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Docket No. 90470-Agenda 18-September 2001.

THE PEOPLE OF THE STATE OF ILLINOIS ex rel. RICHARDA. DEVINE, Appellant, v. $30,700.00 UNITED STATES

CURRENCY et al., Appellees.

Opinion filed March 21, 2002.

JUSTICE FITZGERALD delivered the opinion of the court:

Pursuant to the Drug Asset Forfeiture Procedure Act (the Act)(725 ILCS 150/1 et seq. (West 2000)), the State initiated civilforfeiture proceedings against currency totaling $30,700 and$20,811. The State served notice of the forfeiture proceedingsupon claimants Rashawn and Ida Carter (Rashawn and Ida) bycertified mail, with return receipts requested (725 ILCS150/4(A)(1) (West 2000)), to their last known addresses and madeadditional service by publication (725 ILCS 150/4(A)(3) (West2000)). The circuit court of Cook County entered a default orderforfeiting the claimants' interest in the currency. The appellatecourt reversed the order of the circuit court. 316 Ill. App. 3d 464,469. We granted the State's petition for leave to appeal (177 Ill. 2dR. 315) and now reverse the judgment of the appellate court. Inthis appeal, we examine whether claimants received proper noticeof civil forfeiture proceedings under the Act and whether suchnotice satisfied procedural due process.

BACKGROUND

On May 23, 1998, the Chicago police received a tip that aman wearing a white jersey had entered the Drexel National Bank,in Chicago, holding a gun. Responding to the tip, police enteredthe bank and observed a man wearing a white jacket holding awhite cylindrical object under his arm. The police officersapproached the man, whom they later identified as Rashawn, andperformed a protective pat-down. This pat-down revealed a sockfilled with United States currency and additional bundles ofcurrency. The combined amount of currency recovered fromRashawn totaled $30,700.

Following the pat-down, the officers questioned Rashawn andlearned that he did not have an existing account at the bank, butthat he planned to rent a safety deposit box. Rashawn providedconflicting answers when asked where he obtained the money andwas unable to provide an accurate figure of the amount of moneyhe was carrying. The officers subsequently took Rashawn to thepolice station for further questioning. At the police station,Rashawn admitted that he was a member of the Gangster Disciplesstreet gang, that he was unemployed and did not own the money,and that he "messed up" trying to deposit the money. Rashawnalso informed officers that he had been previously arrested forcannabis possession and that he was out on bond pending ahearing in that case. A background check confirmed a prior arrestand revealed an extensive criminal history, including six adultarrests by the Chicago police, a 1992 narcotics possessionconviction, the use of multiple aliases, an arrest in SangamonCounty, Illinois, for possession of a controlled substance, and theuse of separate invalid driver's licenses with addresses in bothChicago and Springfield, Illinois.

The officers performed a "money lineup" with the currency.The money was "hidden" and subsequently "discovered" by anarcotic-sniffing police dog. The police dog positively identifiedthe money as having a residue odor of narcotics.

Officers also discovered in Rashawn's possession threeseparate safety deposit box keys. Although Rashawn initiallydenied any knowledge about the keys, he ultimately informed theofficers that the keys belonged to "two separate banks in Peoria,Illinois." The officers, however, ascertained that one of the keysbelonged to a safety deposit box held at the Drexel National Bankin Chicago. The State asserts that the box was registered to Ida,Rashawn's grandmother, and that the key to the box grantedRashawn access to its contents. On May 26, 1998, the officersobtained and executed a search warrant and recovered $20,811from the safety deposit box. The officers then performed aseparate "money lineup" with a second narcotic-sniffing policedog on the currency totaling $20,811. This second dog also gavea positive indication for the odor of narcotics on the currency.

Five days after the Chicago police executed the warrant, Idatelephoned the police to inquire about the contents of the safetydeposit box. When the officer questioned Ida about the safetydeposit box, Ida was unable to identify its contents. Ida did notindicate to the police that she possessed any interest in the contentsof the safety deposit box. Notwithstanding, officers scheduled twoseparate appointments with Ida so that she could establish a claimto its contents. Ida failed to keep either appointment with thepolice.

On August 4, 1998, the State filed a consolidated in remcomplaint for forfeiture of the $30,700 and $20,811 pursuant tosection 505 of the Illinois Controlled Substances Act (720 ILCS570/505 (West 2000)). The complaint named Rashawn as a partywith interest in the currency. The complaint alleged, inter alia, thatthe Gangster Disciples street gang is an active criminalorganization that participates in the illegal distribution ofprohibited substances through its members, who will often usesafety deposit boxes to conceal and store proceeds from ongoingdrug operations. The complaint further alleged that in obtainingsafety deposit boxes these drug dealers often use false names orthe identities of relatives and third parties to conceal the trueidentity of the owner and to hide the location of the proceeds.Finally, the complaint alleged that the gang often uses individualsas couriers to transport currency to safe storage locations.

On the same day, the State mailed notice of the forfeitureproceedings and a copy of the in rem complaint via certified mail,with a return receipt requested, to Rashawn at his last knownaddress on Chicago's south side. The notice was accompanied byan affidavit of an assistant State's Attorney who verified themethod of service, identified the party having an interest in themoney, and asserted that no claim to the money had been filed.The State concedes that it did not receive a return receipt from theAugust 4 mailing. The State also made additional service bypublication of the forfeiture proceedings on August 7, August 14,and August 21 in the Chicago Daily Law Bulletin. Rashawn didnot respond to the notice of forfeiture or appear before the court atthe forfeiture proceeding.

Following the mailing to Rashawn and notice by publication,the State made additional efforts to serve notice of the proceedingsto additional potential parties of interest. The record shows that onSeptember 2, 1998, the State sent notice of forfeiture by certifiedmail to Ida at her address, on Chicago's south side, alsoRashawn's last known address. As with the previous mailing, theState concedes, it did not receive a return receipt from theSeptember 2 mailing. Ida did not appear before the court at theforfeiture proceeding.

On October 13, 1998, the circuit court entered a default orderforfeiting Rashawn's interest and that of all other parties claimingright, title, or interest in the currency. On January 13, 1999,Rashawn and Ida filed a joint motion to vacate the forfeiture,alleging that they never received notice of the forfeitureproceeding. Rashawn provided an affidavit stating that he wasincarcerated for unrelated charges in the Vandalia CorrectionCenter beginning July 7, 1998, until his release November 10,1998. In her affidavit, Ida claimed that she was the owner of thesafety deposit box at the Drexel National Bank and never receivednotice of forfeiture at her residence. The circuit court denied themotion to vacate the forfeiture order.

The appellate court reversed the judgment of the circuit court,holding that the circuit court lacked personal jurisdiction overRashawn and Ida because they were not properly served in accordwith the Act. 316 Ill. App. 3d at 474-75. According to theappellate court, complete service under the Act is accomplishedwhen the State receives a return receipt signed by the addressee.316 Ill. App. 3d at 469. Moreover, the appellate court held that theState failed to give Rashawn notice required by due process. 316Ill. App. 3d at 471. This appeal by the State followed.

