Find Court Cases > Go Back to List > People ex rel. Devine v. $30,700.00 U.S. Currency

People ex rel. Devine v. $30,700.00 U.S. Currency

Case Date: 07/28/2000
Court: 1st District Appellate
Docket No: 1-99-1496 Rel

SIXTH DIVISION
AUGUST 18, 2000

No. 1-99-1496

THE PEOPLE ex rel. RICHARD A. DEVINE,
State's Attorney of Cook County, Illinois,

                    Plaintiff-Appellee,

          v.

$30,700.00 United States Currency,
$20,811.00 United States Currency,

                    Defendants,

and

RASHAWN CARTER and IDA CARTER,

                    Petitioners-Appellants.

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)		 APPEAL FROM THE
CIRCUIT COURT
OF COOK COUNTY.

 

 

 

 

 

HONORABLE
BARBARA A. RILEY
JUDGE PRESIDING.

JUSTICE CAMPBELL delivered the opinion of the court:

Petitioners, Rashawn Carter and Ida Carter, appeal from an order of the circuitcourt of Cook County, entering the forfeiture of two sums of United States currency, fora total sum of $51,511. On appeal, petitioners contend that the forfeiture order wasvoid for lack of notice. For the following reasons, we reverse the judgment of the trialcourt.

BACKGROUND

The following facts are relevant to this appeal. On August 4, 1998, the State fileda consolidated complaint for forfeiture pertaining to $30,7000 seized from RashawnCarter, and $20,811.00, seized from a safety deposit box at Drexel National Bankregistered to Ida Carter, Rashawn's grandmother, pursuant to section 505 of theControlled Substances Act. 720 ILCS 570/505 (West 1998) (The Act).

The complaint alleges that on May 23, 1998, Chicago police officers receivedinformation in the form of a tip from a citizen that a man with a gun entered DrexelNational Bank, 3401 South King Drive. Police officers entered the Bank and observedRashawn holding a white cylinder shaped object under his arm. The police performed a"protective pat down" of Rashawn and found several bundles of currency on Rashawn'sperson in an amount totaling $30,700. The police subsequently determined thecylindrical object to be a white sock filled with bundles of currency. The complaintalleges that Rashawn gave conflicting answers to police inquiries regarding the exactamount and source of the currency. Rashawn told police that he did not have an accountat the bank, and that he was planning to rent a safe deposit box.

The complaint further alleges that once the officers "relocated" their investigationto the 21st District Police Station, Rashawn admitted that he was a member of theGangster Disciples street gang, that the money did not belong to him, and that he had"messed up" while attempting to deposit the money in the bank. Rashawn informedpolice officers that he had a prior arrest for cannabis.(1) The police performed what thecomplaint describes as a "money lineup" of the currency, a procedure whereby thecurrency is "hidden" and "discovered" by narcotics-sniffing police dogs. A police dog,"Bo," discovered the currency and gave a positive indication for the odor of narcotics.

The complaint further alleges that police discovered three separate safety depositbox keys on Rashawn's person. Rashawn eventually told police that one key belonged toa safe deposit box "in two separate banks in Peoria Illinois." Police ascertained that oneof the other keys was for safe deposit box #2037 at Drexel National Bank, and to whichRashawn had "access." Police obtained a search warrant for the safe deposit box, and onMay 26, 1998, performed a search of the box recovering currency totaling $20,811. Police also subjected the currency recovered therefrom to a "sniff test" at the policestation by another narcotics-sniffing dog, "Thunder." The currency also indicatedpositive for the odor of narcotics. The State's complaint sought that all of the currencyseized be declared contraband and forfeited, as violative of the Act.

On the day the State filed its complaint, August 4, 1998, the State mailed notice ofthe pending forfeiture proceedings and a copy of the complaint via certified mail withreturn receipt requested to Rashawn Carter at 4844 S. State Street, #1410, Chicago,Illinois. The notice was accompanied by the affidavit of Assistant State's Attorney LewisHu, who averred that notice of the forfeiture proceedings was sent by certified mail, withreturn receipt requested, to parties identified as having an interest in the money, and thatno claim to the money was filed.

The record reveals that the State also sent a notice of forfeiture to Ida Carter bycertified mail on September 2, 1998 at 4844 S. State Street, #1410, Chicago. Ida's name,however, appears nowhere on the face of the State's complaint. Notices of the forfeitureproceedings appeared in the Chicago Daily Law Bulletin in editions published onAugust 7, August 14, and August 21, 1998.

Neither Rashawn nor Ida responded to the notices of forfeiture. On October 13,1998, following a hearing, the trial court entered a default order forfeiting both Rashawnand Ida Carter's interest in the two sums of currency.

On January 13, 1999, Rashawn and Ida filed a joint motion to vacate the order offorfeiture, alleging that they never received notice of the forfeiture proceedings, and eachattaching affidavits. Rashawn averred that he was incarcerated in the VandaliaCorrection Center from July 7, 1998, to November 10, 1998, and only learned of theforfeiture in November 1998, upon his return home.

Ida averred that she was the owner of safe deposit box #2037 at Drexel NationalBank, and that she received no notice of forfeiture of the contents of her box at herresidence within the Robert Taylor housing project.

In response, the State argued that petitioners failed to make the requisite showingof due diligence and meritorious defense as required under section 2-1401 of the Code ofCivil Procedure. 735 ILCS 5/2-1401 (West 1998). The State further argued that writtennotice is effective when mailed, not when received, and therefore the State satisfied thestatutory notice requirements of 725 ILCS 150/4(A)(1) and (B). On March 29, 1999,The trial court denied petitioners' motion to vacate the forfeiture order. This timelyappeal followed.

OPINION

On appeal, petitioners Rashawn and Ida each contend that the trial court lackedjurisdiction to enter the order of forfeiture, as neither received notice of the proceedings. Petitioners argue that the order is therefore void and unenforceable. We note that theState combined two distinct forfeiture proceedings for the purposes of its complaint. Wetreat the two forfeitures separately for the purposes of this opinion.

I. Rashawn Carter & $30,700.00 U.S.C.

In an effort to deter violations of the Controlled Substances Act (720 ILCS570/100, et seq. (West 1998)) and the Cannabis Control Act (720 ILCS 550/1, et seq.(West 1994)), the General Assembly enacted the Drug Asset Forfeiture Procedure Act(725 ILCS 150/1 et seq. (West 1994)) establishing uniform procedures for the seizureand forfeiture of drug related assets. The Act is to be interpreted in light of the federalforfeiture provisions contained in 21 U.S.C.