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01/18/96 P.S. v. P.S.

January 18, 1996

IN RE P.S., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
P.S., APPELLEE).--THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT, V. JOHN KIMERY, APPELLEE.--THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT, V. RODERICK TURNER, APPELLEE.



No. 78910.-Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Kane County, the Hon. Richard Larson and the Hon. Barry Pulkin, Judges, presiding. No. 78944.-Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court in Kane County, the Hon. Melvin Dunn, Judge, presiding.

The Honorable Justice Miller delivered the opinion of the court: Justice Harrison took no part in the consideration or decision of this case.

The opinion of the court was delivered by: Miller

The Honorable Justice MILLER delivered the opinion of the court:

The sole question presented in these consolidated appeals is whether the constitutional guarantees against double jeopardy prohibit a criminal prosecution following a civil forfeiture judgment based on the same conduct. (U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10.) Although this court rejected a similar claim in People v. 1988 Mercury Cougar (1992), 154 Ill. 2d 27, 180 Ill. Dec. 323, 607 N.E.2d 217, the appellate court concluded that a contrary conclusion was mandated by recent United States Supreme Court decisions. (See Department of Revenue v. Kurth Ranch (1994), 511 U.S. , 128 L. Ed. 2d 767, 114 S. Ct. 1937; Austin v. United States (1993), 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801.) In resolving the issue on appeal, we are therefore called upon to reconsider our decision in 1988 Mercury Cougar in light of these recent Supreme Court decisions.

Defendants, P.S., a minor, John Kimery, and Roderick Turner, were each charged by complaint and/or indictment in the circuit court of Kane County with violations of the Illinois Controlled Substances Act (Controlled Substances Act) (720 ILCS 570/100 et seq. (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1100 et seq.)) or the Cannabis Control Act (720 ILCS 550/1 et seq. (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 56 1/2, par. 701 et seq.)). In conjunction with defendants' arrest on these charges, police seized cash and/or an automobile, and the State subsequently sought forfeiture of these items under the Controlled Substances Act (720 ILCS 570/505 (West 1992)) or the Cannabis Control Act (720 ILCS 550/12 (West 1992)), and the Drug Asset Forfeiture Procedure Act (Forfeiture Act) (725 ILCS 150/1 et seq. (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1671 et seq.)). In each case, the trial judge ordered the property forfeited. Defendants then moved to dismiss the criminal charges against them on double jeopardy grounds. The motions to dismiss were denied.

On appeal, the appellate court found that the civil forfeitures constituted punishment for double jeopardy purposes and that the forfeiture proceedings were separate from the criminal proceedings. The appellate court therefore concluded that further prosecution of defendants for the same offense that resulted in the prior forfeitures was barred by double jeopardy. Consequently, all criminal charges against defendants were dismissed. See 269 Ill. App. 3d 907; Nos. 2-93-1050, 2-93-1212 cons. (unpublished order under Supreme Court Rule 23).

We granted the State's separate petitions for leave to appeal in cause Nos. 78910 and 78944 and consolidated the causes on appeal for purposes of argument and disposition. (145 Ill. 2d R. 315(a).) We also granted leave to the Cook County State's Attorney to submit a brief as amicus curiae on behalf of the State. (134 Ill. 2d R. 345.) For the reasons that follow, we affirm in part and reverse in part the judgment of the appellate court in cause No. 78910 and reverse the judgment of the appellate court in cause No. 78944.

BACKGROUND

Cause No. 78944

The substantive facts in each case are undisputed and may be briefly summarized. Because the appellate court in the cases of P.S. and Kimery cited the appellate court's decision in Turner's case, we will begin by first reviewing the facts in Turner's case.

In No. 78944, defendant Turner, on January 5, 1993, was charged by indictment in the circuit court of Kane County with unlawful possession of a controlled substance (720 ILCS 570/402(a)(2) (West 1992)), unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2) (West 1992)), and unlawful possession of a controlled substance without a tax stamp (35 ILCS 520/10 (West 1992)). The indictment against Turner resulted from the execution of a search warrant on Turner's residence on December 10, 1992. During the execution of the search warrant, police seized cocaine and $2,165 in cash.

On December 23, 1992, before Turner was indicted, the State initiated an administrative forfeiture action against the $2,165 found in the search of Turner's home. (See 725 ILCS 150/6(A) (West 1992).) Turner thereafter filed a verified claim and cost bond with the Kane County State's Attorney, asserting his interest in the cash seized and requesting its return. (See 725 ILCS 150/6(C) (West 1992).) Because Turner contested the forfeiture, the State then instituted a judicial in rem forfeiture suit against the cash under the Controlled Substances Act (720 ILCS 570/505(a)(5) (West 1992)) and the Forfeiture Act (725 ILCS 150/7(1) (West 1992)). The forfeiture complaint alleged that the cash seized was subject to forfeiture because it was furnished or intended to be furnished in exchange for a substance in violation of the Controlled Substances Act or represented the proceeds of such an exchange. 720 ILCS 570/505(a)(5) (West 1992); 725 ILCS 150/7(1) (West 1992).

On August 20, 1993, a hearing was held in the forfeiture case. Following the hearing, the trial judge ordered the cash forfeited to the State. No appeal was taken from the forfeiture order.

