2024 IL App (4th) 231465 FILED October 25, 2024 NO. 4-23-1465 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellant, ) Circuit Court of v. ) Ogle County $33,260 UNITED STATES CURRENCY, ) No. 23MX3 Defendant, ) (Hue Xiong, ) Honorable Claimant-Appellee). ) John C. Redington, ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion. Justice Steigmann concurred in the judgment and opinion. Justice Doherty dissented, with opinion.
OPINION
¶1 Pursuant to the Drug Asset Forfeiture Procedure Act (Forfeiture Act) (725 ILCS
150/1 et seq. (West 2022)), the State initiated civil forfeiture proceedings against $33,260 in
United States currency found in the vehicle of claimant, Hue Xiong, during a traffic stop.
Following the presentation of the State’s case-in-chief at a forfeiture trial, the trial court granted
claimant’s motion for a directed finding, dismissed the State’s forfeiture complaint, and ordered
that the currency be returned to claimant. The State appeals, arguing that the court erred in granting
claimant’s motion for a directed finding because it presented sufficient evidence to establish a
prima facie case for forfeiture. We reverse and remand. ¶2 I. BACKGROUND
¶3 On January 12, 2023, the State initiated civil forfeiture proceedings against $33,260
in United States currency by filing a “Petition for Preliminary Determination Hearing,” requesting
the trial court conduct a hearing to determine whether probable cause existed that the currency was
subject to forfeiture. Following the hearing, the court entered a written order finding probable
cause to believe the currency was subject to the Forfeiture Act and ordered that it be held until the
conclusion of the forfeiture proceedings.
¶4 On January 25, 2023, the State filed a “Notice of Pending Forfeiture,” informing
claimant that the property would be forfeited unless he filed a verified claim for the return of the
property. The State indicated in its notice, in pertinent part, that the property was seized because
it was “used or intended to be used to violate the Cannabis Control Act or the Controlled
Substances Act.”
¶5 On March 13, 2023, claimant filed a “Verified Claim for the Return of Property.”
He claimed a personal property interest in the currency and maintained that it was not subject to
forfeiture. According to claimant, when the money was seized, he was returning home from a trip
after visiting family in California. While in California, two of claimant’s family members “repaid
a previously loaned amount of cash, given to them by [him,]” and the money seized represented
the repayment of that loan. Claimant asserted that, on their drive home from California, he and
“his wife, Bao Moua, made several sight-seeing stops, including stops in Utah and possibly
Colorado.”
¶6 On November 20, 2023, the State filed a complaint for forfeiture, pursuant to the
Forfeiture Act. The State alleged that on January 5, 2023, police officers initiated a traffic stop on
a Chevrolet Silverado pickup truck driven by claimant. The officers subsequently searched the
-2- vehicle and located $33,260 in currency. The officers smelled cannabis inside the vehicle but were
unable to locate any; they also found a handgun in a case in the bed of the truck. The State alleged
that
“the $33,260 was used or intended to be used to commit a felony violation of the
Illinois Cannabis Control Act [(720 ILCS 550/1 et seq. (West 2022))], or was
furnished or intended to be furnished in exchange for cannabis, or is a proceed
traceable to such an exchange in violation of the Illinois Cannabis Control Act.”
¶7 On November 21, 2023, the trial court conducted a bench trial on the State’s
forfeiture complaint. At the outset, the court indicated that claimant’s daughter was present at the
hearing to “[i]nterpret what’s being said in English to [claimant].”
¶8 Jacob Breitbach, a sheriff’s deputy with the Ogle County Sheriff’s Office, testified
that, on January 5, 2023, he observed a black Chevrolet Silverado pickup truck commit a traffic
violation while driving on the interstate. Deputy Breitbach initiated a traffic stop of the vehicle
and identified the driver as claimant and the passenger as claimant’s wife. Deputy Breitbach’s
dashcam footage, depicting the traffic stop and search of claimant’s vehicle, was admitted into
evidence without objection and published to the court. Prior to stopping claimant’s vehicle, Deputy
Breitbach had received a phone call from another police officer, informing him that claimant’s
vehicle was suspected of being “involved in some nature of trafficking.” Deputy Breitbach testified
that when he first approached claimant, he “appeared very nervous. He lacked eye contact with
me. I also observed his hands to be shaking pretty rapidly throughout our conversation.” Claimant
gave Deputy Breitbach consent to search his vehicle. Deputy Breitbach testified that he smelled a
“very strong” odor of cannabis while searching the vehicle. During the search, Deputy Breitbach
located on the front passenger seat “stacks of obvious currency *** wrapped in rubber bands.
