dissenting:
The majority holds that claimant, Rashawn Carter, received appropriate notice of the forfeiture proceedings at issue. I disagree. Due process requires the government to provide notice that is reasonably calculated to apprise interested parties of the forfeiture proceedings and afford the parties an opportunity to be heard. In the present case, the notice the State gave Rashawn fell far short of the requirements of due process.
BACKGROUND
On May 23, 1998, police officers responded to a tip that a man with a gun had entered the Drexel National Bank. Upon their arrival at the bank, the officers observed Rashawn holding a white cylinder-shaped object under his arm. The officers performed a protective pat-down of Rashawn and found several bundles of currency. The white cylinder-shaped object was actually a sock filled with additional currency. In all, the officers recovered $30,700 from Rashawn.
The officers questioned Rashawn and learned that he did not have an existing account at the bank, but that he planned to rent a safety-deposit box. Rashawn gave conflicting answers when asked where he had obtained the money and was unable to tell the officers how much money he was carrying. The officers took Rashawn to the police station for further questioning. At the station, Rashawn admitted that he was a member of a gang, that he was unemployed and that he did not own the money. Rashawn also told the officers that he had been arrested for possession of cannabis and was out on bond pending a hearing. A background check confirmed this arrest and also revealed that Rashawn had been arrested several times in Sangamon County, the last arrest on September 30, 1997.
The officers performed a “money lineup,” at which a police dog positively identified the currency as having a residue odor of narcotics. A further search of Rashawn revealed three separate safety-deposit box keys. One of the keys was for a safety-deposit box at the Drexel National Bank registered to Ida Carter, Rashawn’s grandmother. The officers obtained a search warrant for the safety-deposit box. During a subsequent search of the box, the police recovered $20,811. A police dog positively identified the currency as having a residue odor of narcotics. The State did not prosecute Rashawn for any narcotics violation in connection with the currency.
On August 4, 1998, the State filed a complaint for forfeiture of the $30,700 and $20,811. The complaint named Rashawn as a party with interest in the currency. On the same day, the State mailed notice of the forfeiture proceedings and a copy of the complaint via certified mail, with a return receipt requested, to Rashawn at 4844 S. State Street, Chicago, Illinois. The State did not receive a return receipt from the mailing. The State then published notice of the forfeiture proceedings on August 7, August 14 and August 21 in the Chicago Daily Law Bulletin. And on September 2, 1998, the State sent a notice of forfeiture by certified mail to Ida at 4844 S. State Street. The State did not receive a return receipt from the September 2 mailing. Neither Rashawn nor Ida appeared at the forfeiture proceedings.
On October 13, 1998, the circuit court entered a default order forfeiting Rashawn’s interest and that of all other parties claiming right, title, or interest in the currency. On January 13, 1999, Rashawn and Ida filed a joint motion to vacate the forfeiture, alleging that they did not receive notice of the forfeiture proceedings. In support of the motion, Rashawn averred that he was incarcerated for unrelated charges in the Vandalia Correction Center beginning July 7, 1998, until his release November 10, 1998. Ida also filed an affidavit in which she averred that she was the owner of the safety-deposit box and she did not receive the notice of the forfeiture proceedings mailed to her home. The circuit court denied the motion to vacate the forfeiture order.
The appellate court reversed* finding that the circuit court lacked personal jurisdiction over Rashawn and Ida because they were not properly served. 316 Ill. App. 3d 464, 471. The court noted further that numerous federal courts have questioned the probative value of positive dog alerts due to reports that reveal the high level of contamination of the nation’s money supply with narcotics residue. 316 Ill. App. 3d at 472. The court adopted the view of these federal courts that the mere fact of prior contamination fails to establish that the currency was actually exchanged for or intended to be exchanged for drugs by the person currently in possession of the currency. 316 Ill. App. 3d at 473. Accordingly, the court concluded that the “sniff test” was not enough to establish probable cause that the currency seized from Rashawn was connected to narcotics. 316 Ill. App. 3d at 473.
