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09/18/97 PEOPLE STATE ILLINOIS v. $1

September 18, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
$1,124,905 U.S. CURRENCY AND ONE 1988 CHEVROLET ASTRO VAN (JESUS MENA, APPELLANT).



The Honorable Justice Nickels delivered the opinion of the court. Justice Bilandic, specially concurring. Justice Heiple, concurring in part and dissenting in part. Chief Justice Freeman, dissenting. Justice Miller joins in this dissent.

The opinion of the court was delivered by: Nickels

The Honorable Justice NICKELS delivered the opinion of the court:

In this appeal, we examine the forfeiture of $1,124,905 police discovered in a van Jesus Mena was driving. The State initiated civil forfeiture proceedings in the circuit court of McLean County by filing a complaint against the currency and the van pursuant to the Drug Asset Forfeiture Procedure Act (725 ILCS 150/1 et seq. (West 1994)). In response, Jesus filed a claim and verified answer and subsequently an amended answer, contesting only the forfeiture of the currency. In his answers, Jesus declined to respond to certain interrogatories required by the Act (725 ILCS 150/9(D) (West 1994)), asserting his fifth amendment privilege. On the State's motion, the circuit court struck Jesus' answers, finding that Jesus lacked standing to contest the forfeiture. Jesus declined to replead and the circuit court entered an order of default and an order of forfeiture. The appellate court declined to determine whether Jesus possessed standing, and instead found it dispositive that the State had established probable cause to forfeit the property. 269 Ill. App. 3d 952, 647 N.E.2d 1028, 207 Ill. Dec. 535. We granted Jesus' petition for leave to appeal. 155 Ill. 2d R. 315.

BACKGROUND

On July 9, 1993, the Illinois State Police seized a van containing $1,124,905. Pursuant to the Drug Asset Forfeiture Procedure Act (725 ILCS 150/5 (West 1994)), the police notified the State's Attorney for McLean County of the seizure of the property. On August 19, 1993, the drug enforcement prosecutor for the McLean County State's Attorney's office filed a complaint for forfeiture in the circuit court. The complaint set forth the following allegations:

"1. That on July 9, 1993, a trooper of the Illinois State Police stopped to assist motorists standing outside an apparently stranded 1988 Chevrolet Astro Van, VIN 1GNCM15Z1JB169536, Illinois registration tag SVG543;

2. That said stop occurred on Interstate 55 southbound at or near milepost 185 in McLean County, Illinois;

3. That Jesus Mena, Elena B. Mena and a one year old child were the motorists found outside the vehicle;

4. That following said stop, the trooper and a back-up learned that the automobile [was] registered to Melvin J. DeJesus;

5. That following said stop, the troopers conducted a lawful search of the vehicle;

6. That during the course of said search the troopers found compartments built into the floor of the vehicle;

7. That the troopers found the sum of $1,124,905.00 U.S. Currency in the compartment of the vehicle.

8. That the U.S. Currency was furnished or intended to be furnished in exchange for a substance, or the proceeds thereof, in violation of the Controlled Substances Act;

9. That the troopers seized the above-captioned property which is subject to forfeiture based upon the statutory provisions of 720 ILCS 570/505 (1993) as amended."

After filing the complaint for forfeiture, the State sent a copy of the complaint as notice of the forfeiture to Jesus and Elena Mena, and to Melvin DeJesus. The State also provided notice to other interested parties by publication. In the affidavit for publication, the State's Attorney stated that "I believe Jesus and Elena Mena and Melvin DeJesus to be the owner(s) of the property" and that "there may be other owners or interested parties who, after due and diligent inquiry, I have been unable to ascertain addresses for." All the notices further provided that an answer contesting the forfeiture must be filed within 45 days at the risk of default.

Only Jesus Mena filed a claim and answer contesting the forfeiture. In his answer, Jesus Mena contested forfeiture of the currency only.