-3- Placed with it were three bundles of a vacuum-sealed aluminum-type material. It was the exact
size as the currency located beside it.” Deputy Breitbach also located a “large amount of rotten
fruits” in the back of the vehicle and an unloaded firearm stored in a protective case in the bed of
the truck. He testified that based on his training and experience, rotten fruit is sometimes used as
a “concealing agent to mask the odor of” cannabis. Deputy Breitbach further testified that clothing
was strewn about the vehicle, making it “appear as if somebody ha[d] been staying in the vehicle.”
¶9 John Shippert, a sheriff’s deputy with the Ogle County Sheriff’s Office, testified
that he was part of “the Special Operations Unit and [a] K-9 handler.” Deputy Shippert assisted
Deputy Breitbach with the search of claimant’s vehicle, and his dashcam footage was admitted
into evidence without objection and published to the court. Deputy Shippert testified that he
walked his K-9 around claimant’s vehicle; the K-9 “indicated on the back of the vehicle” and then
alerted to the passenger side of the vehicle. Deputy Shippert informed claimant that his K-9 had
alerted to his vehicle and then asked claimant if, among other forms of contraband, he had large
amounts of “currency” in the vehicle. Claimant said that he did not. The court interjected to clarify
with Deputy Shippert that he had used the word “currency” rather than “money.” After the officers
located the money, claimant informed Deputy Shippert that he had misunderstood his initial
question. Claimant told Deputy Shippert that he had “approximately $32,000 and that he had
gotten the money back from his cousins in California.” When asked by counsel for the State
whether claimant explained to him why his cousins had his money, Deputy Shippert testified, “It
was a little difficult to understand him, but I believe he said that he had loaned his cousins money
and they were paying him back.” Claimant told Deputy Shippert that he had been in California for
a few days and stopped in Utah on his drive home.
-4- ¶ 10 Deputy Shippert testified that there “was a raw odor, overwhelming smell of
cannabis” in claimant’s vehicle and all of the luggage therein. He further testified that when he
and another officer subsequently returned to the police station to count the money, they “were hit
with the raw odor of cannabis inside of the vacuum-sealed bag, inside of the tin foil wrapped
around the money.” Deputy Shippert testified that he did not find any empty bags in the vehicle
and all of the luggage was full of clothing. On cross-examination, Deputy Shippert testified he had
received information from other agencies that claimant’s vehicle had been traveling in an unusual
route. When asked what was unusual about the vehicle’s route, Deputy Shippert responded, “It
spent a short amount of time in the destination that it was at, I believe California, turned around
and then came back through Las Vegas, Colorado, and then to Iowa.” Claimant’s counsel pressed
Deputy Shippert to articulate what was unusual about the route, and Deputy Shippert testified that
he “was just informed by outside agencies to be on the lookout for this vehicle.” Deputy Shippert
testified that they searched the entire vehicle but were unable to locate any marijuana.
¶ 11 Ty Moore, a sergeant with the Illinois State Police, testified that he was “the
commander of the State Line Area Narcotics Team, SLANT, in Rockford.” The trial court accepted
Sergeant Moore as an expert in drug trafficking and drug dealing. Sergeant Moore testified that he
was not involved firsthand in the instant case, but he had reviewed the relevant reports and physical
evidence. Sergeant Moore testified that drug traffickers are known to drive to states such as
Arizona, Colorado, and California, where the laws on growing and possessing cannabis are less
strict. “[T]hey’ll make a trip out there in order to pick it up and haul it back and traffic it back.”
Sergeant Moore testified that when drug traffickers “start shipping or transporting either money or
drugs, they tend to use foil or some other wrapping in order to conceal it from law enforcement.”
Sergeant Moore indicated that the money recovered from claimant’s vehicle consisted of mostly
-5- $100 and $20 bills, which was common for the drug trade. He opined that somebody in possession
of approximately $30,000 in cash would be more likely to have sold cannabis rather than preparing
to purchase it. Sergeant Moore testified that it was common for drug traffickers to carry a firearm
to protect themselves from either the person “they’ve done that transaction with, to anyone who’s
trying to rob them that may know that they’re carrying or holding a large sum of money or large
sum of drugs.” Sergeant Moore testified that a pound of cannabis was worth anywhere from $600
to $1200 in Illinois and that a pound of cannabis was approximately the size of a brick.
