FILED
May 19, 2017
2017 IL App (4th) 160595 Carla Bender
4th District Appellate
NO. 4-16-0595 Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) McLean County
ONE 2005 ACURA RSX, ) No. 15MR546.
Defendant )
(Keith D. Osborn, Claimant-Appellee). ) Honorable
) Rebecca Simmons Foley,
) Judge Presiding.
JUSTICE POPE delivered the judgment of the court, with opinion.
Justices Steigmann and Knecht concurred in the judgment and opinion.
OPINION
¶1 On July 17, 2015, the State filed a complaint for forfeiture against a 2005 Acura
RSX, vehicle identification number JH4DC548X5S001012, owned by claimant, Keith D.
Osborn. The State filed the complaint pursuant to section 36-1 of the Criminal Code of 2012
(Criminal Code) (720 ILCS 5/36-1 (West 2014)).
¶2 Following a hearing, the trial court found forfeiture of the vehicle would violate
the excessive fines clause of the eighth amendment to the United States Constitution (U.S.
Const., amend. VIII). Therefore, the court denied the State’s complaint for forfeiture. The State
appeals, and we affirm.
¶3 I. BACKGROUND
¶4 On July 17, 2015, the State filed its complaint for the forfeiture of claimant’s
vehicle. The complaint sought forfeiture solely on the basis of the vehicle having been used in
the commission of the offense of possession of burglary tools (720 ILCS 5/19-2 (West 2014)) on
June 22, 2015, and June 29, 2015. In an affidavit in support of forfeiture, Sergeant Robert Cherry
of the Normal police department reported seizing claimant’s vehicle on July 6, 2015. In an
addendum to the affidavit in support of forfeiture, Sergeant Cherry stated claimant drove his
vehicle to three car washes on June 23, 2015, where he “used a vending machine key to open the
coin vault of the car wash machines.” Upon questioning, claimant identified himself and his
vehicle as captured on surveillance cameras at the car washes. Claimant granted permission for a
Normal police officer to retrieve the vending machine key from his vehicle, and upon a search of
the vehicle, the police officer found two vending machine keys. According to the addendum, the
Normal police department arrested claimant and charged him with “Theft/Control/Intent [less
than] $500, and Possession of Burglary Tools.”
¶5 According to a docket entry, the trial court conducted a hearing on the complaint
for forfeiture on April 29, 2016. The record on appeal does not include a transcript or bystander’s
report from the hearing. The court took the matter under advisement.
¶6 On May 16, 2016, the trial court issued a written order. The court stated it “heard
the stipulation and arguments of counsel.” According to the court, “[t]he parties stipulated that
the subject vehicle, a 2005 Acura RSX, is subject to forfeiture under Article 36.” The court
identified the sole issue as “whether or not forfeiture would violate the excessive fines clause of
the [eighth] [a]mendment to the United States Constitution.”
¶7 According to the court’s order, claimant “presented by proffer that the subject
vehicle has a value to him of $17,600, after putting in $10,000 in parts and labor after purchase.”
The order further states that “[w]hile [claimant] was charged with the Class 4 felony of
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possession of burglary tools, he ultimately entered a guilty plea to the Class A misdemeanor
offense of theft under $500.”
¶8 The trial court then applied the “multifactor test” adopted by the Illinois Supreme
Court in People ex rel. Waller v. 1989 Ford F350 Truck, 162 Ill. 2d 78, 642 N.E.2d 460 (1994),
to the excessive fine issue. First, the court examined the inherent gravity of the offense compared
with the harshness of the penalty. The court found, “while charged with a Class 4 felony (which
allows a discretionary fine of up to $25,000), [claimant] pled guilty to the Class A misdemeanor
of theft (of currency from an auto wash).” The court noted, “at the time of his arrest, [claimant]
was found in possession of coin machine keys, while in the subject vehicle.” Further, the court
noted, “the only quantifiable loss was $.50—two quarters.”
¶9 The trial court next examined whether the property was an integral part of the
commission of the crime. The court noted, “[w]hile the vehicle may have been a means of
transportation to and from the victim car wash *** it was not an integral part of the offense,
unlike offenses that involve vehicles per se, i.e., driving under the influence, driving while
license suspended or revoked, or other offenses where the vehicle is used during the commission
of the crime itself, i.e., aggravated fleeing.”
¶ 10 Finally, the trial court found, “based upon the information presented, the criminal
activity was not extensive in terms of either time or spatial use, although the Court acknowledges
that the investigation leading up to [claimant’s] arrest was occurring in both Bloomington and
Normal.”
¶ 11 Noting its consideration of “all of the above” factors, the trial court concluded the
forfeiture of [claimant’s] vehicle violated the excessive fines clause and, therefore, denied the
State’s complaint for forfeiture.
