People v. 1984 BMW 528E Auto.

• Decision Date: 19 February 1991
• Docket Number: No. 2-90-0168,2-90-0168
• Citation: 567 N.E.2d 654,153 Ill.Dec. 696,208 Ill.App.3d 930
• Parties: , 153 Ill.Dec. 696 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. 1984 BMW 528E AUTOMOBILE (Armando Villarreal, Intervenor-Appellee).
• Court: United States Appellate Court of Illinois

Page 654

567 N.E.2d 654

208 Ill.App.3d 930, 153 Ill.Dec. 696

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. 1984 BMW 528E AUTOMOBILE (Armando Villarreal, Intervenor-Appellee).

No. 2-90-0168.

Appellate Court of Illinois Second District.

Feb. 19, 1991.

Timothy K. Mahoney, McNamee & Mahoney, Ltd., Dundee, for Gilberto Rodriguez, Armando and Rachel Villarreal and Ramiro Garza.

Gary V. Johnson, Kane County State's Atty., William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, and Robert J. Huguelet, Jr., Orland Park, for the People.

Justice WOODWARD delivered the opinion of the court:

Intervenor, Armando Tito Villarreal, appeals the judgment of the circuit court ordering certain personal property forfeited under section 12(a)(4) of the Cannabis Control Act (Act) (Ill.Rev.Stat.1989, ch. 56 1/2, par. 712(a)(4)). The issue on appeal is whether there was a rational relationship between the items seized and the alleged violation of the Act.

The State commenced these civil proceedings to forfeit certain property. Count I involved one black 1984 BMW 528E four-door automobile owned by Gilbert Rodriguez, who also intervened in this cause but did not file a notice of appeal. Count II involved currency in the amount of $1,812.50 seized from intervenor. Count III involved jewelry seized from the two men. Count IV involved a paging device seized from intervenor. The trial court also determined that a portable telephone was the property of a third person and ordered it returned. All the other items were ordered forfeited.

Intervenor filed a motion in which he sought the return of the following property: one pager; currency in the amount of $1,812.50; one black, man's Citizen watch with 21-jewel automatic movement; a man's 14-carat Geneve quartz watch with nugget bracelet at 88.78 grams; a man's 14-carat, 20.50-millimeter nugget identification bracelet with "TITO" written in 49 diamonds of an average weight of .03 carats, or 1.47 carats total weight, with a frame made of 66 1.5-millimeters garnets; and one 14-carat, 18-inch by 7-millimeter beveled herringbone chain with a box clasp at 41.41 grams. Intervenor also claimed seven men's 14-carat gold rings, which included a nugget ring with the initial "A"; a matching nugget ring with the initial "V"; another matching nugget ring with 35 small jewels of a total weight of 1.40 carats; a nugget ring with a horseshoe and a pear diamond; a rectangular citrene ring; a ring with four clear stones; and another nugget ring. These items were found on his person on May 2, 1989. Intervenor was also found with a nugget ring with a jaguar emblem and a lady's John Anthony 14-carat gold, double-link, black-dial wristwatch with quartz movement, found in intervenor's pocket. These last two items were claimed by other intervenors for whom relief was denied. By stipulation of the parties, an appraisal was admitted into evidence stating that the value of all the jewelry was $20,915. Gilberto Rodriguez also had $4,260 worth of jewelry, including a watch, a 14-carat identification bracelet, a gold ring with "GILBERT" in 66 jewels and two horseshoe-with-horsehead 14-carat gold rings.

During the trial, officers of the Elgin police department testified that on May 2, 1989, at approximately 1 a.m., Gilberto Rodriguez was the driver and intervenor the front seat passenger of the BMW, which was parked at a convenience store in Elgin. Officer Piske saw two men outside the BMW yelling and pointing at it. When he pulled his squad car behind the BMW, it started to back up. The driver turned and saw the squad car, and the passenger turned, saw the squad car, and made a movement as to place something beneath his seat. Officer Hansen arrived, and the two occupants of the BMW exited the car at the officers' request. Officer Christ found a .380 Llama handgun, loaded with a magazine of seven bullets, under the passenger's seat, and the two occupants were arrested. Officer Hansen found a mobile telephone between the front seats, and she attempted to safeguard it by placing it in the trunk of the BMW, using a key from a key chain found in the car's ignition. In the trunk, she saw a plastic bag containing a green, leafy substance. An evidence technician testified that he tested the substance and determined that it was 464.3 grams of a substance containing cannabis.