¶ 12 After the State presented its case-in-chief, claimant moved “for a directed finding
or a directed verdict,” stating, “I don’t believe the State has established their burden or met their
burden. They are just allegations here at this time.” The trial court granted claimant’s motion and
provided the following reasoning in open court:
“THE COURT: I got a lot missing here. The supposition is that at some
point in time, [claimant] had a significant amount of cannabis somewhere in his
truck. I don’t have any empty bags. The luggage was all full.
I’m going to disregard, by the way, Officer Shippert’s testimony about the
fact that this particular vehicle was being tracked in some fashion. I haven’t heard
from anybody other than his general hearsay statement that he was told. I haven’t
heard from anybody as to why this particular vehicle should be tracked.
I heard from the first officer about this rotten fruit and how that, in his patrol
officer experience, means that they’re trying to cover up an odor.
After that I had the special operations unit and K-9 handler in here and an
expert witness in drug interdiction, neither one of which provided me any testimony
that suggests that rotten fruit is commonly used to mask an odor.
-6- I find it very hard to believe that a person is going to carry a gun to protect
themselves in a drug deal and carry it in a sealed container in the back of a pickup
truck.
The bottom line is, I’ve got money and I’ve got an odor. I don’t believe
that’s enough in this particular circumstance. I’m going to grant the motion for a
direct [sic] finding. I’m going to deny the complaint for forfeiture.”
The court subsequently entered a written order granting claimant’s motion, dismissing the
complaint, and ordering that the money be returned to claimant.
¶ 13 This appeal followed.
¶ 14 II. ANALYSIS
¶ 15 On appeal, the State argues the trial court erred in granting claimant’s motion for a
directed finding at the close of its case where the evidence was sufficient to establish a prima facie
case that the currency was subject to forfeiture. The State contends it satisfied its burden “to show
the existence of probable cause for forfeiture of the property” because “[t]aken as a whole, the
evidence clearly showed that the money had the needed nexus to drug dealing to be subject to
forfeiture.” Specifically, the State maintains the following evidence was sufficient to satisfy its
burden:
“the amount of money [and] manner of packaging consistent with the drug trade,
[claimant’s] false and changing explanations for the money, the route and time
taken by [claimant], the use of items to mask odor, the presence of a gun in the
vehicle, and the strong, overpowering odor of cannabis in the vehicle, luggage, and
on the clothes in the suitcases.”
-7- ¶ 16 Before addressing the State’s argument, we note that claimant challenges the
sufficiency of the State’s forfeiture complaint for the first time on appeal by arguing “[t]he State
failed to plead *** the element of criminal activity necessary to maintain the case for forfeiture.”
We reject claimant’s argument under the doctrine of aider by verdict. “Under that doctrine, where
a defendant allows an action to proceed to verdict, that verdict will cure *** any defect in failing
to allege or in alleging defectively or imperfectly any substantial facts which are essential to a right
of action.” (Internal quotation marks omitted.) Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 60-61
(1994). Here, claimant did not challenge the sufficiency of the complaint in the trial court. Instead,
he filed an answer to the complaint in which he claimed an interest in the property and denied the
allegations raised by the State. Thereafter, claimant allowed the action to proceed to a forfeiture
trial, at which the court granted his motion for a directed finding. Thus, the court’s granting of
claimant’s motion for a directed finding cured any alleged defect in the State’s complaint, and we
reject claimant’s untimely challenge to the sufficiency of the pleadings. Id.
¶ 17 As stated above, the State argues it satisfied its burden “to show the existence of
probable cause for forfeiture of the property” because “[t]aken as a whole, the evidence clearly
showed that the money had the needed nexus to drug dealing to be subject to forfeiture.” However,
the State’s argument fails to account for the 2018 amendments to the Forfeiture Act, which, as
discussed in further detail below, changed the State’s burden of proof from merely having to show
the existence of probable cause for forfeiture of the seized property to now requiring the State to
prove by a preponderance of the evidence that the property is subject to forfeiture. Nor does
claimant in his brief point out the State’s mistaken reliance on the less onerous standard of proof
provided for in the original version of the statute.
-8- ¶ 18 In 1990, “the General Assembly enacted the [Forfeiture Act] [citation] establishing
uniform procedures for the seizure and forfeiture of drug related assets.” People v. $1,124,905 U.S.
