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04/19/89 the People of the State of v. 1986 Honda

April 19, 1989

DALEY, STATE'S ATTORNEY, PLAINTIFF-APPELLANT

v.

1986 HONDA, VIN JHMBB7230GC040153, DEFENDANT-APPELLEE

IN THE UNDERLYING CRIMINAL ACTION, ROVARIO PLED GUILTY TO POSSESSION OF LESS THAN 15 GRAMS OF A SUBSTANCE CONTAINING COCAINE. (ILL. RE

v.

STAT. 1987, CH. 56 1/2, PAR. 1402(B).) THE PARTIES STIPULATED THAT ROVARIO POSSESSED LESS THAN ONE GRAM OF COCAINE. THE TRIAL COURT SENTENCED ROVARIO TO 30 MONTHS' PROBATION.



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

THE PEOPLE OF THE STATE OF ILLINOIS ex rel. RICHARD M.

537 N.E.2d 1077, 182 Ill. App. 3d 322, 130 Ill. Dec. 748 1989.IL.548

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

APPELLATE Judges:

JUSTICE McNAMARA* delivered the opinion of the court. FREEMAN, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiff, the State's Attorney of Cook County, brought this action for a declaration of forfeiture as to the subject 1986 Honda pursuant to the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1505). The trial court denied the requested relief, and the State appeals.

Illinois State police officer Thomas Hoffman testified that on April 8, 1987, he was in an unmarked car and stopped at a red light when he observed a 1986 Honda stopped next to his car. The driver and owner, claimant Joanne Rovario, held a one-inch hand-rolled cigarette between her thumb and forefinger nails, and puffed quickly several times. Hoffman ordered Rovario to pull over. When he approached, he smelled cannabis and removed the marijuana cigarette from the open ashtray. Following the seizure of the car, Hoffman conducted a search. In the locked glove box he found marijuana in a clear plastic bag. In Rovario's purse were matchboxes containing cocaine, a razor, a small thin straw, amphetamines and Valium.

In these forfeiture proceedings, the trial court relied on a holding of this court. (People v. One 1946 Buick (1987), 164 Ill. App. 3d 963, 518 N.E.2d 397.) That decision was recently reversed in supreme court case No. 66468 (127 Ill. 2d 374). The trial court here found the vehicle was not subject to forfeiture because the cocaine was concealed in Rovario's purse and thus the vehicle did not facilitate the concealment or possession of the drug.

The Illinois forfeiture statute subjects to forfeiture all vehicles "which are used, or intended to use, to transport, or in any manner to facilitate any violation of this Act." (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1505(a)(3).) Our supreme court found the language of section 505(a)(3) to be clear and unambiguous. People v. 1946 Buick, 164 Ill. App. 3d 963, 518 N.E.2d 397.

The State must show, by a preponderance of the evidence, probable cause that the vehicle was used in the commission of an offense. Probable cause can be shown if reasonable grounds exist for the belief of guilt, supported by less than prima facie proof but more than a mere suspicion. (In re Twenty-Seven Thousand Four Hundred Forty Dollars (1987), 164 Ill. App. 3d 44, 517 N.E.2d 704; People v. Strong (1986), 151 Ill. App. 3d 28, 502 N.E.2d 744.) Probable cause may be shown by circumstantial evidence. United States v. One 1984 Mercedes Benz (D. Haw. 1987), 673 F. Supp. 387.

Courts must strictly enforce statutory forfeiture provisions and there is little, if any, discretion in forfeiture cases. (United States v. One 1977 Chevrolet Pickup (D. Colo. 1980), 503 F. Supp. 1027, citing United States v. One 1973 Dodge Van (E.D. Mich. 1976), 416 F. Supp. 43.) The words of the statute must be read in a reasonable, commonsense manner. (1957 Chevrolet v. Division of Narcotic Control of the Department of Public Safety (1963), 27 Ill. 2d 429, 189 N.E.2d 347.) Under the plain language of the forfeiture statute, Rovario used her car "to transport, or in any manner to facilitate," possession of the cocaine, and then pled guilty to this "violation of [the] Act." Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1505(a)(3).

The term "facilitate" in section 505(a)(3) means to use the vehicle "in any manner to make possession of the controlled substance easier or less difficult." (People v. 1946 Buick, 127 Ill. 2d at 377.) We find that the vehicle here was used to make possession of the cocaine easier. We note that the court in People v. 1946 Buick declined to address the issue of a vehicle occupant's mere possession of drugs on his person, because in 1946 Buick the driver used the car to hide the cocaine from the police by emptying the packet of cocaine onto the car floor when stopped for a traffic violation. Similarly, Rovario just as deliberately, and unsuccessfully, sought to intentionally conceal the drugs, not on her person, but within the car.

We, of course, follow the holding of People v. 1946 Buick. We also adhere to the holding of this court in People ex rel. Mihm v. Miller (1980), 89 Ill. App. 3d 148, 411 N.E.2d 592. In the Miller case, forfeiture was ordered even where .08 grams of cocaine dropped accidentally from the driver's ...


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