The State moved to strike the answer on grounds that the answer did not comply with the requirements of the Drug Asset Forfeiture Procedure Act (725 ILCS 150/1 et seq. (West 1994)). Specifically, the motion challenged Jesus' answer on grounds that the answer did not specify the extent of his interest in the property as required by section 9(D)(iii) of the Act (725 ILCS 150/9(D)(iii) (West 1994)); that the answer did not set forth the date, identity of transferor and circumstances of his acquisition of the property as required by section 9(D)(iv) (725 ILCS 150/9(D)(iv) (West 1994)); that the answer did not identify any defenses contained in section 8 of the Act that Jesus intended to rely on as required by section 9(D)(vi) (725 ILCS 150/9(D)(vi) (West 1994)); and that the answer did not include all essential facts supporting each allegation as required by section 9(D)(vii) (725 ILCS 150/9(D)(vii) (West 1994)). The State's motion to strike was granted and Jesus was granted leave to file an amended answer satisfying the statutory requirements.

In the time allowed for filing the amended answer, Jesus instead filed a motion to strike the State's complaint and a motion to make the complaint more definite and certain. The thrust of both motions was an attack on the factual sufficiency of the allegations in the complaint for forfeiture. Jesus challenged the allegations contained in paragraphs five and eight in the complaint, requesting facts to support the allegations that the search was lawful and that the currency was furnished or intended to be furnished for a controlled substance.

The trial court denied Jesus' motion to strike the complaint. The trial court granted in part Jesus' motion to make the complaint more definite by requiring the State to amend its allegation concerning the lawfulness of the search to include the fact that the search was pursuant to the consent of Jesus. The trial court found no problem with the allegation in paragraph eight and therefore accepted the State's amended complaint.

Jesus subsequently filed a timely amended claim and answer. In his amended answer, Jesus claimed exclusive ownership of the currency. Jesus refused, however, to allege the date and circumstances of his acquisition of this ownership interest, asserting his fifth amendment privilege. The trial court granted the State's subsequent motion to strike the amended answer, finding that the allegations in the answer did not satisfy the requirements of the statute necessary to show standing.

Jesus elected to stand on his answer. The State then filed a motion seeking an order of default and forfeiture. Neither Jesus nor his attorney appeared at the hearing on the motion. In support of the motion, the State for the first time submitted the affidavit of Illinois State Police Sergeant Mike Snyders. In his affidavit, Sergeant Snyders recounted the circumstances surrounding his seizure of the van and currency.

In his affidavit, Sergeant Snyders states that he is the coordinator of the Illinois State Police Highway Interdiction Program and that he has extensive training and experience in drug interdiction. On July 9, 1993, he observed a van with its hood open on the side of the highway and stopped to assist. At the van, he found a man and woman, later identified as Jesus and Elena Mena, and a small child. Jesus indicated that the van had overheated.

Sergeant Snyders then asked Jesus if the van belonged to him. Jesus responded that the van belonged to a friend, but he did not know the friend's name or how to get in touch with him. Jesus presented Sergeant Snyders with the van's title, which listed the owner as Melvin J. DeJesus. Jesus could not give the owner's address or phone number or explain how he was supposed to return the van. Sergeant Snyders' affidavit further states that Jesus and Elena gave conflicting stories regarding their destination. Jesus reported that they were heading to St. Louis to look for work. Elena reported they were heading to Texas. Sergeant Snyders characterized Jesus and Elena as appearing nervous and scared.

According to the affidavit, Sergeant Snyders told Jesus that he was very suspicious about the story. Sergeant Snyders then asked Jesus if he had any large amounts of cash in the van. Jesus laughed and said that he did not have any large amounts of cash and he was not transporting anything for anyone else. Jesus then gave consent for Sergeant Snyders and a backup officer to search the van.

During the search of the van, Sergeant Snyders observed evidence that the van had been altered to create a compartment in the floor. Sergeant Snyders noticed that the spare tire had been removed from the outside of the van and the undercarriage had been sprayed with a black, oily substance. Sergeant Snyders also noticed that inside the van the floor was flat, but the exterior showed a tapered shape. In addition, the center bench showed evidence it had been removed, including fasteners that did not match and carpeting that did not fit properly.

Sergeant Snyders then pulled back the carpeting and discovered a layer of plywood and a thin metal floor with a trap door. Sergeant Snyders discovered, inside the trap door, a compartment full of cash bundles. There were 112 cellophane and duct tape bundles with the number 10 written on them and one bundle with the number five written on it. A later count revealed a total of $1,124,905.