Currency & One 1988 Chevrolet Astro Van, 177 Ill. 2d 314, 325-26 (1997). Civil forfeiture
hearings under the original version of the Forfeiture Act followed a two-step procedure. See, e.g.,
People v. $174,980 United States Currency, 2013 IL App (1st) 122480, ¶ 22. At the first step, the
State had the burden to “show the existence of probable cause for forfeiture of the property.” 725
ILCS 150/9(G) (West 2016). In interpreting the probable cause standard of proof, our supreme
court found the State had to prove “facts providing reasonable grounds for the belief that there
exist[ed] a nexus between the property and illegal drug activity, supported by less than prima facie
proof but more than mere suspicion.” People v. A Parcel of Property Commonly Known as 1945
North 31st Street, Decatur, 217 Ill. 2d 481, 505 (2005). If the State satisfied its burden of showing
the existence of probable cause for forfeiture, “the matter proceed[ed] to the second step, where
the burden shift[ed] to the claimant to show by a preponderance of the evidence that the claimant’s
interest in the property [was] not subject to forfeiture.” $174,980 United States Currency, 2013 IL
App (1st) 122480, ¶ 24 (citing 725 ILCS 150/9(G) (West 2010)). If the claimant was unable to
prove that the property was not subject to forfeiture by a preponderance of the evidence, the trial
court was required to order that the subject property be forfeited to the State. 725 ILCS 150/9(H)
(West 2016).
¶ 19 However, in 2018, due to criticism of the burden of proof tilting heavily in the
State’s favor, the General Assembly amended the Forfeiture Act. Pub. Act 100-512, § 170 (eff.
July 1, 2018) (amending 725 ILCS 150/9); see also 100th Ill. Gen. Assem., House Proceedings,
June 23, 2017, at 5-6 (statements of Representative Guzzardi). The General Assembly eliminated
the burden-shifting framework set forth in the original version of the statute and placed the burden
-9- of proof solely on the State, while also elevating the State’s burden of proof from a mere showing
of probable cause to proving its case by a preponderance of the evidence. Id. Thus, contrary to the
State’s argument highlighted above, the question before us is not whether the State showed the
existence of probable cause for forfeiture of the property, but whether it proved the property was
subject to forfeiture by a preponderance of the evidence.
¶ 20 The Forfeiture Act’s provisions apply to all property forfeitable under, among other
statutes, the Cannabis Control Act. 725 ILCS 150/3 (West 2022). The Cannabis Control Act
provides, in relevant part, that “everything of value furnished or intended to be furnished by any
person in exchange for a substance in violation of this Act” is subject to forfeiture. 720 ILCS
550/12(a)(5) (West 2022). It is a violation of the Cannabis Control Act “for any person knowingly
to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis.” Id. § 5.
Where, as here, the State has seized property under the provisions of the Cannabis Control Act and
a claimant has asserted a claim against the seized property, the Forfeiture Act sets forth a specific
judicial in rem procedure that must be followed before the property may be forfeited to the State.
725 ILCS 150/9 (West 2022). Specifically, the State “institute[s] judicial forfeiture proceedings
by filing a verified complaint for forfeiture” (id. § 9(A)) that must include, among other things, a
description of the property seized (id. § 9(A-10)(1)) and “the specific statutory and factual grounds
for the seizure” (id. § 9(A-10)(4)). “Only an owner of or interest holder in the property may file
an answer [to the State’s complaint] asserting a claim against the property.” Id. § 9(C). Unless the
proceedings are continued for good cause, the trial court must hold a trial on the State’s forfeiture
complaint within 60 days of the filing of the claimant’s answer. Id. § 9(F). The following
procedure applies at the forfeiture trial if the seized property is currency or its equivalent:
- 10 - “[T]he State, in its case in chief, shall show by a preponderance of the evidence that
the property is subject to forfeiture. If the State makes that showing, the claimant
shall have the burden of production to set forth evidence that the currency or its
equivalent is not related to the alleged factual basis of the forfeiture. After the
production of evidence, the State shall maintain the burden of proof to overcome
this assertion.” Id. § 9(G-5).
¶ 21 The Forfeiture Act is based on the federal narcotics civil forfeiture statute and, in
light of that statute’s success “in deterring the use and distribution of controlled substances within
this State and throughout the country,” the Forfeiture Act provides that its provisions are to “be
construed in light of the federal forfeiture provisions contained in [chapter 881 of Title 21 of the
United States Code (21 U.S.C. 881 (2018))] as interpreted by the federal courts, except to the
extent that the provisions of this Act expressly differ therefrom.” 725 ILCS 150/2 (West 2022).
Under the federal forfeiture framework, the federal government likewise has the burden of proving
by a preponderance of the evidence that the seized property is subject to forfeiture. 18 U.S.C.
