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March 22, 1995


Appeal from the Circuit Court of Du Page County. No. 91-CF-165. Honorable Ronald B. Mehling, Judge, Presiding.

The Honorable Justice Bowman delivered the opinion of the court: Inglis and Colwell, JJ., concur.

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, Lawrence W. Krizek, appeals an order of the circuit court of Du Page County denying his motion to dismiss his criminal indictment. Defendant contends that the double jeopardy clauses of the United States and Illinois Constitutions bar the State from maintaining its criminal indictment against him since the State has seized his property in a related civil forfeiture action. We affirm the trial court's order and remand the cause for further proceedings.

Given the nature of the issues raised in the present appeal, the facts in the record may be summarized briefly. On January 22, 1991, defendant allegedly made a drug delivery to an informant, William Mackey, at defendant's home at 611 North Route 53, in Lombard, Illinois. On that date, defendant was arrested, and the police searched his home pursuant to a warrant. During the search, the police located and seized defendant's personal property, including savings bonds, firearms, and cash. Defendant was initially charged by complaint with unlawful delivery of a controlled substance containing more than 15 but less than 100 grams of cocaine (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401(a)(2)(A) (now 720 ILCS 570/401(a)(2)(A)(West 1992))). An indictment for the same offense was filed on February 13, 1991.

Meanwhile, on January 28, 1991, the State filed a verified complaint for forfeiture of the residential property and the personal property, civil case No. 91-MR-0063, pursuant to the provisions of the Illinois Controlled Substances Act (Controlled Substances Act) (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1505 et seq.) (now 720 ILCS 570/505 et seq. (West 1992)) and the Drug Asset Forfeiture Procedure Act (Forfeiture Act) (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1671 et seq. (now 725 ILCS 150/1 et seq.) (West 1992))). A lis pendens was placed on defendant's home, and a forfeiture warrant was executed. As a result of the seizure proceedings, defendant was required to pay rent to the Lombard police department. At the time defendant filed this appeal, the trial court in the forfeiture action had not entered an order of forfeiture.

On November 17, 1992, defendant filed a motion to dismiss the criminal indictment. In the motion, defendant alleged that the seizure of his home and personal property constituted a prior punishment for the same offense and to proceed in the criminal case would therefore amount to a violation of the constitutional protection against double jeopardy afforded by the United States and Illinois Constitutions. On May 5, 1993, the trial court denied defendant's motion. Defendant filed this timely appeal pursuant to Supreme Court Rule 604(f), which permits the appeal to the appellate court of the denial of a motion to dismiss a criminal proceeding on grounds of former jeopardy. 145 Ill. 2d R. 604(f).

Defendant's appeal confronts us with two issues: (1) whether the seizure of defendant's home constitutes a "punishment" for double jeopardy purposes; and (2) at precisely what point jeopardy attached in the forfeiture proceeding.

The double jeopardy clause of the fifth amendment to the United States Constitution reads: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." (U.S. Const., amend. V; see also Ill. Const. 1970, art. 1, ยง 10 ("No person shall be* * * twice put in jeopardy for the same offense").) The underlying principle of the double jeopardy clause is that "a person shall not be harassed by successive trials; that an accused shall not have to marshal the resources and energies necessary for his defense more than once for the same alleged criminal acts." ( Abbate v. United States (1959), 359 U.S. 187, 198-99, 3 L. Ed. 2d 729, 736, 79 S. Ct. 666, 673.) This principle is "deeply ingrained in at least the Anglo-American system of jurisprudence" ( Green v. United States (1957), 355 U.S. 184, 187, 2 L. Ed. 2d 199, 204, 78 S. Ct. 221, 223), and it traces its roots "deep into Greek and Roman times." Bartkus v. Illinois (1959), 359 U.S. 121, 151-52, 3 L. Ed. 2d 684, 706, 79 S. Ct. 676, 696 (Black, J., dissenting).

The double jeopardy clause is designed to protect against three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense when sought in separate proceedings. ( United States v. Halper (1989), 490 U.S. 435, 440, 104 L. Ed. 2d 487, 496, 109 S. Ct. 1892, 1897; North Carolina v. Pearce (1969), 395 U.S. 711, 717, 23 L. Ed. 2d 656, 665, 89 S. Ct. 2072, 2076.) The third of these protections--the bar against multiple punishments--is the subject of this appeal.

To determine whether the State's attempt to prosecute criminally a defendant under the Illinois Criminal Code following a forfeiture contravenes the double jeopardy clause, we must consider two questions: (1) did the civil forfeiture under the Act amount to a "punishment" for double jeopardy purposes?; and (2) was there a separate prosecution in each case? The criminal prosecution in the present case violates the double jeopardy clause only if we answer both questions in the affirmative. (See United States v. $405,089.23 United States Currency (9th Cir. 1994), 33 F.3d 1210, 1216.) Our review of recent double jeopardy jurisprudence leads us to the conclusion that the mere seizure of defendant's property does not, by itself, constitute punishment for double jeopardy purposes. Since this conclusion is dispositive of the appeal, we need not address the issue of when jeopardy attached in the forfeiture proceeding.

Defendant argues that the State's seizure of his home constitutes a punishment for double jeopardy purposes. According to defendant, the seizure is an invasive and substantial deprivation of his property because it terminated his previously unfettered custody and control over the property. It is the termination of this custody and control, defendant argues, that constitutes punishment.

The State argues that a defendant is punished in a civil forfeiture case when he loses ownership of the property, not when theState merely seizes the property. According to the State, the defendant's ownership of the property can be extinguished only by the entry of an order of forfeiture and, since an order of forfeiture has not been entered in the present case, the defendant has not been "punished" for double jeopardy purposes.

Recently, in People v. Towns (2d Dist. Feb. 24, 1995), Nos. 2-93-1376 and 2-94-0111, we determined that a civil forfeiture nder the Forfeiture Act constitutes punishment and, on the basis of former jeopardy, bars any further punishment in a separate but arallel criminal prosecution. (See also Department of Revenue of Montana v. Kurth Ranch (1994), 511 U.S. , 128 L. Ed 2d 767, 114 S. Ct. 1937; United States v. $405,089.23 United States Currency 9th Cir. 1994), 33 F.3d 1210, 1216.) However, unlike the situation in Towns, we must now determine whether the ...

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