No. 3--96--0059
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D. 1996
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ex rel. DAVID W. ) of the 13th Judicial Circuit,
NEAL, State's Attorney of ) Grundy County, Illinois
Grundy County, )
)
Plaintiff-Appellant/ )
Cross-Appellee, )
v. ) No. 95--MR--32
EDMUND W. RYAN (One 1988 GMC )
G-250 Sierra Truck Vehicle )
Identification Number )
1GDJV34J7JJ501839), )
) Honorable
Defendant-Appellee/ ) Paul E. Root,
Cross-Appellant. ) Judge Presiding
_________________________________________________________________
JUSTICE McCUSKEY delivered the opinion of the court:
_________________________________________________________________
On October 30, 1995, the State filed a complaint for
forfeiture against a 1989 White Dodge GMC Sierra Truck, vehicle
identification number 1GDJV34J7JJ501839 (truck), owned by the
claimant, Edmund W. Ryan. The complaint was based on section
12(a)(3) of the Cannabis Control Act (720 ILCS 550/12(a)(3) (West
1994)) and the Drug Asset Forfeiture Procedure Act (the Forfeiture
Act) (725 ILCS 150 et seq. (West 1994)). Following a hearing, the
trial court found the truck was not used to facilitate the
transportation, sale, receipt, possession or concealment of
cannabis. Therefore, the trial court denied the State's complaint
for forfeiture. The State appeals, and for reasons which follow,
we affirm.
BACKGROUND
On August 11, 1995, Ryan was driving his truck from Aurora to
Morris to deliver garbage to the landfill in Morris. The garbage
was from Ryan's work as a construction site clean-up person. After
dropping off the load, Ryan was stopped on Illinois Route 47 by
Morris police officer Brent Dite. The officer stopped Ryan's
vehicle because it was missing a rear license plate.
Officer Dite conducted a check of Ryan's license, registration
and proof of insurance documents. No problems were found, and the
officer returned the documents to Ryan. What happened at this
point is disputed by the parties.
OFFICER DITE'S TESTIMONY
According to Officer Dite, he returned the documents and
advised Ryan that he was going to give Ryan a verbal warning
concerning the missing license plate. Ryan then asked the officer
if he would like to see the missing license plate. Officer Dite
informed Ryan that he did not have to produce the license plate,
but he may if he wished. Ryan reached behind the seat and
retrieved the license plate. Officer Dite then asked Ryan if he
had anything illegal in the truck. Ryan said no and told the
officer that he could check if he so desired.
Following the discussion about the license plate, Officer Dite
asked Ryan to exit the truck and stand by the curb. By this time,
another officer was on the scene, and he stood by Ryan on the curb.
Officer Dite noticed a duffel bag sitting on the seat of the truck.
He unzipped the bag, and saw another bag inside which appeared to
contain cannabis. Officer Dite then told the second officer to
place Ryan under arrest.
CLAIMANT RYAN'S TESTIMONY
According to Ryan, Officer Dite returned the documents and
told Ryan that everything was "clean." After turning around and
taking a step towards his squad car, Dite quickly turned back
around and asked Ryan if he had any illegal knives or guns in the
truck. When Ryan said no, Officer Dite asked for permission to
search the truck.
Ryan asked, "can I stop you?" The officer did not reply.
Ryan then asked the officer if he thought the truck was stolen.
Again, Officer Dite did not reply. Ryan said he volunteered to
retrieve the license plate from behind the seat. Because the seat
was a bench-style seat, Ryan exited the vehicle on the driver's
side and walked to the passenger side to raise the seat and
retrieve the license plate. Officer Dite then said he was going to
search the truck, and Ryan did not respond. After this exchange,
Ryan picked the duffel bag off the seat and held it under his arm
as he stood by the curb. The officer demanded to see the duffel
bag, so Ryan handed it to him. Dite opened the bag and discovered
the cannabis. At this point, Ryan was placed under arrest. Ryan
testified that he did not feel he was free to leave at any time
during his encounter with Officer Dite.
PROCEDURAL HISTORY
Ryan was charged in a companion felony case. The State
proceeded with the forfeiture, and Ryan asserted his fifth
amendment constitutional right not to testify at the hearing. In
response to Ryan's constitutional assertion, the State gave Ryan
transactional immunity to compel his testimony at the forfeiture
hearing. Following Ryan's agreement to testify, the State
dismissed the felony charge.
