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Michigan Supreme Court Lansing, Michigan

Opinion
IN RE FORFEITURE OF $180,975 __________________________________ PEOPLE OF THE STATE OF MICHIGAN Plaintiff-Appellee, v $180,975 IN UNITED STATES CURRENCY, Defendant, and TAMIKA SHANTE SMITH, Claimant-Appellant, and TODD FITZGERALD FLETCHER, Claimant.

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JULY 3, 2007

No. 127983

BEFORE THE ENTIRE BENCH WEAVER, J. In this case we consider the proper application of the exclusionary rule in a civil forfeiture proceeding in which the property subject to forfeiture has been illegally seized. We further consider whether In re Forfeiture of United States Currency, 166 Mich App 81; 420 NW2d 131 (1988), was correctly decided. In deciding these questions, we first hold that under Immigration & Naturalization

Service v Lopez-Mendoza, 468 US 1032; 104 S Ct 3479; 82 L Ed 2d 778 (1984), illegally seized property is not immune from forfeiture. We also agree with the holding in United States v $639,558, 293 US App DC 384, 387; 955 F2d 712 (1992), that property subject to forfeiture that was illegally seized "is not `excluded' from the proceeding entirely." Instead, the illegally seized property "may be offered into evidence for the limited purpose of establishing its existence, and the court's in rem jurisdiction over it." Id. Because we find that the exclusionary rule was never meant to preclude illegally seized property from a subsequent civil forfeiture proceeding involving that property, we hold that, in accord with In re Forfeiture of United States Currency and MCL 333.7521, as long as the order of forfeiture can be established by a preponderance of evidence untainted by the illegal search and seizure, the forfeiture is valid. For the reasons summarized by the Court of Appeals in its decision affirming the circuit court's judgment and order, we agree with the Court of Appeals that the circuit court did not clearly err in finding that, although the money was illegally seized, there was a preponderance of untainted evidence to support a finding of civil forfeiture pursuant to MCL 333.7521(1)(f). Accordingly, we affirm the Court of Appeals judgment and we further conclude that the Court of Appeals in In re Forfeiture of United States Currency reached the correct result.

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FACTS
Claimant Tamika S. Smith was driving west on I-94 when she was stopped for speeding by Michigan State Trooper James Lass. Smith was traveling with her two small children in a rental car rented by her adult male passenger, claimant Todd F. Fletcher. Trooper Lass obtained photo identification in the form of a driver's license from both Smith and Fletcher and checked both licenses for outstanding warrants. Lass discovered that Smith's license had been suspended, and that Fletcher's license was valid, but that Fletcher had been identified as an individual to whom "officer safety caution" applied. After checking Fletcher's criminal history, Trooper Lass learned that Fletcher had been arrested previously for possession of cocaine and for weapons offenses. On the basis of this

information, Trooper Lass returned to the rental car and apparently advised Smith that he was going to search the trunk of the rental car, in which Trooper Lass subsequently discovered a backpack containing $180,975 in cash.1 Smith was cited for speeding and driving on a suspended license.2 The state filed a complaint for forfeiture of the currency discovered in the backpack pursuant to MCL 333.7521(1)(f). Before the forfeiture proceeding,

Because it was not clear that Smith consented to the search of the trunk, after an evidentiary hearing, the trial court granted Smith's motion to suppress evidence of the backpack and its contents on the ground that the seizure was illegal under the Fourth Amendment, US Const, Am IV; Const 1963, art 1,

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Michigan Law