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01/27/88 the People Ex Rel. William v. One 1978 Mazda Glc

January 27, 1988

THE PEOPLE EX REL. WILLIAM J. KILQUIST, PLAINTIFF-APPELLANT

v.

ONE 1978 MAZDA GLC AUTOMOBILE, VEHICLE IDENTIFICATION NUMBER FA4TS660606, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

518 N.E.2d 1287, 165 Ill. App. 3d 540, 116 Ill. Dec. 307 1988.IL.93

Appeal from the Circuit Court of Jackson County; the Hon. Bill F. Green, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. KARNS and WELCH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

The State appeals from a judgment of the circuit court of Jackson County dismissing a complaint for forfeiture of a vehicle filed pursuant to section 36-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 36-2). We affirm.

The facts are not in dispute. On September 28, 1985, officers of the Jackson County sheriff's department and the Ava police department arrested Charles Joslin for driving while under the influence of alcohol after they had found Joslin and his vehicle in a ditch, smelled the odor of alcohol on his breath, and observed behavior consistent with intoxication. One of the officers, Danny Stone, undertook an inventory search of Joslin's vehicle.

In the backseat of the vehicle, Stone found an unzipped duffle bag. He "pulled open" the bag and looked inside. The bag contained clothing and an unzipped shaving kit. Stone opened the shaving kit and discovered therein a clear plastic bottle containing 10 pills, subsequently determined to contain benzphetamine.

On October 4, 1985, a complaint was filed in the circuit court of Jackson County for forfeiture of Joslin's vehicle. The complaint alleged that Joslin used his vehicle in the commission of a felony in that he unlawfully possessed a controlled substance in violation of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1100 et seq.).

Following a hearing on April 3, 1986, the circuit court granted a defense motion to dismiss the complaint, finding no evidence that Joslin's vehicle was used in the commission of the underlying offense. On May 7, 1986, the State filed notice of appeal.

The State contends that Charles Joslin used his vehicle to commit the offense of possession of a controlled substance. In order to obtain reversal, the State must clearly demonstrate that the vehicle facilitated the commission of the offense and was an integral part of the crime. People ex rel. Hanrahan v. One 1965 Oldsmobile (1972), 52 Ill. 2d 37, 284 N.E.2d 646, rev'd on other grounds sub nom. Robinson v. Hanrahan (1972), 409 U.S. 38, 34 L. Ed. 2d 47, 93 S. Ct. 30; People ex rel. Mihm v. Miller (1980), 89 Ill. App. 3d 148, 411 N.E.2d 592.

In Miller, defendant was stopped for failing to make a complete stop at a stop sign. The police officers making the stop observed what appeared to be cannabis on the console of defendant's vehicle. One of the officers asked the defendant to exit the automobile. When defendant stepped out of the car, an officer observed a small plastic envelope drop from defendant's pocket. The envelope contained a white powder which was later determined to be .08 grams of cocaine.

The trial court dismissed a complaint for forfeiture, finding that the automobile was not being used in, or to further, a criminal act. The court held that the presence of the drug on the defendant's ...


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