Added on April 17, 2023  Sara Swanson

No criminal charge? No problem! Michigan police can still take your car

by Ron French  (Bridge Michigan)

TAYLOR — Stephanie Wilson was driving on a service lane in Detroit in June 2019 when unmarked police cars swooped in and surrounded her Saturn Ion.

Within minutes, she said, the car had been seized, leaving the nursing student and her ex-boyfriend on the side of the road wondering what had just happened.

Wilson’s car was scooped up as part of a Wayne County Prosecutor’s program called Push Off, aimed at curbing drug sales in high-crime neighborhoods by taking away assets connected to the crimes.

That program and a parallel program, OTE, focused on prostitution, are examples of civil forfeiture efforts around Michigan that bring in millions of dollars of revenue for police departments, while taking proceeds away from criminals.

Civil forfeiture programs, though, also have a history of sweeping up vehicles of people who are never convicted of crimes and, in the case of Wilson and her ex-boyfriend, are never even charged.

Despite facing no charges and police finding no drugs in her car, Wilson was given a trio of bad choices: pay $900 to get her car back, pay more than that for a lawyer to fight the seizure in court, or forfeit the vehicle to police and prosecutors.

“I did not know that could be done,” said Wilson, a single mother and a nursing student. “To just have my property taken away from me and then nobody could give me a real reason why — you feel completely helpless.”

While the Legislature has tightened regulations on asset forfeiture in recent years to restrict seizures, some residents who are never prosecuted continue to have their vehicles taken, with authorities reaping the profits.

Wilson is part of a class-action lawsuit now on appeal in the Sixth Circuit federal court and has a separate suit awaiting oral arguments at the Michigan Supreme Court challenging the scope of Michigan’s civil forfeiture law.

The Wayne County Prosecutor’s office declined comment, citing the ongoing litigation. But in court papers in the state suit, the prosecutor’s office argues that Michigan law allows civil forfeitures when there’s “evidence that the defendant vehicle was used in the purchase or transportation of drugs.” That can be true, Wayne County Prosecutor Kym Worthy’s office argues, even when police find no drugs in the vehicle if police say there’s nonetheless evidence someone was involved in the purchase of drugs. 

Wilson’s attorney, Wesley Hottot, of the Institute for Justice, an Arlington Va.-based nonprofit law firm specializing in cases raising constitutional issues, said that, too often, civil asset forfeiture is “not about taking Pablo Escobar’s Cessna — it’s about police … living off the land like a conquering Roman army, and it has consequences for real people like Stephanie.”

Meant to deter crime

Asset forfeiture is often billed as a win-win, hitting people engaged in criminal activity in the pocketbook and providing extra funds for police.

The state’s forfeiture law, which allows for the seizure of money and property used in crimes, or which were purchased from the proceeds of crimes, is a moneymaker for police and prosecutors across Michigan. At least $12 million in cash and property was seized in 2021, according to a Michigan State Police report.

That revenue is used “to support law enforcement by providing resources for equipment, personnel, vehicles, training, and supplies. Assets seized pursuant to this program also allowed some agencies to contribute (money) to non-profit organizations that assist in obtaining information from citizens for solving crime,” according to the MSP report.

The actual forfeiture tally for the state is higher, because the state report is voluntary and not all police departments and county prosecutor offices report their seizures.

One agency not included in the MSP report is the Wayne County Prosecutor’s office, which, in conjunction with local police, seized 6,396 vehicles from 2016 to 2020, according to data released to Bridge Michigan through a state Freedom of Information Act request. Of those vehicles, just seven were returned to owners at no cost.

In that time, 3,484 (54 percent) of car owners paid at least $900 to get their vehicles back; another 2,421 (38 percent) abandoned their vehicles, allowing police and prosecutors to sell them and keep the proceeds.

Over that period, Wayne County police and the prosecutor’s office collected  $3.4 million in revenue from those vehicles, from owners paying $900 to retrieve their vehicles (or more for second or third offenses), or the sale of cars and trucks abandoned by owners after the seizures.

A spokesperson for the prosecutor’s office said data from 2021 and 2022 were not available because of “technical issues with our database.”

While the state’s asset forfeiture law and Wayne County’s vehicle seizure programs are portrayed as crime deterrents, there have been numerous cases across Michigan where people had vehicles seized and were not able to get them back without paying a fee even though they were never charged with crimes.

In 2017 alone, there were 736 asset forfeiture proceedings in Michigan in which someone had property seized despite never being charged with a crime; more than half of them (380) were from Wayne County’s Push Off and OTE forfeiture programs.

