Appeal from the Circuit Court of Kane County. No. 96--MR--131 Honorable Patrick J. Dixon, Judge, Presiding.
The opinion of the court was delivered by: Justice Thomas
The State initiated this civil forfeiture proceeding in the circuit court of Kane County by filing a complaint against certain real property located at 1515 Coolidge Avenue in Aurora, Illinois (the property), pursuant to the Drug Asset Forfeiture Procedure Act (the Act or the Forfeiture Act) (725 ILCS 150/1 et seq. (West 1998)). The claimant, David Aquino, filed an answer contesting the forfeiture and claiming exclusive ownership of the property. The trial court granted summary judgment in favor of the State, ordering the forfeiture of the property. The claimant appeals, contending that the State failed to allege sufficient facts in its complaint to establish the requisite probable cause for the forfeiture.
The record reveals that on April 10, 1996, the State filed its forfeiture complaint alleging that Derrick R. Aquino is the actual owner of the property, that the current tenant residing at the property, Jessie Lucena, pays $650 per month rent to Derrick and that he has received mail for Derrick at the property, that in May 1995 Armando Orozco "sold the Property to David Aquino on paper but Derrick R. Aquino actually paid Armando Orozco $100,000 cash for the property," and that the property was "purchased with and paid for with and constitutes proceeds from the deliveries of controlled substances in violation of 720 [ILCS] 570/401 et seq." On June 3, 1996, the claimant filed an answer to the State's complaint admitting that Lucena pays Derrick $650- per-month rent and that Derrick received mail at the property. The claimant also admitted that Orozco sold the property to the claimant on paper but Derrick actually paid Orozco $100,000 cash for it. The claimant's answer further stated that the property was "the fruits of the Claimant's legitimate earnings and if tainted by a controlled substance, such taint occurred outside the presence and without the knowledge or consent of the Claimant."
On February 11, 1997, the State served a discovery request upon the claimant in the form of interrogatories and a request to produce records and documents. The claimant did not comply with that request. On June 16, 1997, the trial court entered an agreed order giving the claimant 30 days to respond to the State's discovery request. The claimant did not comply with that order. On November 26, 1997, the claimant filed a motion to dismiss the State's complaint for failure to state a cause of action. However, this motion was never heard by the trial court, and the claimant did not obtain a ruling upon the motion.
On May 14, 1998, the claimant's counsel wrote the State a letter indicating for the first time that the claimant would not comply with the State's discovery request because he intended to assert his fifth amendment right to remain silent. On May 27, 1998, the State filed a motion to bar the claimant from presenting any evidence or testimony in the case because of the claimant's repeated unwillingness to comply with the State's discovery request and his refusal to comply with the court's discovery order. In its motion, the State claimed that the claimant's assertion of the fifth amendment was not timely and that the State would be willing to provide the claimant with immunity from prosecution in connection with acts relevant to the complaint. On June 1, 1998, the claimant filed a response to the State's discovery request indicating that he was asserting his right to remain silent. On that same day, the trial court struck the upcoming trial date and ordered the claimant to appear on June 18, 1998, for a hearing on the fifth amendment issue. The claimant did not appear for the hearing on June 18, 1998.
On July 21, 1998, the trial court entered an agreed order giving the claimant one week to comply with the State's outstanding discovery request. When the claimant did not comply with that order, the State filed a motion on July 29, 1998, to dismiss the claimant's claims. On August 3, 1998, the trial court entered an order barring the claimant from presenting evidence in the case and continued the case to August 18, 1998, for a hearing on the State's motion to dismiss. The State's motion to dismiss was eventually denied.
On August 17, 1998, the State filed a motion for summary judgment in which it noted that the claimant had been barred from presenting any evidence in the case and that the only issue was whether probable cause exists to believe that the property in question had been purchased with the proceeds of illegal drug activity. The State attached to its motion the affidavits of Derrick R. Aquino and Aurora police officer Mike Tierney.
Derrick stated in his affidavit that he paid Orozco a total of $100,000 in cash for the purchase of the property in question. Derrick further stated that the claimant's name appears on the documents by which the property was conveyed, but he (Derrick) was the one who actually paid for and was the buyer of the property. He also stated that the $100,000 in cash he used to pay for the property was money he made from illegal drug deliveries.
Officer Tierney stated in his affidavit that Orozco told him that he sold the house "on paper" to the claimant but that Derrick actually supplied the money for the sale. According to the affidavit, Orozco told Tierney that Derrick paid cash for the house in several installments and that Derrick wanted the claimant's name on the deed.
On August 18, 1998, the trial court held the claimant in contempt of court and ordered him to appear for a hearing on September 10, 1998, on the State's motion for summary judgment. On September 4, 1998, the claimant filed a motion under section 2--619 of the Code of Civil Procedure (735 ILCS 5/2--619 (1998)) to dismiss the complaint, contending that, at the time the State filed its complaint, it was required to have probable cause to believe that the property was purchased with the proceeds from illegal drug activity. The claimant failed to appear on September 10, 1998, as ordered. On that day, the trial court ordered the claimant to appear on October 1, 1998, to determine whether his assertion of the fifth amendment privilege was valid "on a question by question basis." The court further ordered that a warrant issue for the claimant's arrest if he failed to appear on that date. On October 1, 1998, the claimant again failed to appear in court and a warrant was issued for his arrest.
On November 26, 1998, a hearing was held on the claimant's section 2--619 motion to dismiss and on the State's motion for summary judgment. The trial court first struck the claimant's previously filed section 2-- 615 motion to dismiss, noting that the claimant had not advanced that motion but rather had filed his answer and was now seeking relief by way of a section 2--619 motion. The court then denied the claimant's section 2--619 motion and granted the State's motion for summary judgment, which requested the forfeiture of the property. In granting the State's motion, the court noted that the procedure set forth in the Act requires only a showing of the existence of probable cause for the forfeiture of the property and not that the State show that it had probable cause at the time it instituted the lawsuit (see 725 ILCS 150/9(G) (West 1998)). The court further noted that the unrebutted evidence showed that the claimant purchased the property as a nominee of Derrick Aquino and that the funds used for the purchase were derived from illegal drug deliveries. The court also noted that the claimant had been barred from presenting evidence or testimony in the case because of his repeated failure to answer discovery and to appear in court for a hearing on his fifth amendment right.
On appeal, the claimant first argues that the trial court erred in granting summary judgment for the State. The claimant maintains that the State was required to have probable cause for the forfeiture at the time the action was filed and that the State's complaint was deficient because it did not allege sufficient facts indicating that the property was connected to illegal drug transactions. The claimant further argues that the trial court erred in barring him from presenting evidence and testimony. The claimant also argues that the affidavits presented by the State in support of its motion for summary judgment were insufficient to establish probable cause.
In response, the State points out that the forfeiture statute does not require it to establish probable cause at the time of the filing of a complaint. It argues that probable cause for the forfeiture was established by the affidavits it attached to its motion for summary judgment. The State further argues the claimant waived his right to attack the sufficiency of the complaint ...