Rule 23 order filed 2016 IL App (5th) 150338
September 19, 2016;
Motion to publish granted NO. 5-15-0338
October 26, 2016.
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE ex rel. BRENDAN F. KELLY, ) Appeal from the
State's Attorney of St. Clair County, ) Circuit Court of
) St. Clair County.
Plaintiff-Appellant, )
)
v. ) Nos. 15-FA-047 & 15-MR-179
)
ONE 2008 CHEVROLET TRAILBLAZER, )
)
Defendant )
) Honorable
(Latoya Radford and Nathaniel D. Dukes, ) Robert P. LeChien,
Claimants-Appellees). ) Judge, presiding.
________________________________________________________________________
PRESIDING JUSTICE SCHWARM delivered the judgment of the court, with
opinion.
Justices Goldenhersh and Moore concurred in the judgment and opinion.
OPINION
¶1 On May 17, 2015, following a traffic stop in Fairview Heights, claimant Nathaniel
D. Dukes was arrested and charged with driving under the influence of alcohol (DUI)
(625 ILCS 5/11-501 (West 2014)) and driving while license revoked (DWLR) (625 ILCS
5/6-303 (West 2014)). The registered owner of the 2008 Chevrolet Trailblazer (VIN
1GNET13H582256890) that Dukes had been driving at the time of his arrest was his live-
in girlfriend, claimant Latoya Radford.
1
¶2 On May 18, 2015, when interviewed by a detective with the Fairview Heights
police department, Dukes stated, among other things, that Radford allowed him to use her
Trailblazer "whenever he need[ed] it" and that the vehicle essentially belonged to "both
of them." Dukes explained that he could not title a vehicle in his own name because his
driver's license had been revoked.
¶3 On May 21, 2015, the State commenced a forfeiture action against the Trailblazer
pursuant to article 36 of the Criminal Code of 2012 (720 ILCS 5/36-1 et seq. (West
2014)). Specifically, pursuant to section 36-1.5, the State filed a request that the circuit
court hold a preliminary review hearing to determine whether there was probable cause
that the vehicle "may be subject to forfeiture." 720 ILCS 5/36-1.5 (West 2014). Stating
that Dukes was the "driver" of the Trailblazer and that Radford was the "registered
owner," the request referred to both as "the known claimants."
¶4 An affidavit in support of forfeiture was attached as an exhibit to the State's
request for a preliminary review hearing. The affidavit set forth a detailed account of the
events that led to Dukes's arrest and stated, among other things, that Dukes had been
observed driving the Trailblazer erratically, that he had exhibited slurred speech and
smelled of alcohol when the vehicle was stopped, and that a subsequent breath test
revealed that his blood alcohol concentration was nearly twice the legal limit of 0.08.
See 625 ILCS 5/11-501(a)(1) (West 2014). The affidavit further stated that Dukes had
been arrested or convicted for DUI on five prior occasions since 1997 and that his driver's
license was both suspended and revoked. The affidavit identified the Trailblazer by its
vehicle identification number and its license plate number. The affidavit did not
2
reference Radford at all, nor did it reference the statements that Dukes had made when
interviewed on May 18, 2015.
¶5 On June 2, 2015, the cause proceeded to a preliminary review hearing. A
transcript of the hearing is not included in the record on appeal, but the record indicates
that the aforementioned affidavit was the only evidence presented for the circuit court's
consideration. See 720 ILCS 5/36-1.5(b) (West 2014) ("The rules of evidence shall not
apply to any proceeding conducted under this Section."). At the conclusion of the
hearing, the circuit court entered a written order finding that the State had failed to
establish probable cause that Radford knew or should have known that Dukes would be
driving her Trailblazer on the date that it was seized. The court noted that its finding was
based on "a lack of evidence." The court therefore determined that the State had failed to
establish probable cause for purposes of section 36-1.5 and ordered that the Trailblazer be
returned to Radford.
¶6 On June 30, 2015, the State filed a motion asking that the circuit court reconsider
its June 2, 2015, order. The motion alleged that the affidavit in support of forfeiture
overwhelmingly supported a finding of probable cause that the Trailblazer "may" be
subject to forfeiture and that "the elements of 'knowledge and consent' are not part of the
legal standard for a preliminary review determination." The State thus requested that the
court enter an order finding probable cause so that the matter could proceed pursuant to
section 36-2.