The Legislature reined in the state’s forfeiture laws in 2019, prohibiting civil asset forfeiture for drug crimes “unless a criminal proceeding is completed and the defendant is convicted or pleads guilty.”

Statewide vehicle seizures dropped 47 percent in an MSP report after the reform, from 1,975 in 2019 to 1,051 in 2021.

Those state figures do not include data from the Wayne County Prosecutor’s office, and there continue to be loopholes in the law, including a requirement that puts the onus on the property owner to respond in writing to a property seizure within 20 days of the seizure. According to an analysis by the Mackinac Center for Public Policy, many property owners fail to respond in time.

Further complicating fights over seized vehicles is the fact that anyone who wishes to fight forfeiture must go to civil court. While an attorney is provided to criminal defendants if they can’t afford one, individuals generally must pay for lawyers in civil matters.

That can be a big issue in Detroit, where the median household income is $34,000 and 32% of residents live below the federal poverty line. In Wayne County as a whole, about one in five residents live below the poverty line.

Oftentimes, it’s cheaper to pay $900 to retrieve a seized vehicle in Wayne County or abandon it and buy another, than to hire an attorney.

The Wayne County Prosecutor’s office would not comment on whether auto seizures without criminal charges were continuing. Nor would it talk about the law-and-order benefit of such seizures, citing ongoing litigation on the issue.

Several Wayne County attorneys, though, said auto seizures without criminal charges continue, and people often don’t have the resources to fight back.

“I’ve had two calls this morning” from people who’d had their cars seized, said William Maze, of the Maze Law Firm in Livonia. Neither had criminal charges filed against them, but “neither one is going to hire me because of the cost.

“Say the person is actually innocent, and in some instances they are,” Maze said. “I tell them when it comes to car seizures, it’s $900 to get it out in a week or two, or I’ll charge you more than that to fight it and it’ll be a couple months.”

Maze acknowledged that in the majority of seizures, car owners “are involved in something seedy, but that doesn’t give the state the right to take your assets.

“Normally, they never file charges,” Maze said. “They (police) are more interested in the $900.”

Maurice Davis of Davis Law Group in Detroit said authorities take advantage of low-income residents who don’t have the resources to fight the seizure of their autos.

“It’s been a practice for years,” Davis said “It’s a revenue-generating scheme.”

From 2016 to 2020, police departments in Wayne County raised $3,453,000 through their cut of forfeiture proceeds, while the prosecutor’s office received   $578,000.

The Wayne County Sheriff’s office and Detroit Police Department did not return emails and phone calls requesting comment.

One sponsor of the 2019 bills to rein in civil forfeiture was then-Sen. Peter Lucido, R-Shelby Township, a former defense attorney who was later elected  Macomb County Prosecutor in 2020.

Lucido told Bridge the bills, which were signed into law by Gov. Gretchen Whitmer, were designed to give “due process” to residents who had their property seized before they were convicted.

“If they’re taking (assets) and not ever bringing criminal charges, the accused, or I should say non-accused, have a right to go file a simple claim and delivery action” in court to get their property back, Lucido said.

The 2019 reforms will allow people who are not convicted to win in court, Lucido told Bridge recently. The problem, though, is that the cost of hiring a lawyer generally exceeds the retrieval fee and the process can take months. 

Judicial ‘hamster wheel’ 

In June of 2019, Wilson was working as a medical assistant at a Wayne County hospital and taking classes in a nursing program at Washtenaw Community College. The now 32-year-old told Bridge she received a call from her ex-boyfriend, Malcolm Smith, who was dealing with drug addiction and homelessness, asking if she could give him a ride to his mother’s house.

Wilson, who lived at the time and continues to live in Taylor, near Detroit Metro Airport, said she picked him up at a gas station in west Detroit. After he got in her car, she drove a few blocks before being forced to stop by unmarked Wayne County Sheriff’s Department vehicles.

“They searched us and didn’t find any drugs,” Wilson said. “Then they told me, ‘We’re taking your car.’ They gave me a yellow piece of paper that says seizure and it has like a little box for ‘Push Off’ with a number to call.

“They said get what you can carry (from the car), and they left us there on the side of the road,” Wilson recalled.

Police said they stopped Wilson’s vehicle because they saw what they believed to be an exchange of money and drugs between a person and Wilson’s ex-boyfriend. Minutes later though, when the car was stopped, no drugs were found.

The ex-boyfriend acknowledged to police he had bought heroin in the neighborhood that day,  and told police he used the drug before getting in Wilson’s car. According to court documents, police acknowledged not finding any drugs in the car or on Smith, but said they did find five empty syringes under the passenger seat.

Wilson told police she believed the syringes were actually in Smith’s pocket, not under the car seat.