Sergeant Snyders' affidavit further provides that Jesus, Elena and the child were transported from the scene to the police station. During an interview at the station, Jesus admitted that DeJesus had hired him to transport the van and had given him money for traveling expenses. Jesus denied any knowledge of the trap door or its contents. Jesus further stated that DeJesus gave him two phone numbers to call once he arrived in El Paso, Texas, and he was to receive $3,500 payment for delivery of the van.

Jesus agreed to call DeJesus from the police station while an officer listened to the phone call. When Jesus placed the call, a man answered and asked Jesus if there was a problem. Jesus told the man that the police had found the money. The man said he would get in touch with DeJesus and told Jesus to call back. Jesus called back 15 minutes later and DeJesus answered the phone. After Jesus related the events surrounding the discovery of the money, DeJesus told him to "tolerate the whip and keep your mouth shut."

Sergeant Snyders' affidavit also detailed the course of his follow-up investigation. Sergeant Snyders obtained Melvin DeJesus' photograph from the Secretary of State and traveled to Chicago to locate and interview DeJesus, the registered owner of the van. The occupants at the address listed on the title and registration told Snyders that they did not know a Melvin DeJesus or recognize his picture. In addition, Sergeant Snyders learned that the social security number listed on DeJesus' driver's license was registered to a Melvin DeJesus, age 11 years.

Relying on the information contained in the affidavit, the trial judge entered an order forfeiting the van and currency. Jesus appealed from the forfeiture order, arguing that the trial court erred in: (1) denying his motion to strike the complaint for forfeiture; (2) finding probable cause to believe that the currency was traceable to an illegal drug transaction; and (3) striking his answer and ruling he did not have standing to contest the forfeiture.

The appellate court held that Jesus waived his objection to the State's complaint by pleading over. 269 Ill. App. 3d at 956. In so finding, the appellate court rejected Jesus' contention that because his answer had been stricken, it was as if his answer had not been filed and therefore he had not waived any objection to the complaint. 269 Ill. App. 3d at 956. The appellate court declined to determine whether Jesus had standing to contest the forfeiture, instead finding that regardless of whether Jesus could demonstrate standing, the State had satisfied its burden for forfeiture. 269 Ill. App. 3d at 955-62.

For reasons that follow, we reverse the order forfeiting the currency and remand this cause to the circuit court. Section I examines the relevant forfeiture provisions of the Illinois Controlled Substances Act (720 ILCS 570/505 (West 1994)). Section II reviews the procedures for judicial forfeiture set forth in the Drug Asset Forfeiture Procedure Act (720 ILCS 570/100 et seq. (West 1994)). Section III analyzes the issue of whether Jesus possesses standing to contest the forfeiture of the currency. Section IV considers the effect of asserting the fifth amendment privilege in response to the statutory interrogatories contained in the Drug Asset Forfeiture Procedure Act. Section V first determines that Jesus did not waive his challenge to the State's complaint. Section V then examines the appropriate standard for pleading probable cause for forfeiture, concluding that the State's complaint fails to state a cause of action. Accordingly, the appropriate relief is to remand the cause to the circuit court for further proceedings.

ANALYSIS

I. Controlled Substances Act

The State sought forfeiture of the property pursuant to section 505 of the Controlled Substances Act (720 ILCS 570/505 (West 1994)). We have previously examined section 505(a)(3), which provides for the forfeiture of vehicles and other conveyances "used *** in any manner to facilitate" a drug violation. 720 ILCS 570/505(a)(3) (West 1994); see People ex rel. Waller v. 1989 Ford F350 Truck, 162 Ill. 2d 78, 642 N.E.2d 460, 204 Ill. Dec. 759 (1994); People v. One 1986 White Mazda Pickup Truck, 162 Ill. 2d 67, 204 Ill. Dec. 754, 642 N.E.2d 455 (1994). We determined that the term "facilitate" requires that the conveyance make the possession of the controlled substance in some way " 'easier or less difficult' " in order to support forfeiture. One 1986 White Mazda Pickup Truck, 162 Ill. 2d at 69; People v. 1946 Buick, 127 Ill. 2d 374, 377 (1989). Jesus, however, does not contest the forfeiture of the van, instead only contesting the forfeiture of the currency.

