EMMET CO PROSECUTING ATTY V 5118 INDIAN GARDEN RD
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
___________________________________________
In re Forfeiture of 5118 INDIAN GARDEN ROAD
EMMET COUNTY PROSECUTING
ATTORNEY,
FOR PUBLICATION
October 1, 2002
9:05 a.m.
Plaintiff-Appellee,
v
TWO THOUSAND TWO HUNDRED DOLLARS
IN U.S. CURRENCY, ONE TRIPLE BEAM
SCALE, ONE BLUE DUFFLE BAG, ONE
BLACK AND PINK DUFFLE BAG, ONE
COOLER, and CALLER ID,
No. 225213
Emmet Circuit Court
LC No. 98-004682-PZ
Defendants,
and
FRANK S. MCKENNEY,
Updated Copy
December 20, 2002
Claimant-Appellant.
Before: Meter, P.J, and Markey and Owens, JJ.
METER, P.J.
Claimant Frank McKenney, whose home was seized in relation to a drug crime, appeals
as of right from an order granting summary disposition in favor of plaintiff Emmet County
Prosecuting Attorney in the forfeiture case. We affirm.
After the police found approximately seventeen pounds of marijuana in McKenney's
home, McKenney was convicted of possession with intent to deliver at least five, but less than
-1-
forty-five, kilograms of marijuana, MCL 333.7401(2)(d)(ii). Plaintiff then filed a civil forfeiture
action against certain of McKenney's property1 under MCL 333.7521, which provides, inter alia,
for the forfeiture of property used as a "container" for a controlled substance and for the
forfeiture of "[a]ny thing of value" used to facilitate a drug offense. See MCL 333.7521(1)(c)
and (f). Plaintiff moved for summary disposition under MCR 2.116(C)(10), and the trial court
granted the motion, opining that a substantial connection existed between the drugs and the
home, that the forfeiture did not constitute an excessive fine in light of McKenney's culpability
and the value of the drugs, and that a homestead exemption was inapplicable.
We review do novo a trial court's decision with regard to a motion for summary
disposition.2 Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A
motion under MCR 2.116(C)(10) tests the factual support for a claim. Summary disposition
should be granted under this provision if, except with regard to the amount of damages, there is
no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995).
On appeal, McKenney initially suggests that the trial court erred in granting summary
disposition to plaintiff because there was no substantial connection between the home and the
drug activity in this case.3 We disagree. Under MCL 333.7521(1)(f), real property may be
forfeited where there is a "'substantial connection' between the realty and the underlying illegal
transaction." In re Forfeiture of One 1978 Sterling Mobile Home, 205 Mich App 427, 430; 517
NW2d 812 (1994), quoting In re Forfeiture of $5,264, 432 Mich 242, 262; 439 NW2d 246
(1989). The evidence in this case showed that McKenney had approximately seventeen pounds
of marijuana located throughout the home. The police found records in McKenney's bedroom
suggesting that approximately twenty-seven customers owed him approximately $20,000 for
marijuana. An affiant stated that he purchased marijuana from McKenney over the course of
several years and that the house in question was used for many of the transactions. Moreover,
drug-packaging paraphernalia was found in the home. Under these circumstances, plaintiff
established a sufficient connection between the home and underlying illegal transaction to
warrant forfeiture. Indeed, the evidence showed that the home was used to store or distribute
narcotics on a regular basis. See In re Forfeiture of $5,264, supra at 262-264, and In re
Forfeiture of Mobile Home, supra at 430-431.
1
Plaintiff seized both personal and real property from McKenney, but McKenney does not
challenge the personal property seizure on appeal.
2
To the extent this appeal involves a question of constitutional law, our review is similarly de
novo. See People v Eaton, 241 Mich App 459, 461; 617 NW2d 363 (2000).
3
We note our rejection of the prosecutor's suggestion that McKenney's instant appeal is moot.
Indeed, even though McKenney quitclaimed his interest in the subject property, he did so
because he was bound by the trial court order of forfeiture during the pendency of this appeal, see
MCR 7.209(A)(1), and an appellate remedy for error remains. See, generally, In re Forfeiture of
$256 & One 1978 Oldsmobile, 445 Mich 279, 282; 517 NW2d 732 (1994).
-2-
McKenney next argues that the trial court erred in granting summary disposition to
plaintiff because the forfeiture constituted an excessive fine under both the United States and
Michigan Constitutions. We decline to address the federal constitutional issue because "the
United States Supreme Court has never determined that the [federal] Excessive Fines Clause is
applicable to the states through the Fourteenth Amendment [of the United States Constitution]."
In re Forfeiture of $25,505, 220 Mich App 572, 583; 560 NW2d 341 (1996). An analysis under
the state Excessive Fines Clause, however, is appropriate. Id. at 584. This clause states that
"[e]xcessive bail shall not be required; excessive fines shall not be imposed; cruel or unusual
punishment shall not be inflicted; nor shall witnesses be unreasonably detained." Const 1963, art
1, § 16.