ANALYSIS

I. Effective Notice Under the Act

As an initial matter, we review whether service is perfectedunder the Act upon mailing of the notice or, conversely, uponreceipt of the certified mail return receipt signed by the addressee.The parties agree that absent proper notice of the forfeitureproceedings, the circuit court lacked jurisdiction and the power toorder forfeiture of the currency. The parties also agree that theState never received certified mail return receipts of the noticemailings sent to both claimants. However, the State argues thatfailure to receive these return receipts does not render the noticedefective. Rather, the State argues that service is effective underthe Act upon the mere mailing of notice by certified mail, as longas the notifying party had no reason to suspect that the noticewould not reach the intended recipient. This matter involves anissue of statutory interpretation, and our review is de novo.Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d493, 503 (2000).

The Act is a remedial civil sanction enacted for the expresspurpose of deterring the rising incidence of the abuse andtrafficking of substances prohibited by the Illinois ControlledSubstance Act (720 ILCS 570/100 et seq. (West 2000)) and theCannabis Control Act (720 ILCS 550/1 et seq. (West 2000)). See725 ILCS 150/2 (West 2000). Forfeiture under the Act"encourages owners 'to take care in managing their property andensures that they will not permit that property to be used for illegalpurposes.' " In re P.S., 175 Ill. 2d 79, 87 (1997), citing UnitedStates v. Ursery, 518 U.S. 267, 135 L. Ed. 2d 549, 116 S. Ct. 2135(1996). Thus, the Act is designed to serve a remedial purpose and,therefore, is liberally construed to achieve that purpose. 725 ILCS150/13 (West 2000). Moreover, it is the intent of the legislaturethat the Act be interpreted in light of "the federal forfeitureprovisions contained in 21 U.S.C. 881 as interpreted by the federalcourts, except to the extent" the provisions expressly conflict. 725ILCS 150/2 (West 2000).

The Act contains uniform procedures to accomplish theforfeiture of drug-related assets. 725 ILCS 150/1 et seq. (West2000)). Non-real property is seized by two different methodsdepending on the value of the property. Non-real property valuingless than $20,000 is forfeited in a nonjudicial forfeiture action. 725ILCS 150/6 (West 2000). Where the value of non-real propertyexceeds $20,000, the State shall "institute judicial in rem forfeitureproceedings" in accordance with section 9 of the Act. 725 ILCS150/6 (West 2000).

The Act outlines the method of notice required to appriseindividuals of pending forfeiture proceedings. 725 ILCS 150/4(West 2000). The method of service depends upon the State'sknowledge of the identity and location of the claimant at the timeof service. Section 4 of the Act, entitled "Notice to Owner orInterest Holder," provides that, "[i]f the owner's or interestholder's name and current address are known, then [notice orservice shall be given] by either personal service or mailing a copyof the notice by certified mail, return receipt requested, to thataddress." 725 ILCS 150/4(A)(1) (West 2000). The Act requiresnotice by publication in the event the address or name of theowner or interest holder is unknown. 725 ILCS 150/4(A)(3) (West2000). Owners or interest holders are obligated to advise theseizing agency of address changes that occur prior to the mailingof notice. 725 ILCS 150/4(A)(1) (West 2000) ("if an owner orinterest holder's address changes prior to the effective date of thenotice of pending forfeiture, the owner or interest holder shallpromptly notify *** of the change in address"). Individualsclaiming an interest in the property subject to forfeiture may filea claim to the property within "45 days after the effective date ofnotice." 725 ILCS 150/6(C)(1) (West 2000). Further, the Actprovides when notice is effective: "Notice served under this Actis effective upon personal service, the last date of publication, orthe mailing of written notice, whichever is earlier." 725 ILCS150/4(B) (West 2000). If parties fail to appear at the forfeitureproceedings, "property may be subject to forfeiture even if no oneappears to claim it." In re P.S., 175 Ill. 2d at 88.

In order to determine when mailed notice is perfected underthe Act, we are bound by longstanding principles of statutoryconstruction. We must give effect to legislative intent, whichbegins with the plain language of the statute. People v. Woodard,175 Ill. 2d 435, 443 (1997); Garza v. Navistar InternationalTransportation Corp., 172 Ill. 2d 373, 378 (1996); People ex rel.Baker v. Cowlin, 154 Ill. 2d 193, 197 (1992). Where clear andunambiguous, statutory language must be enforced as enacted, anda court may not depart from its plain language by reading into itexceptions, limitations, or conditions not expressed by thelegislature. Woodard, 175 Ill. 2d at 443. Moreover, wherelanguage is express and plain, a court must not search for subtleintentions of the legislature. Woodard, 175 Ill. 2d at 443.

In light of the express language contained in section 4 of theAct, we hold that service of notice by mailing is perfected whenthe notice is deposited in the mail, provided the State complieswith the mailing procedures set forth in the Act. Section 4(B)expressly states, "[n]otice served under this Act is effective upon*** the mailing of written notice ***." 725 ILCS 150/4(B) (West2000). The meaning of this provision is clear and unambiguous.The Act does not condition the effectiveness of notice upon receiptof the return receipt signed by the addressee, and this court willnot rewrite the Act to create this requirement.

Claimants argue that the inclusion of the "return receipt"language implies that the legislature intended that notice wouldnot be perfected unless and until the State receives the returnreceipt. This argument fails to consider the structure of section 4,which, when plainly read, supports another conclusion. Section4(A) directs the State to issue notice of forfeiture proceedings byspecific methods-personal service, publication, or postal delivery.Essentially, section 4(A) directs how notice shall be given, or bywhat means notice must be served. Where postal delivery isrequired, section 4(A) requires service by certified mail with areturn receipt requested. In contrast, section 4(B) fixes whenservice is complete. Service is effective "upon personal service,the last date of publication, or the mailing of written notice,whichever is earlier." (Emphasis added.) 725 ILCS 150/4(B)(West 2000). The return receipt requirement is omitted from the"when" provision of section 4(B).

Clearly, our legislature is able to expressly condition serviceupon receipt of the signed return receipt. Other enactmentsexpressly demand a return receipt to complete service. See, e.g.,225 ILCS 115/18 (West 2000) (Veterinary Medicine and SurgeryPractice Act of 1994) (notice is given to the owner "by certifiedmail, return receipt requested, and shall allow a period of 7 daysto elapse after the receipt is returned before disposing of suchanimal"); 705 ILCS 405/2-30(1)(a) through (1)(c) (West 2000)(Juvenile Court Act of 1987) ("[t]he return receipt, when returnedto the clerk, shall be attached to the original notice, and shallconstitute proof of service"); 750 ILCS 25/10(a)(1) (West 1998)(Expedited Child Support Act of 1990) ("[i]f service is made bycertified mail, the return receipt shall constitute proof of service");765 ILCS 1033/15(b) (West 1998) (Museum Disposition ofProperty Act) ("[n]otice is deemed given if the museum receives,within 60 days of mailing the notice, a return receipt"). Therefore,based upon our principles of statutory construction and the cleardifference in wording between sections 4(A) and 4(B), we mustconstrue the omission of the return receipt requirement fromsection 4(B) as intentional. See People v. Parvin, 125 Ill. 2d 519,525 (1988) (the inclusion of specific language in one provisionand the omission in another provision evinces legislative intent torefrain from imposing the requirement); see also People v. Keene,296 Ill. App. 3d 183, 189-90 (1998).