¶7 On August 4, 2015, the circuit court denied the State's motion to reconsider
following a hearing. On August 20, 2015, the State filed its notice of appeal.
3
¶8 DISCUSSION
¶9 Asserting that the Trailblazer was subject to forfeiture based solely on the fact that
Dukes used it in the commission of the offenses of DUI and DWLR, the State argues that
the circuit court improperly determined that the State was required to preliminarily prove
that Radford knew or should have known that Dukes would be driving the vehicle on the
date that it was seized. The State further argues that the circuit court's finding that the
State failed to establish probable cause is against the manifest weight of the evidence.
We agree.
¶ 10 An article 36 forfeiture proceeding is a civil proceeding in rem. People v. Dugan,
109 Ill. 2d 8, 17 (1985). The State therefore brings its action against the seized property
"pursuant to the legal fiction that the property itself is guilty of facilitating a crime."
People v. A Parcel of Property Commonly Known as 1945 North 31st Street, Decatur,
Macon County, Illinois, 217 Ill. 2d 481, 497 (2005).
¶ 11 The legislative policy underlying statutes allowing vehicle forfeitures is to repress
crimes that are facilitated by vehicles. People v. 1995 Ford Van, 348 Ill. App. 3d 303,
309 (2004). Courts have also noted that repeat DUI offenders and individuals who would
commit the offense while their licenses are revoked or suspended are particularly
concerning. See People v. One 2000 GMC, 357 Ill. App. 3d 873, 877-78 (2005); Toia v.
People, 333 Ill. App. 3d 523, 530-31 (2002).
¶ 12 The circuit court's findings in a forfeiture proceeding will not be disturbed on
appeal unless they are against the manifest weight of the evidence. People v. 1998 Lexus
GS 300, 402 Ill. App. 3d 462, 465 (2010). A finding is against the manifest weight of the
4
evidence where "the opposite conclusion is clearly evident." Best v. Best, 223 Ill. 2d 342,
350 (2006). Issues involving the interpretation of a forfeiture statute, however, are
reviewed de novo. People ex rel. Nerheim v. 2005 Black Chevrolet Corvette, 2015 IL
App (2d) 131267, ¶ 19.
¶ 13 Section 36-1 provides that any vehicle used with the knowledge and consent of the
owner in the commission of an enumerated offense may be seized and impounded by the
arresting law enforcement agency. 720 ILCS 5/36-1(a) (West 2014). Section 36-1's list
of offenses is fairly extensive and includes crimes such as aggravated kidnapping, armed
robbery, arson, burglary, DUI, DWLR, first degree murder, predatory criminal sexual
assault of a child, and stalking. Id. A vehicle is deemed to have been "used in the
commission of an offense described in Section 36-1" (720 ILCS 5/36-2(d) (West 2014))
if the offense was "in some way facilitated by the utilization of the vehicle" (People ex
rel. Mihm v. Miller, 89 Ill. App. 3d 148, 149 (1980); see also People v. Adams, 318 Ill.
App. 3d 539, 544 (2001)).
¶ 14 Section 36-1.5 provides that "[w]ithin 14 days of the seizure, the State's Attorney
in the county in which the seizure occurred shall seek a preliminary determination from
the circuit court as to whether there is probable cause that the property may be subject to
forfeiture." 720 ILCS 5/36-1.5(a) (West 2014). "Upon making a finding of probable
cause as required under [section 36-1.5], the circuit court shall order the property subject
to the provisions of the applicable forfeiture Act held until the conclusion of any
forfeiture proceeding." 720 ILCS 5/36-1.5(e) (West 2014). Notably, section 36-1.5 does
not require that a vehicle owner be given notice of the preliminary review hearing.
5
¶ 15 Section 36-2 gives the State's Attorney of the county in which the seizure occurred
the discretion to remit a forfeiture "if he or she finds that the forfeiture was incurred
without willful negligence or without any intention on the part of the owner *** to
violate the law." 720 ILCS 5/36-2(a) (West 2014). Section 36-2 directs that if the State's
Attorney does not remit the forfeiture, then he or she "shall forthwith bring an action for
forfeiture" and give notice to the owner of record. 720 ILCS 5/36-2(b) (West 2014). The
owner may thereafter file a verified answer to the State's complaint and "may appear at
the hearing on the action for forfeiture." 720 ILCS 5/36-2(c) (West 2014).