§ 983(c)(1) (2018); see Concrete Pipe & Products of California, Inc. v. Construction Laborers
Pension Trust for Southern California, 508 U.S. 602, 622 (1993) (“The burden of showing
something by a preponderance of the evidence *** simply requires the trier of fact to believe that
the existence of a fact is more probable than its nonexistence.” (Internal quotation marks
omitted.)). Moreover, “if the Government’s theory of forfeiture is that the property *** was
involved in the commission of a criminal offense, the Government shall establish that there was a
substantial connection between the property and the offense.” 18 U.S.C. § 983(c)(3) (2018).
However, the federal government “does not need to show a relationship between the property and
- 11 - a particular drug transaction—only that the property was related to some illegal drug transaction.”
United States v. $242,484.00, 389 F.3d 1149, 1160 (11th Cir. 2004).
¶ 22 “[T]he government may *** meet its burden with circumstantial evidence of the
substantial connection between the subject property and illegal drug sales.” United States v. Real
Property 10338 Marcy Road Northwest, Canal Winchester, Ohio, 938 F.3d 802, 810 (6th Cir.
2019); see United States v. $11,500.00 in United States Currency, 710 F.3d 1006, 1013 (9th Cir.
2013) (“The government may meet its burden with sufficiently strong circumstantial evidence
linking the currency to drug trafficking in general.”). In this regard, “[p]ossession of large amounts
of currency provides strong evidence of a connection between the currency and drug activity.
[Citation.] Other circumstantial evidence that helps prove a substantial connection may include a
drug dog’s alert, the particular packaging of the currency, or a claimant’s behavior during a traffic
stop.” United States v. $63,530.00 in United States Currency, 781 F.3d 949, 955 (8th Cir. 2015).
In determining whether the government has satisfied its burden, federal courts “look at the totality
of the circumstances” and “evaluate the evidence presented with a common sense view to the
realities of normal life.” (Internal quotation marks omitted.) United States v. $183,791.00 in United
States Currency, 391 F. App’x 791, 794 (11th Cir. 2010) (per curiam).
¶ 23 Where, as here, the claimant moves for a directed finding, the trial court is to
employ a two-stage procedure in ruling on the motion. Kokinis v. Kotrich, 81 Ill. 2d 151, 154-55
(1980). Our standard of review depends on whether the trial court granted claimant’s motion at the
first or second stage of this procedure. At the first stage of the directed-finding procedure, the court
must determine “whether the plaintiff has presented a prima facie case by proffering at least some
evidence on every element essential to [the plaintiff’s underlying] cause of action.” (Internal
quotation marks omitted.) In re Estate of Coffman, 2023 IL 128867, ¶ 52. If the plaintiff fails to
- 12 - present a prima facie case, the court should grant the motion and enter judgment for the defendant.
Id. “Because a determination that the plaintiff has failed to present at least some evidence on every
element is a question of law, such a ruling is reviewed de novo.” Id. However, if the trial court
determines the plaintiff has presented a prima facie case,
“the court proceeds to the second part of the [directed-finding] inquiry and
considers the totality of the evidence presented, including any evidence that is
favorable to the defendant. In its role as the finder of fact, the court weighs all the
evidence, determines the credibility of the witnesses, and draws reasonable
inferences therefrom.” Id. ¶ 53 (citing 735 ILCS 5/2-1110 (West 2020)).
“The weighing process may negate some evidence presented by the plaintiff.” Id. “After weighing
all the evidence and applying the standard of proof required for the underlying cause, the court
must determine whether sufficient evidence remains to establish the plaintiff’s prima facie case.”
Id. ¶ 54. “A reviewing court will not reverse a ruling following this weighing process unless it is
contrary to the manifest weight of the evidence.” Id.
¶ 24 Here, the trial court provided the following reasoning in open court for granting
claimant’s motion for a directed finding:
“THE COURT: I got a lot missing here. The supposition is that at some
point in time, [claimant] had a significant amount of cannabis somewhere in his
truck. I don’t have any empty bags. The luggage was all full.
I’m going to disregard, by the way, Officer Shippert’s testimony about the
fact that this particular vehicle was being tracked in some fashion. I haven’t heard
from anybody other than his general hearsay statement that he was told. I haven’t
heard from anybody as to why this particular vehicle should be tracked.
- 13 - I heard from the first officer about this rotten fruit and how that, in his patrol
officer experience, means that they’re trying to cover up an odor.