In People v Antolovich, 207 Mich App 714, 717; 525 NW2d 513 (1994), the Court, in
addressing whether a fine violated the state Excessive Fines Clause, favorably cited the analysis
in People v Wolfe, 338 Mich 525, 540; 61 NW2d 767 (1953), and listed the following factors for
consideration:
"In determining whether a fine authorized by statute is excessive in the
constitutional sense, due regard must be had to the object designed to be
accomplished, to the importance and magnitude of the public interest sought to be
protected, to the circumstances and nature of the act for which it is imposed, to the
preventive effect upon the commission of the particular kind of crime, and in
some instances to the ability of [the] accused to pay, although the mere fact that in
a particular case [the] accused is unable to pay the fine required to be assessed
does not render the statute unconstitutional." [Antolovich, supra at 717, quoting
24 CJS, Criminal Law, § 1604, p 203.]
These factors dovetail, to a certain extent, with the United States Supreme Court's statement in
United States v Bajakajian, 524 US 321, 337; 118 S Ct 2028; 141 L Ed 2d 314 (1998), that a
punitive forfeiture is unconstitutional if "the amount of the forfeiture is grossly disproportional to
the gravity of the defendant's offense . . . ."
In considering the above factors from Antolovich and Bajakajian, we conclude that the
forfeiture of a home associated with drug trafficking serves as a strong deterrence measure.
"Moreover, public sentiment places great importance on confronting illegal drug trafficking . . . ."
Antolovich, supra at 718. In addition, the nature of McKenney's illegal activity in the home in
this case was severe, given the quantity of marijuana found. A witness testified that the street
value of the drugs seized ranged from $30,000 to $65,000, depending on how the drugs were
sold, and the records found in McKenney's bedroom demonstrated that he was owed an
additional $20,000 from drug customers. The home was valued between $100,000 and
$200,000, and McKenney's attorney valued the home at the low end of this scale. Given the
amount of drugs involved, the value of the drugs and the home, and the societal harm imposed by
McKenney's actions, we conclude that the forfeiture of the home did not constitute an
unconstitutionally excessive fine. Cf. Bajakajian, supra at 339-340.
Next, McKenney argues that the trial court should have exempted his home from
forfeiture under Const 1963, art 10, § 3, and MCL 600.6023. Const 1963, art 10, § 3 states:
-3-
A homestead in the amount of not less than $3,500 and personal property
of every resident of this state in the amount of not less than $750, as defined by
law, shall be exempt from forced sale on execution or other process of any court.
Such exemptions shall not extend to any lien thereon excluded from exemption by
law.
MCL 600.6023(1)(h) states:
(1) The following property of the debtor and the debtor's dependents shall
be exempt from levy and sale under any execution:
* * *
(h) A homestead of not exceeding 40 acres of land and the dwelling house
and appurtenances on that homestead, and not included in any recorded plat, city,
or village, or, instead, and at the option of the owner, a quantity of land not
exceeding in amount 1 lot, being within a recorded town plat, city, or village, and
the dwelling house and appurtenances on that land, owned and occupied by any
resident of this state, not exceeding in value $3,500.00. This exemption extends
to any person owning and occupying any house on land not his or her own and
which the person claims as a homestead. However, this exemption does not apply
to any mortgage on the homestead, lawfully obtained, except that the mortgage is
not valid without the signature of a married judgment debtor's spouse unless either
of the following occurs: . . . .
Despite these provisions, the statute allowing for the forfeiture in this case, MCL 333.7521, does
not provide for a homestead exemption, and plaintiff therefore argues that a homestead
exemption did not apply to the seizure of McKenney's property. We agree.
Indeed, Const 1963, art 10, § 3 provides that the extent of the homestead exemption shall
be defined "by law . . . ." The Legislature set forth this definition in MCL 600.6023, a statute
that deals with the "property of the debtor and the debtor's dependents" (emphasis added). Here,
McKenney cannot be considered a "debtor" because his home was not seized to satisfy a debt or
a money judgment. MCL 600.6023, which implements the constitutional provision, is thus
inapplicable. We further conclude that the forfeiture here cannot be considered a "forced sale on
execution or other process of any court" under Const 1963, art 10, § 3, because, once again, the
forfeiture did not occur so the proceeds from the sale of the house could be used to satisfy a debt
or money judgment.
In addition, we find an analogy between the instant case and the case of McCarthy v
Payne, 141 Mich 571; 104 NW 981 (1905). In McCarthy, the Court discussed whether the
plaintiff could claim a statutory business exemption after his property was seized to pay a debt.
Id. at 572-574. The Court ruled that the plaintiff could not claim the exemption because he had
been illegally operating a saloon without obtaining a license. Id. at 574. The Court favorably
cited an out-of-state case indicating that business exemptions must be construed to apply only to
lawful businesses. Id. Here, McKenney's home was used as an instrumentality to further illegal
-4-
drug trafficking, and we thus conclude that it would be against public policy to apply the
homestead exemption to the instant case, just as it was against public policy in McCarthy to
allow a business exemption for an unlawful business.
As noted in Kleinert v Lefkowitz, 271 Mich 79, 87; 259 NW 871 (1935), quoting Riggs v
Sterling, 60 Mich 643, 649; 27 NW 705 (1886), the homestead exemption was designed to
provide a secure place for a householder to "'live beyond the reach of those financial misfortunes
which even the most prudent and sagacious cannot avoid.'" Here, McKenney is losing his home
not because of financial misfortunes but because he used the house to further his criminal
enterprise. We conclude that the homestead exemption should not apply in such a circumstance.
Affirmed.
/s/ Patrick M. Meter
/s/ Jane E. Markey
/s/ Donald S. Owens
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.