¶ 16 At the hearing on the State's action for forfeiture, the State has the burden of
proving by a preponderance of the evidence that the vehicle "was used in the commission
of an offense described in Section 36-1." 720 ILCS 5/36-2(d) (West 2014). The burden
then shifts to the owner to show by a preponderance of the evidence that he or she did not
know, and did not have reason to know, that the vehicle was to be used in the
commission of such an offense or that any of the exceptions set forth in section 36-3 are
applicable. 720 ILCS 5/36-2(e) (West 2014); Nerheim, 2015 IL App (2d) 131267, ¶ 18.
Implicitly, the State could then present evidence to rebut the owner's defense. See
Barrett v. Fonorow, 343 Ill. App. 3d 1184, 1189 (2003); People v. Gutierrez, 239 Ill.
App. 3d 536, 541 (1992).
¶ 17 If the State fails to meet its burden of establishing that the seized vehicle was used
in the commission of an enumerated offense, then the court must order that the vehicle be
released to its owner. 720 ILCS 5/36-2(f) (West 2014). If the State meets its burden,
then the court "may order" that the vehicle be forfeited. Id.
6
¶ 18 If the owner shows that he or she did not know, and did not have reason to know,
that the vehicle was to be used in the commission of the offense, then the court may order
that the vehicle be returned. Id.; People v. One 1998 GMC, 2011 IL 110236, ¶ 17.
Article 36 does not, however, provide for the "automatic return" of the vehicle if the
owner makes such a showing. One 1998 GMC, 2011 IL 110236, ¶ 17. "Instead, the
statute makes such a return discretionary with the court." Id. Thus, to the extent that
article 36 provides for an innocent-owner exception that can be raised as an affirmative
defense (see People ex rel. Foreman v. Estate of Kawa, 152 Ill. App. 3d 792, 800
(1987)), the exception is not a "pure innocent-owner exception" (One 1998 GMC, 2011
IL 110236, ¶ 45). We also note that such exceptions are not constitutionally required.
One 1998 GMC, 2011 IL 110236, ¶¶ 43-47; McGrath v. City of Kankakee, 2016 IL App
(3d) 140523, ¶ 23; Jackson v. City of Chicago, 2012 IL App (1st) 111044, ¶¶ 36-41.
¶ 19 Here, we agree with the State's contention that by requiring it to show probable
cause that Radford knew or should have known that Dukes would be driving her
Trailblazer on the date that it was seized, the circuit court improperly elevated the
applicable burden of proof and essentially required the State to preemptively disprove an
affirmative defense that, even if raised and accepted, would not make the return of a
seized vehicle "automatic." One 1998 GMC, 2011 IL 110236, ¶ 17. We also note that
section 36-1.5 went into effect on January 1, 2012 (see Pub. Act 97-544, § 5 (eff. Jan. 1,
2012) (adding 720 ILCS 5/36-1.5)) and that prior to its enactment, article 36 was deemed
constitutional despite its lack of a provision providing for a prompt probable cause
hearing (see One 1998 GMC, 2011 IL 110236, ¶¶ 48, 69, 71). Moreover, it has long been
7
the law that the State's burden at a forfeiture proceeding is to prove by a preponderance of
the evidence that the seized vehicle was used in the commission of an offense described
in section 36-1. See, e.g., Dugan, 109 Ill. 2d at 17; People ex rel. Hanrahan v. One 1965
Oldsmobile, 52 Ill. 2d 37, 41-44 (1972), rev'd on other grounds by Robinson v.
Hanrahan, 409 U.S. 38 (1972) (per curiam); People ex rel. Ward v. 1963 Cadillac
Coupe, 38 Ill. 2d 344, 346-47 (1967). We cannot conclude that when the legislature
enacted section 36-1.5, it intended to alter the State's well-established burden by
requiring proof of facts which prior thereto, the State had never been required to prove
and might only have been required to rebut. See People v. Jones, 214 Ill. 2d 187, 199
(2005) ("In general, a statute will not be construed to change the settled law of the state
unless its terms clearly require such a construction.").
¶ 20 Additionally, by its terms, section 36-1.5 does not contemplate that issues
regarding a vehicle owner's consent and knowledge be considered at the preliminary
hearing stage. Section 36-1.5(d) states that the circuit court "may accept *** as sufficient
evidence of probable cause" a finding of probable cause made at a preliminary hearing
following the filing of a complaint or information charging a related criminal offense or
following the return of indictment by a grand jury charging the related criminal offense.