In a January 8, 1996, order, the trial court made the
following findings: (1) the duffel bag containing the cannabis was
seized from Ryan's person; (2) the cannabis was for the personal
use of either Ryan or his wife; (3) it was unnecessary for the
court to determine the propriety of the search; and (4) based upon
People v. One 1986 White Mazda Pickup Truck, 162 Ill. 2d 67, 642
N.E.2d 455 (1994), the forfeiture must fail because the truck was
not used to facilitate the transportation, sale, receipt,
possession or concealment of the cannabis. Following our careful
review of the record, we agree with the trial court's findings.
ANALYSIS
I. Jurisdiction
Initially, Ryan claims the double jeopardy clauses of the
United States and Illinois constitutions (U.S. Const., amend. V;
Ill. Const. 1970, art. I, §10) prohibit this court from reviewing
the State's appeal. Essentially, Ryan contends that the forfeiture
hearing below was like a criminal trial where he was "acquitted."
As a consequence, Ryan argues that this court is without
jurisdiction to hear the State's appeal because it may result in a
second "prosecution" of Ryan. We do not agree with Ryan's double
jeopardy argument.
Our supreme court has determined that a double jeopardy claim
under the Illinois constitution is no different from a double
jeopardy claim under the federal constitution. In re P.S., 169
Ill. 2d 260, 271, 661 N.E.2d 329, 335 (1996). Therefore, we will
focus our analysis on cases interpreting the double jeopardy clause
of the fifth amendment to the United States constitution.
The double jeopardy clause safeguards against three types of
governmental abuses: (1) a second criminal prosecution after
acquittal; (2) a second prosecution after conviction; and (3)
multiple punishments for the same offense. In re P.S., 169 Ill. 2d
at 272, 661 N.E.2d at 335. Because the felony charge against Ryan
was dismissed by the State, the multiple punishments argument is
not before us.
The Supreme Court of the United States recently determined
that the federal in rem civil forfeiture statute (21 U.S.C.
§881(a)(7)) results in a remedial, civil sanction which is distinct
from potentially punitive in personam civil penalties, such as
fines, and does not constitute punishment under the double jeopardy
clause. United States v. Ursery, 518 U.S. ___, 135 L. Ed. 2d 549,
116 S. Ct. ___ (1996).
A two-prong analysis is set forth in Ursery to determine if a
forfeiture constitutes "punishment" for double jeopardy purposes.
The first prong of the analysis requires this court to decide
whether the legislature intended the forfeiture proceedings to be
criminal or civil in nature. If we determine that the legislature
intended for the proceedings to be civil in nature, then the second
prong of the analysis requires us to consider whether the
proceedings are so punitive that they cannot be viewed as civil in
nature, despite the legislature's intent. Ursery, 518 U.S. at ___,
135 L. Ed. 2d at 568, 116 S. Ct. at ___.
Turning to the instant case, it is clear that the Illinois
General Assembly intended the proceedings under the Forfeiture Act
to be deemed civil in nature. 725 ILCS 150/2 (West 1994); see also
725 ILCS 150/9(B) (West 1994); 725 ILCS 150/9(G) (West 1994). In
addition, the Illinois appellate court has consistently treated
proceedings pursuant to the Forfeiture Act as civil in nature. See
People v. Towns, 269 Ill. App. 3d 907, 646 N.E.2d 1366 (1995);
People v. $52,204 United States Currency, 252 Ill. App. 3d 778, 623
N.E.2d 959 (1993); People ex rel. Spencer v. One 1978 Pontiac, 242
Ill. App. 3d 411, 610 N.E.2d 311 (1993); People ex rel. Burmila v.
One 1983 Oldsmobile, 239 Ill. App. 3d 1011, 607 N.E.2d 311 (1993).