Citing Avdich v. Kleinert, 69 Ill. 2d 1 (1977), the appellatecourt reasoned that the mere inclusion of a return receiptrequirement in any portion of section 4 implies that the return ofthe receipt is required for notice to be effective. 316 Ill. App. 3dat 469. Specifically, the appellate court stated, "[t]hat the partygiving notice must receive a return receipt signed by the addresseein order to accomplish service is a well-established requirement inIllinois law." 316 Ill. App. 3d at 469. Avdich is not authority forthe proposition that all enactments which contain the "returnreceipt" requirement demand return of the receipt to perfectservice. In fact, Avdich, like the enactments previously referred to,illustrates our legislature's ability to expressly condition serviceupon receipt of the signed receipt. In Avdich, we considered thenotice requirement under the forcible entry and detainer statute.See 735 ILCS 5/9-211 (West 2000). As in the instant matter, theparties in Avdich disputed whether the mere mailing of notice bycertified mail constituted service or whether the statute requiredreceipt of the return receipt in order to complete service. Theforcible entry and detainer statute states that "[a]ny demand maybe made or notice served *** by sending a copy of said notice tothe tenant by certified or registered mail, with a returned receiptfrom the addressee." 735 ILCS 5/9-211 (West 2000). Based uponthis language, we held that the "statute clearly indicates alegislative intent that service of a notice by certified mail is not tobe considered complete until it is received by the addressee."Avdich, 69 Ill. 2d at 9. However, the forcible entry and detainerstatute conditions effectiveness of notice upon "a returned receiptfrom the addressee." By contrast, the Act only requires "with areturn receipt requested." If we afford the language in eachprovision its plain and ordinary meaning, one demands the returnof the receipt while the other merely demands a request.

Claimants argue that the only advantage of certified mail witha return receipt requested is to provide proof of delivery. Proof ofdelivery is not the only discernable advantage. Rather, theinclusion of a return receipt request requirement in the statuteserves more than one purpose. According to the certified mailingreceipt contained in the record, each piece of certified mail isassigned a tracking number, and a record of all deliveries is keptby the postal service for a period of two years. This informationgrants the sender actual proof of mailing. This proof of mailing isobjective evidence for the State during forfeiture proceedings. Thisproof of mailing, therefore, facilitates overall enforcement of theAct. This mailing method also serves a claimant's interest. Partieswho receive certified mail with a return receipt requested arealerted to the importance of its contents and are less likely todiscard the mail upon receipt without reading its contents.

Finally, we must also consider that the Act is remedial innature; therefore, the Act warrants liberal construction to achievethe overall purpose of the statute. 725 ILCS 150/2, 13 (West2000). The appellate court's holding, that the State must receivea return receipt signed by the addressee, fails to recognize thecircumstances which often accompany forfeiture. It is frequentlythe case that currency is seized from individuals who provide falseaddress information to the officers upon seizure. In this case, weobserve that at the time of seizure, Rashawn held licenses with twoalias addresses in the State of Illinois. Moreover, as noted by theState during oral arguments and in its complaint, it is alsocommon that individuals in possession of the currency at the timeof seizure are merely couriers used to transport the currency. Theseindividuals have no interest in receiving the certified mail and,therefore, refuse to sign for the mail upon its arrival. Conditioningthe completion of notice upon receipt of the return receipt is acondition not expressed by the legislature, and given the realitiesof what often occurs in these cases, an obstacle to the enforcementof the Act. The statute provides for mailing of notice to the lastknown address of the owner or interest holder. It does notcondition this mailing upon the State's investigation into theaccuracy of this information. In fact, it expresses the contrary: theowner or interest holder is obligated to notify the seizing agencyof his or her change in address occurring prior to the mailing ofnotice. 735 ILCS 150/4(A)(1) (West 2000). The appellate court'sholding renders this obligation superfluous. See Yang v. City ofChicago, 195 Ill. 2d 96, 106 (2001) "[w]e construe a statute so thatno term is rendered superfluous or meaningless, when the statuteis examined as a whole").

The record shows that on August 4, 1998, pursuant to section4(A)(1) of the Act the State mailed notice to Rashawn via certifiedmail with a return receipt requested. The State mailed this noticepursuant to information supplied by Rashawn on the date ofseizure, May 23, 1998. The record does not show that Rashawnnotified the State of a change in his address. Pursuant to ourholding, we find that service of this notice was complete upon itsmailing, August 4, 1998. The record also shows that pursuant tosection 4(A)(1), on September 4, 1998, the State mailed notice toIda at the address believed to be her residence. Consistent with ourholding, service was complete upon its mailing, September 4,1998.

II. Due Process

We now turn to whether notice in this instance satisfiedprocedural due process. According to the appellate court, noticemailed to Rashawn's home address was "not reasonably calculatedto apprise Rashawn of the pending forfeiture proceeding." 316 Ill.App. 3d at 471. The appellate court concluded that becauseRashawn's address at the Vandalia Correctional Center was"readily ascertainable," failure to send notice of forfeiture to thisaddress denied Rashawn due process of law. 316 Ill. App. 3d at471. We disagree. The State provided constitutionally adequatenotice.

Whether claimants were afforded due process in the instantmatter is an issue of law, and any review is de novo. People v.Dameron, 196 Ill. 2d 156, 162 (2001); see also People v. Anaya,279 Ill. App. 3d 940, 944-45 (1996).

"Due process entails an orderly proceeding wherein a personis served with notice, actual or constructive, and has anopportunity to be heard and to enforce and protect his rights."Stratton v. Wenona Community Unit District No. 1, 133 Ill. 2d413, 432 (1990). The "fundamental requirement of due process inany proceeding which is to be accorded finality is noticereasonably calculated, under the circumstances, to appriseinterested parties of the pendency of the action and afford them anopportunity to present their objections." Stratton, 133 Ill. 2d at432; see also Dusenbery v. United States, 534 U.S. ___, 151 L. Ed.2d 597, 122 S. Ct. 694 (2002); Greene v. Lindsey, 456 U.S. 444,449-50, 72 L. Ed. 2d 249, 254-55, 102 S. Ct. 1874, 1877-78(1982); Mullane v. Central Hanover Bank & Trust Co., 339 U.S.306, 314, 94 L. Ed. 865, 873, 70 S. Ct. 652, 657 (1950). Dueprocess is satisfied if the "manner of effecting service of summonsgives reasonable assurance that notice will actually be given."People ex rel. Loeser v. Loeser, 51 Ill. 2d 567, 572 (1972); seealso Stratton, 133 Ill. 2d at 432-33; Mullane, 339 U.S. at 315, 94L. Ed. at 874, 70 S. Ct. at 657 (the method of service must be onethe party receiving service "might reasonably adopt toaccomplish" service). Put another way, notice cannot be a "meregesture," but rather must be a reasonable attempt to inform thoseaffected by the proceeding. Mullane, 339 U.S. at 315, 94 L. Ed. at874, 70 S. Ct. at 657; see Stratton, 133 Ill. 2d at 432-33. It isimportant to note, however, that in examining the sufficiency ofnotice with regard to due process a court may consider thecharacter of the proceedings and the practicalities and peculiaritiesof the case. See Stratton, 133 Ill. 2d at 433; see also Mullane, 339U.S. at 317, 94 L. Ed. at 875, 70 S. Ct. at 659.

