People v. Acoff

559 N.W.2d 103 (1996) 220 Mich. App. 396

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Levi ACOFF, Jr., Defendant-Appellant.

Docket No. 169966.

Court of Appeals of Michigan.

Submitted November 5, 1996, at Detroit. Decided December 13, 1996, at 9:00 a.m. Released for Publication February 25, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Michael D. Thomas, Prosecuting Attorney, and Catherine Langevin Semel, Assistant Prosecuting Attorney, for People.

Larry R. Kipke, Detroit, for defendant-appellant on appeal.

Before HOEKSTRA, P.J., and SAWYER and T.P. PICKARD,^[*] JJ.

HOEKSTRA, Presiding Judge.

Following a jury trial, defendant was convicted of possession of less than twenty-five grams of cocaine, M.C.L. § 333.7403(2)(a)(v); M.S.A. § 14.15(7403)(2)(a)(v), and was sentenced to four to eight years' imprisonment. He appeals as of right his conviction and the sentencing court's scoring of Offense Variable (OV) 8 and OV 16. We affirm.

Defendant first argues that his conviction of possession of a controlled substance following the civil forfeiture of his car, $32, $17 in food stamps, and a wristwatch pursuant to M.C.L. § 333.7521 et seq.; M.S.A. § 14.15(7521) et seq. violated the Double Jeopardy Clauses of the United States Constitution, U.S. Const., Am. V, and the Michigan Constitution, Const. 1963, art. 1, § 15. We disagree. The double jeopardy provisions contained in the federal and state constitutions are intended to protect citizens from suffering multiple punishments and successive prosecutions for the same offense. People v. White, 212 Mich.App. 298, 305, 536 N.W.2d 876 (1995).

Defendant claims that his criminal conviction following the civil forfeiture of his property pursuant to statute violated his right to be free from multiple punishments. In support of his argument, defendant relies upon United States v. Ursery, 59 F.3d 568 (C.A. 6, 1995), a case in which the Sixth Circuit Court of Appeals determined that a civil forfeiture, coupled with a criminal conviction arising out of the same criminal transaction, constituted a violation of double jeopardy principles. However, after defendant's supplemental brief was filed, the United States Supreme Court reversed that decision and clarified that civil in rem forfeitures^[1] are generally not "punishment" and, therefore, a criminal conviction and sentence following a civil forfeiture ordinarily do not violate the Double Jeopardy Clause of the United States Constitution. United States v. Ursery, 518 U.S. ___, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996). The Court stated that although in rem civil forfeitures are not per se exempt from the scope of the Double Jeopardy Clause, the fact that a forfeiture is designated as civil and proceeds in rem establishes a presumption that is not subject to double jeopardy analysis unless the "clearest proof" indicates that the in rem forfeiture is "so punitive either in purpose or effect" as to be equivalent to a criminal proceeding. Ursery, 518 U.S. at___n. 3, 116 S. Ct. at 2148, n. 3, 135 L. Ed. 2d at 569, n. 3.

Given the United States Supreme Court's opinion in Ursery, we believe the test^[2] to be applied to the instant case, involving a criminal conviction following a civil forfeiture under M.C.L. § 333.7521 et seq.; M.S.A. § 14.15(7521) et seq., is whether defendant has presented the "clearest proof" indicating that the forfeiture is "so punitive in purpose or effect" that it is equivalent to a criminal proceeding. Because forfeitures under M.C.L. § 333.7521 et seq.; M.S.A. § 14.15(7521) et seq. are in rem civil proceedings, see In re Forfeiture of $18,000, 189 Mich.App. 1, 471 N.W.2d 628 (1991), we begin with a presumption that double jeopardy analysis does not apply. This presumption can be rebutted only by the "clearest proof" of an excessive punitive purpose or effect. Here, because there is no evidence, let alone the "clearest proof," indicating that the instant forfeiture was so punitive in form or effect as to render it criminal, Ursery, 518 U.S. at___, 116 S.Ct. at 2148, n. 3, 135 L. Ed. 2d at 569, n. 3, we find defendant's double jeopardy claims to be without merit.

Defendant next argues that the trial court erred in determining that he voluntarily consented to the police search of his automobile and in refusing to suppress evidence found in the automobile. On appeal, defendant concedes that he consented to the search, but argues that his consent was involuntary because it was given while he was in police custody and, therefore, was the product of coercion. We disagree. The evidence indicates that after defendant got out of his car at the officers' request, he was patted down for weapons and asked if there were any drugs or weapons in the car. Defendant then consented to a search of his car and was placed in the back of the patrol car. On the basis of the foregoing, it is clear that at the time he consented to the search, defendant was merely the subject of a Terry^[3] -type stop and frisk. The United States Supreme Court has noted that Terry stops are not inherently coercive in nature. Berkemer v. McCarty, 468 U.S. 420, 437-439, 104 S. Ct. 3138, 3148-3150, 82 L. Ed. 2d 317 (1984). Therefore, we are not persuaded that defendant's consent here was involuntary. We have examined defendant's remaining challenges to the search at issue and find that they are likewise without merit.

Finally, defendant challenges the scoring of OV 8 and OV 16. We find that these claims must fail and the scoring decisions must be upheld because there was evidence to support the scores. People v. Haacke, 217 Mich.App. 434, 435, 553 N.W.2d 15 (1996).

Affirmed.

NOTES

[*] Circuit Judge, sitting on the Court of Appeals by assignment.

[1] Michigan's forfeiture law pertaining to controlled substances, M.C.L. § 333.7521 et seq.; M.S.A. § 14.15(7521) et seq., is modeled after its federal counterpart, 21 U.S.C. 881, the statute at issue in Ursery. See In re Forfeiture of $5,264, 432 Mich. 242, 257, 439 N.W.2d 246 (1989). Therefore, we believe the analysis contained in Ursery is equally applicable to the statute at issue in this case.

[2] We recognize that this Court has previously discussed civil forfeitures under this same statute and applied a slightly different test in People v. Hellis, 211 Mich.App. 634, 536 N.W.2d 587 (1995). Because that decision was released before Ursery and addressed only a challenge to double jeopardy under the federal constitution, see Hellis, supra at 640, n. 3, 536 N.W.2d 587, we believe it to be no longer authoritative with regard to this issue. Accordingly, in deciding this case, we have followed the analysis set forth in Ursery.

[3] Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).