Next, we do not find the Forfeiture Act in question to be so
punitive as to render it criminal in nature. The Supreme Court has
noted that when a forfeiture statute has certain punitive aspects,
it may not be deemed criminal in nature if it also serves important
nonpunitive goals. Ursery, 518 U.S. at ___, 135 L. Ed. 2d at 569,
116 S. Ct. at ___.
In this case, just as with the federal forfeiture statute
under consideration in Ursery, our State's Forfeiture Act has many
nonpunitive goals. We find that the Forfeiture Act before us will
encourage property owners to take care in managing their property
and insure that it is not used for illegal purposes. See Ursery,
518 U.S. at ___, 135 L. Ed. 2d at 569, 116 S. Ct. at ___. Also,
we note that the proceeds from forfeited property in Illinois are
distributed among various agencies in order to assist in the
enforcement of the laws dealing with controlled substances. 720
ILCS 550/12(g) (West 1994). Moreover, the Supreme Court in Ursery
has held that: (1) in rem civil forfeitures have historically not
been viewed as punishment; (2) forfeiture may serve a deterrent
purpose distinct from any punitive purpose; and (3) the fact that
a forfeiture statute is tied to criminal activity is insufficient
to render the statute punitive. Ursery, 518 U.S. at ___, 135 L.
Ed. 2d at 570, 116 S. Ct. at ___.
In sum, we conclude that the double jeopardy clause of the
United States Constitution is not implicated by the procedures of
the Illinois Forfeiture Act. The statute in question involves in
rem proceedings which the General Assembly clearly intended to be
civil in nature. In addition, we find no clear evidence to support
a finding that the form and effect of the Forfeiture Act is so
punitive as to be criminal in nature. Finally, we conclude that
Ryan's double jeopardy rights are not implicated by this appeal.
As a result, we have jurisdiction to hear the State's appeal.
II. Applicability of the statute
The Cannabis Control Act provides that:
"the following are subject to forfeiture: ***
all conveyances, including aircraft, vehicles
or vessels, which are used, or intended for
use, to transport, or in any manner to
facilitate the transportation, sale, receipt,
possession, or concealment of property
described in paragraph (1) or (2) that
constitutes a felony violation of the Act."
720 ILCS 550/12 (West 1994).
Initially, in our review, we note that the forfeiture
provisions of the Illinois Controlled Substances Act (see 720 ILCS
570/505 (West 1994)) are identical to those in the Cannabis Control
Act. The supreme court has pointed out that the key word in these
statutes is "facilitate," which means "to make easier or less
difficult." 1986 White Mazda, 162 Ill. 2d at 69, 642 N.E.2d at
456. In 1986 White Mazda, the claimant was stopped in his vehicle
pursuant to a warrant which had issued because he failed to appear
on a traffic violation. The claimant was seized, and cocaine was
found on a plastic straw in his interior coat pocket and a packet
of cocaine was found in his underwear.
The Illinois supreme court concluded that the mere presence of
cocaine on the driver's person was not sufficient to support a
finding that the truck was used to facilitate the possession of the
cocaine. The court also concluded that the "use of the vehicle was
completely incidental to the possession of the [cocaine]." 1986
White Mazda, 162 Ill. 2d at 70, 642 N.E.2d at 456. The 1986 White
Mazda case focused only on the possession portion of the forfeiture
statute because the court said that the complaint for forfeiture
alleged the vehicle "was used to facilitate the possession of
cocaine." 1986 White Mazda, 162 Ill. 2d at 68, 642 N.E.2d at 455.
Based upon 1986 White Mazda, we hold that the trial court in
the instant case was correct in denying the complaint for
forfeiture based on its conclusion that Ryan's truck was not used
to facilitate the possession of cannabis. The contraband in
question was secreted in a duffel bag which the trial court found
was seized from Ryan's person. The fact Ryan was in the truck some
time prior to the seizure does not give rise to a conclusion that
the truck made it easier for Ryan to possess the cannabis. We find
that the use of the vehicle was completely incidental to the
possession of the cannabis. See 1986 White Mazda, 162 Ill. 2d at
70, 642 N.E.2d at 456. Ryan's possession of the cannabis would
have been no more difficult had he "been walking, taking a bus, or
riding a motorcycle." 1986 White Mazda, 162 Ill. 2d at 70, 642
N.E.2d at 456.