Further, as recently stated by the United States SupremeCourt, due process does not require that "the State must provideactual notice, but that it must attempt to provide actual notice."(Emphases in original.) Dusenbery, 534 U.S. at ___, 151 L. Ed. 2dat 606, 122 S. Ct. at 701. In Dusenbery, the United States SupremeCourt considered the constitutional sufficiency of forfeiture whennotice was sent by certified mail to a petitioner where he wasincarcerated but, according to the petitioner, he never actuallyreceived the notice from the prison mailroom. The petitionerargued that the government had the burden of securing actualdelivery of the notice because the government had the ability toensure the petitioner's receipt. For example, the defendant arguedthat due process required that a prison official watch the inmateopen the notice and cosign a receipt. The Court disagreed.

"Petitioner argues that because he was housed in afederal prison at the time of the forfeiture, the FBI couldhave made arrangements with the BOP [Bureau ofPrisons] to assure the delivery of the notice in question tohim. [Citation.] But it is hard to see why such a principlewould not also apply, for example, to members of theArmed Forces both in this country and overseas.Undoubtedly the Government could make a special effortin any case (just as it did in the movie 'Saving PrivateRyan') to assure that a particular piece of mail reaches aparticular individual who is in one way or another in thecustody of the Government. *** But the Due ProcessClause does not require such heroic efforts by theGovernment; it requires only that the Government's effortbe 'reasonably calculated' to apprise a party of thependency of the action ***." Dusenbery, 534 U.S. at ___,151 L. Ed. 2d at 606-07, 122 S. Ct. at 701.

Despite the dissent's contention, the Court did not hold that"[i]n the event the property owner is incarcerated, the governmentmust send the notice to the owner at his place of incarceration."Slip op. at 21 (Freeman, J., dissenting, joined by McMorrow andKilbride, JJ.). This issue was not considered by the Court. Instead,the Court considered the constitutional sufficiency of the maildelivery and distribution system once mail arrived to the prison.Dusenbery, 534 U.S. ___, 151 L. Ed. 2d 597, 122 S. Ct. 694.

Turning to the instant matter, the appellate court determinedthat the sending of notice to a claimant at his home address whilethe claimant is incarcerated fails to reasonably apprise the claimantof the pending forfeiture proceedings. 316 Ill. App. 3d at 469. Theappellate court based its decision upon both Illinois appellate andfederal decisions. See Robinson v. Hanrahan, 409 U.S. 38, 34 L.Ed. 2d 47, 93 S. Ct. 30 (1972); Ramirez v. United States, 767 F.Supp. 1563 (M.D. Fla. 1991); Winters v. Working, 510 F. Supp. 14(W.D. Tex. 1980); Jaekel v. United States, 304 F. Supp. 993(S.D.N.Y. 1969); United States v. Woodall, 12 F.3d 791 (8th Cir.1993); People v. Smith, 275 Ill. App. 3d 844 (1995). These casesdo not convince this court that claimants were denied due process.

For example, in Smith the defendant was arrested for thepossession of cocaine and cannabis. Smith, 275 Ill. App. 3d at 846.At the time of his arrest, officers seized the sum of $106 from thedefendant. Notice of pending forfeiture was sent to the defendant'shome address. Defendant failed to reply or appear, and the courtordered forfeiture of the currency. The appellate court held that theState failed to give notice required by due process because noticeof the forfeiture proceedings was mailed to defendant's residentialaddress despite the State's knowledge that the defendant wasconfined to jail for charges brought at the time of seizure. Smith,275 Ill. App. 3d at 850-51. Similarly, in Robinson the defendantwas arrested and charged with armed robbery. Robinson, 409 U.S.at 38, 34 L. Ed. 2d at 48, 93 S. Ct. at 30. The defendant was heldin custody awaiting trial when the State initiated forfeitureproceedings against the automobile used by the defendant at thetime of his arrest. The State issued notice of forfeiture proceedingsto the address listed with the Secretary of State. In an ex partehearing, the trial court ordered forfeiture of the automobile. Onappeal to the United States Supreme Court, the Court reversedforfeiture because the State knew that the defendant "could not getto [the address to which notice was mailed] since he was at thatvery time confined" in the jail. Robinson, 409 U.S. at 40, 34 L. Ed.2d at 49, 93 S. Ct. at 31.

In the above-mentioned cases, and other cases relied upon bythe appellate court and claimants, we find one critical factorpresent which is absent in the instant matter: the notifying partyknew the claimant's name and address and failed to serve noticeto that address. See, e.g., Schroeder v. City of New York, 371 U.S.208, 210, 9 L. Ed. 2d 255, 258, 83 S. Ct. 279, 281 (1962) (theappellant's name and address were known from both deed recordsand tax rolls); Woodall, 12 F.3d at 794-95 (notice mailed to thedefendant at home and jail was insufficient because thegovernment knew the defendant was released on bond to adifferent temporary residence); Williams v. United States DrugEnforcement Administration, 51 F.3d 732, 734 (7th Cir. 1995)(notice mailed to the claimant's residential address wasinsufficient because although he was incarcerated on unrelatedcharges, the seizing agency was "well aware of his incarceration"and had weekly conversations with him at the jail at the time itmailed notice to his residence); Jaekel, 304 F. Supp. at 999 (theseizing agency had plaintiff's name and address; therefore, noticeby publication was insufficient); Montgomery v. Scott, 802 F.Supp. 930, 936 (W.D.N.Y. 1992) (at the time of his arrest for thepossession and sale of a controlled substance, officers seized$32,000 in currency, holding that " 'where the state knows that aninterested party does not reside at the mailing address *** dueprocess may require more than sending a letter to the address onfile' " (emphasis in original)), quoting Weigner v. City of NewYork, 852 F.2d 646, 650 n.4 (2d Cir. 1988). Often in forfeiturecases, the party claiming interest in the subject property wasincarcerated or confined to jail for conduct related to the seizureof property. As a result, the arrest and seizure were interrelated,such that the seizing agency knew the claimant's actual location.Therefore, in instances where the seizing agency has knowledgethe individual is incarcerated, notice mailed to the individual'slisted last known address is a mere gesture and not reasonablycalculated to apprise the individual of the pending proceedings.

A federal court case is helpful in the instant matter. In Sarit v.U.S. Drug Enforcement Administration, 987 F.2d 10 (1st Cir.1993), the court of appeals addressed whether notice mailed to theclaimant's last known address, which was returned "unclaimed,"and was supplemented by publication satisfied due process. InSarit, the claimants argued that the DEA knew that they wererepresented by counsel and planned to contest forfeiture.Therefore, they argued that when the notice was returned"unclaimed," the DEA's failure to contact counsel and acquiretheir current address denied them due process. The court ofappeals disagreed:

"We note at the onset that while Mullane clearlycontemplates inquiry into the 'peculiarities' and the'practicalities' of a given case, it has not generally beeninterpreted to require a party to make additional attemptsbeyond notice that is legally satisfactory at the time it issent. [Citation.] The Court has read an implicit bad faithstandard into the notice inquiry, overturning notice evenwhere formal procedures were followed if the notifyingparty knew or had reason to know that notice would beineffective. [Citations.] ***

Virtually all of the cases relied upon by plaintiffs sharethe feature-missing from this case-that the governmentknew at the time the notice was sent that the notice waslikely to be ineffective. [Citations.]