ANALYSIS
The due process clauses of the fifth and fourteenth amendments to the Constitution of the United States require, at, a minimum, that “deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 94 L. Ed. 865, 873, 70 S. Ct. 652, 656-57 (1950). See also Dusenbery v. United States, 534 U.S. 161, 151 L. Ed. 2d 597, 122 S. Ct. 694 (2002). In Mullane, the Supreme Court explained the principles involved,
“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. [Citations.] The notice must be of such nature as reasonably to convey the required information, [citation], and it must afford a reasonable time for those interested to make their appearance, [citation]. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied. ‘The- criterion is not the possibility of conceivable injury but the just and reasonable character of the requirements, having reference to the subject with which the statute deals.’ [Citations.]
But when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, [citation], or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes.” Mullane, 339 U.S. at 314-15, 94 L. Ed. at 873-74, 70 S. Ct. at 657-58.
Notice by publication is not a favored mode of process. As the Supreme Court explained in Mullane,
“[i]t would be idle to pretend that publication alone as prescribed here, is a reliable means of acquainting interested parties of the fact that their rights are before the courts. *** Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper’s normal circulation the odds that the information will never reach him are large indeed.” Mullane, 339 U.S. at 315, 94 L. Ed. at 874, 70 S. Ct. at 658.
Where the names and addresses of interested parties are not known, notice by publication must be accepted out of necessity. However,
“[e]xceptions in the name of necessity do not sweep away the rule that within the limits of practicability notice must be such as is reasonably calculated to reach interested parties. Where the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.” Mullane, 339 U.S. at 318, 94 L. Ed. at 875, 70 S. Ct. at 659.
The incarceration of a party with an interest in property being forfeited shapes the notice by due process. In Robinson v. Hanrahan, 409 U.S. 38, 34 L. Ed. 2d 47, 93 S. Ct. 30 (1972), the appellant was arrested on a charge of armed robbery on June 16, 1970. The State instituted forfeiture proceedings against the appellant’s car, alleging that the appellant had used the car in the armed robbery. The appellant was held in custody in the Cook County jail from June 16, 1970, to October 7, 1970, awaiting trial. Nevertheless, the State mailed notice of the forfeiture proceedings to appellant’s home address as listed in the records of the Secretary of State, and not to the jail facility. In finding the notice ineffective, the Supreme Court explained,
“In the instant case, the State knew that appellant was not at the address to which the notice was mailed and, moreover, knew also that appellant could not get to that address since he was at that very time confined in the Cook County jail. Under these circumstances, it cannot be said that the State made any effort to provide notice which was ‘reasonably calculated’ to apprise appellant of the pendency of the forfeiture proceedings.” Robinson, 409 U.S. at 40, 34 L. Ed. 2d at 49, 93 S. Ct. at 31-32.
In Dusenbery, 534 U.S. at 168, 151 L. Ed. 2d at 605, 122 S. Ct. at 700, quoting Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657, the Supreme Court reaffirmed that the government must give a property owner notice that is “ ‘reasonably calculated, under all the circumstances’ ” to apprise the owner of the pendency of the forfeiture. In the event the property owner is incarcerated, the government must send the notice to the owner at his place of incarceration. Although the government need not show that the property owner received the notice, the method chosen by the government in attempting notice, that is, the procedures used by the government in mailing the notice and in processing the mail at the correctional facility, must be defend-able “ ‘on the ground that it is in itself reasonably certain to inform those affected.’ ” Dusenbery, 534 U.S. at 170, 151 L. Ed. 2d at 606, 122 S. Ct. at 701, quoting Mullane, 339 U.S. at 315, 94 L. Ed. at 874, 70 S. Ct. at 657.
Applying these principles to the facts at issue, the Supreme Court found that the notice the government gave the property owner satisfied the requirements of due process. The Supreme Court explained,
“The Government here carried its burden of showing the following procedures had been used to give notice. The FBI sent certified mail addressed to petitioner at the correctional facility where he was incarcerated. At that facility, prison mailroom staff traveled to the city post office every day to obtain all the mail for the institution, including inmate mail. *** The staff signed for all certified mail before leaving the post office. Once the mail was transported back to the facility, certified mail was entered in a logbook maintained in the mailroom. *** A member of the inmate’s Unit Team then signed for the certified mail to acknowledge its receipt before removing it from the mail-room, and either a Unit Team member or another staff member distributed the mail to the inmate during the institution’s ‘mail call.’ ” Dusenbery, 534 U.S. at 168-69, 151 L. Ed. 2d at 605-06, 122 S. Ct. at 700.