After that I had the special operations unit and K-9 handler in here and an
expert witness in drug interdiction, neither one of which provided me any testimony
that suggests that rotten fruit is commonly used to mask an odor.
I find it very hard to believe that a person is going to carry a gun to protect
themselves in a drug deal and carry it in a sealed container in the back of a pickup
The bottom line is, I’ve got money and I’ve got an odor. I don’t believe
that’s enough in this particular circumstance. I’m going to grant the motion for a
direct finding. I’m going to deny the complaint for forfeiture.”
¶ 25 Both the State and claimant suggest we should review the trial court’s ruling
de novo. They contend the court granted claimant’s motion for a directed finding at the first stage
of the procedure outlined above. The State alternatively argues that the court still erred, even if we
were to find it had proceeded to the second stage as the court’s decision was against the manifest
weight of the evidence.
¶ 26 We disagree with the parties that the trial court granted claimant’s motion at the
first stage of the directed-finding procedure and instead find that the court had in fact proceeded
to the second stage and actually weighed the evidence. For instance, the court’s statements show
that it gave little weight to Deputy Breitbach’s testimony concerning the presence of rotten fruit to
mask the odor of cannabis because neither Deputy Shippert nor Sergeant Moore similarly testified
that rotten fruit was commonly used by drug traffickers to conceal the odor of cannabis. Likewise,
the court’s comments suggest it gave little weight to the fact that claimant had a firearm in his
- 14 - vehicle, finding “it very hard to believe that a person is going to carry a gun to protect themselves
in a drug deal and carry it in a sealed container in the back of a pickup truck.” The court further
stated it was disregarding Deputy Shippert’s testimony about the claimant’s vehicle being tracked
due to a lack of supporting evidence. Thus, because we find the court proceeded to the second
stage and actually weighed the evidence, we will review its decision using the manifest-weight
standard. “A judgment is against the manifest weight of the evidence only when the opposite
conclusion is apparent or when the judgment is arbitrary, unreasonable, or not based on the
evidence.” Id. ¶ 56.
¶ 27 We find the trial court erred in granting claimant’s motion for a directed finding. It
is apparent from our review of the record that the State presented sufficient circumstantial evidence
to “show by a preponderance of the evidence that the property [was] subject to forfeiture.” 725
ILCS 150/9(G-5) (West 2022). The State presented evidence that claimant was transporting a large
amount of currency—approximately $33,000—in his vehicle. While the currency alone was
insufficient to prove the State’s case, it was nonetheless highly probative of illegal drug activity.
See, e.g., United States v. Currency, U.S. $42,500.00, 283 F.3d 977, 981 (9th Cir. 2002)
(“[P]ossession of a large amount of cash is strong evidence that the money was furnished or
intended to be furnished in return for drugs.” (Internal quotation marks omitted.)). In addition to
the amount of currency, the manner of its packaging in a vacuum-sealed bag, wrapped in foil and
rubber banded, was also highly probative of drug trafficking. See, e.g., United States v.
$144,780.00 in United States Currency, 792 F. App’x 573, 580 (10th Cir. 2019) (finding that the
presence of a substantial amount of vacuum-sealed currency weighed strongly in favor of
forfeiture); United States v. $117,920.00 in United States Currency, 413 F.3d 826, 829 (8th Cir.
2005) (finding that currency “bundled in rubber bands, enclosed within a plastic sack, and hidden
- 15 - beneath clothing in a duffle bag” was evidence of a substantial connection between the currency
and drug trafficking); $242,484.00, 389 F.3d at 1161 (“A common sense reality of everyday life
is that legitimate businesses do not transport large quantities of cash rubber-banded into bundles
and stuffed into packages in a backpack” “because there are better, safer means of transporting
cash if one is not trying to hide it from the authorities.”). Moreover, the “very strong” and
“overwhelming” odor of raw cannabis emanating from claimant’s vehicle and the contents therein,
including the currency itself, constituted additional probative evidence of drug trafficking. See,
e.g., United States v. $252,300.00 in United States Currency, 484 F.3d 1271, 1275 (10th Cir. 2007)
(“[T]he smell of marijuana on the currency is strongly probative of a link between the money and
drug trafficking.”); $117,920.00 in United States Currency, 413 F.3d at 829 (relying in part on
odor of marijuana emanating from four bags, one containing currency, to affirm forfeiture). The
fact that, prior to the search, claimant denied having a large amount of currency in his vehicle
provided further proof of a substantial connection between the currency and drug activity. See
$63,530.00 in United States Currency, 781 F.3d at 955-56 (stating the claimant’s dishonest answer
to an officer’s question about possessing large amounts of currency was probative evidence of a
substantial connection between the currency and drug activity).
