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09/29/94 PEOPLE EX REL. MICHAEL J. WALLER v. 1989

September 29, 1994

THE PEOPLE EX REL. MICHAEL J. WALLER, APPELLEE
v.
1989 FORD F350 TRUCK (KATSUMI KUSUMOTO, APPELLANT).



Heiple

The opinion of the court was delivered by: Heiple

JUSTICE HEIPLE delivered the opinion of the court:

After police found cocaine in Katsumi Kusumoto's pants pocket when Kusumoto was arrested on a traffic charge, the State brought a complaint in the circuit court of Lake County for forfeiture of Kusumoto's truck and $55.99 in cash belonging to Kusumoto. The State brought the forfeiture proceeding pursuant to section 505 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1505), alleging that the truck and cash were used to transport and facilitate the possession of cocaine that Kusumoto was carrying. After a hearing, the trial Judge found for the State. On appeal, the appellate court affirmed. This court granted claimant's petition for leave to appeal (134 Ill. 2d R. 315).

I. BACKGROUND

On February 19, 1992, at about 2:17 a.m., Officer Sylvester Hampton of the Zion police department stopped Katsumi Kusumoto for speeding. After observing and talking to Kusumoto, Hampton placed Kusumoto under arrest for driving under the influence of alcohol.

At the Zion police station, Kusumoto emptied his pockets pursuant to a routine custodial search. Removed from the right front pocket of his pants were a paper "sno-seal" and a folded $1 bill, each of which contained a white substance that later tested positive for cocaine. Also removed from the same pocket was $55.99 in United States currency. Kusumoto later told Officer Hampton that a friend, whose name Kusumoto did not know, gave Kusumoto the cocaine at a bar in North Chicago.

Defendant was criminally prosecuted for possession of cocaine. He was sentenced to 18 months' probation and fined $500. He also paid court and probation costs of $817, plus $30 as the value of the cocaine.

Subsequently, the State brought a forfeiture proceeding pursuant to section 505 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1505), alleging that the truck and cash were used to transport and facilitate the possession of cocaine that Kusumoto was carrying in his pants pocket when he was arrested. The State's complaint also alleged that the $55.99 in cash on Kusumoto's person facilitated the possession of the cocaine.

At the hearing, Zion police detective Kevin Leslie testified that, at about 8:55 a.m. on February 19, 1992, he drove Kusumoto from jail to court for a bond hearing. On the way to the bond hearing, Leslie struck up a conversation with Kusumoto. At some point in the conversation, Leslie asked Kusumoto what an "old guy" like him was doing with cocaine. According to Leslie, Kusumoto replied that he had purchased it for an employee and not for his own use.

Kusumoto testified to a somewhat different version of his conversation with Leslie. He stated that before Leslie asked him what he was doing with cocaine, the officer told Kusumoto that Kusumoto would not get his truck back. When Kusumoto asked to call his lawyer, Leslie told him he could not "hire that attorney." Leslie then asked Kusumoto what an "old guy" like him was doing with cocaine. Kusumoto replied that he had just bought it in a bar. According to Kusumoto, he never told Leslie that the cocaine was for an employee. Kusumoto testified that he talked to Leslie after Leslie questioned him, prior to which time Leslie told him not to run away or Leslie would shoot him.

After argument, the trial Judge found for the State. The Judge explained that he believed Officer Leslie's testimony that Kusumoto told Leslie that Kusumoto was transporting the cocaine for an employee.

The trial Judge found that the 1989 Ford truckfacilitated both the transportation and possession of the cocaine found on Kusumoto's person. The Judge stated that, even without the controverted statement that Kusumoto was transporting the cocaine to another person, the evidence supported the forfeiture of the truck. The Judge explained that the mere presence of the controlled substance on the person of the driver was sufficient to subject a vehicle to forfeiture. Also, it could be presumed that the $55.99 in cash, which was recovered from the same pocket as the cocaine, was used to facilitate the possession of the cocaine.

On appeal, Kusumoto argued that (1) Officer Leslie should not have been allowed to testify that Kusumoto stated the cocaine was for an employee because any such statement was made without proper Miranda warnings; and (2) there was insufficient evidence that the truck in which he was riding or the money he was carrying facilitated a violation of the Illinois Controlled Substances Act.

In an unpublished order, the appellate court affirmed (No. 2-92-0946 (unpublished order under Supreme Court Rule 23)). Initially, that court held that the trial court did not err in refusing to suppress Kusumoto's statement to Leslie. The panel noted that as a forfeiture proceeding is a civil proceeding in rem, it does not require the suppression of statements made in violation of an intervenor's Miranda rights.

Next, the appellate court concluded that the trial court properly ordered the forfeiture of the truck. The appellate court noted that the trial court resolved a credibility contest in favor of Officer Leslie's testimony that Kusumoto admitted he was transporting the cocaine from North Chicago to an employee. The appellate court found that under the circumstances, the trial court could have properly concluded that the vehicle was used, or intended to be used, to "transport" or to facilitate the transportation of the cocaine.

The appellate court specifically declined to decide whether the mere presence of the cocaine on the driver's person was sufficient to support a finding that the truck was used to facilitate the possession of the cocaine. A question which this court has answered in the negative this term. See People v. 1986 White Mazda Pickup Truck ( , 1994), No. 76349.

Finally, the appellate court held that the trial court properly found that the $55.99 in cash was subject to forfeiture, as there was a statutory presumption that currency found in such close proximity to a controlled substance is subject to forfeiture. The appellate court held that the trial court's finding that Kusumoto introduced no credible evidence ...


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