Appeal from the Circuit Court of Cook County. No. 95 CH 11220. Honorable John K. Madden, Judge Presiding.
Rehearing Denied January 9, 1998. Released for Publication January 22, 1998.
The Honorable Justice Cahill delivered the opinion of the court. Cousins, P.j., concurs. Leavitt, J., specially concurring.
The opinion of the court was delivered by: Cahill
The Honorable Justice CAHILL delivered the opinion of the court:
The issue presented for review in this appeal is whether evidence suppressed in a criminal case may be introduced later in an administrative hearing.
Bernard McCullough sought administrative review of a $500 fine imposed by the Chicago department of revenue for an unregistered firearm recovered from his vehicle. The circuit court upheld the department of revenue's decision. McCullough appeals. We affirm.
Police officer John Knight arrested McCullough on May 1, 1995, searched his vehicle, and seized a handgun. Two proceedings followed. The first was a criminal prosecution of McCullough for failure to register the firearm in violation of section 8-20-040 of the Chicago Municipal Code, Chicago Municipal Code § 8-20-040 (amended July 7, 1992). The circuit court suppressed evidence of the recovered weapon when the city admitted that Knight lacked probable cause to search McCullough's vehicle. The court discharged McCullough but ordered the weapon confiscated and destroyed.
There followed an administrative hearing before the department of revenue. McCullough's vehicle had been seized by Officers Knight and Dougherty at the time of his arrest in accordance with section 8-20-015 of the Chicago Municipal Code. Chicago Municipal Code, § 8-20-015 (amended July 14, 1993). Section 8-20-015 provides:
"(a) The owner of record of any motor vehicle that contains an unregistered firearm or a firearm that is not broken down in a nonfunctioning state shall be liable to the city for an administrative penalty of $500.00 plus any towing and storage fees applicable under Section 9-92-080. Any such vehicle shall be subject to seizure and impoundment pursuant to this section. ***
(b) Whenever a police officer has probable cause to believe that a vehicle is subject to seizure and impoundment pursuant to this section, the police officer shall provide for the towing of the vehicle to a facility controlled by the city or its agents. *** The police officer shall notify any person identifying himself as the owner of the vehicle *** at the time of the alleged violation, of the fact of the seizure and of the vehicle owner's right to request a vehicle impoundment hearing ***.
(c) Whenever the owner of record of a vehicle seized pursuant to this section makes a [written] request *** for a vehicle impoundment hearing within 12 hours after the seizure, a hearing officer of the department of revenue shall conduct the vehicle impoundment hearing within 24 hours after the seizure ***.*** If, after the hearing, the hearing officer determines that there is probable cause to believe that the vehicle is subject to seizure and impoundment under subsection (a), the hearing officer shall order the continued impoundment of the vehicle *** unless the owner of the vehicle posts *** a cash bond in the amount of $500.00 plus any applicable towing and storage fees.
(d) Within 10 days after a vehicle is seized and impounded pursuant to this section, the city shall notify *** the owner of record of the date, time and location of a hearing that will be conducted pursuant to this section. *** If, after the hearing, the hearing officer determines by a preponderance of evidence that the vehicle contained an unregistered firearm or a firearm not broken down in a nonfunctioning state, *** the hearing officer shall enter an order finding the owner of record of the vehicle civilly liable to the city for an administrative penalty in the amount of $500.00. *** If the hearing officer finds that no such violation occurred, the hearing officer shall order the immediate return of the owner's vehicle or cash bond."
McCullough paid the $500 bond for the release of his vehicle. He then filed a motion to dismiss the impoundment proceedings and for return of the $500, arguing that the search of his vehicle violated the fourth and fifth amendments of the United States Constitution (U.S. Const. amends. V, XIV) and article 1, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2).
McCullough argued at the hearing that evidence of the unregistered firearm was inadmissible in the impoundment proceedings because it had been suppressed in the criminal case. The hearing officer disagreed and held that ...