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¶ 12 On June 8, 2016, the State filed a motion to reconsider, “or in the alternative, for
other relief pending appeal.” According to a docket entry dated August 1, 2016, the trial court
heard argument on the motion. Again, the record on appeal does not include a transcript or
bystander’s report from the hearing. Following argument, the trial court entered a written order
denying the State’s motion.
¶ 13 This appeal followed.
¶ 14 II. ANALYSIS
¶ 15 The State argues the trial court erred in finding forfeiture of claimant’s vehicle
violated the excessive fines clause of the eighth amendment to the United States Constitution.
The eighth amendment provides “[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend. VIII.
¶ 16 Initially, we note claimant did not file a brief in response to the State’s appeal.
However, because the record is simple and the claimed errors are such that we can easily decide
them without the aid of a brief from claimant, we will decide the case on the merits. Mason v.
Snyder, 332 Ill. App. 3d 834, 837-38, 774 N.E.2d 457, 460 (2002) (citing First Capitol Mortgage
Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976)).
¶ 17 Section 36-1 of the Criminal Code (720 ILCS 5/36-1 (West 2014)) provides
“[a]ny *** vehicle *** used with the knowledge and consent of the owner in the commission of,
or in the attempt to commit *** an offense prohibited by *** Section *** 19-2 *** of this Code
*** may be seized and delivered forthwith to the sheriff of the county of seizure.” Section 36-2
of the Criminal Code (720 ILCS 5/36-2 (West 2014)) authorizes the State’s Attorney of the
county in which the seizure occurred to file a complaint seeking forfeiture of the seized vehicle.
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¶ 18 Section 19-2 of the Criminal Code (720 ILCS 5/19-2(a) (West 2014)) provides a
person commits possession of burglary tools, a Class 4 felony, when “he or she possesses any
key, tool, instrument, device, or any explosive, suitable for use in breaking into a building,
housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any depository designed for the
safekeeping of property, or any part thereof, with intent to enter that place and with intent to
commit therein a felony or theft. The trier of fact may infer from the possession of a key
designed for lock bumping an intent to commit a felony or theft; however, this inference does not
apply to any peace officer or other employee of a law enforcement agency, or to any person or
agency licensed under the Private Detective, Private Alarm, Private Security, Fingerprint
Vendor, and Locksmith Act of 2004. For the purposes of this Section, ‘lock bumping’ means a
lock picking technique for opening a pin tumbler lock using a specially-crafted bumpkey.”
¶ 19 According to the trial court’s order entered on May 16, 2016, the parties
stipulated claimant’s vehicle was “subject to forfeiture under Article 36.” Although the statutory
criteria for seizure and forfeiture may have been met, the court found the forfeiture, nevertheless,
violated the eighth amendment to the United States Constitution, which prohibits, among other
things, the imposition of “excessive fines” (U.S. Const., amend. VIII). This prohibition “limits
the government’s power to extract payments, whether in cash or in kind, ‘as punishment for
some offense.’ ” (Emphasis in original.) Austin v. United States, 509 U.S. 602, 609-10 (1993)
(quoting Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265
(1989)). Civil forfeiture proceedings serve, at least in part, to punish the owner of the property
subject to forfeiture and are therefore subject to the excessive fines clause, even though the
forfeiture may also serve a remedial purpose. Austin, 509 U.S. at 618. However, a punitive
forfeiture violates the excessive fines clause if it is grossly disproportional to the gravity of the
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offense for which it is forfeited. Express Valet, Inc. v. City of Chicago, 373 Ill. App. 3d 838, 856,
869 N.E.2d 964, 980 (2007); United States v. Bajakajian, 524 U.S. 321, 334 (1998).
“Application of the constitutional standard for determining excessiveness to a given set of facts
presents a question of law subject to de novo review.” People v. One 2000 GMC, VIN
3GNFK16T2YG169852, 357 Ill. App. 3d 873, 875, 829 N.E.2d 437, 440 (2005).
¶ 20 Our supreme court has adopted the following nonexhaustive list of three factors,
set forth in United States v. Real Property Located at 6625 Zumirez Drive, 845 F. Supp. 725, 732
(C.D. Cal. 1994), to be considered in assessing whether a forfeiture constitutes an excessive fine:
(1) the inherent gravity of the offense compared to the harshness of the penalty; (2) whether the
property was an integral part of the commission of the crime; and (3) whether the criminal
activity involving the property was extensive in terms of time and/or spatial use. 1989 Ford F350
Truck, 162 Ill. 2d at 89-90, 642 N.E.2d at 466. Applying these factors, we find the forfeiture of
claimant’s vehicle grossly disproportionate to his offense.
