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People v. Leshoure

OPINION FILED MAY 21, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

MICHAEL "BILLY" LESHOURE ET AL., DEFENDANTS (MICHAEL "BILLY" LESHOURE, APPELLANT).



Appeal from the Circuit Court of Champaign County; the Hon. Harold L. Jensen, Judge, presiding.

JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

On February 13, 1985, following a jury trial in the circuit court of Champaign County, defendant, Michael LeShoure, was convicted of calculated criminal drug conspiracy, unlawful manufacture of a controlled substance (heroin), unlawful manufacture of a controlled substance (cocaine), and unlawful possession of a controlled substance with intent to deliver (heroin). Sentences were then imposed. On defendant's appeal to this court, we affirmed all convictions and sentences except that for the conspiracy charge. People v. LeShoure (1985), 139 Ill. App.3d 356, 487 N.E.2d 681, appeal denied (1986), 111 Ill.2d 592.

On March 5, 1985, the State filed petitions in the circuit court requesting forfeiture of various items of personal property and weapons and ammunition seized from defendants' house at the time of defendants' arrest for the crimes charged. The petitions were directed against defendant and co-defendants, Clendora LeShoure and Lawrence McGowan, the criminal charges against whom had been severed for trial. A supplement to the previous petitions was filed on April 19, 1985. Various proceedings, later described in more detail, took place. Eventually, on May 16, 1985, the court entered a judgment for forfeiture. On August 23, 1985, the court denied post-judgment motions of various defendants. Defendant Michael LeShoure has appealed. We affirm except in regard to the firearms and ammunition.

On appeal defendant maintains: (1) The legislation upon which the forfeiture of items other than firearms and ammunition was based was unconstitutional for failure to prescribe a procedure which would include such necessary elements of due process as notice; (2) the evidence was insufficient to support an order of forfeiture; (3) the items subject to forfeiture had been seized in a manner violative of defendant's constitutional rights; (4) the order of forfeiture for the weapons and ammunitions was erroneous; and (5) the order for forfeiture was entered in such a manner as to deny defendant due process.

We determine that as far as the State and the defendant are concerned, the forfeiture proceeding was a continuation of the prosecution and the evidence before the court at the trial of the criminal charges was before the court in the forfeiture proceedings. We direct the reader to our opinion on appeal from the criminal convictions for a more lengthy recitation of the facts. As indicated there, upon making a search of defendants' house, police seized large quantities of electronic equipment, wood carving items, boxes of telephones, jewelry, and furniture, as well as guns and ammunition. Because of the quantity and placement of these items, an inference arose that these items had been taken by defendant in exchange for controlled substances. Some items had been identified by witnesses as having been stolen from them. Evidence was introduced of a practice of persons stealing, robbing, or burglarizing in order to obtain the consideration for the purchase of controlled substances. At the hearing on the request for forfeiture, the defendant stipulated that the items for which forfeiture was sought had been seized from defendants' home at the time of defendants' arrest.

Forfeiture of the foregoing items other than the firearms and ammunition was ordered pursuant to section 505(a)(5) of the Illinois Controlled Substances Act (Act) which states in part:

"(a) The following are subject to forfeiture:

(5) everything of value furnished, or intended to be furnished, in exchange for a substance in violation of this Act, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used, or intended to be used, to facilitate any violation of this Act; * * *." Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1505(a)(5).

Section 505(a)(5) is part of article V of the Act (Ill. Rev. Stat. 1983, ch. 56 1/2, pars. 1501 through 1509) which is entitled "Enforcement and Administration of Act," and, in addition to forfeiture, the article covers the duties of the Departments of Education and Registration and Law Enforcement under the Act, the application of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1983, ch. 127, par. 1001 et seq.) and the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3-101 et seq.) to the Act, administrative and inspection warrants, injunctions, cooperation with Federal agencies, research on controlled substances, and periodic tests as a condition of probation and parole as well as forfeiture. Despite the fact that most of article V concerns the duties of and proceedings before various code departments, that does not mean that section 505(a)(5) envisions forfeiture proceedings as being administrative proceedings. Section 505(d) provides that property taken "under this Section * * * is deemed to be in the custody of the Director subject only to the order and judgments of the circuit court having jurisdiction over the forfeiture proceedings." (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1505(d).) However, the "Director" may have the sheriff of the county where the contraband is seized retain custody of the contraband. (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1505(d)(3).) Section 505 contemplates a forfeiture proceeding brought in the circuit court of the county where the seizure took place.

