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07/31/87 In Re Fifty-Three Thousand Two Hundred Sixty Three Dollars

July 31, 1987

IN RE FIFTY-THREE THOUSAND TWO HUNDRED SIXTY THREE DOLLARS


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

(The People ex rel. Richard M. Daley, State's

Attorney of Cook County, Illinois,

Plaintiff-Appellee, v.

Fifty-Three Thousand Two Hundred Sixty Three Dollars,

Defendant-Appellant)

512 N.E.2d 740, 159 Ill. App. 3d 114, 111 Ill. Dec. 351 1987.IL.1096

Appeal from the Circuit Court of Cook County; the Hon. Mary Conrad, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. LORENZ AND MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

Chicago police officer Charles Bowers executed a search warrant for the premises at 1528 East 93rd Street, Chicago, Illinois, and the person of Pedro Davis, described in the search warrant as a medium-complected, 135-pound black male. During the execution of the search warrant Bowers arrested James Davis, a dark-complected, 235-pound black male, Richard Hill and Dearon Oglestree in the premises. Bowers found $53,000 in a locked combination safe in a bedroom closet in the apartment and the trial court entered a judgment of forfeiture of said money. Davis appeals. Our resolution of this appeal rests on Davis' contention that the trial court's judgment of forfeiture of the $53,000 is contrary to the trial court's expressed findings that Davis had borrowed the money from a loan company to remodel his business and that the judgment of forfeiture was therefore against the trial court's findings and the manifest weight of the evidence. We agree and reverse.

Bowers testified that he found a locked combination safe in a bedroom closet in the apartment. He asked Davis to open the safe and Davis did. In the safe Bowers found $53,000, which Davis said belonged to him. Bowers testified further that a bag which contained $263 and marijuana was found in the closet. Bowers admitted, however, that at a previous trial he swore that this bag was found in the bedroom at the closet door entrance. Bowers testified that other bags of marijuana and a bag of cocaine were found in the apartment.

James Davis testified that he owned and was self-employed in his barbecue fast-food restaurant at 9101 South Mackinaw in Chicago, which he opened in 1983. He testified that he lived in a house at 9854 South Drexel Avenue in Chicago with his mother and his three minor children. Davis further testified that he rented the second-floor apartment at 1528 East 93rd Street to Richard Hill and that Hill lived there. Davis stated that he occasionally stayed at the second-floor apartment, which was only a few blocks from his barbecue business, when he had a date with a lady friend or when he went there to put money in or take money out of his safe. Davis testified that he regularly put money from his restaurant business in his safe in the bedroom closet in the apartment.

Davis testified that in June 1983 he borrowed $50,000 from NCS Financial Service, 1511 Rand Road in Palatine, Illinois, to remodel his restaurant. His mother's house at 9854 South Drexel and his automobile were assigned as collateral for the loan. Davis identified defendant's exhibit No. 2, which was also State's exhibit No. 4, as a copy of the promissory note which was signed by him and his mother and given to NCS Financial Service as further security for the $50,000 loan.

Davis stated that he received $50,000 that he borrowed from NCS Financial Service in cash because he feared that he would be unable to cash a check for that amount of money. Davis related that he put the $50,000 in the safe in the closet in the apartment at 1528 East 93rd Street, along with $2,000 he previously put there from $3,000 he had won in the State lottery.

Davis stated that the loan was payable in 90 days but Davis explained to the loan company that the remodeling of his restaurant had not been completed and the loan company granted him extensions for payment.

Davis testified that in June 1983 he advanced $3,000 of the borrowed money to Cy Milner of Unity Construction Company on Fair-field Avenue in Chicago to begin remodeling the restaurant but Milner did not begin the remodeling. Milner gave Davis three postdated checks for $1,100 each, which Davis was to hold as collateral until Milner refunded the $3,000 to Davis. The extra $300 was Milner's payment to Davis for withholding Davis' money and for Davis holding Milner's checks in lieu of Milner's refund. Milner later refunded the $3,000 to Davis.

A copy of Davis' $50,000 promissory note dated June 1, 1983, payable to NCS Financial Service and signed by James Davis and Isabelle Davis, copies of three United Construction and Supply Company checks, numbers 1361, 1362 and 1363, dated August 7, 1983, for $1,100 each drawn on an account at the First National Bank of Chicago, payable to Davis and signed by Cy Milner and Davis, and the 9101 South Mackinaw restaurant license were admitted into evidence and are in the record on appeal.

Davis testified that he never saw the narcotics that were seized in the apartment by Bowers and that the narcotics did not belong to him.

Richard Hill testified that he lived in the apartment and that he was arrested in the apartment when Davis was arrested.

Elgin Bogan testified that he was employed by a private company as an investigator and that he lived in Davis' 1528 East 93rd Street second-floor apartment from 1976 to 1977. Bogan testified that he arranged for Davis to meet the person at NCS Financial Service for Davis to borrow $50,000. Bogan stated that he was present at NCS Financial Service when Davis signed the $50,000 promissory note and received the $50,000 in cash. Bogan testified that Davis' mother (Mrs. Isabelle Davis) also signed the promissory note the following day when Bogan drove Davis and his mother to NCS Financial Service.

Although the trial court expressly found from the corroborated and uncontradicted evidence that Davis had borrowed the $50,000, the court nevertheless ordered the money forfeited.

Traditionally, forfeiture actions have proceeded upon the fiction that inanimate objects can be guilty of wrongdoing. The theory has been that if the object is "guilty" of criminal conduct, it should be held forfeit. (United States v. United States Coin & Currency (1971), 401 U.S. 715, 719, 28 L. Ed. 2d 434, 438, 91 S. Ct. 1041, 1044.) Thus, the forfeiture action is an in rem proceeding in which the money is the formal respondent. Forfeiture statutes are intended to impose a penalty only upon ...


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