¶ 21 The first factor concerns the inherent gravity of the offense compared to the
harshness of the penalty. The State contends “[t]he inherent gravity of the offense is to be
measured by the possible penalties that would result from conviction on that underlying offense.”
Accordingly, the basis for the forfeiture in this case was possession of burglary tools, a Class 4
felony punishable by a maximum fine of $25,000 (730 ILCS 5/5-4.5-50(b) (West 2014)), which
was not excessive compared with the value of defendant’s vehicle ($17,600).
¶ 22 We reject an analysis that simply compares the maximum fine available for an
offense with the claimant’s equity interest in the forfeited property. Zumirez Drive, 845 F. Supp.
at 732. Although the maximum fine available in this case may be relevant to determine the
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seriousness of claimant’s conduct, it does not alone determine whether the inherent gravity of
claimant’s conduct outweighs the harshness of the penalty.
¶ 23 In weighing the inherent gravity of an offense against the fine imposed, we
consider “that violent crimes are more serious than nonviolent crimes, completed crimes are
more serious than attempted crimes, and intentional conduct is more culpable than negligent
conduct.” Zumirez Drive, 845 F. Supp. at 733. In addition, because a civil forfeiture may be
instituted without showing a claimant is guilty of any offensive conduct, a court should first
determine into which category a claimant’s conduct falls. Zumirez Drive, 845 F. Supp. at 733.
These categories include situations where “(1) the claimant has been convicted of the criminal
act or acts underlying the forfeiture; (2) the claimant has never been charged with any crime; and
(3) the claimant has been charged [with] and acquitted of the act or acts underlying the
forfeiture.” Zumirez Drive, 845 F. Supp. at 733. The gravity of a claimant’s conduct decreases in
each situation. Zumirez Drive, 845 F. Supp. at 733. “Thus, for purposes of the ‘inherent gravity’
prong of the Eighth Amendment test, the court must first determine into which category the
claimant’s conduct falls. Whenever the claimant’s conduct falls outside of the first category, the
court must be careful to focus only on the inherent gravity of the offensive conduct engaged in
by the claimant himself, rather than the inherent gravity of the offense or offenses that the
government had probable cause to believe were committed on the property.” Zumirez Drive, 845
F. Supp. at 733.
¶ 24 Finally, the court in Zumirez Drive suggested, in evaluating the harshness of the
penalty against the fine imposed, a court must consider not only the monetary value of the
property forfeited, but also the intangible value of the property. Zumirez Drive, 845 F. Supp. at
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734. A higher value is placed on real property, particularly a home, than on personal property.
Zumirez Drive, 845 F. Supp. at 734.
¶ 25 In this case, claimant’s crime was nonviolent. Although he reportedly drove to
multiple car washes over the course of one week, his attempts to access coin boxes were mostly
unsuccessful. “The only quantifiable loss was $.50—two quarters.” These factors render
claimant’s conduct less serious. Further, claimant was not convicted of the offense that formed
the basis of the State’s probable cause to forfeit his vehicle, possession of burglary tools (720
ILCS 5/19-2 (West 2014)). According to the written order entered by the trial court on May 16,
2016, claimant pleaded guilty to “the Class A misdemeanor of theft (of currency from an auto
wash).” Consequently, claimant’s conduct fell outside the first category of conduct, and we focus
only on the inherent gravity of the offensive conduct engaged in by claimant himself, and not on
the offense or offenses the government had probable cause to believe were committed on the
property.
¶ 26 In addition to looking at the gravity of the offense, we must also consider the
harshness of the penalty imposed. Here, the State seeks forfeiture of claimant’s vehicle. The
State’s forfeiture would permanently and completely deprive claimant of his rights of ownership
in the vehicle. This is unquestionably a severe penalty when, ultimately, claimant pleaded guilty
to a “Class A misdemeanor of theft (of currency from an auto wash),” involving “$.50—two
quarters.”
¶ 27 On balance, a comparison of the gravity of the offense with the harshness of the
penalty weighs in favor of claimant. Forfeiture of claimant’s vehicle would violate the excessive
fines clause. We acknowledge the objective evaluation of the proportionality between a crime
and a penalty can be difficult. See Zumirez Drive, 845 F. Supp. at 737. However, on this limited
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record, we can fairly conclude the fine imposed in this case greatly exceeds that which would be
appropriate in light of the offensive behavior involved. Accordingly, we find the first prong of
the test does not weigh in favor of forfeiture.
