concurring in part and dissenting in part:
Following the arrest of defendant, Wayland Clay, Jr., two complaints for forfeiture of property were filed against items allegedly owned by defendant. One complaint was filed against a 1984 Toyota Supra automobile and the other against $14,705, a cellular telephone, an Archer adapter, and a cellular phone. The complaints were eventually consolidated. A hearing was held on November 8, 1989, at which time testimony of various police officers, defendant’s mother and defendant was heard. Following the hearing, the trial court denied the forfeitures. The State appeals.
The majority reverses the decision of the trial court with respect to forfeiture of the 1984 Toyota Supra, finding that defendant did have actual notice of the forfeiture proceedings and did not sustain any prejudice as a result of the possible lack of notice by certified mail. The majority also reversed the trial court’s denial of forfeiture of the cellular telephone and its attachments, determining that the record does not support the trial court’s decision. The record contains adequate illustration that defendant did not overcome the presumption that the items were forfeitable. I am in agreement with the majority regarding reversal of the trial court on these two issues. However, the majority affirms the trial court’s denial of forfeiture of the $14,705, stating that the record supports a determination that defendant adequately rebutted the presumption that the money, found in close proximity to other forfeitable substances, is forfeitable. On this issue, I dissent.
The record of the forfeiture hearing includes the testimony of defendant wherein he stated that on May 2, 1989, his mother requested that he take money from the family residence, wire $5,000 to his brother, and send some to her in Oklahoma. Defendant testified that he took “half” of the estimated $22,000 in the house. Defendant also stated that the money was in denominations of $50 and $100 bills when he took it from the house and when it was counted at the police station. Defendant’s mother, Wilhemina Clay, testified that she kept a large amount of money, $22,000, in a little black pouch in her residence in $50 and $100 bills. She stated that she had counted the money before she left for Oklahoma on May 2, 1989. She also testified that she contacted defendant from Oklahoma and asked him to wire $5,000 of the money to his brother in Florida. She did not state that she requested defendant send her any money, but she did state that defendant was not authorized to take more than $5,000 from the pouch.
Officer Richard Fristoe testified that he executed the arrest of defendant on May 2, 1990, and found $14,705 and some Joker rolling papers in a black pouch in defendant’s car. The pouch was covered with a powder-like substance later identified as cocaine. Fristoe testified that he counted the currency twice and noted the money was in a variety of denominations, predominately $10 and $20 bills with a few $50 and $100 bills. Lieutenant Larry Lawrence testified that he was present with Fristoe and defendant in the booking room on May 2, 1989. He stated that he witnessed Fristoe counting the money and he noted “some 100’s, 50’s, 20’s and 10’s,” estimating mostly 10’s and 20’s. Both Lawrence and Fristoe testified that the money was placed into a temporary evidence locker and the evidence technician was instructed to transfer it to the city evidence account in a bank.
A forfeiture action is a civil in rem proceeding against the item used or connected with the commission of a crime. (People v. Dugan (1985), 109 Ill. 2d 8.) Since the forfeiture proceeding is civil in nature, the State need only prove by a preponderance of the evidence its right to have the property forfeited. (People ex rel. Power v. One 1979 Chevrolet Camero (1981), 96 Ill. App. 3d 109.) Although money is inherently legal and not contraband per se, because it is an integral part of drug offenses, it is an item subject to forfeiture as long as it is shown to have been unlawfully used or a rational relationship to an unlawful purpose is established. (People v. Snyder (1977), 52 Ill. App. 3d 612.) The evidence presented at the November 8, 1989, hearing was sufficient to establish by a preponderance of the evidence a nexus between the cash and the illegal substance to raise a statutory presumption that the money was forfeitable. (Ill. Rev. Stat. 1987, ch. 56½, par. 1505(a)(5).) Defendant subsequently failed to rebut said presumption.
The evidence contained in the record establishes that Officer Fristoe found cocaine residue on the black pouch. Inside the pouch he found rolling papers along with a large sum of money in small bills, including $10 and $20 bills. Defendant’s testimony that the money belonged to his mother was insufficient to rebut the presumption. Defendant’s mother had no $10 and $20 bills among the money she kept at the residence. If the money’s origin was defendant’s mother’s personal fund, then at some point the money was converted by defendant as evidenced by the change in denominations of the bills. The record does not support the trial court’s determination that defendant rebutted the presumption that the cellular telephone and equipment were forfeitable. The majority points out that these items were covered with the same powdery white substance that covered the black pouch and characterizes defendant’s explanation for purchasing the telephone as “unbelievable.” Defendant’s lack of credibility as to the telephone should apply similarly to the money. The car, the cellular telephone and the $14,705 were all found with defendant in the course of a drug-related offense. Defendant was later convicted of said offense, and the car, phone, and money are similarly forfeit-able. Any other determination is inexplicably inconsistent. The trial court’s determination that the statutory presumption was rebutted with respect to the money is contrary to the manifest weight of the evidence.
Accordingly, I concur in part and dissent in part.