The method chosen by the government in attempting notice was reasonable in light of the procedures followed by the FBI and the correctional institution.
Dusenbery, 534 U.S. 161, 151 L. Ed. 2d 597, 122 S. Ct. 694, is based squarely upon Mullane, 339 U.S. at 306, 94 L. Ed. at 865, 70 S. Ct. at 652, and Robinson, 409 U.S. 38, 93 S. Ct. 30, 34 L. Ed. 2d 47. It holds that the government must mail notice to the property owner at the place of incarceration. However, the government need not show that the property owner received the notice, in order to comply with due process.
The majority rejoins,
“Despite the dissent’s contention, the Court did not hold that ‘[i]n the event the property owner is incarcerated, the government must send the notice to the owner at his place of incarceration.’ 199 Ill. 2d at 168 (Freeman, J., dissenting, joined by McMorrow and Kilbride, JJ.). This issue was not considered by the Court. Instead, the Court considered the constitutional sufficiency of the mail delivery and distribution system once mail arrived to the prison. Dusenbery, 534 U.S. 161, 151 L. Ed. 2d 597, 122 S. Ct. 694.” 199 Ill. 2d at 157-58.
The majority’s construction of Dusenbery is simplistic, if not surprising. If due process did not require that mail be sent to the property owner at the place of incarceration, the Court would not have considered the “constitutional sufficiency of the mail delivery and distribution system once mail arrived to the prison.” Rather, the Court would have considered either the notice sent to the property owner at the house trailer where he was arrested or the notice sent to the property owner in Randolph, Ohio, the town where his mother lived, sufficient to comply with due process. Of course, such a holding would be contrary to Robinson, where, as noted above, the Court held that notice mailed to the property owner’s home address as listed in the records of the Secretary of State, but not to the jail facility, was ineffective.
Perhaps the majority is intimating that Robinson is not good law, or that Dusenbery has limited Robinson in some fashion. Given the fact that Dusenbery did not criticize or, in any way, diminute the holding in Robinson, I, for one, believe that Robinson remains good law. Turning to the facts of this case, Rashawn was incarcerated at Vandalia Correctional Center at the time the State mailed the notice of forfeiture to his home. The State did not receive a return receipt from the mailing and was thus alerted to the fact that the notice was ineffective. The State, however, made no attempt to send notice of the forfeiture to Rashawn at Vandalia. Instead, the State was satisfied with publication of notice in the Daily Law Bulletin. Such notice fell woefully short of due process. The State knew, or should have known, that Rashawn was incarcerated at Vandalia. Consequently, the State was required to send notice to Rashawn at Vandalia.
In a forfeiture proceeding, the interest of the property owner is potentially great. See 725 ILCS 150/6 (West 1998) (providing for administrative forfeiture of nonreal property valued at less than $20,000, and judicial in rent forfeiture proceedings for nonreal property that exceeds $20,000). As noted in Weng v. United States, 137 F.3d 709, 714 (2d Cir. 1998),
“A person who violates the narcotics laws might well possess valuable property that is unrelated to narcotics. The forfeiture of such property may be a matter of great importance to him. And without the owner even being made aware of, or having a practical opportunity to challenge the forfeiture, its lawfulness is difficult to justify. In these circumstances, furthermore, no one but the owner can be relied on to protect the owner’s interest.”
Although the potential loss to the property owner may be great, forfeiture statutes generally allow notice by mail or publication. See 725 ILCS 150/4 (West 1998). When the property owner is incarcerated, however, he has little influence as to whether the notice given is actually received. “[A]s a prisoner, the owner is unable to insure that he will receive the notice once the post office has delivered it to the institution. The owner is entirely dependant on the institution to deliver his mail to him.” Weng, 137 F.3d at 715. By contrast, the hardship to the government in implementing procedures “reasonably certain to inform” the property owner of the forfeiture is small. As noted by the dissent in Dusenbery, “[t]he agency responsible for giving notice of the forfeiture, here, the FBI, is part of the same Government as the prisoner’s custodian, the Bureau of Prisons.” Dusenbery, 534 U.S. at 178, 151 L. Ed. 2d at 612, 122 S. Ct. at 705 (Ginsburg, J., dissenting, joined by Stevens, Souter and Breyer, JJ.). “Where a claimant is ‘residing at a place of the government’s choosing,’ the seizing agency must take steps to locate the claimant in order to satisfy due process.” United States v. Giraldo, 45 F.3d 509, 511 (1st Cir. 1995). See also In re Forfeiture of $2,354.00 United States Currency, 326 Ill. App. 3d 9 (2001) (where the State maintained that a prisoner’s address is easy to ascertain).
