been arrested and charged with a drug related-offense, eluded police while he was out on bond, and that a judge had decided that there was sufficient evidence of probable cause of violation of that bond on the drug charge to issue a warrant for Scott's arrest. Without more, the fact that a "no bonds" warrant had been issued in a drug case would not be enough to support a probable cause determination sufficient to seize the vehicle under the forfeiture act. However, this information bolstered Officer Glumac's legitimate belief that Scott might be engaged in criminality prohibited by the Illinois Controlled Substances Act and that the car was being used to facilitate those activities. Given the entirety of facts known to Officer Glumac at the time, he reasonably determined that probable cause existed to seize Scott's car.
Scott makes much of Officer Glumac's statement that the car was impounded because he arrested Scott. If Officer Glumac had said nothing more, further analysis would be necessary to determine if the seizure was proper. See Ralph Ruebner, Illinois Criminal Procedure, ch. 1, Arrests, Search, and Seizures (1987) (describing exceptions to warrant requirement for detention of vehicle). However, Officer Glumac stated immediately thereafter that he seized the vehicle pursuant to the forfeiture act. And, as the foregoing analysis describes, that seizure was appropriately based on probable cause. The fact that the officer gave one potentially incorrect answer does not invalidate the alternatively appropriate basis.
Scott makes two other protests to a finding of probable cause. First, he complains that the car was seized even though there was no contraband found in the car when Officer Glumac searched it. The Act, however, nowhere says that if the officer searches the car and finds nothing, he may not still seize the vehicle. The litmus test is whether there was probable cause to believe the vehicle was being used to violate Illinois's Controlled Substance Act by the person using the car. Pace, 898 F.2d at 1241. The fact that the car contains no contraband is irrelevant. If the officer has probable cause to believe the vehicle was used in the commission, or attempted commission, of a violation of the Controlled Substances Act, the vehicle may be seized.
People ex rel. Mihm v. Miller, 89 Ill. App. 3d 148, 411 N.E.2d 592, 44 Ill. Dec. 470 (3d Dist 1980) is instructive on this point. Charles Miller was pulled over for rolling through a stop sign. After seeing what he believed to be marijuana on the dash, one of the officers asked Miller to exit the car. When Miller stepped out, he dropped a small plastic envelope containing .08 grams of cocaine. At a forfeiture proceeding for Miller's car, the trial court dismissed the complaint stating that the presence of the drugs on defendant while in the car "was merely coincidental in time and place" and thus not used in the commission of a prohibited act. Id. at 149, 411 N.E.2d at 593.
The Illinois Appellate Court for the Third District reversed that holding. "While there may be some question as to whether an automobile facilitates the actual possession of a very small amount of a controlled substance which is carried on the person of the driver, to the extent the automobile adds a dimension of privacy, however, it does facilitate the possession." Id. at 150, 411 N.E.2d at 593.
Here, the inference from the facts known to Officer Glumac at the time was that Scott had the drugs on his person when he exited his car or was at least using it as a means of facilitating a drug transaction. Whether or not the drugs ever were physically placed in the body of the car is an extraneous detail. The shroud of privacy the vehicle provided is sufficient to subject it to forfeiture.
Second, Scott notes that Officer Glumac supposedly admitted that he had no reason to believe the car carried contraband. Scott's interpolation of selectively redacted statements of Officer Glumac does not accurately reflect the entirety of the record, especially the other statements made by the officer at his deposition.
Officer Glumac acted with probable cause in seizing Scott's vehicle under the Ill. Rev. Stat. ch. 38, P36-1. Scott's last hope is to pierce Officer Glumac's qualified immunity shield. He may breach that armor only by showing that a reasonable officer would have known that seizing the automobile under paragraph 36-1 was unlawful. Juriss v. McGowan, 957 F.2d 345, 350 (7th Cir. 1992). Officer Glumac acted as a reasonable officer based on the facts then and there before him. See McGee v. Bauer, 956 F.2d 730, 735 (7th Cir. 1992) (review of qualified immunity is based on particularized facts of each case). Accordingly, he is entitled to qualified immunity for his actions.
Officer Glumac's motion for summary judgment is granted.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court