The State sought forfeiture of the currency pursuant to section 505(a)(5) of the Act (720 ILCS 570/505(a)(5) (West 1994)). Section 505(a)(5) provides for the forfeiture of:

"everything of value furnished, or intended to be furnished, in exchange for a substance in violation of this Act, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, and securities used, or intended to be used, to commit or in any manner to facilitate any violation of this Act." 720 ILCS 570/505(a)(5) (West 1994).

Thus, three categories of property are subject to forfeiture pursuant to section 505(a)(5):

(1) anything of value which is furnished or intended to be furnished in exchange for a controlled substance;

(2) all proceeds that can be traced to the exchange of a controlled substance; and

(3) all moneys, negotiable instruments, and securities used or intended to be used in any manner to facilitate a controlled substances violation.

The Controlled Substances Act further provides that property subject to forfeiture may be seized by any peace officer without judicial process where the seizure is reasonable and supported by probable cause. See 720 ILCS 570/505(b)(4) (West 1994). In the event of such a seizure, forfeiture proceedings are to be instituted pursuant to the Drug Asset Forfeiture Procedure Act (725 ILCS 150/1 et seq. (West 1994)). 720 ILCS 570/505(c) (West 1994).

II. Drug Asset Forfeiture Procedure Act

In an effort to deter violations of the Controlled Substances Act (720 ILCS 570/100 et seq. (West 1994)) and the Cannabis Control Act (720 ILCS 550/1 et seq. (West 1994)), the General Assembly enacted the Drug Asset Forfeiture Procedure Act (725 ILCS 150/1 et seq. (West 1994)) establishing uniform procedures for the seizure and forfeiture of drug related assets. The Act is to be interpreted in light of the federal forfeiture provisions contained in 21 U.S.C. ยง 881 (1994) as interpreted by the federal courts, except to the extent that the provisions expressly conflict. 720 ILCS 550/2 (West 1994). In addition, the Act is to be liberally construed to effectuate its remedial purpose. 725 ILCS 550/13 (West 1994).

Where the property seized is "non-real property that exceeds $20,000 in value excluding the value of any conveyance, or is real property," the Act provides for a judicial in rem procedure. 725 ILCS 150/9 (West 1994). The State's Attorney initiates the action by filing a verified complaint for forfeiture of the property. 725 ILCS 150/9(A) (West 1994). The Act provides that only an owner or interest holder may file an answer asserting a claim against the property. 725 ILCS 150/9(C) (West 1994). In addition, the answer must contain certain information, including the circumstances surrounding the claimant's acquisition of the property. 725 ILCS 150/9(D) (West 1994).

The Act provides that the State shall have the initial burden to show the existence of probable cause for forfeiture of the property. 725 ILCS 150/9(G) (West 1994). Where the State satisfies its burden of establishing probable cause, then the burden shifts to the claimant to show by a preponderance of the evidence that the property is not subject to forfeiture. 725 ILCS 150/9(G) (West 1994). A claimant may satisfy this burden by establishing one of the innocent-owner defenses listed in the Act. 725 ILCS 150/8 (West 1994). During the probable cause portion of the proceeding, "the court must receive and consider, among other things, all relevant hearsay evidence and information." 725 ILCS 150/9(B) (West 1994). During all other portions of the proceeding, the law of evidence relating to civil actions applies. 725 ILCS 150/9(B) (West 1994).

III. Standing

We find it appropriate to first consider whether Jesus has standing to contest the forfeiture of the currency. Relying on federal case law, the State argues that a claimant bears an initial burden to establish standing to contest the forfeiture. See, e.g., United States v. $121,100 in United States Currency, 999 F.2d 1503, 1505 (11th Cir. 1993). In order to satisfy this burden, the State argues, a claimant must file an answer that satisfies the statutory prerequisites listed in the Drug Asset Forfeiture Procedure Act (720 ILCS 150/9(D) (West 1994)). These prerequisites to standing include alleging facts supporting an ownership interest in the property. See 720 ILCS ...


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