Neither section 505(a)(5) nor any other provision of the Illinois Controlled Substances Act give any indication of the nature of the forfeiture proceedings envisioned. Because of this lack, particularly the lack of any requirement for notice to interested parties, defendant maintains that any proceeding based on section 505(a)(5) is unconstitutional. Under prior decisions and those of other jurisdictions, defendant's point would be well taken. In People v. Marquis (1919), 291 Ill. 121, 125 N.E. 757, legislation purporting to authorize the forfeiture of vehicles used in the transportation of liquor was held to be invalid. The statute merely provided for summary proceedings but was silent as to notice required to be given to the defendant in forfeiture. The imperfection was held to vitiate the forfeiture proceeding even though reasonable notice had been given to the defendant.

Similarly, in People v. Gale (1930), 339 Ill. 162, 171 N.E. 186, a statute provided for a procedure for summary hearings to determine whether automobiles whose engine number had been altered should be disposed of. The legislation was held to deprive owners of due process because of the lack of requirements for pleading or notice to interested parties. See also Murphy v. Matheson (10th Cir. 1984), 742 F.2d 564; Hughes v. Neth (1978), 80 Cal.App.3d 952, 146 Cal.Rptr. 37.

However, in Illinois Crime Investigating Com. v. Buccieri (1967), 36 Ill.2d 556, 224 N.E.2d 236, and Durkin v. Hey (1941), 376 Ill. 292, 33 N.E.2d 463, the supreme court has taken a different view of legislation providing for a statutory proceeding which does not spell out a procedure consistent with due process which must be followed. Decisions under those procedures were upheld when procedural due process was actually offered the litigants. In Buccieri, an order requiring persons to obey subpoenas was upheld although based on a statute which authorized the plaintiff commission to obtain court aid in requiring witnesses to appear but did not set down the procedure for doing so. The court concluded that the legislature had envisioned a hearing where proper notice was given and the elements of due process observed. The court expressly rejected the theory of Marquis and Gale that the statute had to spell out the procedure. The court followed Durkin where that court had held that legislation providing for an application to the circuit court for production of books and documents assumed that due notice and proper hearing would be required. The court also cited People ex rel. Joyce v. Strassheim (1909), 242 Ill. 359, 90 N.E. 118, where a statute concerning parole had been construed to require a proper hearing before a certain decision could be reached.

• 1 Particularly, in view of the rejection of the doctrine of Marquis and Gale in Buccieri, we conclude that proceedings held under section 505(c)(5) meet constitutional muster when, as here, the proceedings are commenced by a petition, proper notice is given, and they are conducted in a traditional manner for court proceedings. (See also State of Kansas v. One 1978 Chevrolet Corvette (1983), 8 Kan. App. 2d 747, 667 P.2d 893.) Defendant contends that the purport of Buccieri is to merely reject the theory of Marquis and Gale in proceedings other than those for forfeiture. However, the thrust of Buccieri is that the requirement for notice and ordinary proceedings is inferred from the legislation. That inference can arise in regard to proceedings for forfeiture as well as in those concerning personal liberty, as in Buccieri.

• 2 We consider next the sufficiency of the evidence to support the entry of the order of forfeiture of the items other than guns and ammunition. Clearly, the State needed to prove its right only by the civil standard of a preponderance of the evidence (People v. Moore (1951), 410 Ill. 241, 102 N.E.2d 146; People v. Snyder (1977), 52 Ill. App.3d 612, 367 N.E.2d 752), and we should overturn the decision of the trial court only if it is contrary to the manifest weight of the evidence (52 Ill. App.3d 612, 367 N.E.2d 752). The proof that the foregoing items were taken in exchange for controlled substances lies in the circumstances that they were, for the most part, in large quantities, left in places around the house where they would not have been if purchased by the defendant or his family for domestic use, and that many of them had ...


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