*** Only exceptional circumstances would compel usto so extend the DEA's duty, absent indication that itknew or should have known that the notice would beineffective." (Emphasis added.) Sarit, 987 F.2d at 14-15.

Likewise, we have considered the "peculiarities" andcircumstances of the instant matter. Here, there is no evidence inthe record that the seizing agency knew or should have knownRashawn was incarcerated in the Vandalia Correctional Center.Rather, Rashawn's subsequent arrest and incarceration wereunrelated to the seizure of the currency at issue here. In fact,Rashawn was incarcerated in a separate county for a separatecrime approximately six weeks after officers seized the currency.The record shows that on May 23, 1998, at the time of seizure,Rashawn gave his address to the officers and freely left the station.This was Rashawn's final contact with the seizing agency; he didnot notify the seizing agency of his change of address. 725 ILCS150/4(A)(1) (West 2000). We note that Rashawn does not allegethat the State had actual notice of his whereabouts at the timenotice was mailed. Importantly, the parties do not dispute that theinformation Rashawn provided on May 23, 1998, was, accordingto the seizing agency, his last known address. Moreover, basedupon the record in this case-which is sparse on the issue of Ida'sinvolvement-there is nothing to suggest the State hadcontradictory information regarding Ida's address. Rather, therecord shows that after her June 5, 1998, telephone conversationwith an officer following the seizure of the currency, she nevercontacted the police again or appeared personally to establish aclaim. (In oral argument counsel for claimants referenced twophone conversations between Ida and the police; however, therecord belies this assertion.) Notwithstanding this discrepancy,importantly, Ida does not argue that the State mailed the notice toan incorrect address. Rather, Ida simply claims that she neverreceived the mailing. The claimants argue that the State mustinvestigate and verify each address prior to service of notice.However, such "heroic efforts" are not required. Dusenbery, 534U.S. ___, 151 L. Ed. 2d 597, 122 S. Ct. 694. Moreover, thecircumstances of this case do not demand that we extend theState's duty in this manner.

Regardless, we observe that the State did make additionalattempts to afford notice in the instant case. This is evident by theState's attempt to supplement the notice mailing with notice bypublication. Pursuant to the Act, the State published notice of theforfeiture proceedings on three separate occasions. According tothe Act, publication is only acceptable where the claimant'saddress is unknown. 725 ILCS 150/4(A)(3) (West 2000).However, the peculiar circumstances and facts known by the State,namely, Rashawn's history of alias addresses throughout the state,led it to take further action. Although we do not find that thisadditional effort was required, either by the statute or by dueprocess, this effort to supplement the notice mailing made the riskof nonreceipt more acceptable. See Weigner v. City of New York,852 F.2d 646, 651 (2d Cir. 1988) ("The Supreme Court hasrepeatedly held that notice by first-class mail is sufficient,notwithstanding the Court's obvious awareness that not everyfirst-class letter is received by the addressee *** [p]articularlywhere mailing is supplemented by other forms of notice such asposting or publication, the risk of non-receipt is constitutionallyacceptable").

CONCLUSION

Accordingly, we hold that under the Drug Asset ForfeitureProcedure Act, where notice of forfeiture is mailed by certifiedmail with a return receipt requested, service is complete upon themere mailing of the written notice. Additionally, we conclude thatnotice in this case was reasonably calculated to apprise allinterested parties of the pending proceedings and, therefore,satisfied due process of law.

The judgment of the appellate court is reversed and thejudgment of the circuit court is affirmed.

Appellate court judgment reversed;

circuit court judgment affirmed.

JUSTICE FREEMAN, dissenting:

The majority holds that claimant, Rashawn Carter, receivedappropriate notice of the forfeiture proceedings at issue. I disagree.Due process requires the government to provide notice that isreasonably calculated to apprise interested parties of the forfeitureproceedings and afford the parties an opportunity to be heard. Inthe present case, the notice the State gave Rashawn fell far shortof the requirements of due process.

BACKGROUND

On May 23, 1998, police officers responded to a tip that aman with a gun had entered the Drexel National Bank. Upon theirarrival at the bank, the officers observed Rashawn holding a whitecylinder-shaped object under his arm. The officers performed aprotective pat-down of Rashawn and found several bundles ofcurrency. The white cylinder-shaped object was actually a sockfilled with additional currency. In all, the officers recovered$30,700 from Rashawn.

The officers questioned Rashawn and learned that he did nothave an existing account at the bank, but that he planned to rent asafety deposit box. Rashawn gave conflicting answers when askedwhere he had obtained the money and was unable to tell theofficers how much money he was carrying. The officers tookRashawn to the police station for further questioning. At thestation, Rashawn admitted that he was a member of a gang, that hewas unemployed and that he did not own the money. Rashawn alsotold the officers that he had been arrested for possession ofcannabis and was out on bond pending a hearing. A backgroundcheck confirmed this arrest and also revealed that Rashawn hadbeen arrested several times in Sangamon County, the last arrest onSeptember 30, 1997.

The officers performed a "money lineup," at which a policedog positively identified the currency as having a residue odor ofnarcotics. A further search of Rashawn revealed three separatesafety deposit box keys. One of the keys was for a safety depositbox at the Drexel National Bank registered to Ida Carter,Rashawn's grandmother. The officers obtained a search warrantfor the safety deposit box. During a subsequent search of the box,the police recovered $20,811. A police dog positively identifiedthe currency as having a residue odor of narcotics. The State didnot prosecute Rashawn for any narcotics violation in connectionwith the currency.

On August 4, 1998, the State filed a complaint for forfeitureof the $30,700 and $20,811. The complaint named Rashawn as aparty with interest in the currency. On the same day, the Statemailed notice of the forfeiture proceedings and a copy of thecomplaint via certified mail, with a return receipt requested, toRashawn at 4844 S. State Street, Chicago, Illinois. The State didnot receive a return receipt from the mailing. The State thenpublished notice of the forfeiture proceedings on August 7, August14 and August 21 in the Chicago Daily Law Bulletin. And onSeptember 2, 1998, the State sent a notice of forfeiture by certifiedmail to Ida at 4844 S. State Street. The State did not receive areturn receipt from the September 2 mailing. Neither Rashawn norIda appeared at the forfeiture proceedings.

On October 13, 1998, the circuit court entered a default orderforfeiting Rashawn's interest and that of all other parties claimingright, 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 forfeitureproceedings. In support of the motion, Rashawn averred that hewas incarcerated for unrelated charges in the Vandalia CorrectionCenter beginning July 7, 1998, until his release November 10,1998. Ida also filed an affidavit in which she averred that she wasthe owner of the safety deposit box and she did not receive thenotice of the forfeiture proceedings mailed to her home. Thecircuit court denied the motion to vacate the forfeiture order.