The majority disagrees. The majority maintains there is no evidence in the record that the seizing agency knew or should have known Rashawn was incarcerated in Vandalia. Rashawn was incarcerated in a separate county for a separate crime approximately six weeks after officers seized the currency. 199 Ill. 2d at 161. Citing Sarit v. U.S. Drug Enforcement Administration, 987 F.2d 10 (1st Cir. 1993), a case it finds “helpful in the instant matter,” the majority concludes that the notice to Rashawn’s home was effective.
The majority fails to consider that when the officers interviewed Rashawn, he informed them he was out on bond for a prior arrest. A background check confirmed this arrest and also revealed that Rashawn had been arrested several times in Sangamon County, the last arrest on September 30, 1997. As the Third Circuit observed in Foehl v. United States, 238 F.3d 474, 480 (3d Cir. 2001), “although Foehl was not in jail at the time the notice was returned, he had been released on bail. We can safely assume that the Beaumont police had a very good idea of his whereabouts during that time.”
More importantly, however, the majority fails to consider that the State is one entity and not several agencies or departments. The State, in the person of the State’s Attorney of Cook County, prosecuted the forfeiture action at issue. At the same time, the State prosecuted Rashawn for possession of cannabis based upon an incident on March 28, 1995, and aggravated battery based upon an incident on May 9, 1996.1 The State incarcerated Rashawn at Vandalia. A simple telephone call from the State’s Attorney of Cook County to the Illinois Department of Correction would have provided the State’s Attorney with the information needed to effectuate notice upon Rashawn.2
Lastly, the majority’s reliance on Sarit is misplaced. In Sarit, DEA agents seized $41,448 from the plaintiffs’ then-residence, located at 114 Alvin Street, on July 28, 1989. The attendant search was conducted without a warrant. On August 21, 1989, the plaintiffs filed a motion pursuant to Federal Rule of Criminal Procedure 41(e) seeking return of the currency. On September 1, the United States Attorney objected to this motion and filed a memorandum of law in which he informed the plaintiffs that the currency was being held for administrative forfeiture. Subsequently, on September 19, 1989, the DEA sent notice of the administrative forfeiture proceeding by certified mail to 114 Alvin Street. The notice was returned unclaimed. The DEA also published notice of the proceeding, with the first notice published on September 27, 1989. On October 13, 1989, the district court denied the plaintiffs’ Rule 41(e) motion on equitable grounds, deferring to the administrative forfeiture proceedings. The plaintiffs’ right to file a claim with the DEA expired on October 17, 1989. On November 2,1989, the administrative forfeiture was decreed and entered.
In upholding the validity of the notice given by the DEA, the circuit court observed,
“Given plaintiffs’ vigorous (although tardy) pursuit of their claim, the fact that the government had been involved in ongoing court action on the very issue of the seizure of plaintiffs’ currency, the government’s awareness of plaintiffs’ representation by counsel, and the frowned upon treatment of forfeitures, the call is a close one. [Citation.] Nevertheless, Mullane counsels us to consider all of the circumstances, and we find in this case other pertinent factors, including the government’s memorandum and the conduct of plaintiffs’ counsel, which compel us to uphold the finding of the district court.” (Emphasis in original.) Sarit, 987 F.2d at 14.
The court of appeals found decisive that the plaintiffs’ counsel had sufficient general notice of the risk that the property would be forfeited within the coming months if action were not taken; the statute covering forfeitures and the regulations interpreting it were available to counsel; and, once the plaintiffs and their counsel were aware that notice of the forfeiture would be sent in the ensuing two months, they could have notified the DEA of their own change of address. The court concluded that “the damage done by the ineffective notice could and ought to have been stemmed by plaintiffs’ counsel.” Sarit, 987 F.2d at 15.
