Appeal from Circuit Court of Vermilion County. Nos. 94CF348, 94CF455. Honorable Thomas J. Fahey, Judge Presiding.
Released for Publication August 27, 1996. As Corrected August 30, 1996.
Honorable Robert J. Steigmann, J., Honorable Robert W. Cook, P.j., Honorable James A. Knecht, J., Concurring. Justice Steigmann delivered the opinion of the court:
The opinion of the court was delivered by: Steigmann
JUSTICE STEIGMANN delivered the opinion of the court:
In these consolidated cases, the trial court dismissed unrelated felony drug charges against defendant, Erik Felix, because (in each case) the State successfully sought forfeiture of defendant's cash and other property that was allegedly connected to the drug charges. In each case, the court held that the forfeitures barred prosecution, pursuant to the provisions of the United States and Illinois Constitutions which prohibit double jeopardy (U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10).
The State appeals, and we reverse.
In March 1994, police seized $1,800 in cash and 1.6 grams of cocaine as a result of an investigation that ultimately led to felony drug charges against defendant. In June 1994, the State filed a complaint seeking forfeiture of the cash and cocaine pursuant to the provisions of the Illinois Controlled Substances Act (Controlled Substances Act) (720 ILCS 570/505 (West 1992)) and the Drug Asset Forfeiture Procedure Act (Forfeiture Act) (725 ILCS 150/1 et seq. (West 1992)). The complaint alleged that the cash was subject to forfeiture because (1) defendant used it or intended to use it to facilitate a violation of the Controlled Substances Act; or (2) it represented proceeds from violations of the Controlled Substances Act (725 ILCS 150/7(1) (West 1992)). In August 1994, a grand jury charged defendant with delivery of a controlled substance (720 ILCS 570/401(c)(2), (d) (West 1992)), and defendant filed a claim contesting forfeiture of the cash.
In December 1994, the trial court held a hearing on the forfeiture of the $1,800 cash, and in February 1995, the court entered a written order forfeiting the cash to the State.
In May 1995, defendant filed a motion to dismiss, alleging that the asset forfeiture constituted punishment for double jeopardy purposes and any subsequent prosecution for the same offense violated the double jeopardy clauses of the United States and Illinois Constitutions.
In August 1994, police arrested defendant and charged him with unlawful possession of a controlled substance (720 ILCS 570/401(c) (West 1992)). As a result of that arrest, the State seized $633 cash, a cellular phone, a pager, and a vehicle. In November 1994, the State sought forfeiture of the seized items under the Controlled Substances Act and the Forfeiture Act.
In January 1995, defendant filed a claim contesting forfeiture of the $633 cash, the cellular phone, the pager, and the vehicle. In March 1995, by agreed order, the trial court entered judgment for the State regarding the $633 cash and the cellular phone. The remaining property was returned to defendant.
In June 1995, defendant filed a motion to dismiss, alleging that the asset forfeiture constituted punishment for double jeopardy purposes and any subsequent prosecution for the same offense violated the double jeopardy clauses of the United States and Illinois Constitutions.
The trial court consolidated this case and that underlying our case No. 4-95-0607, and, in July 1995, allowed defendant's motions.
The double jeopardy clause of the fifth amendment to the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const., amend. V. Protections against double jeopardy are similarly guaranteed by the Illinois Constitution of 1970, which provides that "no person shall be *** twice put in jeopardy for the same offense." Ill. Const. 1970, art. I, § 10. In his motions to dismiss, defendant relied on both the federal and state constitutions. Neither the State nor defendant has argued, however, that a double jeopardy analysis under the state constitution should differ from such an analysis under the federal constitution. Therefore, we analyze the issue before us only under the double jeopardy clause of the fifth amendment to the federal constitution.
The United States Supreme Court has held that "the Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." United States v. Halper, 490 U.S. 435, 440, 104 L. Ed. 2d 487, 496, 109 S. Ct. 1892, 1897 (1989). The present cases address the third of these protections, multiple punishments for the same offense.
The United States Supreme Court has long recognized that double jeopardy does not preclude the imposition of both a criminal and a civil sanction with respect to the same act, provided that the civil sanction does not constitute "punishment" for double jeopardy purposes. See Halper, 490 U.S. at 450, 104 L. Ed. 2d at 503, 109 S. Ct. at 1903; In re P.S., 169 Ill. 2d 260, 272-73, 661 N.E.2d 329, 335-36, 214 Ill. Dec. 475 (1996). Thus, to resolve the question presented in this appeal, we must determine whether the asset forfeitures in the present cases constitute punishment. The recent Supreme Court opinion in United States v. Ursery, 518 U.S. , 135 L. Ed. 2d 549, 64 U.S.L.W. 4565, 116 S. Ct. 2135 (1996), guides our analysis. In Ursery, the Court reaffirmed its traditional understanding that in rem civil forfeitures, as in the present cases, do not constitute "punishment" for the ...