The appellate court reversed, finding that the circuit courtlacked personal jurisdiction over Rashawn and Ida because theywere not properly served. 316 Ill. App. 3d 464, 471. The courtnoted further that numerous federal courts have questioned theprobative value of positive dog alerts due to reports that reveal thehigh level of contamination of the nation's money supply withnarcotics residue. 316 Ill. App. 3d at 472. The court adopted theview of these federal courts that the mere fact of priorcontamination fails to establish that the currency was actuallyexchanged for or intended to be exchanged for drugs by the personcurrently in possession of the currency. 316 Ill. App. 3d at 473.Accordingly, the court concluded that the "sniff test" was notenough to establish probable cause that the currency seized fromRashawn was connected to narcotics. 316 Ill. App. 3d at 473.

ANALYSIS

The due process clauses of the fifth and fourteenthamendments to the Constitution of the United States require, at aminimum, that "deprivation of life, liberty or property byadjudication be preceded by notice and opportunity for hearingappropriate to the nature of the case." Mullane v. Central HanoverBank & 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, 534U.S. ___, 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 dueprocess in any proceeding which is to be accorded finalityis notice reasonably calculated, under all thecircumstances, to apprise interested parties of thependency of the action and afford them an opportunity topresent their objections. [Citations.] The notice must be ofsuch nature as reasonably to convey the requiredinformation, [citation], and it must afford a reasonabletime for those interested to make their appearance,[citation]. But if with due regard for the practicalities andpeculiarities of the case these conditions are reasonablymet, the constitutional requirements are satisfied. 'Thecriterion is not the possibility of conceivable injury butthe just and reasonable character of the requirements,having reference to the subject with which the statutedeals.' [Citations.]

But when notice is a person's due, process which is amere gesture is not due process. The means employedmust be such as one desirous of actually informing theabsentee might reasonably adopt to accomplish it. Thereasonableness and hence the constitutional validity ofany chosen method may be defended on the ground that itis in itself reasonably certain to inform those affected,[citation], or, where conditions do not reasonably permitsuch notice, that the form chosen is not substantially lesslikely to bring home notice than other of the feasible andcustomary substitutes." Mullane, 339 U.S. at 314-15, 94L. Ed. at 873-74, 70 S. Ct. at 657-58.

Notice by publication is not a favored mode of process. As theSupreme Court explained in Mullane,

"[i]t would be idle to pretend that publication alone asprescribed here, is a reliable means of acquaintinginterested parties of the fact that their rights are before thecourts. *** Chance alone brings to the attention of evena local resident an advertisement in small type inserted inthe back pages of a newspaper, and if he makes his homeoutside the area of the newspaper's normal circulation theodds that the information will never reach him are largeindeed." 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 notknown, notice by publication must be accepted out of necessity.However,

"[e]xceptions in the name of necessity do not sweep awaythe rule that within the limits of practicability notice mustbe such as is reasonably calculated to reach interestedparties. Where the names and post-office addresses ofthose affected by a proceeding are at hand, the reasonsdisappear for resort to means less likely than the mails toapprise 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 beingforfeited shapes the notice by due process. In Robinson v.Hanrahan, 409 U.S. 38, 34 L. Ed. 2d 47, 93 S. Ct. 30 (1972), theappellant was arrested on a charge of armed robbery on June 16,1970. The State instituted forfeiture proceedings against theappellant's car, alleging that the appellant had used the car in thearmed robbery. The appellant was held in custody in the CookCounty jail from June 16, 1970, to October 7, 1970, awaiting trial.Nevertheless, the State mailed notice of the forfeiture proceedingsto appellant's home address as listed in the records of theSecretary of State, and not to the jail facility. In finding the noticeineffective, the Supreme Court explained,

"In the instant case, the State knew that appellant wasnot at the address to which the notice was mailed and,moreover, knew also that appellant could not get to thataddress since he was at that very time confined in theCook County jail. Under these circumstances, it cannot besaid that the State made any effort to provide notice whichwas 'reasonably calculated' to apprise appellant of thependency of the forfeiture proceedings." Hanrahan, 409U.S. at 40, 34 L. Ed. 2d at 49, 93 S. Ct. at 31-32.

In Dusenbery, 534 U.S. at ___, 151 L. Ed. 2d at 605, 122 S.Ct. at 700, quoting Mullane, 339 U.S. at 314, 94 L. Ed. at 873, 70S. Ct. at 657, the Supreme Court reaffirmed that the governmentmust give a property owner notice that is " 'reasonably calculated,under all the circumstances' " to apprise the owner of thependency of the forfeiture. In the event the property owner isincarcerated, the government must send the notice to the owner athis place of incarceration. Although the government need notshow that the property owner received the notice, the methodchosen by the government in attempting notice, that is, theprocedures used by the government in mailing the notice and inprocessing the mail at the correctional facility, must be defendable" 'on the ground that it is in itself reasonably certain to informthose affected.' " Dusenbery, 534 U.S. at ___, 151 L. Ed. 2d at606, 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 SupremeCourt found that the notice the government gave the propertyowner satisfied the requirements of due process. The SupremeCourt explained,

"The Government here carried its burden of showing thefollowing procedures had been used to give notice. TheFBI sent certified mail addressed to petitioner at thecorrectional facility where he was incarcerated. At thatfacility, prison mailroom staff traveled to the city postoffice every day to obtain all the mail for the institution,including inmate mail. *** The staff signed for allcertified mail before leaving the post office. Once themail was transported back to the facility, certified mailwas entered in a logbook maintained in the mailroom. ***A member of the inmate's Unit Team then signed for thecertified mail to acknowledge its receipt before removingit from the mailroom, and either a Unit Team member oranother staff member distributed the mail to the inmateduring the institution's 'mail call.' " Dusenbery, 534 U.S.at ___, 151 L. Ed. 2d at 605-06, 122 S. Ct. at 700.

The method chosen by the government in attempting notice wasreasonable in light of the procedures followed by the FBI and thecorrectional institution.

Dusenbery, 534 U.S. , 151 L. Ed. 2d 597, 122 S. Ct. 694(2002), is based squarely upon Mullane, 339 U.S. at 306, 94 L. Ed.at 865, 70 S. Ct. at 652, and Hanharan, 409 U.S. 38, 93 S. Ct. 30,34 L. Ed. 2d 47. It holds that the government must mail notice tothe property owner at the place of incarceration. However, thegovernment need not show that the property owner received thenotice, in order to comply with due process.

The majority rejoins,

"Despite the dissent's contention, the Court did nothold that '[i]n the event the property owner isincarcerated, the government must send the notice to theowner at his place of incarceration.' Slip op. at 21(Freeman, J., dissenting, joined by McMorrow andKilbride, JJ.). This issue was not considered by the Court. Instead, the Court considered the constitutionalsufficiency of the mail delivery and distribution systemonce mail arrived to the prison. Dusenbery, 534 U.S. ,151 L. Ed. 2d 597, 122 S. Ct. 694." Slip op. at 12.

