People v. Minch

At issue in this case is whether Michigan’s “felon in possession” statute, MCL 750.224f, prevents a police department from delivering lawfully seized noncontraband firearms to the designated agent of a convicted felon. We conclude that it does. The statute does not, however, prevent a court from appointing a successor bailee to maintain possession of a *90 defendant’s weapons during his or her period of legal incapacity. Therefore, we reverse the Court of Appeals’ judgment, vacate the circuit court’s order of November 24, 2010, and remand this matter to the circuit court for entry of an order not inconsistent with this opinion that clarifies its disposition of the firearms.

Following a domestic disturbance, the Fruitport Police Department executed a search warrant and lawfully seized 87 firearms from defendant’s home. Of these, defendant lawfully owned 86, but he illegally possessed one short-barreled shotgun. Defendant was charged with and pleaded guilty to one count of possession of a short-barreled shotgun 1 and one count of felony-firearm. 2

After his sentencing, defendant moved to have all of his lawfully owned weapons, which were still in the police department’s possession, “returned to Carol Cutler [defendant’s mother], as designated by Defendant in his proposed Durable Power of Attorney . ...” In arguing the motion, defendant’s counsel informed the court that defendant and counsel “would advise” defendant’s mother to sell the weapons in accordance with the authority conveyed in the power of attorney. The Muskegon Circuit Court granted defendant’s motion in an order dated November 24, 2010, over the prosecution’s objection.

The prosecution appealed by leave granted. The Court of Appeals affirmed the circuit court’s decision in a published opinion per curiam, holding that “denying defendant’s designee the right to take possession of the weapons would deprive defendant of his property without due process of law.” 3 Having heard oral argument *91 on the prosecution’s application for leave to appeal, 4 we reverse the judgment of the Court of Appeals and remand this case to the circuit court for further proceedings not inconsistent with this opinion.

MCL 750.224f(2) states:

A person convicted of a specified felony[ 5 ] shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until all of the following circumstances exist:

(a) The expiration of 5 years after all of the following circumstances exist:

(i) The person has paid all fines imposed for the violation.

(ii) The person has served all terms of imprisonment imposed for the violation.

(iii) The person has successfully completed all conditions of probation or parole imposed for the violation.

(b) The person’s right to possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm has been restored pursuant to section 4 of Act No. 372 of the Public Acts of 1927, being section 28.424 of the Michigan Compiled Laws.

Under this statute, defendant cannot directly possess his firearms because he is a convicted felon. Nor can defendant constructively possess the firearms. This Court has held that for possessory crimes in Michigan, actual possession is not required; constructive possession is sufficient. 6 The test for constructive possession is whether “the totality of the circumstances indicates a sufficient nexus between defendant and the contra *92 band.” 7 “Although not in actual possession, a person has constructive possession if he knowingly has the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons . . . .” 8 Thus, if defendant designates an agent to possess the firearms on his behalf and the agent does so, defendant is in violation of MCL 750.224f(2) because a sufficient nexus would remain between defendant and the firearms.

While MCL 750.224f(2) suspends a felon’s possessory interest in his or her firearms until the statutorily enumerated conditions are met, nothing in the statute severs a felon’s ownership interest in his or her firearms. 9 Thus, a felon continues to own his or her firearms but may not actually or constructively possess them or engage in any of the other prohibited activities listed in the statute. 10 Accordingly, neither the police department’s lawful seizure of the firearms at issue here nor its continued possession of the firearms deprived defendant of his ownership rights in the firearms.

We agree with the prosecution that a constructive bailment has been created between defendant and the *93 police department. 11 As a constructive bailee of the noncontraband weapons, 12 the police department is charged with all the attendant duties and obligations of a bailee. 13 Nothing in MCL 750.224f precludes the appointment of a successor bailee to maintain possession of a felon’s weapons for the duration of the felon’s incapacity. Thus, it would be lawful for another third party, including defendant’s mother, to assume possession of these firearms as bailee.

