Appeal from Circuit Court of Vermilion County No. 97CF460 Honorable John P. O'Rourke, Judge Presiding
The opinion of the court was delivered by: Justice Cook
Contemnor Larry Mills is the State's Attorney of Vermilion County. Contemnor Dan Reed is the director of the Vermilion County Metropolitan Enforcement Group (V-MEG), a police agency consisting of several cooperating Vermilion County police departments. Contemnors appeal from an August 20, 1999, order finding them to be in indirect civil contempt for their willful refusal to comply with a June 18, 1999, order directing them to return property that had been seized from defendants Truman and Carolyn Keys. The August 20, 1999, order fined each contemnor $100, but the fine was stayed pending appellate review. Contemnors appeal, arguing that the June 18, 1999, order was void, as the circuit court lacked jurisdiction to enter it. We affirm.
On August 23, 1997, the circuit court issued a search warrant to V-MEG for the search of defendants' Danville residence in connection with drug charges. On August 25, 1997, the circuit court issued a seizure warrant for defendants' bank accounts, certificates of deposit, and vehicles. The seizure warrant was issued in response to the affidavit of an Illinois State Police inspector stating that the items were subject to forfeiture to the State of Illinois pursuant to section 505 of the Illinois Controlled Substances Act (Substances Act) (720 ILCS 570/505 (West 1996)) and the Drug Asset Forfeiture Procedure Act (Forfeiture Act) (725 ILCS 150/1 through 14 (West 1996)).
Inventories subsequently filed with the circuit court indicate that V-MEG seized approximately $9,450 and a computer from defendants' residence and approximately $30,800 from defendants' bank accounts.
On November 24, 1997, pursuant to a motion for turnover filed by Mike Clary, then State's Attorney of Vermilion County, the circuit court entered an order that United States currency in the amounts of $27,245.65, $3,649.45, and $10,006, and a Hewlett Packard Computer, serial No. US7006213, seized on or about August 23, 1997, by V-MEG, be turned over to the Federal Bureau of Investigation (FBI), Springfield, for the purpose of federal forfeiture. The order was not given a number, is not in the seizure warrant file, and was not filed with the Vermilion County clerk's office. Defendants' names do not appear on the motion or the order. Defendants had been arrested on August 23, 1997, and charged with various drug offenses, but neither they nor their attorney was given any notice of the order or its entry.
On December 5, 1997, defendants filed a motion for return of non-contraband property, arguing that the State's deadline for initiation of forfeiture proceedings had passed. 725 ILCS 150/9(A) (West 1996) ("within 45 days of the receipt of notice of seizure by the seizing agency ***, the State's Attorney shall institute judicial forfeiture proceedings"). Forty-five days after August 25 is October 9.
On December 23, 1997, the FBI sent defendant Truman Keys seven letters, certified return receipt, advising that the V-MEG seizure was adopted by the FBI on November 19, 1997, for forfeiture under federal law. To contest the seizure or forfeiture, defendant was required to file claims of ownership and bonds in the amount of $250 with the FBI by February 9, 1998. The FBI sent another letter, certified return receipt, dated December 30, 1997.
A hearing was held January 8, 1998, on defendants' motion for return of non-contraband property. At the hearing, Clary stated he had been told, that day, by defense counsel that there might be some federal involvement, but he did not have any idea whether that was going on or not. He also said that his office did not usually handle these matters, that they were handled by the appellate prosecutor's office, and that his office did not "necessarily" have a file. The trial court reserved ruling, stating that it would like more information from both sides as to where the property was, what the history of the transfer was, and if there was something being handled by the appellate prosecutor.
On April 10, 1998, the property management officer of the FBI, Washington, issued a declaration that the various assets had been administratively forfeited.
Clary testified at a hearing on June 26, 1998, that he became aware, during the week following August 23, 1997, that defendants' accounts had been seized and that those monies were being held by V-MEG. Clary obtained the turnover order on November 24 because either Steve Furman or contemnor Reed desired to have the property turned over to the FBI so that the FBI could pursue a forfeiture. Clary made a conscious decision not to provide notice of the turnover order to defendants or their attorney, even when defendants' attorney specifically asked about the status of the property. Clary stated that he did not recall having obtained the November 24 order when he discussed the matter with the court on January 8 and that is why he did not tell the court about it. He admitted that he did not make any inquiry of the appellate prosecutor's office after the January 8 hearing, but that he just contacted V-MEG.
On July 1, 1998, the circuit court entered an order finding that the State furnished no notice prior to the presentation of the November 24 turnover order, that the order was never filed of record, that the defendants were entitled to notice, and that the order "is deemed to be void ab initio."
In a hearing on April 30, 1999, it was determined that the computer which had been seized was being retained by V-MEG and that 80% of the monies which had purportedly been transferred to the federal government were actually being held by V-MEG, the Danville police department, and the Vermilion County State's Attorney's office. On June 18, 1999, the circuit court entered an order finding that the State failed to institute forfeiture proceedings in accordance with the statute and that no lawful authority existed for the continued retention of the property by the State and further ordering contemnors to return the property. No appeal was taken from that order. On ...