The majority's construction of Dusenbery is simplistic, if notsurprising. If due process did not require that mail be sent to theproperty owner at the place of incarceration, the Court would nothave considered the "constitutional sufficiency of the mail deliveryand distribution system once mail arrived to the prison." Rather,the Court would have considered either the notice sent to theproperty owner at the house trailer where he was arrested or thenotice sent to the property owner in Randolph, Ohio, the townwhere his mother lived, sufficient to comply with due process. Ofcourse, such a holding would be contrary to Hanharan, where, asnoted above, the Court held that notice mailed to the propertyowner's home address as listed in the records of the Secretary ofState, but not to the jail facility, was ineffective.

Perhaps the majority is intimating that Hanharan is not goodlaw, or that Dusenbery has limited Hanharan in some fashion. Given the fact that Dusenbery did not criticize or, in any way,diminute the holding in Hanharan, I, for one, believe thatHanharan remains good law.

Turning to the facts of this case, Rashawn was incarcerated atVandalia Correctional Center at the time the State mailed thenotice of forfeiture to his home. The State did not receive a returnreceipt from the mailing and was thus alerted to the fact that thenotice was ineffective. The State, however, made no attempt tosend notice of the forfeiture to Rashawn at Vandalia. Instead, theState was satisfied with publication of notice in the Daily LawBulletin. Such notice fell woefully short of due process. The Stateknew, or should have known, that Rashawn was incarcerated atVandalia. Consequently, the State was required to send notice toRashawn at Vandalia.

In a forfeiture proceeding, the interest of the property owneris potentially great. See 725 ILCS 150/6 (West 1998) (providingfor administrative forfeiture of nonreal property valued at less than$20,000, and judicial in rem forfeiture proceedings for nonrealproperty 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 wellpossess valuable property that is unrelated to narcotics.The forfeiture of such property may be a matter of greatimportance to him. And without the owner even beingmade aware of, or having a practical opportunity tochallenge the forfeiture, its lawfulness is difficult tojustify. In these circumstances, furthermore, no one butthe owner can be relied on to protect the owner'sinterest."

Although the potential loss to the property owner may begreat, forfeiture statutes generally allow notice by mail orpublication. See 725 ILCS 150/4 (West 1998). When the propertyowner is incarcerated, however, he has little influence as towhether the notice given is actually received. "[A]s a prisoner, theowner is unable to insure that he will receive the notice once thepost office has delivered it to the institution. The owner is entirelydependant on the institution to deliver his mail to him." Weng, 137F.3d at 715. By contrast, the hardship to the government inimplementing procedures "reasonably certain to inform" theproperty owner of the forfeiture is small. As noted by the dissentin Dusenbery, "[t]he agency responsible for giving notice of theforfeiture, here, the FBI, is part of the same Government as theprisoner's custodian, the Bureau of Prisons." Dusenbery, 534 U.S.at ___, 151 L. Ed. 2d at 612, 122 S. Ct. at 705 (Ginsburg, J.,dissenting, joined by Stevens, Souter and Breyer, JJ.). "Where aclaimant is 'residing at a place of the government's choosing,' theseizing agency must take steps to locate the claimant in order tosatisfy due process." United States v. Giraldo, 45 F.3d 509, 511(1st Cir. 1995). See also In re Forfeiture of $2,354.00 UnitedStates Currency, 326 Ill. App. 3d 9 (2001) (where the Statemaintained that a prisoner's address is easy to ascertain).

The majority disagrees. The majority maintains there is noevidence in the record that the seizing agency knew or should haveknown Rashawn was incarcerated in Vandalia. Rashawn wasincarcerated in a separate county for a separate crimeapproximately six weeks after officers seized the currency. Slipop. at 13-14. Citing Sarit v. U.S. Drug EnforcementAdministration, 987 F.2d 10 (1st Cir. 1993), a case it finds"helpful in the instant matter," the majority concludes that thenotice to Rashawn's home was effective.

The majority fails to consider that when the officersinterviewed Rashawn, he informed them he was out on bond fora prior arrest. A background check confirmed this arrest and alsorevealed that Rashawn had been arrested several times inSangamon County, the last arrest on September 30, 1997. As theThird Circuit observed in Foehl v. United States, 238 F.3d 474,480 (3d Cir. 2001), "although Foehl was not in jail at the time thenotice was returned, he had been released on bail. We can safelyassume that the Beaumont police had a very good idea of hiswhereabouts during that time."

More importantly, however, the majority fails to consider thatthe State is one entity and not several agencies or departments. TheState, in the person of the State's Attorney of Cook County,prosecuted the forfeiture action at issue. At the same time, theState prosecuted Rashawn for possession of cannabis based uponan incident on March 28, 1995, and aggravated battery based uponan incident on May 9, 1996.⁽¹⁾ The State incarcerated Rashawn atVandalia. A simple telephone call from the State's Attorney ofCook County to the Illinois Department of Correction would haveprovided the State's Attorney with the information needed toeffectuate 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 searchwas conducted without a warrant. On August 21, 1989, theplaintiffs filed a motion pursuant to Federal Rule of CriminalProcedure 41(e) seeking return of the currency. On September 1,the United States Attorney objected to this motion and filed amemorandum of law in which he informed the plaintiffs that thecurrency was being held for administrative forfeiture.Subsequently, on September 19, 1989, the DEA sent notice of theadministrative forfeiture proceeding by certified mail to 114 AlvinStreet. The notice was returned unclaimed. The DEA alsopublished notice of the proceeding, with the first notice publishedon September 27, 1989. On October 13, 1989, the district courtdenied the plaintiffs' Rule 41(e) motion on equitable grounds,deferring to the administrative forfeiture proceedings. Theplaintiffs' right to file a claim with the DEA expired on October17, 1989. On November 2, 1989, the administrative forfeiture wasdecreed and entered.

In upholding the validity of the notice given by the DEA, thecircuit court observed,

"Given plaintiffs' vigorous (although tardy) pursuit oftheir claim, the fact that the government had beeninvolved in ongoing court action on the very issue of theseizure of plaintiffs' currency, the government'sawareness of plaintiffs' representation by counsel, and thefrowned upon treatment of forfeitures, the call is a closeone. [Citation.] Nevertheless, Mullane counsels us toconsider all of the circumstances, and we find in this caseother pertinent factors, including the government'smemorandum and the conduct of plaintiffs' counsel,which compel us to uphold the finding of the districtcourt." (Emphasis in original.) Sarit, 987 F.2d at 14.

The court of appeals found decisive that the plaintiffs' counsel hadsufficient general notice of the risk that the property would beforfeited within the coming months if action were not taken; thestatute covering forfeitures and the regulations interpreting it wereavailable to counsel; and, once the plaintiffs and their counselwere aware that notice of the forfeiture would be sent in theensuing two months, they could have notified the DEA of theirown change of address. The court concluded that "the damagedone by the ineffective notice could and ought to have beenstemmed by plaintiffs' counsel." Sarit, 987 F.2d at 15.

