Appeal from the Circuit Court of Will County; the Hon. Michael
A. Orenic, Judge, presiding.
JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
The defendant, Dennis Strong, appeals his convictions for unlawful possession with intent to deliver more than 30 grams of a controlled substance (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(a)(2)) and unlawful use of weapons (Ill. Rev. Stat. 1985, ch. 38, par. 24-1(a)(7)). The defendant also appeals from a forfeiture order in favor of the State. (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1505(a).) On the court's own motion, we have consolidated the instant causes for review.
From February 19 through February 21, 1985, proceedings were held on the State's complaint for forfeiture. Concerning property seized during a search of the defendant's home on November 15, 1984, the court ordered that certain guns, jewelry, cash, and a coin collection be returned to the defendant. However, the court ordered that $9,273 found in the defendant's bedroom safe and $1,200 found in the defendant's shirt pocket be forfeited to the State.
The defendant subsequently filed a motion to quash his arrest and suppress evidence on the grounds that the warrant obtained to search his house on November 30, 1984, was obtained under false pretenses and was a subterfuge to search for narcotics, not for stolen guns as the warrant indicated. Co-defendant Cheryl Strong, the defendant's ex-wife, also filed a motion to suppress evidence. Following a hearing, the trial court denied the suppression motions. Subsequently, Cheryl Strong successfully moved to sever her trial from the defendant's on the basis of antagonistic defenses. The jury found the defendant guilty of both possession with intent to deliver a controlled substance and unlawful use of weapons. The court sentenced the defendant to eight years' imprisonment and fined him $81,000.
The State presented the following evidence in the forfeiture and suppression proceedings. In February of 1984, the Metropolitan Area Narcotics Squad (MANS) received a report through a crime-stoppers organization that Cheryl Strong (Cheryl) had accused the defendant of dealing in cocaine. MANS attempted to call Cheryl to set up an undercover purchase but never made contact with her.
On November 15, 1984, the defendant called the police to his house because Cheryl was causing a disturbance and refused to leave. As the police arrested Cheryl and removed her from the kitchen, she threw a plastic pill bottle across the room. Cheryl told the police that the white powder inside was cocaine.
Later that day, a police officer returned to the defendant's residence and asked the defendant if he would accompany the officer to the police station. The defendant agreed to go and was not placed under arrest. At the police station, two MANS agents told the defendant that they had information about purported cocaine at his house. The defendant gave the agents permission to search the house, signing a consent-to-search form.
In their search of the defendant's house, the MANS agents found some drug paraphernalia and several containers containing small amounts of cocaine. The defendant voluntarily opened a master-bedroom floor safe, and the agents found there $9,273 cash and a single pill of Phentermine, a schedule IV controlled substance. The agents also found 20 guns in the house. They checked the serial numbers of each of the guns with the police computer and discovered one shotgun was recorded as stolen in an Orland Park theft. The agents seized the $9,273 cash from the safe. The defendant was arrested for theft and drug possession.
Following his arrest, the defendant was searched at the police station. An officer found in the defendant's shirt pocket $1,200 cash and two white lumps tested to be 0.3 gram of cocaine. The police seized the $1,200.
On November 19, 1984, a MANS agent learned from the Orland Park police that three other guns had been taken in the theft involving the stolen shotgun found in the defendant's home. The description of those guns matched other guns seen in the defendant's house on November 15. On November 29, 1984, on the basis of this evidence, the MANS agent obtained a warrant to search the defendant's residence for the stolen guns.
On November 30, 1984, MANS agents executed the search warrant. The agents found two of the three guns described in the warrant, as well as a large number of other guns. They also found a packet of cocaine in the master-bedroom floor safe. The agents seized the cocaine, the guns, a coin collection, and some jewelry.
The defendant testified on his own behalf to the following. On November 15 he was told by an officer that he had to go to the police station. The defendant admitted signing the consent-to-search form after telling the MANS agents that he had nothing to hide. The defendant subsequently withdrew his consent when the agents informed him that any drugs found in his house would be considered his. The defendant did not know he had any stolen weapons in the house. The defendant opened the bedroom safe only after the police threatened to blow it up. Concerning the cash seized, the defendant testified that he received $6,500 a month from the sale of his trucking business. The $9,273 and the $1,200 in his possession came from the sale of that business, and the $1,200 was for the purchase of an allterrain vehicle for his son for Christmas.
Initially, we will address the arguments presented by the defendant in the forfeiture appeal. His first forfeiture argument is that the court's finding that the $9,273 and the $1,200 were forfeitable items was against the manifest weight of the evidence. The defendant points out that the trial judge found that the State failed to prove that any items seized in the November 15 search, except the $9,273 and the $1,200, were involved with narcotics activity. The defendant argues that the State also failed to prove that the forfeited cash was linked to the prohibited activity. The defendant further argues that he sufficiently rebutted the presumption that the money was forfeitable. That further argument relies upon his testimony both that the money came from a legitimate source, the sale of his business in the form of $6,500 monthly payments, and that he normally kept large amounts of cash in his house.
Section 505(a)(5) of the Illinois Controlled Substances Act (the Act) provides in relevant part the following:
"All moneys, coin and currency found in close proximity to forfeitable substances, to forfeitable drug manufacturing or distributing paraphernalia, or to forfeitable records of the importation, manufacture or distribution of substances, are rebuttably presumed to be forfeitable under this Act. The burden of proof is upon claimants of the property to rebut this presumption." Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1505(a)(5).
• 1, 2 Money, while inherently legal and not contraband per se, may be subject to forfeiture if used in an unlawful manner or has a rational relationship to an unlawful purpose. (People v. Snyder (1977), 52 Ill. App.3d 612, 367 N.E.2d 752.) A forfeiture action is an in rem proceeding against the items used in the commission of the offense and is considered civil in nature. (52 Ill. App.3d 612, 367 N.E.2d 752.) Thus, the State must prove the nexus between the forfeitable property and the contraband by a preponderance of the evidence rather than beyond a reasonable doubt. (People v. Moore (1951), 410 Ill. 241, 102 N.E.2d 146.) On review this court will not reverse the trial court unless its ruling is against the manifest weight of the evidence. People v. Snyder (1977), 52 Ill. App.3d 612, 367 N.E.2d 752.
The evidence established that the $9,273 at issue was found with a pill containing Phentermine in the master-bedroom floor safe in the defendant's residence. Also found in the defendant's bedroom were small amounts of cocaine and miscellaneous drug paraphernalia. The $1,200 at issue ...