¶ 28 The State next argues the second prong of the Zumirez Drive test weighs in favor
of the forfeiture of claimant’s vehicle. The second prong of the test focuses on whether the
property was an integral part of the commission of the offense. The Zumirez Drive court looked
to whether the property and the criminal activities were sufficiently interrelated to find the
property tainted by unlawful use, thereby rendering the property forfeitable. Zumirez Drive, 845
F. Supp. at 737. The State argues claimant's car “was being used to secrete and transport the
burglary tools, as well as was the transportation used to get [claimant] to the multiple car washes
to use those burglary tools.”
¶ 29 Clearly, there is nothing inherently unlawful about possessing a vehicle. Rather,
the issue is whether the vehicle and the criminal activities are sufficiently interrelated to find the
property tainted by unlawful use, and hence, forfeitable. We find claimant’s vehicle did not
facilitate the criminal activity in a particularly significant way. Claimant could just as easily have
taken public transportation or walked to the various car washes, and he could have concealed the
keys on his person at any point in time. The mere fact the two vending machine keys were found
in defendant’s vehicle does not make the property “guilty” of an offense.
¶ 30 The third prong of the Zumirez Drive test is whether the criminal activity
involving the claimant’s vehicle was extensive in terms of time and/or spatial use. “To the extent
that the property is integral to the criminal activity, the Court also considers the time period over
which the property was used, and the spatial use of the property.” Zumirez Drive, 845 F. Supp. at
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738. In this case, we have already determined there is a limited relationship between the vehicle
and offensive conduct.
¶ 31 The State argues claimant’s vehicle satisfies this prong because claimant “drove
this car to at least three different car washes in two different cities, where he used the burglary
tools in an attempt to open coin machines.” The record before this court presents sparse evidence
to establish the time frame over which claimant’s offensive conduct occurred. Claimant
ostensibly drove to several car washes over the course of one week, in Bloomington and Normal.
The record is unclear as to which of the car washes claimant attempted to open coin machines.
With regard to the spatial use of the vehicle for illegal conduct, during a search of the vehicle,
police officers found two vending machine keys.
¶ 32 Clearly, claimant engaged in illegal conduct. He pleaded guilty to a misdemeanor
theft charge. Although the record does not disclose the sentence imposed in the criminal case, the
Constitution protects against excessive punishments for wrongdoing. Applying the three factors
to the circumstances in this case, we find forfeiture of claimant’s vehicle would violate the
excessive fines clause.
¶ 33 Although the State argues People ex rel. Waller v. 1996 Saturn, VIN
1G82H5282TZ113572, 298 Ill. App. 3d 464, 699 N.E.2d 223 (1998), “is directly on point with
the present case,” we disagree. Initially, we note the 1996 Saturn court recited in great detail the
facts underlying the action for forfeiture. The record in the instant appeal provides scant detail of
the facts underlying the action for forfeiture. “[A]n appellant has the burden to present a
sufficiently complete record of the proceedings at trial to support a claim of error, and in the
absence of such a record on appeal, it will be presumed that the order entered by the trial court
was in conformity with law and had a sufficient factual basis.” Foutch v. O’Bryant, 99 Ill. 2d
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389, 391-92, 459 N.E.2d 958, 959 (1984). Any doubts arising from the incompleteness of the
record will be resolved against the appellant. Foutch, 99 Ill. 2d at 392, 459 N.E.2d at 959.
¶ 34 In 1996 Saturn, the claimant and his accomplices drove from the Waukegan area
to Round Lake Beach because the claimant could not return items without a receipt at stores
closer to him. 1996 Saturn, 298 Ill. App. 3d at 473, 699 N.E.2d at 228. The claimant drove to
Round Lake Beach, intending to take merchandise from department stores, and the claimant’s
vehicle was used to exchange the stolen merchandise between the parties and to hide the stolen
merchandise. 1996 Saturn, 298 Ill. App. 3d at 473, 699 N.E.2d at 228. The appellate court found
the burglaries would have been much more difficult to accomplish without the claimant’s
vehicle. 1996 Saturn, 298 Ill. App. 3d at 473, 699 N.E.2d at 228. In addition, the trial court
found the claimant’s vehicle was being used in a theft ring, a conclusion the appellate court
found the record supported. 1996 Saturn, 298 Ill. App. 3d at 473, 699 N.E.2d at 228-29. The
appellate court found the claimant’s vehicle “played an extensive and pervasive role in the
commission of those burglaries.” 1996 Saturn, 298 Ill. App. 3d at 474, 699 N.E.2d at 229.
¶ 35 Contrary to the State’s contentions, the decision in 1996 Saturn is factually
distinguishable from the instant case and therefore does not compel a different result.
¶ 36 III. CONCLUSION
¶ 37 For the reasons stated, we affirm the trial court’s judgment.
¶ 38 Affirmed.
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