Sarit is distinguishable from the present case. First, the plaintiffs in Sarit were not incarcerated at the time of the forfeiture proceedings. Second, the plaintiffs in Sarit had instituted an action in the district court for the return of the property and were represented by counsel. Knowledge of the statutes regulating the forfeiture proceedings and the risk that the property would be forfeited within a short time period was attributed to counsel, and thus to the plaintiffs. Third, the plaintiffs in Sarit had received a memorandum informing them that the currency was being held for administrative forfeiture and providing them with a seizure number that had been assigned to the currency. The memorandum further informed the plaintiffs that if they filed a claim and cost bond with the DEA, the DEA would be required to refer the matter to the United States Attorney for the initiation of judicial forfeiture proceedings. In contrast, Rashawn was incarcerated at the time the State mailed the notice of forfeiture. The State did not attempt to notify Rashawn’s criminal counsel of the forfeiture. Indeed, there is no indication in the record that Rashawn’s criminal counsel continued to represent him once the criminal proceedings resulted in the convictions. Thus, the Sarit court’s conclusion that “the damage done by the ineffective notice could and ought to have been stemmed by plaintiffs’ counsel” (Sarit, 987 F.2d at 15), has no bearing in this case. Further, the State nowhere claims that it gave Rashawn information of the kind given the Sarit plaintiffs in the memorandum. The majority’s assertion that Sarit is “helpful in the instant matter” is simply incorrect.3
The majority’s holding that the notice given Rashawn was effective is based upon the premise that the State may be compartmentalized, such that information available to the State’s Attorney of one county or to the Illinois Department of Corrections is not attributable to the State’s Attorney of another county. The majority’s sole support for this holding is Sarit. However, this holding is not supported by Sarit and is contrary to case law. See Dusenbery, 534 U.S. 161, 151 L. Ed. 2d 597, 122 S. Ct. 694 (in determining whether the government’s actions were reasonable, the Supreme Court looked to the procedures followed by the FBI, the forfeiting agency, in mailing the notice, and the procedures followed by the federal correctional institution where the property owner was incarcerated, in processing certified mail addressed to inmates); United States v. Minor, 228 F.3d 352 (4th Cir. 2000) (since property owner was in federal custody, the DEA notices mailed to his home address and to the Forsyth County jail, where he had been held for a brief period following his arrest, were ineffective); United States v. One Toshiba Color Television, 213 F.3d 147, 150 (3d Cir. 2000) (where the DEA administratively forfeited certain property, the court held that “the circumstances surrounding the federal government’s incarceration of a prisoner require greater efforts at ensuring notice than would be expected for individuals at liberty in society”); United States v. McGlory, 202 F.3d 664, 674 (3d Cir. 2000) (en banc) (on review of an administrative forfeiture proceeding conducted by the DEA, the court held: “at a minimum, due process requires that when a person is in the government’s custody and detained at a place of its choosing, notice of a pending administrative forfeiture proceeding must be mailed to the detainee at his or her place of confinement”); Lopez v. United States, 201 F.3d 478 (D.C. Cir. 2000) (where notices sent by the DEA to the property owner’s home and to the county jail were returned to the DEA, and where the DEA knew that the property owner was in the custody either of the State of Florida or of the Attorney General of the United States, the DEA should have attempted to locate the property owner within the prison system); United States v. Real Property, 135 F.3d 1312 (9th Cir. 1998) (the requirements of due process were satisfied where the record showed that the government sent notice, by certified mail, to the property owner at the jail facility, and the watch commander at the jail testified that jail personnel sign for certified mail, open it in the presence of the inmate, and then distribute it directly to the inmate); Boero v. Drug Enforcement Administration, 111 F.3d 301, 306 (2d Cir. 1997) (“Boero was a prisoner in custody, having been transferred to his place of incarceration directly from a federal facility, and notice could easily have been given to him; the notice was indisputably inadequate and the district court has found *** that the DEA was responsible for the failure of notice”); United States v. Clark, 84 F.3d 378 (10th Cir. 1996); Williams v. United States Drug Enforcement Administration, 51 F.3d 732 (7th Cir. 1995); State v. U.S. Currency in the Amount of $3,743.00, 25 Kan. App. 