PEOPLE EX REL. DEVINE v. $30,700.00

Decision Date21 March 2002
Docket NumberNo. 90470.,90470.
Citation262 Ill.Dec. 781,199 Ill.2d 142,766 N.E.2d 1084
PartiesThe PEOPLE of the State of Illinois ex rel. Richard A. DEVINE, Appellant, v. $30,700.00 UNITED STATES CURRENCY et al., Appellees.
CourtIllinois Supreme Court

James E. Ryan, Attorney General, Springfield, and Richard A. Devine, State's Attorney, Chicago (William L. Browers, Assistant Attorney General, Chicago, and Renee G. Goldfarb, Theodore Fotios Burtzos, Anthony M. O'Brien and James Nichols, Assistant State's Attorneys, of counsel), for appellant.

David R. McLenachen and Thomas Peters, Chicago, for appellees.

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 civil forfeiture proceedings against currency totaling $30,700 and $20,811. The State served notice of the forfeiture proceedings upon claimants Rashawn and Ida Carter (Rashawn and Ida) by certified mail, with return receipts requested (725 ILCS 150/4(A)(1) (West 2000)), to their last known addresses and made additional service by publication (725 ILCS 150/4(A)(3) (West 2000)). The circuit court of Cook County entered a default order forfeiting the claimants' interest in the currency. The appellate court reversed the order of the circuit court. 316 Ill.App.3d 464, 469, 249 Ill.Dec. 295, 736 N.E.2d 137. We granted the State's petition for leave to appeal (177 Ill.2d R. 315) and now reverse the judgment of the appellate court. In this appeal, we examine whether claimants received proper notice of civil forfeiture proceedings under the Act and whether such notice satisfied procedural due process.

BACKGROUND

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

Following the pat-down, the officers questioned Rashawn and learned that he did not have an existing account at the bank, but that he planned to rent a safety-deposit box. Rashawn provided conflicting answers when asked where he obtained the money and was unable to provide an accurate figure of the amount of money he was carrying. The officers subsequently took Rashawn to the police station for further questioning. At the police station, Rashawn admitted that he was a member of the Gangster Disciples street gang, that he was unemployed and did not own the money, and that he "messed up" trying to deposit the money. Rashawn also informed officers that he had been previously arrested for cannabis possession and that he was out on bond pending a hearing in that case. A background check confirmed a prior arrest and revealed an extensive criminal history, including six adult arrests by the Chicago police, a 1992 narcotics possession conviction, the use of multiple aliases, an arrest in Sangamon County, Illinois, for possession of a controlled substance, and the use of separate invalid driver's licenses with addresses in both Chicago and Springfield, Illinois.

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

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

Five days after the Chicago police executed the warrant, Ida telephoned the police to inquire about the contents of the safety-deposit box. When the officer questioned Ida about the safety-deposit box, Ida was unable to identify its contents. Ida did not indicate to the police that she possessed any interest in the contents of the safety-deposit box. Notwithstanding, officers scheduled two separate appointments with Ida so that she could establish a claim to its contents. Ida failed to keep either appointment with the police.

On August 4, 1998, the State filed a consolidated in rem complaint for forfeiture of the $30,700 and $20,811 pursuant to section 505 of the Illinois Controlled Substances Act (720 ILCS 570/505 (West 2000)). The complaint named Rashawn as a party with interest in the currency. The complaint alleged, inter alia, that the Gangster Disciples street gang is an active criminal organization that participates in the illegal distribution of prohibited substances through its members, who will often use safety-deposit boxes to conceal and store proceeds from ongoing drug operations. The complaint further alleged that in obtaining safety-deposit boxes these drug dealers often use false names or the identities of relatives and third parties to conceal the true identity of the owner and to hide the location of the proceeds. Finally, the complaint alleged that the gang often uses individuals as couriers to transport currency to safe storage locations.

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

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

On October 13, 1998, the circuit court entered a default order forfeiting Rashawn's interest and that of all other parties claiming right, 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 forfeiture proceeding. Rashawn provided an affidavit stating that he was incarcerated for unrelated charges in the Vandalia Correction Center beginning July 7, 1998, until his release November 10, 1998. In her affidavit, Ida claimed that she was the owner of the safety-deposit box at the Drexel National Bank and never received notice of forfeiture at her residence. The circuit court denied the motion to vacate the forfeiture order.

The appellate court reversed the judgment of the circuit court, holding that the circuit court lacked personal jurisdiction over Rashawn and Ida because they were not properly served in accord with the Act. 316 Ill.App.3d at 474-75, 249 Ill.Dec. 295, 736 N.E.2d 137. According to the appellate court, complete service under the Act is accomplished when the State receives a return receipt signed by the addressee. 316 Ill.App.3d at 469, 249 Ill.Dec. 295, 736 N.E.2d 137. Moreover, the appellate court held that the State failed to give Rashawn notice required by due process. 316 Ill. App.3d at 471, 249 Ill.Dec. 295, 736 N.E.2d 137. This appeal by the State followed.

ANALYSIS
I. Effective Notice Under the Act

As an initial matter, we review whether service is perfected under the Act upon mailing of the notice or, conversely, upon receipt of the certified mail return receipt signed by the addressee. The parties agree that absent proper notice of the forfeiture proceedings, the circuit court lacked jurisdiction and the power to order forfeiture of the currency. The parties also agree that the State never received certified mail return receipts of the notice mailings sent to both claimants. However, the State argues that failure to receive these return receipts does not render the notice defective. Rather, the State argues that service is effective under the Act upon the mere mailing of notice by certified mail, as long as the notifying party had no reason to suspect that the notice would not reach the intended recipient. This matter involves an issue of statutory interpretation, and our review is de novo. Michigan Avenue National Bank v. County of Cook, 191 Ill.2d 493, 503, 247 Ill.Dec. 473, 732 N.E.2d 528 (2000).

The Act is a remedial civil sanction enacted for the express purpose of deterring the rising incidence of the abuse and trafficking of...

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