February 2, 2005, Introduced by Senators LELAND, GARCIA, CLARKE, BRATER, GEORGE and BISHOP and referred to the Committee on Judiciary.
A bill to amend 1931 PA 328, entitled
"The Michigan penal code,"
by amending sections 159n and 535a (MCL 750.159n and 750.535a),
section 159n as added by 1995 PA 187 and section 535a as amended by
1999 PA 185.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 159n. (1) A civil in rem forfeiture proceeding under this
chapter is a proceeding against property subject to forfeiture
under section 159m instituted by the filing of a petition by the
prosecuting agency.
(2) Personal or intangible property subject to civil in rem
forfeiture under section 159m may be seized pursuant to an order of
seizure issued by the court having jurisdiction over the property.
(3) Upon an ex parte application by the prosecuting agency,
before or after the initiation of a civil in rem forfeiture
proceeding, the court may determine ex parte whether there is
probable cause to believe that personal or intangible property is
subject to civil in rem forfeiture under section 159m and that
notice to those persons having or claiming an interest in the
property before seizure would cause the loss or destruction of the
property. In making this determination, the court shall, as a
matter of law, make a determination that the property constituted
an interest in, means of control over, or influence over an
enterprise involved in a violation of section 159i. If the court
finds that probable cause does not exist to believe the property is
subject to forfeiture under this act, the court shall dismiss the
plaintiff prosecuting agency's application and, if a civil in rem
forfeiture proceeding has been initiated, shall dismiss the
petition. If the court finds that probable cause does exist to
believe the property is subject to forfeiture but there is not
probable cause to believe that prior notice would result in loss or
destruction of the property, the court shall order service on all
persons known to have or claim an interest in the property before a
further hearing on whether an order of seizure should issue. If the
court finds that there is probable cause to believe that the
property is subject to forfeiture and to believe that prior notice
would cause loss or destruction of the property, the court shall
issue an order of seizure directing the sheriff or other law
enforcement officer in the county where the property is found to
seize it.
(4) Personal or intangible property subject to civil in rem
forfeiture under this chapter may be seized without process under
any of the following circumstances:
(a) The seizure is incident to a lawful arrest.
(b) The seizure is pursuant to a valid search warrant.
(c) The seizure is pursuant to an inspection under a valid
administrative inspection warrant.
(d) There is probable cause to believe that the property is
directly or indirectly dangerous to health or safety.
(e) Exigent circumstances exist that preclude the obtaining of
a court order, and there is probable cause to believe that the
property is subject to civil in rem forfeiture under section 159m.
(f) The property is the subject of a prior judgment in favor
of this state in a forfeiture proceeding.
(5) The prosecuting agency may apply ex parte for an order
authorizing the filing of a lien notice against real property
subject to civil in rem forfeiture under section 159m. The
application shall be supported by a sworn affidavit setting forth
probable cause for a civil in rem forfeiture action pursuant to
sections 159m to 159q. An order authorizing the filing of a lien
notice may be issued upon a showing of probable cause to believe
that the property is subject to civil in rem forfeiture under
section 159m.
(6) Real property shall not be seized without notice and a
hearing.
(7) Property that belongs to the victim of a crime shall
promptly be returned to the victim, except in the following
circumstances:
(a) The property is contraband.
(b) If the ownership of the property is disputed, until the
dispute is resolved.
(c) The property is required to be retained as evidence
pursuant
to section 4(4) of the crime victim's rights act, Act No.
87
of the Public Acts of 1985, being section 780.754 of the
Michigan Compiled Laws 1985 PA 87, MCL 780.754.
(8) Personal or intangible property seized under this section
is not subject to any other action to recover personal property,
but is considered to be in the custody of the seizing agency
subject only to this chapter, or to an order and judgment of the
court having jurisdiction over the civil in rem forfeiture
proceedings. When property is seized under this section, the
seizing agency may do 1 or more of the following:
(a) Place the property under seal.
(b) Remove the property to a place designated by the court.
(9) Section 2975 of the revised judicature act of 1961, 1961
PA 236, MCL 600.2975, applies to a motor vehicle that has been
seized under this section but not finally forfeited.
Sec. 535a. (1) As used in this section:
(a) "Bona fide purchaser for value" means a person who
purchases property for value in good faith and without notice of
any adverse claim to the property.
(b) "Chop shop" means any of the following:
(i) Any area, building, storage lot, field, or other premises
or place where 1 or more persons are engaged or have engaged in
altering, dismantling, reassembling, or in any way concealing or
disguising the identity of a stolen motor vehicle or of any major
component part of a stolen motor vehicle.
(ii) Any area, building, storage lot, field, or other premises
or place where there are 3 or more stolen motor vehicles present or
where there are major component parts from 3 or more stolen motor
vehicles present.
(c) "Major component part" means 1 of the following parts of a
motor vehicle:
(i) The engine.
(ii) The transmission.
(iii) The right or left front fender.
(iv) The hood.
(v) A door allowing entrance to or egress from the passenger
compartment of the vehicle.
(vi) The front or rear bumper.
(vii) The right or left rear quarter panel.
(viii) The deck lid, tailgate, or hatchback.
(ix) The trunk floor pan.
(x) The cargo box of a pickup.
(xi) The frame, or if the vehicle has a unitized body, the
supporting structure or structures that serve as the frame.
(xii) The cab of a truck.
(xiii) The body of a passenger vehicle.
(xiv) An airbag or airbag assembly.
(xv) A wheel or tire.
(xvi) Any other part of a motor vehicle that the secretary of
state determines is comparable in design or function to any of the
parts listed in subparagraphs (i) to (xv).