2d 54, 956 P.2d 1351 (1998) (where the property owner was booked into the Shawnee County jail and later transferred to the Kansas State Correctional Facility, the court found the notice mailed to the property owner’s home ineffective, rejecting the State’s claim that it had no reason to know the property owner remained incarcerated during the criminal proceedings); State v. $17,636.00 in United States Currency, 650 So. 2d 900 (Ala. Civ. App. 1994); State v. Jacobiak, 1989 Ohio App. LEXIS 4747 (1989) (“by virtue of appellant’s conviction and sentencing, appellee knew or should have known appellant was incarcerated at the time the petition was filed. Under the circumstances *** sending a copy of the petition by regular mail to appellant’s trial attorney, was not ‘an effort’ that would ordinarily provide notice to appellant of the pendency of the forfeiture proceedings”); People v. Smith, 275 Ill. App. 3d 844 (1995). See also Garcia v. Meza, 235 F.3d 287 (7th Cir. 2000) (where the notice sent by the Secret Service to the property owners was returned to the government five days later marked undeliverable, and where the property owners were actively seeking the return of their money through an administrative FTCA claim filed with the INS, “another attempt at written notice [by the Secret Service] would have been reasonable, even necessary, under the circumstances and would not have been too burdensome on the government”); Montgomery v. Scott, 802 F. Supp. 930, 936 (W.D.N.Y. 1992) (“It was unreasonable for the DEA to ignore its discovery that plaintiff had not received the original mailed notice. The Government must use the information it possesses to determine whether to rely on a particular method of notice; it may not ignore information that reveals that a method of notice is inadequate to provide an interested party with notice”); Redd v. Tennessee Department of Safety, 895 S.W.2d 332, 335 (Tenn. 1995) (where a drug task force of the Tennessee Department of Safety seized money in a raid at a mobile home and the home’s owner told the task force officers that the petitioner had brought the money to her and told her to use it if she needed to, and where police later arrested the petitioner for an unrelated murder he committed two days before the raid, the court held “it is clear that the Department of Safety possessed the requisite knowledge of the petitioner’s possible proprietary interest in the seized property. Such knowledge required the Department to give notice to the petitioner of the seizure and possible forfeiture of the property”).
CONCLUSION
The opportunity to be heard has “little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.” Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70 S. Ct. at 657. In the present case, the State mailed the notice of the forfeiture to Rashawn’s home. Although the State did not receive a return receipt from the mailing, the State inquired no further. The State failed to notify Rashawn of the forfeiture at the correctional center where he was incarcerated. Rashawn was thus deprived of the opportunity to contest the forfeiture and divested of his property without due process of law. It matters not that Rashawn was incarcerated on charges unrelated to the forfeiture. The State prosecuted and incarcerated Rashawn on those charges. The State was aware of the incarceration and knew, or should have known, that notice mailed to Rashawn at his home address would be ineffective. As held by the Supreme Court, notice sent to a prisoner’s home is inadequate. Robinson, 409 U.S. at 40, 34 L. Ed. 2d at 49, 93 S. Ct. at 31. Such notice is not reasonably calculated to apprise the prisoner of the pendency of the forfeiture proceedings. Robinson, 409 U.S. at 40, 34 L. Ed. 2d at 49, 93 S. Ct. at 31-32. “[W]hen notice is a person’s due, process which is a mere gesture is not due process.” Mullane, 339 U.S. at 315, 94 L. Ed. at 874, 70 S. Ct. at 657.
I respectfully dissent.
JUSTICES McMORROW and KILBRIDE join in this dissent.
The State represented to the circuit court and to this court that “the offense for which Rashawn was incarcerated occurred almost one month after the incident that led to the forfeiture,” that is, in June 1998 rather than the dates shown above.
information about inmates is available to the general public at the Illinois Department of Correction’s internet site.
At least one commentator has roundly criticized Sarit,
“While these unique facts make the decision easily distinguishable, it is still disturbing that the court allowed a claimant’s right to contest the forfeiture to be snuffed out so cavalierly by the DEA. The decision is wholly out of sync with the Supreme Court’s efforts to provide additional procedural safeguards in civil forfeiture actions.” 1 D. Smith, Prosecution and Defense of Forfeiture Cases par. 9.03, at 9 — 53 (2001).
The commentator lists a number of cases which have distinguished Sarit.