct, Circuit Judge Post disagreed and ruled otherwise. … We believe the increasing prevalence of extremely high potency marijuana-based and synthetic-based drugs is reason to update and clarify our statutes.”
Maxwell, who lost custody of his young son for a time, did not see his troubles end.
“Maxwell and the approximately 200,000 other participants in the (medical marijuana program) face the prospect of being wrongly detained, searched, and prosecuted as a result of the Forensic Division’s official reporting policy regarding marijuana,” Komorn wrote.
“Indeed, the rights of numerous other Michigan citizens are endangered by this policy of reporting false felonies.”
He said the state police crime lab’s own results of the substance in Maxwell’s case showed it to be plant-based.
Komorn said that state police documents obtained under Freedom of Information Act requests showed “a concerted action by Forensic Division, PAAM, and law enforcement to ignore the law and bend the science so as to report all marijuana oils and solids that do not contain visible plant matter as potentially Schedule 1 synthetic THC … .
“In fact, the Forensic Division actually changed its lab manual to require this result from its scientists. This change was made in an attempt to strip medical marijuana patients of their rights and immunities, charge or threaten to charge citizens with greater crimes than they might have committed, obtain plea deals, and increase proceeds from drug forfeiture.”
He said that a crime lab scientist wrote “that ‘it is highly doubtful that any of these (medical marijuana) products we are seeing have THC that was synthesized.”
Komorn said it makes no sense that anyone would try to synthesize THC given the ease of obtaining it from marijuana.
He said that Bradley Choate, a supervisor at the Lansing lab, objected to THC being labeled as potentially synthetic if plant material wasn’t found. Choate wrote in an email that such a designation “would lead a prosecutor to the synthetic portion of the law. …
“This could lead to the wrong charge of possession of synthetic THC and the ultimate wrongful conviction of an individual.
“For the laboratory to contribute to this possible miscarriage of justice would be a huge black eye for the division and the department.”
John Agar covers crime and other issues for MLiveE-mail John Agar: jagar@mlive.com and follow him on Twitter at twitter.com/ReporterJAgar
6/24/16
If you or someone you know is facing charges as a result of Medical Marijuana recommended to you as a medical marijuana patient under the Michigan Medical Marijuana Act, contact Komorn Law and ensure your rights are protected. Michael Komorn is recognized as a leading expert on the Michigan Medical Marihuana Act. He is the President of the Michigan Medical Marijuana Association (MMMA), a nonprofit patient advocacy group which advocates for the rights of medical marijuana patients and their caregivers.
Contact us for a free no-obligation case evaluation at 800-656-3557.
Jun 19, 2015 | Forfeiture, News
What’s Really Wrong With Forfeiture – The Bigger Issue
With all these articles and talk about forfeiture reform and blah, blah, blah. The bigger issue has been overlooked.
Ok so they take some of your belongings they assume were purchased with some kind of illegal funds. Like the leaf blower you got from your dads house after he passed. Like the TV that was given to you by your brother because he bought a new one and was going to throw it out anyway. Like the children’s toys that were presents from relatives and friends. Need I say more.
The system does not have to prove how the items were obtained. It’s a cash grab. They sell it back to you or auction it off. I can’t imagine the items that are taken and in you know whose… garages and homes.
Ready for the worst of it…This part should really keep you up at night.
When they take your computer and other electronic storage products like back up hard drives and such. They are taking personal and private information and selling it on ebay, craigslist, taking it home or whatever.
On most peoples computers they have business, banking, family history, irreplaceable photos, medical, taxes, personal thoughts, and other peoples information, etc…the list goes on and on.
Do you really believe they take the time to ensure that that information is deleted. Assume not – just like the system assumed you were guilty.
That is your personal information and other people’s information (who have nothing to do with anything the system assumes) that is now in the hands of a stranger who’s going to do what they may with it.
The legal system doesn’t really have to prove anything. Prosecutors just throw all the charges they can at you till you are too financially drained to defend yourself and you give up and you plead out. Then you have to continue fighting it out in civil court.
Bottom line is…It’s a money making scheme and you are screwed unless you can continue the fight. In the end – you still lose.
One could go on and on about this. But the picture is pretty clear with the short version. Seems today’s politicians and police use forfeiture anyway they can so it benefits them and not society as a whole.
Something has to change………………