Sarit is distinguishable from the present case. First, theplaintiffs in Sarit were not incarcerated at the time of the forfeitureproceedings. Second, the plaintiffs in Sarit had instituted an actionin the district court for the return of the property and wererepresented by counsel. Knowledge of the statutes regulating theforfeiture proceedings and the risk that the property would beforfeited within a short time period was attributed to counsel, andthus to the plaintiffs. Third, the plaintiffs in Sarit had received amemorandum informing them that the currency was being held foradministrative forfeiture and providing them with a seizurenumber that had been assigned to the currency. The memorandumfurther informed the plaintiffs that if they filed a claim and costbond with the DEA, the DEA would be required to refer the matterto the United States Attorney for the initiation of judicial forfeitureproceedings. In contrast, Rashawn was incarcerated at the time theState mailed the notice of forfeiture. The State did not attempt tonotify Rashawn's criminal counsel of the forfeiture. Indeed, thereis no indication in the record that Rashawn's criminal counselcontinued to represent him once the criminal proceedings resultedin the convictions. Thus, the Sarit court's conclusion that "thedamage done by the ineffective notice could and ought to havebeen stemmed by plaintiffs' counsel" (Sarit, 987 F.2d at 15), hasno bearing in this case. Further, the State nowhere claims that itgave Rashawn information of the kind given the Sarit plaintiffs inthe memorandum. The majority's assertion that Sarit is "helpfulin the instant matter" is simply incorrect.⁽³⁾

The majority's holding that the notice given Rashawn waseffective is based upon the premise that the State may becompartmentalized, such that information available to the State'sAttorney of one county or to the Illinois Department ofCorrections is not attributable to the State's Attorney of anothercounty. The majority's sole support for this holding is Sarit.However, this holding is not supported by Sarit and is contrary tocase law. See Dusenbery, 534 U.S. ___, 151 L. Ed. 2d 597, 122 S.Ct. 694 (in determining whether the government's actions werereasonable, the Supreme Court looked to the procedures followedby the FBI, the forfeiting agency, in mailing the notice, and theprocedures followed by the federal correctional institution wherethe property owner was incarcerated, in processing certified mailaddressed to inmates); United States v. Minor, 228 F.3d 352 (4thCir. 2000) (since property owner was in federal custody, the DEAnotices 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 administrativelyforfeited certain property, the court held that "the circumstancessurrounding the federal government's incarceration of a prisonerrequire greater efforts at ensuring notice than would be expectedfor individuals at liberty in society"); United States v. McGlory,202 F.3d 664, 674 (3d Cir. 2000) (en banc) (on review of anadministrative forfeiture proceeding conducted by the DEA, thecourt held: "at a minimum, due process requires that when aperson is in the government's custody and detained at a place of itschoosing, notice of a pending administrative forfeiture proceedingmust be mailed to the detainee at his or her place ofconfinement"); Lopez v. United States, 201 F.3d 478 (D.C. Cir.2000) (where notices sent by the DEA to the property owner'shome and to the county jail were returned to the DEA, and wherethe DEA knew that the property owner was in the custody eitherof the State of Florida or of the Attorney General of the UnitedStates, the DEA should have attempted to locate the propertyowner within the prison system); United States v. Real Property,135 F.3d 1312 (9th Cir. 1998) (the requirements of due processwere satisfied where the record showed that the government sentnotice, by certified mail, to the property owner at the jail facility,and the watch commander at the jail testified that jail personnelsign for certified mail, open it in the presence of the inmate, andthen distribute it directly to the inmate); Boero v. DrugEnforcement Administration, 111 F.3d 301, 306 (2d Cir. 1997)("Boero was a prisoner in custody, having been transferred to hisplace of incarceration directly from a federal facility, and noticecould easily have been given to him; the notice was indisputablyinadequate and the district court has found *** that the DEA wasresponsible for the failure of notice"); United States v. Clark, 84F.3d 378 (10th Cir. 1996); Williams v. United States DrugEnforcement 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 intothe Shawnee County jail and later transferred to the Kansas StateCorrectional Facility, the court found the notice mailed to theproperty owner's home ineffective, rejecting the State's claim thatit had no reason to know the property owner remained incarceratedduring the criminal proceedings); State v. $17,636.00 in UnitedStates Currency, 650 So. 2d 900 (Ala. Civ. App. 1994); State v.Jacobiak, 1989 Ohio App. LEXIS 4747 (1989) ("by virtue ofappellant's conviction and sentencing, appellee knew or shouldhave known appellant was incarcerated at the time the petition wasfiled. Under the circumstances *** sending a copy of the petitionby regular mail to appellant's trial attorney, was not 'an effort' thatwould ordinarily provide notice to appellant of the pendency of theforfeiture 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 ownerswas returned to the government five days later markedundeliverable, and where the property owners were activelyseeking the return of their money through an administrative FTCAclaim filed with the INS, "another attempt at written notice [by theSecret Service] would have been reasonable, even necessary,under the circumstances and would not have been too burdensomeon the government"); Montgomery v. Scott, 802 F. Supp. 930, 936(W.D.N.Y. 1992) ("It was unreasonable for the DEA to ignore itsdiscovery that plaintiff had not received the original mailed notice. The Government must use the information it possesses todetermine whether to rely on a particular method of notice; it maynot ignore information that reveals that a method of notice isinadequate 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 ofSafety seized money in a raid at a mobile home and the home'sowner told the task force officers that the petitioner had broughtthe money to her and told her to use it if she needed to, and wherepolice later arrested the petitioner for an unrelated murder hecommitted two days before the raid, the court held "it is clear thatthe Department of Safety possessed the requisite knowledge of thepetitioner's possible proprietary interest in the seized property.Such knowledge required the Department to give notice to thepetitioner of the seizure and possible forfeiture of the property").

CONCLUSION

The opportunity to be heard has "little reality or worth unlessone is informed that the matter is pending and can choose forhimself 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 thepresent case, the State mailed the notice of the forfeiture toRashawn's home. Although the State did not receive a returnreceipt from the mailing, the State inquired no further. The Statefailed to notify Rashawn of the forfeiture at the correctional centerwhere he was incarcerated. Rashawn was thus deprived of theopportunity to contest the forfeiture and divested of his propertywithout due process of law. It matters not that Rashawn wasincarcerated on charges unrelated to the forfeiture. The Stateprosecuted and incarcerated Rashawn on those charges. The Statewas aware of the incarceration and knew, or should have known,that notice mailed to Rashawn at his home address would beineffective. As held by the Supreme Court, notice sent to aprisoner's home is inadequate. Hanrahan, 409 U.S. at 40, 34 L.Ed. 2d at 49, 93 S. Ct. at 31. Such notice is not reasonablycalculated to apprise the prisoner of the pendency of the forfeitureproceedings. Hanrahan, 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 amere 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.

1. ¹The State represented to the circuit court and to this court that "theoffense for which Rashawn was incarcerated occurred almost one monthafter the incident that led to the forfeiture," that is, in June 1998 ratherthan the dates shown above.

2. ²Information about inmates is available to the general public at theIllinois Department of Correction's internet site.

3. ³At least one commentator has roundly criticized Sarit,

"While these unique facts make the decision easilydistinguishable, it is still disturbing that the court allowed aclaimant's right to contest the forfeiture to be snuffed out socavalierly by the DEA. The decision is wholly out of syncwith the Supreme Court's efforts to provide additionalprocedural 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 distinguishedSarit.