¶ 28 In our view, the evidence presented was sufficient to overcome claimant’s motion
for a directed finding. The discovery of $33,000 in currency contained in a vacuum-sealed bag,
rubber banded and wrapped in foil, smelling strongly of raw cannabis, together with claimant’s
initial denial of its presence, is strong circumstantial evidence of a relationship between the
currency and “some illegal drug transaction.” $242,484.00, 389 F.3d at 1160. We find the trial
court’s contrary finding was against the manifest weight of the evidence.
- 16 - ¶ 29 Having found that the trial court erred in granting claimant’s motion for a directed
finding, on remand, we direct the trial court to proceed to the second step of the forfeiture trial,
i.e., where “claimant shall have the burden of production to set forth evidence that the currency or
its equivalent is not related to the alleged factual basis of the forfeiture.” 725 ILCS 150/9(G-5)
(West 2022).
¶ 30 III. CONCLUSION
¶ 31 For the reasons stated, we reverse the trial court’s judgment and remand with
directions.
¶ 32 Reversed and remanded.
¶ 33 JUSTICE DOHERTY, dissenting:
¶ 34 I agree with the majority that claimant’s motion for directed finding, pursuant to
section 2-1110 of the Code of Civil Procedure (735 ILCS 5/2-1110 (West 2022)), was decided at
the second stage because the trial court made credibility determinations. At this stage, “[a]fter
weighing all the evidence and applying the standard of proof required for the underlying cause,
the court must determine whether sufficient evidence remains to establish the plaintiff’s
prima facie case.” (Emphasis added.) Coffman, 2023 IL 128867, ¶ 54. At the second stage, “the
trial court views the case ‘in the same manner as it would [have] had the defendant rested at the
close of the plaintiff’s case.’ ” In re Estate of Etherton, 284 Ill. App. 3d 64, 68 (1996) (quoting
Kokinis, 81 Ill. 2d at 158 (Ryan, J., specially concurring)). Here, we employ a deferential standard
of review and reverse the trial court only if its findings at the second stage are against the manifest
weight of the evidence. Coffman, 2023 IL 128867, ¶ 56. A finding is against the manifest weight
of the evidence only where the opposite conclusion is clearly evident or if the finding itself is
- 17 - unreasonable, arbitrary, or not based on the evidence presented. People v. Peterson, 2017 IL
120331, ¶ 39, 106 N.E.3d 944, 960.
¶ 35 As I discuss more fully below, the record here permits multiple inferences from the
evidence presented. If a trial court had resolved those inferences in favor of the State, the record
might well compel affirmance. By the same token, however, the court here resolved the inferences
against the State and concluded that it had not proven forfeitability by a preponderance of the
evidence, and its findings are entitled to the same deference. I would affirm the court’s order
granting the motion for a directed finding.
¶ 36 Analysis of this case begins with the object of the forfeiture: the seized currency.
The road the State must travel to prove forfeitability of a large amount of currency seems far too
short if “possession of large amounts of currency provides strong evidence of a connection
between the currency and drug activity.” The State’s case for forfeitability of currency cannot both
begin and end with its possession. Standing alone, the possession of currency is not evidence of
drug activity at all, much less strong evidence of it; there must be additional evidence to help make
that connection. For much the same reason, the manner in which an innocent party might carry a
large amount of currency—such as being rubber-banded, or in larger denominations—hardly
seems indicative of anything beyond the way one might carry a large amount of currency for any
purpose, legal or illegal. We must be mindful of the temptation to indulge backward-looking
reasoning based on factors that are not specific to criminal activity. A drug dealer might keep his
currency stored in a backpack, but so might a person carrying currency for lawful reasons; neither
would likely spread it loosely without a container. Banal facts about the manner in which a large
amount of currency is carried tell us nothing about the legality of its purpose.
- 18 - ¶ 37 That being said, there are aspects about the way in which the currency at issue here
was transported that rightly give rise to suspicion. Even if a person were to transport a large amount
of currency, what reason would there be to place the currency in vacuum sealed, foil-wrapped
packages? This rightfully raises suspicion that the currency has some connection to illegal conduct,
but what conduct? Where the State bears the burden of proving forfeitability by a preponderance
of the evidence, it is not sufficient to raise a suspicion of a connection to some unspecified
illegality. Recall that even before the 2018 amendments to the statutory provisions on forfeiture,
it was necessary to show “some nexus” between forfeited currency and the illegal activity.