720 ILCS 5/36-1.5(d) (West 2014). A probable cause determination on a related criminal
offense would not require proof of vehicle ownership, however, or "necessarily concern
the identity of the vehicle." One 1998 GMC, 2011 IL 110236, ¶ 48. This would seem
especially so where the underlying offense is a crime such as arson or first degree
murder. The probable cause determination would rather focus on whether there was
8
probable cause that the criminal defendant committed the offense. Id. If pursuant to
section 36-1.5, the court "may accept" a probable cause determination made with respect
to the related criminal offense "as sufficient evidence of probable cause" that the vehicle
"may be subject to forfeiture" (720 ILCS 5/36-1.5(a), (d) (West 2014)), then in such
instances, the State would ostensibly need only identify the seized vehicle as having been
used in the commission of the offense, irrespective of the owner's knowledge and
consent.
¶ 21 In any event, we conclude that to establish "probable cause that the property may
be subject to forfeiture" (720 ILCS 5/36-1.5(a) (West 2014)), the State is only required to
show that there is probable cause that the property may have been "used in the
commission of an offense described in Section 36-1" (720 ILCS 5/36-2(d) (West 2014)).
To pass preliminary review, the State is not required to allege or prove facts tending to
disprove an affirmative defense that an owner might subsequently raise. The circuit court
thus erred in determining that pursuant to section 36-1.5, the State had to show probable
cause that Dukes had used the Trailblazer with Radford's knowledge and consent.
¶ 22 Lastly, the affidavit in support of forfeiture that the State presented at the
preliminary review hearing specifically identified the Trailblazer as the vehicle that
Dukes had been driving at the time of his arrest. The affidavit further set forth facts that
clearly supported a finding of probable cause that Dukes had used the vehicle in the
commission of the offenses of DUI and DWLR. See One 1998 GMC, 2011 IL 110236,
¶ 68; People v. Ernst, 311 Ill. App. 3d 672, 679 (2000); People v. Wingren, 167 Ill. App.
3d 313, 320-21 (1988). The State therefore established probable cause that the
9
Trailblazer may be subject to forfeiture. We thus find that the circuit court's
determination that the State had failed to establish probable cause for purposes of section
36-1.5 is against the manifest weight of the evidence.
¶ 23 CONCLUSION
¶ 24 For the foregoing reasons, we hereby reverse the judgment of the circuit court and
remand for further proceedings pursuant to section 36-2.
¶ 25 Reversed and remanded.
10
2016 IL App (5th) 150338
NO. 5-15-0338
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_____________________________________________________________________________________
THE PEOPLE ex rel. BRENDAN F. KELLY, ) Appeal from the
State's Attorney of St. Clair County, ) Circuit Court of
) St. Clair County.
Plaintiff-Appellant, )
)
v. ) Nos. 15-FA-047 & 15-MR-179
)
ONE 2008 CHEVROLET TRAILBLAZER, )
)
Defendant )
) Honorable
(Latoya Radford and Nathaniel D. Dukes, ) Robert P. LeChien,
Claimants-Appellees). ) Judge, presiding.
_____________________________________________________________________________________
Rule 23 Order Filed: September 19, 2016
Motion to Publish Granted: October 26, 2016
Opinion Filed: October 26, 2016
_____________________________________________________________________________________
Justices: Honorable S. Gene Schwarm, P.J.
Honorable Richard P. Goldenhersh, J., and
Honorable James R. Moore, J.,
Concur
_____________________________________________________________________________________
Attorneys Hon. Brendan F. Kelly, State's Attorney, St. Clair County, 10 Public Square,
for Belleville, IL 62220; Patrick Delfino, Director, David J. Robinson, Acting
Appellant Deputy Director, Kelly M. Stacey, Staff Attorney, Office of the State's Attorneys
Appellate Prosecutor, Fifth District Office, 730 E. Illinois Highway 15, Suite 2,
Mt. Vernon, IL 62864
_____________________________________________________________________________________
Attorneys (pro se) Latoya Radford, Nathaniel D. Dukes, 912 Pacific Crossing Drive, O'Fallon,
for IL 62269
Appellee
_____________________________________________________________________________________