On September 30, 1993, Turner moved to dismiss the pending criminal indictment against him on double jeopardy grounds. In the motion, Turner alleged that the actions forming the basis for the criminal proceeding were the same actions underlying the forfeiture proceeding. Citing Austin, Turner also alleged that the civil forfeiture of the cash constituted punishment for double jeopardy purposes. In light of the forfeiture, Turner contended that a subsequent criminal prosecution for the same offense that resulted in the forfeiture would violate the double jeopardy clauses of the United States and Illinois Constitutions (U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10). On January 13, 1994, the trial judge denied the motion to dismiss.

On appeal, the appellate court concluded that the State's attempt to criminally prosecute Turner following the judicial forfeiture of the $2,165 violated the constitutional prohibition against double jeopardy. In reaching this conclusion, the court reviewed the Supreme Court's decisions in United States v. Halper (1989), 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892, Austin, Kurth Ranch, and the United States Court of Appeals for the Ninth Circuit's decision in United States v. $405,089.23 United States Currency (9th Cir. 1994), 33 F.3d 1210, petition for cert. filed (U.S. August 28, 1995), No. 95-346, 64 U.S.L.W. 3289. Relying primarily on these decisions, the appellate court concluded that the forfeiture of the cash constituted punishment for double jeopardy purposes. (269 Ill. App. 3d at 915.) The appellate court acknowledged that its decision conflicted with this court's decision in 1988 Mercury Cougar, but reasoned that it was compelled to reach the opposite conclusion in light of Austin and Kurth Ranch, which were decided after this court's decision in 1988 Mercury Cougar. (269 Ill. App. 3d at 915.) This court in 1988 Mercury Cougar held that the civil forfeiture of property following a criminal proceeding based on the same offense did not constitute a second punishment for double jeopardy purposes. (1988 Mercury Cougar, 154 Ill. 2d at 37.) The appellate court also determined that the forfeiture proceeding was separate from the criminal proceeding. In doing so, the court rejected the State's argument that the civil and criminal actions were part of a single, coordinated prosecution of Turner. (269 Ill. App. 3d at 916-18.) The appellate court vacated the trial judge's order denying Turner's motion to dismiss and dismissed with prejudice the criminal charges against him. We thereafter granted the State's petition for leave to appeal. 145 Ill. 2d R. 315(a).

Cause No. 78910

In No. 78910, defendant P.S. was charged by complaint in the circuit court of Kane County on May 4, 1991, with unlawful possession of cannabis (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 704(d)) and unlawful possession of cannabis with intent to deliver (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 705(d)). P.S. was also charged by indictment for these same offenses on July 21, 1992. The criminal charges against P.S. stemmed from the execution of a search warrant on May 3, 1991, against P.S.'s car, person, and residence. The search resulted in the seizure of numerous items, including cannabis, drug paraphernalia, a 1982 Cadillac Eldorado, and $1,627.22 in cash.

On September 3, 1991, while the criminal charges were pending against P.S., the State sought forfeiture of the cash under the Cannabis Control Act (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 712) and the Forfeiture Act (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1679). The amended complaint for forfeiture alleged that the cash was in close proximity to forfeitable substances and drug paraphernalia and therefore was itself subject to forfeiture. (Ill. Rev. Stat. 1991, ch. 56 1/2, pars. 712, 1677.) In response to the forfeiture complaint, P.S. claimed to be the owner of the currency, but contended that the currency was not intended nor had it been used for any narcotics or controlled substance related purpose. P.S. therefore averred that the money was not subject to forfeiture. Following a bench trial in the forfeiture action on August 31, 1992, the trial judge found that the $1,627.22 was subject to forfeiture (see Ill. Rev. Stat. 1991, ch. 56 1/2, par. 712(a)(5)) and ordered the cash forfeited to the State. No appeal was taken from this order.

On February 3, 1993, the criminal charges against P.S. were transferred to the juvenile court for adjudication. (See 720 ILCS 550/7(b) (West 1992).) The State then filed a petition for adjudication, requesting that the trial judge find P.S. delinquent based on the charges. P.S. subsequently moved to dismiss the criminal charges against him or, in the alternative, to stay the proceedings based on double jeopardy grounds. In the motion, P.S. contended that he had already been punished for his conduct as a result of the forfeiture of the cash and therefore could not be prosecuted for the same conduct in the juvenile proceeding without violating the double jeopardy clauses of the United States and Illinois Constitutions (U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10).

On September 1, 1993, the motion was denied. P.S. then appealed the denial of his motion to the appellate court. The appellate court stayed the proceedings in the trial court pending resolution of the appeal. Relying primarily on Austin, Kurth Ranch, and United States Currency, the appellate court found that the forfeiture of the cash constituted punishment for double jeopardy purposes. The court further determined that the forfeiture proceeding was separate from the criminal proceeding, rather than being part of a single, coordinated prosecution of P.S. The court therefore vacated the trial judge's order denying P.S.'s motion to dismiss and dismissed with prejudice the delinquency petition. (Nos. 2-93-1050, 2-93-1212 cons. (unpublished order under Supreme Court Rule 23).) The court also noted that its recent decision in People v. Towns (1995), 269 Ill. App. 3d 907, 207 Ill. Dec. 279, 646 N.E.2d 1366, provided further support for its decision here.

Also, in No. 78910, defendant Kimery was charged by indictment in the circuit court of Kane county on October 22, 1991, with unlawful possession of a controlled substance (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1402(c)). The charge stemmed from an alleged incident that occurred ...


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