In a decision filed the same day, the Illinois supreme court
upheld a forfeiture under slightly different circumstances. The
case of People ex rel. Waller v. 1989 Ford F-350 Truck, 162 Ill. 2d
78, 642 N.E.2d 460 (1994) involved a claimant arrested for driving
under the influence of alcohol. The defendant was taken to the
police station, and cocaine was found in his pants pockets during
the booking process. 1989 Ford F-350 Truck, 162 Ill. 2d at 81, 642
N.E.2d at 462. Citing 1986 White Mazda, the supreme court noted
that the forfeiture could not be upheld on the basis that the truck
facilitated the possession of the cocaine. 1989 Ford F-350 Truck,
162 Ill. 2d at 83, 642 N.E.2d at 463.
However, our supreme court upheld the forfeiture based on the
use of the truck to facilitate the transportation of the cocaine.
At the forfeiture hearing in 1989 Ford F-350 Truck, a police
officer testified that, at the time of the arrest, the claimant
told the officer he bought the cocaine in a bar and was carrying it
to his employee. At trial, the claimant said the cocaine was only
for his personal use and denied making the statement to the
officer. After reviewing the conflicting testimony, the trial
court found the truck was used to facilitate the transportation of
the cocaine from the bar so that it could be delivered to the
claimant's employee. The supreme court agreed with the trial
court's conclusion.
Addressing only the transportation portion of the forfeiture
complaint, the supreme court stated:
"the trial court could have properly believed
[the police officer's] testimony that
defendant told him of his intent to deliver
the cocaine to an employee. Thus, the trial
court could have properly concluded that the
preponderance of the evidence demonstrated
that defendant's truck was used in
facilitating the transportation of cocaine."
1989 Ford F-350 Truck, 162 Ill. 2d at 86, 642
N.E.2d at 464.
In determining what "transportation" means under the
forfeiture provisions of the Cannabis Control Act, the State urges
us to look only to federal case law for guidance in reaching our
decision. We decline to do so. We are aware that the Forfeiture
Act does contain a legislative declaration lauding the success of
the federal narcotics civil forfeiture statute and directing the
courts of this State to construe the Forfeiture Act "in light of"
the federal statute. See 725 ILCS 150/2 (West 1994). However, in
the instant case, the forfeiture language we are required to
construe is contained in the Cannabis Control Act. See 720 ILCS
550 et seq. (West 1994). We note that this act contains no
legislative declaration by the General Assembly that federal law
should control our interpretation of the Act. See People v. One
1986 White Mazda Pickup Truck, 251 Ill. App. 3d 79, 81, 621 N.E.2d
250, 252 (1993), aff'd, 162 Ill. 2d 67, 642 N.E.2d 455 (1994).
We are mindful of the general rule of law that forfeitures are
not favored and that forfeiture statutes must be strictly construed
in favor of the property owner. 1986 White Mazda, 251 Ill. App. 3d
at 83, 621 N.E.2d at 254. As a consequence, we are reluctant to
expand the application of the Forfeiture Act into areas which have
not been previously approved by our supreme court.
In 1989 Ford F-350, our supreme court highlighted the trial
court's conclusion that the claimant was transporting the drugs to
deliver them to his employee. Here, in the case at hand, we find
the facts clearly distinguishable. The trial court determined that
Ryan took the drugs from his residence and was returning home with
the drugs at the conclusion of his work day. The trial court also
determined that the cannabis was possessed solely for the personal
use of either Ryan or his wife. The record is undisputed that Ryan
was not possessing the cannabis for sale or delivery to another
person.
Based upon our review of applicable Illinois law, we conclude
that the General Assembly did not intend for the transportation
language of the Cannabis Control Act to be interpreted so as to
forfeit motor vehicles in those cases where: (1) the trial court
has found that the claimant merely possessed a small amount of
cannabis which was solely for personal use and not intended to be
sold or delivered to another person; and (2) where the use of the
vehicle was completely incidental to the possession of the
controlled substance.
CONCLUSION
In sum, we find the trial court's determination was not
against the manifest weight of the evidence. Moreover, we agree
with the trial court's conclusion that Ryan's truck was not used to
facilitate the transportation, sale, receipt, possession or
concealment of cannabis.
Accordingly, we affirm the judgment of the circuit court of
Grundy County.
Affirmed.
HOLDRIDGE, P.J., and LYTTON, J., concur.