Court of Appeals of Illinois, First District, First Division
Appeal from the Circuit Court of Cook County. No. 11 COFO 586 Honorable James A. Zafiratos, Judge Presiding.
Presiding Justice Hoffman and Justice Delort concurred in the judgment and opinion.
¶ 1 The State initiated civil forfeiture proceedings against $174, 980 in United States currency (the currency), after the money was discovered in a vehicle driven by claimant-appellant, Mr. Ermir Spahiu. Claimant filed an answer to the complaint in which he claimed ownership of the currency. However, claimant was thereafter barred from testifying or presenting evidence at trial as a discovery sanction, after he invoked his constitutional right against self-incrimination and refused to substantively respond to the State's discovery requests. The circuit court ultimately granted the State's motion for summary judgment, finding that the State had established probable cause that a nexus existed between the currency and illegal drug activity. Claimant has appealed, and we affirm.
¶ 2 I. BACKGROUND
¶ 3 On September 13, 2011, the State filed a civil complaint for the forfeiture of the currency, pursuant to the relevant forfeiture provisions of the Illinois Controlled Substances Act (720 ILCS 570/505(a)(5) (West 2010)), the Cannabis Control Act (720 ILCS 550/12(a)(5) (West 2010)), and/or the Methamphetamine Control and Community Protection Act (720 ILCS 646/85(a)(5) (West 2010)) (collectively, the Drug Control Acts), as well as the judicial in rem forfeiture procedures contained in the Drug Asset Forfeiture Procedure Act (Forfeiture Act) (725 ILCS 150/9 (West 2010)). The State's complaint asserted that the currency was subject to forfeiture because there was probable cause to believe that there was a nexus between the currency and a violation of one or more of the Drug Control Acts.
¶ 4 In support of this assertion, the State's complaint alleged that on June 11, 2011, Rolling Meadows police officers were conducting surveillance in Schaumburg, Illinois. In the parking lot of a restaurant, the officers observed a meeting among: (1) claimant, driving a blue Dodge Intrepid; (2) Mr. Krenar Vasha, driving a black Chevrolet Tahoe; (3) Mr. Ajaz Sulejani, driving a silver Mercedez-Benz; and (4) a fourth, unidentified male who arrived with Mr. Vasha. The unidentified male entered the Intrepid and retrieved a white plastic shopping bag and placed it into the rear seat of the Tahoe. Claimant was then observed retrieving a "weighted bulky [canvas] bag" from the Mercedes-Benz and placing it into the rear of the Intrepid. When claimant began to drive away, he was stopped by Mr. Vasha, who then opened the rear door of the Intrepid and appeared to examine the canvas bag. Shortly thereafter, claimant left the parking lot in the Intrepid, followed by Mr. Sulejani in the Mercedes-Benz.
¶ 5 Based upon the officers' training and experience, they believed that a narcotics transaction had just taken place. The officers, therefore, stopped the Intrepid in Elgin, Illinois. As the officers were making the traffic stop of the Intrepid, Mr. Sulejani sped away in the Mercedes-Benz. After identifying claimant as the driver of the Intrepid, the officers found that the canvas bag contained a large amount of United States currency that had been heat-sealed in three separate clear, plastic bags. Based again upon the officers' training and experience, the currency was packaged in a manner typically used by narcotics traffickers to transfer cash. The currency was subsequently counted, and totaled $174, 980.
¶ 6 After returning to the police station, the currency was hidden, and a canine trained in the detection of cannabis and other controlled substances began a systematic search. The canine gave a positive alert when it came upon the currency, which was an indication that the currency had a positive residual odor of narcotics. Further investigation revealed that claimant had been previously stopped by law enforcement officials in Colorado, at which time $189, 000 in United States currency was seized as drug proceeds. Additional investigation revealed that Mr. Vasha and Mr. Sulejani were high-ranking members of cannabis trafficking organizations in, respectively, Detroit and Chicago.
¶ 7 The State's complaint concluded by asserting that "[b]ased upon the training and experience of the Rolling Meadows police officers, the positive dog sniff, the unusual packaging of the currency, and the above stated facts, " there was probable cause to believe that: (1) there was a nexus between the currency and a violation of one or more of the Drug Control Acts; (2) the currency was furnished or intended to be furnished in exchange for a controlled substance, in violation of one or more of the Drug Control Acts; and/or (3) the currency represented proceeds from transactions in violation of one or more of the Drug Control Acts. The complaint, therefore, asked that the currency be declared forfeited pursuant to the Forfeiture Act, the rights of anyone claiming an interest in the currency be terminated, and the currency be released to the Illinois State Police for proper distribution.
¶ 8 On November 28, 2011, counsel for claimant filed an appearance and an answer to the State's complaint in the form of a signed, verified claim in which claimant sought to "claim his interest" in the currency. Therein, claimant asserted that he was the owner of the currency and sought its return. However, invoking the fifth amendment to the United States Constitution (U.S. Const., amend. V), claimant asserted a right to refuse to provide any information with respect to the date upon which he acquired the currency, the circumstances under which the currency was acquired, or the identity of the transferor of the currency. Rather, claimant's verified claim asserted that the currency was not subject to forfeiture because there was no probable cause for the seizure and there was "[n]o nexus to contraband / no possession of contraband."
¶ 9 The record reflects that the State thereafter served claimant with interrogatories and a request to produce documents. Claimant repeatedly refused to substantively respond to the State's discovery requests, even in the face of an order granting the State's motion to compel. Rather, the claimant repeatedly asserted a "right to refuse to answer based upon the 5th Amendment to the U.S. Constitution." In light of claimant's refusals to respond, the circuit court granted the State's motion for discovery sanctions. The circuit court specifically ordered that claimant would be barred from testifying or presenting any evidence at trial, although his answer would not be stricken and he would be permitted to cross-examine the State's witnesses.
¶ 10 On March 28, 2012, the State filed a motion for summary judgment, which was supported by the following attachments: (1) an affidavit from Officer Mike A. Schoop of the Rolling Meadows police department; (2) photos of the seized currency; (3) claimant's verified answer and his responses to the State's discovery requests; and (4) a copy of the circuit court's order granting the motion for discovery sanctions.
¶ 11 Officer Schoop generally averred in his affidavit that, if called as a witness, he would testify to facts consistent with the allegations contained in the State's complaint. In addition, Officer Schoop would also testify that: (1) he had been a police officer since 2001, had received specific training in narcotics investigations, and had conducted hundreds of narcotics-related investigations; (2) his training and experience had taught him that drug traffickers often travel in separate vehicles and in tandem to provide security and hinder surveillance; and (3) drug traffickers heat-seal packages of narcotics or currency to prevent their discovery by drug-sniffing canines. Finally, Officer Schoop averred that, in light of all of his observations and training, "the packaging and delivery of the currency is consistent with evidence of narcotics trafficking."
¶ 12 In the summary judgement motion itself, the State asserted that the totality of the facts presented, along with the adverse inference that could be drawn from claimant's invocation of his fifth amendment rights, established that there was probable cause to believe a nexus existed between the currency and violations of one or more of the Drug Control Acts. The State further contended that no genuine issue of material fact existed with respect to this or any other issue. In his response, claimant acknowledged that "[t]he basic facts are not in dispute." Nevertheless, claimant asserted that summary judgment in favor of the State was not warranted because, other than the positive dog sniff–which claimant asserted was insufficient on its own–"there was no other evidence present to ...