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12/17/87 the People of the State of v. One 1946 Buick

December 17, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

ONE 1946 BUICK, VIN 34423520, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

518 N.E.2d 397, 164 Ill. App. 3d 963, 115 Ill. Dec. 872 1987.IL.1861

Appeal from the Circuit Court of Cook County; the Hon. Anne O'Laughlin Scott, Judge, presiding.

APPELLATE Judges:

JUSTICE JIGANTI delivered the opinion of the court. JOHNSON and LINN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

The State's Attorney of Cook County brought this action for a declaration of forfeiture against a 1946 Buick under the provisions of the Illinois Controlled Substances Act. (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1505(a)(3).) The trial court denied the requested relief and the State appeals.

Chicago police officer John D. Haugh testified that at 1:20 a.m. on March 10, 1986, he stopped a 1946 Buick, which was owned and driven by Samuel Smith, after he observed the vehicle fail to stop at a stop sign. He approached Smith and saw him emptying a white package onto the floor of the vehicle. It was stipulated that the substance recovered was 0.33 grams of cocaine and that Samuel Smith pleaded guilty to possession of a controlled substance and was sentenced to 30 months' probation.

The section of the Controlled Substances Act under which this action was brought provides as follows:

"(a) The following are subject to forfeiture:

(3) all conveyances, including aircraft, vehicles or vessels, which are used, or intended for use, to transport, or in any manner to facilitate any violation of this Act." (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1505(a)(3).)

There is also a similar provision for forfeiture under the Criminal Code of 1961 which refers back to the Controlled Substances Act. That provision states:

"Any vessel, vehicle or aircraft used with the knowledge and consent of the owner in the commission of, or in the attempt to commit . . . an offense prohibited by . . . (b) Section 401, 402, 403, 404, 406(b) or 407 of the 'Illinois Controlled Substances Act,' . . . may be seized and delivered forthwith to the sheriff of the county of seizure." (Ill. Rev. Stat. 1985, ch. 38, par. 36-1.)

In People v. One 1985 Chevrolet Camaro (1986), 149 Ill. App. 3d 609, 500 N.E.2d 1023, the court found these two provisions to be in pari materia. Consequently, they must be construed together as though they were one statute.

The State appears to make two arguments on appeal. First, the State interprets the forfeiture provision of the Controlled Substances Act (Act) to allow forfeiture in situations where the vehicle is used merely to transport a controlled substance. According to this interpretation, it is not necessary for the State to show that the vehicle was used, in the words of the ...


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