No criminal charges were filed against Smith or Wilson.

When Wilson tried to reclaim her vehicle at the vehicle seizure office on the 10th floor of the Frank Murphy Hall of Justice in Detroit days later, she said she was stunned to see the room filled with people.

Wilson and others were told they could reclaim their cars for a payment of $900. “They said if you can’t pay, you should just sign it over,” abandoning the vehicle so police could sell it and keep the proceeds.

The people, she said, “were all working people saying they needed their cars to go to work and they were paying the money,” Wilson said. “If I had $900, I would probably have bit the bullet and paid. What are you going to do? You can’t lose your job.

“I’m not saying that like every single person that’s had their car taken is necessarily innocent, but seeing what happened to me I find it hard to believe that every single person was guilty of something because a lot of these people that were in there with me had no legal charges brought against them,” she said.

Hottot, Wilson’s attorney, said the fact that the car seizure was civil, rather than criminal, in nature “relieves the government from the burden of proving a crime; they just have to say the property is somehow connected to a crime. It flips the presumption of innocence on its head. That’s the thing that people can’t believe until it happens to them.”

He said in Wayne County, it takes at least six months for a resident contesting a seizure to get before a judge, which adds to the pressure to simply pay the fee rather than fight.

Wilson’s 2006 Saturn Ion was only valued at $1,600, and she said she didn’t have enough money to get the car back.

She said she missed some work days and college classes because she didn’t have transportation. She rented a U-Haul pickup truck for two weeks because it was the cheapest rental she could find, at $19 a day. Eventually, with the help of her father, she purchased a used minivan.

“It was really tight (financially) for a while,” said Wilson, who has a son who is now 13. “Missing a little work means I couldn’t even get my son McDonald’s.

“They have people stuck in this hamster wheel, asking, ‘How much can you pay? When are you going to pay?’” she said. “I’m not a lawyer, so I don’t know a lot of the terms but it’s just frustrating to be made to feel that way.”

Courts may weigh in

The Institute for Justice filed a lawsuit on Wilson’s behalf. In 2021, a Wayne County Court Court judge ordered the release of Wilson’s vehicle. The ruling noted that a police officer appeared to witness a “hand-to-hand transaction,” but “people can come and go and go up to a car and hand a lot of things over,” and that when the car was stopped “a couple minutes later…no drugs” were found.

After the court victory, Wilson said she was able to retrieve the Saturn but it is not currently operable because of water damage she said was caused by the vehicle being parked in a low area of the tow lot where water sometimes rose as high as the floorboard.

The Wayne County Prosecutor’s office appealed the ruling. The Michigan Court of Appeals reversed the decision, arguing in part that it was possible Wilson’s ex-boyfriend could have had heroin in her car and used the drugs before police stopped the vehicle.

The Michigan Supreme Court agreed to hear the case, and oral arguments are now tentatively scheduled for this fall. At issue: whether Wilson’s Saturn Ion was “used or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of” a controlled substance.

Michigan’s forfeiture law requires clear evidence the property is tied to criminal activity. But the cost and time involved in a civil case discourages many people from fighting, Hottot said.

“Lots of states have bad forfeiture laws,” he said. “What’s unique about this is the berserk way Wayne County is using those laws, … to rake in hundreds thousands of dollars every year in fines and fees that just don’t seem justified.

“I don’t question that sometimes people are out looking for prostitutes on the streets,” Hottot said. “The problem is, the procedures here are so one-sided in favor of the county, that far too many innocent people are getting caught up in the system.

The current system “puts people like Stephanie in a position that they feel they are being pressed against the wall. The power they’re wielding is so awesome that there needs to be more protections for people like her.”

Questioning a ‘profit incentive’

Hottot said he hopes the cases in state and federal court will nudge the state  Legislature to further reform to require criminal convictions before assets can be seized, or eliminate civil asset forfeiture completely.

North Carolina banned civil forfeiture, as have Maine and New Mexico.

“They [Michigan legislators] should either abolish civil forfeiture and require it to be based on  a criminal conviction, or short-circuit the for-profit incentive and require profits to go into the state general fund,” Hottot said.

Meanwhile, the Dodge Ion sits unused in Wilson’s driveway. She said the experience of the past four years has made her question the motives of people and offices she’d grown up respecting.

“My parents raised me to believe if the cops pulled you over, you did something wrong,” she said. “But I know I didn’t do anything wrong. And I know that there’s a lot of people who are innocent and are still having their cars taken.

“They’re your average everyday working class, your constituents that are voting for you that are being taken advantage of,” Wilson said. “You want to be for us? Then do something.”