(d) "Motor vehicle" means either of the following:
(i) A device in, upon, or by which a person or property is or
may be transported or drawn upon a highway that is self-propelled
or that may be connected to and towed by a self-propelled device.
(ii) A land-based device that is self-propelled but not
designed for use upon a highway, including, but not limited to,
farm machinery, a bulldozer, or a steam shovel.
(2) Except as provided in subsection (3), a person who
knowingly owns, operates, or conducts a chop shop or who knowingly
aids and abets another person in owning, operating, or conducting a
chop shop is guilty of a felony punishable by imprisonment for not
more than 10 years or a fine of not more than $250,000.00, or both.
(3) Upon a second or subsequent conviction under this section,
the person convicted may be imprisoned for not more than 10 years
and shall be fined not less than $10,000.00 or more than
$250,000.00, or both.
(4) In addition to any other punishment, a person convicted of
violating this section shall be ordered to make restitution to the
rightful owner of a stolen motor vehicle or of a stolen major
component part, or to the owner's insurer if the owner has already
been compensated for the loss by the insurer, for any financial
loss sustained as a result of the theft of the motor vehicle or a
major component part. Restitution shall be imposed in addition to,
but not instead of, any imprisonment or fine imposed.
(5) All of the following are subject to seizure and, if a
person is charged with a violation or attempted violation of
subsection (2) and is convicted of a violation or attempted
violation of subsection (2) or section 415, 416, 535, or 536a,
subject to forfeiture:
(a) An engine, tool, machine, implement, device, chemical, or
substance used or designed for altering, dismantling, reassembling,
or in any other way concealing or disguising the identity of a
stolen motor vehicle or any major component part.
(b) A stolen motor vehicle or major component part found at
the site of a chop shop or a motor vehicle or major component part
for which there is probable cause to believe that it is stolen.
(c) A wrecker, car hauler, or any other motor vehicle that is
used or has been used to convey or transport a stolen motor vehicle
or major component part.
(d) Any book, record, money, negotiable instrument, or other
personal property or real property, except real property that is
the primary residence of the spouse or a dependent child of the
owner, that is or has been used in a chop shop operation.
(6) Except as provided in subsection (7), property described
in subsection (5) may be seized by a state or local law enforcement
agency upon process issued by the recorder's court of the city of
Detroit or the district or circuit court having jurisdiction over
the property. Seizure without process may be made in any of the
following cases:
(a) The seizure is incident to an arrest or pursuant to a
search warrant or an inspection under an administrative inspection
warrant.
(b) The property subject to seizure has been the subject of a
prior judgment in favor of this state in a forfeiture proceeding
based upon this section.
(c) Exigent circumstances exist that preclude obtaining
process and there is probable cause to believe that the property
was used or is intended to be used in violation of this section.
(7) To retain property for which seizure and forfeiture are
sought under this section pending the forfeiture hearing, a
licensed used or secondhand vehicle parts dealer or the owner may
post a bond in the amount of 1-1/2 times the value of the property.
This subsection does not apply to a motor vehicle or major
component part that is to be used as evidence in a criminal
proceeding.
(8) If property other than real property is seized under
subsection (6), the seizing law enforcement agency shall do 1 or
more of the following, subject to subsection (9):
(a) Place the property under seal.
(b) Remove the property to a designated storage area.
(c) Petition the recorder's court of the city of Detroit or
the district or circuit court to appoint a custodian to take
custody of the property and to remove it to an appropriate location
for disposition in accordance with law.
(9) If property is seized without process under subsection
(6), within 14 days after the seizure, the seizing agency shall
return the property to the person from whom it was seized unless a
hearing has been scheduled to determine whether the seizure was
proper and reasonable notice of the hearing has been given.
(10) The rightful owner of any property that is to be
forfeited under subsection (5) shall be served notice at least 10
days before the matter is to be heard regarding the forfeiture and,
if the rightful owner did not know of and did not consent to the
commission of the crime, the property shall be returned to the
rightful owner. If the rightful owner of the property is not known
or cannot be found, notice may be served by publishing notice of
the forfeiture hearing not less than 10 days before the date of the
hearing in a newspaper of general circulation in the county where
the hearing is to be held. The notice shall contain a general
description of the property and any serial or registration numbers
on the property.
(11) A forfeiture of property encumbered by a bona fide
security interest is subject to the interest of the secured party
who did not know of or consent to the act or omission in violation
of this section.
(12) Any property seized under subsection (6) that was stolen
shall be returned to its rightful owner if that ownership can be
established to the satisfaction of the seizing law enforcement
agency. Any stolen property that is unclaimed after seizure may be
sold as provided by law.
(13) Section 2975 of the revised judicature act of 1961, 1961
PA 236, MCL 600.2975, applies to a motor vehicle that has been
seized under this section but not finally forfeited.
(14) (13)
Any property forfeited under this
section may be
sold pursuant to an order of the court. The proceeds of the sale
shall be distributed by the court having jurisdiction over the
forfeiture proceeding to the entity having budgetary authority over
the seizing law enforcement agency. If more than 1 law enforcement
agency was substantially involved in effecting the forfeiture, the
court having jurisdiction over the forfeiture proceeding shall
distribute equitably the proceeds of the sale among the entities
having budgetary authority over the seizing law enforcement
agencies. Twenty-five percent of the money received by an entity
under this subsection shall be used to enhance law enforcement
efforts pertaining to this section.
(15) (14)
This section does not apply to a
person who is a
bona fide purchaser for value of the motor vehicle or major
component
parts. described in subsection (1).
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No. 138
of the 93rd Legislature is enacted into law.