To ensure compliance with MCL 750.224f, the person appointed by the court to assume possession of a felon’s firearms must do so as a bailee, not as the felon’s agent. Unlike an agent, a bailee, by definition, remains free from the felon’s control. 14 This is especially important where, as here, the bailor’s desires for the disposition of the property may be adverse to the bailee’s permissible actions. 15 The distinction between a bailee and an agent is essential, especially if defendant’s mother is ap *94 pointed successor bailee because her power of attorney already suggests the existence of an agency relationship. 16 Because nothing prevents a person from serving as both an agent of and a bailee for someone, 17 one person could serve as bailee of defendant’s firearms and as defendant’s agent for purposes of managing all his other property. But if defendant retained control over the firearms, the person holding the firearms would be acting as an agent, rather than a bailee, and would be aiding and abetting defendant’s violation of MCL 750.224f(2). 18

The Court of Appeals erred when it concluded that the police department’s continued possession of defendant’s firearms as a bailee violated defendant’s right to due process. In analyzing a claim under the Due Process Clause, “[w]e first ask whether there exists a liberty or property interest of which a person has been deprived, and if so we ask whether the procedures followed by the State were constitutionally sufficient.” 19 Regarding defendant’s possessory interest in his weapons, he received all the process to which he was due when he pleaded guilty of the underlying felonies, became a convicted felon, and was rendered statutorily ineligible to possess his 86 firearms. 20 No additional process is required to determine that defendant cannot possess *95 these firearms because “the law’s requirements turn on [a defendant’s felony] conviction alone — a fact that a convicted [defendant] has already had a procedurally safeguarded opportunity to contest.” 21 Moreover, because the police department does not seek to deprive defendant of his ownership interest in his firearms, no due process violation has occurred. 22

The Court of Appeals also erred by relying on Banks v Detroit Police Department. 23 We now overrule the erroneous decision in Banks. In Banks, the Detroit Police Department seized various firearms, jewelry, and cash while executing a search warrant on Alfonso Banks’s house. 24 No charges were brought against Banks after the seizure, but the department refused to return the firearms because Banks was a convicted felon. 25 Like the defendant here, Banks sought to have the firearms turned over to a third party. The Court of Appeals panel held that Banks was entitled to “designate an individual to receive the guns or produce the owners of the guns to reclaim them,” concluding that continued possession by the police department deprived Banks of his property interest in the weapons without due process of law. 26 But this decision, utterly devoid of *96 analysis, failed to consider that Banks, who did not even own the firearms, received sufficient due process regarding any possessory interest he had in the firearms when he became a convicted felon in the first place. Thus, contrary to the panel’s conclusion, no due process violation occurred in Banks, and the instant Court of Appeals panel’s reliance on Banks was misplaced.

In its ultimate disposition of defendant’s firearms, the Muskegon Circuit Court must use precise language so as not to authorize a violation of MCL 750.224f. The circuit court may order the police department to turn over the firearms to an appointed successor bailee as long as the operative order is clear that the nature of the relationship between defendant and the successor is that of a bailment and that defendant must have no control over or access to the firearms whatsoever. Even defendant’s mother, who had a durable power of attorney to attend to defendant’s affairs while he was incarcerated, may possess the firearms as long as she does so as a bailee and not as defendant’s agent. 27 The successor bailee may not engage in any actions that would destroy defendant’s ownership rights in the guns. 28 If no replacement bailee is willing to hold the *97 firearms in accordance with the conditions outlined by the court, then the police department may retain possession as constructive bailee until defendant is lawfully entitled to possession of his firearms. Any of the foregoing dispositions more than satisfy the due process rights attendant to defendant’s ownership interest in his firearms.

Accordingly, we reverse the judgment of the Court of Appeals, vacate the circuit court’s order of November 24, 2010, and remand this matter to the circuit court for entry of an order not inconsistent with this opinion that clarifies its disposition of the firearms.