The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.
Before the court is Officer Marco Glumac's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). The court grants the motion for reasons stated below.
The facts are undisputed. Officer Glumac and his partner are Calumet City, Illinois, police officers. They were told shortly before October 4, 1989, by the Chicago Police Department that there was a judicially issued "no bond" arrest warrant for Michael Scott ("Scott") based on a prior felony charge for possession of a controlled substance. On October 4, the officers saw Scott exit from his 1982 Cadillac El Dorado and walk directly into his residence at 493 East End Avenue in Calumet City. The officers called for additional police support.
After the back-up arrived, the officers approached the car and arrested the individual sitting in the passenger seat. Three officers then approached the building, knocked on the front door, and asked for Mr. Michael Scott. Someone inside said he would be right out. After repeatedly knocking for several minutes and no appearance at the door by anyone, the officers broke down the door.
They found Scott in an upstairs hallway, dressed exactly as he was when they saw him enter the building, and arrested him based on the outstanding felony warrant.
Scott was searched incident to his arrest. He had in his possession one large plastic bag containing numerous small green plastic zip-lock bags, one small green plastic zip-lock bag that contained one tenth of a gram of a white powdery substance (later determined to be cocaine), and $ 541 of U.S. currency.
Officer Glumac searched the El Dorado and ordered it towed, both without a warrant. The car was legally parked and presented no apparent danger to the officers or the public. When asked at his deposition why the vehicle was towed, Officer Glumac responded that he seized it because Scott was under arrest and also based on the Illinois forfeiture statute (Ill. Rev. Stat. ch. 38, P36-1 (1991)) ("the forfeiture act").
Rule 56(c) of the Federal Rules of Civil Procedure provides that a summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Capital Options Invs., Inc. v. Goldberg Bros. Commodities, Inc., 958 F.2d 186, 188 (7th Cir. 1992). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims. . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Because no material fact is disputed by either party, this matter is ripe for summary determination.
Officer Glumac claims his seizure of the car was proper pursuant to the forfeiture act. Paragraph 36-1 of that act provides that a vehicle may be seized if it is used with the knowledge and consent of the owner in committing or attempting to commit a violation of the Illinois Controlled Substances Act. The officers must, however, have probable cause to believe that the vehicle was used in violation of the Controlled Substances Act before the car is properly subject to seizure. United States v. Pace, 898 F.2d 1218, 1241 (7th Cir. 1990), cert. denied, 110 S. Ct. 3286 (1990), and cert. denied, 111 S. Ct. 210 (1990). If there is probable cause to support this belief, there is no need for the officers to obtain a warrant to seize the vehicle. Id. at 1241-43 (analyzing validity of warrantless seizure based on Illinois and federal seizure acts). Accordingly, the issue here is whether Officer Glumac had probable cause to believe that Scott was using his car in the commission of or attempted commission of a violation of the Illinois Controlled Substances Act.
A probable cause determination is based on the totality of circumstances known to the officers at the time. United States v. Lamon, 930 F.2d 1183, 1187-88 (7th Cir. 1991) (review of probable cause determination in search warrant context). In the instant circumstances then, was there a fair probability that the automobile was used in the pursuit of criminality prohibited by relevant laws. See United States v. McGuire, 957 F.2d 310, 314 (7th Cir. 1992) (warrantless search of bag held in car); cf. United States v. Plescia, 773 F. Supp. 1068, 1074 (N.D.Ill. 1991) (probable cause standard for issuance of search warrant).
Here, Officer Glumac and his partner watched a man known to them to be Scott exit from a motor vehicle and go straight into an apartment building. A person waited in Scott's car -- ostensibly for Scott's return. Shortly thereafter, Scott was arrested with cocaine, plastic bags often associated with drug trafficking, and a wad of cash. This information adequately supported Officer Glumac's conclusion that there was probable cause to believe the car was being used in violation of paragraph 36-1.