dissenting:
The contemnors as appellants raised several issues in their attack on the trial court’s finding them in indirect civil contempt of court, and this is one of those rare cases where — in my judgment — the appellants are correct across the board. Accordingly, I respectfully dissent.
Contemnors are correct when they argue that because the trial court lacked in rem jurisdiction when it entered the order directing them to return the seized property to defendants, that order is void. In a 1991 amendment (Pub. Act 87 — 614, § 4, eff. September 18, 1991 (1991 Ill. Laws 3061, 3067-68)) to section 505 of the Substances Act (720 ILCS 570/505(d) (West 1996)), the General Assembly gave State’s Attorneys the power (concurrent with the state circuit courts) to turn property subject to forfeiture over to other agencies. $62,600, 899 F. Supp. 378. Thus, the State was acting within its authority when it sought the trial court’s permission to turn the seized property over to federal law enforcement authorities for federal forfeiture proceedings. Once the turnover order was entered, the FBI had the authority to initiate federal forfeiture proceedings, which it did. The court’s later order voiding its turnover order could not divest the federal authorities of in rem jurisdiction over the property seized from defendants.
Defendants argue that the trial court retained jurisdiction over the property because the court (1) authorized the search and seizure warrants under which the property was seized, and (2) was still presiding over defendants’ criminal trial. Defendants are wrong. The court’s continued jurisdiction over defendants’ criminal trial is inapposite to whether it has in rem jurisdiction over the property subject to forfeiture. In short, the court lost jurisdiction when the property was turned over to the federal authorities, and the court’s subsequent efforts to exercise jurisdiction over the property are void.
Defendants also argue that the turnover order was entered in violation of their due process rights — namely, their right to be notified of proceedings pertaining to their property. I disagree.
Defendants had the opportunity to avail themselves of all of the process that they were due. They were notified of the commencement of federal administrative forfeiture proceedings and of their right to contest the seizure and claim their property in federal court. The motions defendants filed in the trial court constituted a collateral attack on the federal forfeiture proceedings and were thus improper.
Defendants characterize the State’s conduct (filing the motion for turnover ex parte) as surreptitious and underhanded, and the majority appears to agree. However, the record does not support that inference or the conclusion that either the State’s motion or the trial court’s ex parte order was improper. Defendants are generally not entitled to advance notice of prosecutorial decisions. Moreover, the State routinely seeks certain court orders ex parte, and trial courts have the authority to enter orders pertaining to the seizure of property and its custody without notifying the property owners. See, e.g., 725 ILCS 5/108 — 11 (West 1996) (requiring the court to enter an order providing for the custody of property seized pursuant to a search warrant pending further proceedings). Sections 108 — 10 and 108 — 11 of the Code of Criminal Procedure of 1963 (Code) require (1) a return to be made to the court of an inventory of seized property, and (2) that the court (a) enter an order providing for the custody of those items and (b) upon request deliver a copy of the inventory to the person from whose premises the property was seized. 725 ILCS 5/108 — 10, 108 — 11 (West 1996). Considering the hundreds of search warrants that are executed annually in Illinois, it is noteworthy that no case in the 38-year history of the Code has ever held that property owners are entitled to a hearing prior to the court’s entry of such an order.
Because the previous discussion is sufficient to show that the trial court’s rulings are erroneous and should be reversed, I need not discuss contemnors’ additional arguments.
One additional aspect of this case warrants mentioning. Defendants criticize contemnor Reed for not filing a timely notice of appeal from the return order. However, the record shows that defendants did not serve contemnor Reed with their motions for the return of noncontraband and seized property, nor did they serve him with notice of the June or July 1999 hearing. In this regard, I agree with contemnor Reed, who asserts as follows:
“Moreover, even though [defendants had not joined , [cjontemnor Reed as a party, and even though he did not appear either in person or through his own counsel at the June 8, 1998[,j hearing, they drafted an order directing him individually as well as in his official capacity as V-MEG Director to return the property. Given their own due process challenge to the [turnover] [ojrder, it is no small irony that [djefendants now fault [cjontemnor Reed for not filing a timely notice of appeal from an order entered at a hearing of which he had no prior notice and at which he had no opportunity to be heard. Worse yet, [djefendants offer no authority whatsoever for their assumption that [cjontemnor Reed, a non[ jparty, even could have appealed from the order.” (Emphasis in original.)