Banks v. Detroit Police Department

183 Mich. App. 175 (1990) 454 N.W.2d 198

BANKS
v.
DETROIT POLICE DEPARTMENT

Docket No. 114831.

Michigan Court of Appeals.

Decided April 3, 1990.

Paul F. Doherty, for plaintiff.

Donald Pailen, Corporation Counsel, Brenda E. Braceful, Supervising Assistant Corporation Counsel, and Mary Rose Prost, Reginald Glenn Dozier, John J. O'Neill, Jacqueline S. DeYoung and Louis W. Feurino, for defendant.

Before: HOLBROOK, JR., P.J., and HOOD and R.B. BURNS,^[*] JJ.

PER CURIAM.

Plaintiff brought this action to recover property confiscated by defendant pursuant to a search warrant. Plaintiff moved for summary disposition on the complaint pursuant to MCR 2.116(C)(10). The trial court denied plaintiff's motion and granted summary disposition in favor of defendant. Plaintiff appeals, and we reverse in part and affirm in part.

Defendant's police officers executed a search warrant on February 19, 1987, at plaintiff's house. The search was conducted by the narcotics section in an effort to locate drugs and other related items. Over twenty items were seized for being within plaintiff's control, including several items of jewelry, several firearms and $524 in cash. No forfeiture or criminal proceedings were ever brought against plaintiff. However, defendant has retained all the items seized. Although defendant claims it has offered to return some of the items, it has refused to return items which it contends plaintiff stated belonged to others. Further, defendant argues that plaintiff is a convicted felon and is prohibited from possessing firearms under federal law.

Plaintiff brought the instant action seeking the return of all the items seized. After several proceedings below, the trial court denied plaintiff's motion for summary disposition and granted summary disposition to defendant.

Because no criminal or forfeiture proceedings are pending or contemplated, plaintiff is entitled to the return of the property unless there is a lawful reason to deny him its return. See People v Washington, 134 Mich. App. 504, 511; 351 NW2d 577 (1984), lv den 419 Mich. 913 (1984). Defendant has the burden of proof to establish a lawful reason for denying the return of the property to the person from whom it was seized. Id.; In re Property Held by the Detroit Police Dep't, 141 Mich. App. 302, 307; 367 NW2d 376 (1985). Defendant makes several arguments in an attempt to establish a lawful reason.

First, defendant contends that plaintiff lacks standing to seek the return of several of the articles confiscated because plaintiff has stated that some of the articles belong to family members, friends or a neighbor. We disagree.

In People v Rosa, 11 Mich. App. 157, 161; 160 NW2d 747 (1968), aff'd 382 Mich. 163; 169 NW2d 297 (1969), a panel of this Court discussed the state's right to retain property seized in an illegal search:

A similar illegal seizure of cash was faced and decided under the principles of the 4th Amendment in Berkowitz v United States, (CA 1, 1965), 340 F2d 168 (8 ALR3d 463). It was stated in that opinion that the basic concept of our American system incorporated in the 4th Amendment is that men have the right to be left in possession of their property unless valid authority for disturbing that possession can be shown to be based upon law. No complicated questions of title will be faced, as all that need be decided concerning seized property is the superior right of possession as between the seizing authority and the one from whom the property was seized. As pointed out in Berkowitz, this does not mean that an accused is entitled to receive possession of contraband of which the mere possession is per se contrary to public policy. In the case of the seizure of noncontraband property, public policy against the unconstitutional seizure of property is so strong as not to allow undue vexation or delay in recovering property wrongfully seized.

See also Oakland Co v Bice, 386 Mich. 143, 151-152; 191 NW2d 338 (1971).

It is not incumbent on the person from whom property is taken to establish his ownership of the article; rather, the burden falls upon the seizing authority. Defendant's argument regarding plaintiff's "standing" and lack of ownership is an attempt to reverse the burden of proof in this matter. The real question is whether defendant can lawfully retain the property. In the absence of a right to retain the property, the property must be returned to the person from whom it has been taken, absent proof of some better right to possession. Id.; Washington, supra, pp 511-512. Defendant cannot retain the property without authority under law solely upon a belief that it could be held liable for misdelivery. Defendant's potential liability is irrelevant where it cannot show the existence of conflicting claimants. See In re Property, supra, pp 307-308. Thus, defendant's "standing" argument must fail.

Second, defendant contends it can deny a return of the firearms confiscated from plaintiff pursuant to 18 USC 922(g), which declares it unlawful for a person convicted of a crime which is punishable by imprisonment for more than one year to transport a firearm, or receive a firearm which has been transported, in interstate commerce. However, defendant seeks to retain the firearms without first bringing forfeiture proceedings. See 18 USC 924(d). Due process would require that plaintiff be entitled to a hearing before the guns are confiscated permanently.^[1] While defendant cannot turn over the firearms to plaintiff directly, 18 USC 922(d)(1), defendant also cannot retain the firearms without having instituted forfeiture proceedings in the time period prescribed, and establishing a violation of the statute. Accordingly, plaintiff may designate an individual to receive the guns or produce the owners of the guns to reclaim them.^[2]

Last, defendant contends that the unregistered handguns were forfeited, and therefore not returnable to plaintiff, because of both state and local laws. Detroit Ordinances, § 38-10-61 provides:

All pistols carried or possessed contrary to the provisions of this Code or state or federal law are hereby declared contraband and are forfeited to the chief of police to be disposed of in accordance with state law.

MCL 28.422; MSA 28.92 requires a purchaser of a pistol to obtain a license, and MCL 750.232a; MSA 28.429(1) provides that it is a misdemeanor to purchase a pistol without obtaining a license. A purchaser is one who receives a pistol by purchase, gift or loan. MCL 750.222; MSA 28.419. Accordingly, reading the above provisions together, the unregistered handguns are contraband and defendant does not have to return them to the plaintiff. Plaintiff is not entitled to the return of contraband. Rosa, supra, p 161.

The order of January 4, 1989, is vacated in part. Plaintiff is entitled to the return of all noncontraband property as set forth above. Plaintiff can designate a receiver or produce the owners of firearms that are not contraband.

Affirmed in part, reversed in part and remanded to the trial court for proceedings consistent with this opinion. We do not retain jurisdiction.

NOTES

[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.

[1] An essential element of due process is that a person shall not be deprived of property without prior notice and an opportunity to be heard. Blue Cross & Blue Shield of Michigan v Ins Comm'r, 179 Mich. App. 246, 252; 445 NW2d 215 (1989).

[2] We again point out to plaintiff, as did the panel in a previous case involving plaintiff (People v Banks, unpublished opinion per curiam of the Court of Appeals, decided May 11, 1987 [Docket No. 93546]), to be mindful of United States v Robbins, 579 F2d 1151 (CA 9, 1978).