$1,124,905 U.S. Currency, 177 Ill. 2d at 338-39 (rejecting a requirement that a “substantial
connection” exist).
¶ 38 The State’s complaint for forfeiture tells us what illegal activity it alleges the
currency was connected to: that it “was used or intended to be used to commit a felony violation
of the Illinois Cannabis Control Act, or was furnished or intended to be furnished in exchange for
cannabis, or is a proceed traceable to such an exchange in violation of the Illinois Cannabis Control
Act.” It is on this point that the trial court found the evidence lacking. There was no cannabis found
in the vehicle, nor was there direct evidence that the claimant ever possessed it. The State’s key
evidence was the “overpowering” smell of raw cannabis, which is competent circumstantial
evidence of that there had been raw cannabis in claimant’s possession. It would certainly make
sense that a party who recently transported cannabis and sold it would be left with (a) the odor of
the transported cannabis in his vehicle and (b) the cash earned from a sale. The question is whether
the trial court’s finding that this evidence was insufficient to meet the State’s burden of proving
the required nexus between the currency and cannabis by a preponderance of the evidence was
unreasonable or arbitrary or whether an opposite conclusion is clearly evident.
- 19 - ¶ 39 To be sure, there was other evidence presented, but the trial court found it
unpersuasive. According to Deputy Breitbach’s testimony, authorities who did not testify had
flagged claimant’s car as being “involved in some nature of trafficking.” While this hearsay
evidence was admissible (725 ILCS 150/9(B) (West 2022)), it was up to the trial court to decide
what weight, if any, to give it. Deputy Shippert testified that he received information from other
agencies that claimant’s driving route—from California, through Las Vegas and Colorado—was
“unusual.” On the police video, claimant clarified that his starting point for his trip home was
Fresno, California, and it is undisputed that he lived in Milwaukee, Wisconsin. One need only plug
those locations into a computer service suggesting driving directions (see, e.g.,
http://www.google.com/maps) to find that a direct route from Fresno to Milwaukee might well
pass through Nevada, Utah, and Colorado. Deputy Breitbach testified that rotting fruit, such as
found in the claimant’s car, is sometimes used as a “concealing agent to mask the odor of
cannabis.” His testimony was based on unspecified training and experience, but the trial court
seemed concerned that this testimony had come from a sheriff’s deputy and not from the State’s
expert in drug interdiction, Sergeant Moore.
¶ 40 It is clear from the record that the trial court paid close attention to the testimony.
For example, when Deputy Shippert testified that claimant initially denied having “currency” in
the vehicle, the court asked him to clarify whether he had used the word “currency” when speaking
to claimant, and not “money.” The police video of that conversation shows that, after the currency
was located, claimant was confronted with his prior statement that there was no “currency,” and
he indicated a lack of understanding of that word. Shippert himself testified that it was “difficult
to understand” claimant, who utilized the services of an interpreter at the forfeiture hearing.
- 20 - ¶ 41 The majority has capably explained that the legislature enacted important reforms
to Illinois’s forfeiture procedure in 2018, including citation to the floor remarks of the legislative
sponsor of that reform. I find it useful to recount a portion of those remarks here:
“So, our Bill contains a vast number of reforms. The most central of which is that
the burden of proof now falls on the state. So this … when the state takes your stuff,
they have to say we can prove that it was involved in the commission of a crime,
rather than you the property owner having to prove that your stuff was not involved
in the commission of a crime. We believe this restores the fundamental principle in
our justice system of innocent until proven guilty.” 100th Ill. Gen. Assem., House
Proceedings, June 23, 2017, at 5-6 (statements of Representative Guzzardi).
¶ 42 It is clear to me that the trial court in this case gave real life to the legislature’s
intended reform because it held the State to meeting burden of proving forfeitability by a
preponderance of the evidence. I do not find that its decision was against the manifest weight of
the evidence, so I would affirm.
- 21 - People v. $33,260 United States Currency, 2024 IL App (4th) 231465
Decision Under Review: Appeal from the Circuit Court of Ogle County, No. 23-MX-3; the Hon. John C. Redington, Judge, presiding.
Attorneys Michael C. Rock, State’s Attorney, of Oregon (Patrick Delfino, for David J. Robinson, and David E. Mannchen, of State’s Appellant: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Attorneys Donald P. Sullivan, of Rockford, for appellee. for Appellee:
- 22 -