When the two occupants were arrested, they put their hands on their paging devices. When examined by the police, the pagers were deactivated. The devices did not beep during the time the occupants were detained at the scene or at the police station.

Over the intervenors' objections, Officer Christ testified that intervenor Villarreal said that he was a landscaper who had been unemployed for 6 to 12 months and that intervenor stated the same fact to the judge conducting a hearing regarding his bond.

A local citizen testified that on April 25, 1989, he sold the BMW to Rodriguez. Rodriguez paid $11,300 in cash: $6,000 in $100 bills, $500 in $50 bills and the balance with $20 bills. On May 2, Rodriguez called him to ask if the title to the car had been returned by the secured-party bank. Rodriguez then told him, "[D]on't answer no questions," if anyone should ask who bought the car.

Lieutenant Copher testified as an expert in narcotics investigations. He had been employed by the Elgin police department for 20 years and had 10 years' experience in narcotic investigations, during which he had participated in over 500 narcotics arrests and had spoken with narcotics dealers and users over 1,000 times. Answering a hypothetical question based on the above facts, Copher stated his opinion was that the two occupants held possession of the cannabis with intent to deliver it. Copher testified that the modus operandi of a typical drug dealer included the use of a pager. A dealer will give his pager number to potential customers; the customer dials the telephone number of the pager and transmits his own telephone number to the pager; the dealer reads the pager and calls that number, usually using a portable telephone so as to avoid residential surveillance, to arrange a transaction with the customer; the dealer then uses the car to drive to the customer and deliver the product. Copher had encountered this modus operandi 15 to 20 times in the previous year and a half. Copher also testified that drug dealers use large amounts of cash during their transactions. Drug dealers also need a loaded gun to protect the drugs and money and to protect themselves. Cannabis was selling at approximately $120 per ounce. Copher testified that 465 grams of cannabis was more than normally used for personal use because a single cannabis cigarette contains less than one gram of cannabis.

Copher stated that the value and amount of jewelry on the two occupants did not have any significance in forming his opinion of their intent. However, Copher thought that since the parties were unemployed, the cash and jewelry were obtained through illegal means. Their possession of these items was "consistent with other drug dealers that I have arrested who were not working that had large amounts of money and jewelry."

Following the close of the evidence, the intervenors moved for a directed finding, arguing, inter alia, that there was no evidence that the relevant objects were used as part of a violation of the Act. The intervenors did not present any evidence. The court stated that it thought the State had met its burden of proving that most of the property was subject to forfeiture; however, the court remained unconvinced regarding the jewelry and invited the parties to submit memoranda. The State filed a memorandum in which it argued the jewelry was subject to forfeiture under a net-worth theory as explained in the decision in United States v. Nelson (7th Cir.1988), 851 F.2d 976. The intervenors did not respond and the court entered a judgment finding that all the property, except the telephone which was stipulated to be the property of a third person, was subject to forfeiture; the court included the jewelry in the forfeited items, relying on Nelson. Intervenor Villarreal appeals.

On appeal, intervenor contends that there was insufficient evidence to tie him to a violation of the Act which would subject his property to forfeiture. The intervenors were accused of violating section 5(d) of the Act (Ill.Rev.Stat.1989, ch. 56 1/2, par. 705(d)) for possessing more than 30 grams of a substance containing cannabis with intent to deliver it. Under section 12(a) of the Act, "[t]he following are subject to forfeiture: * * * (4) all money, things of value, books, records, and research products and materials including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this Act." (Ill.Rev.Stat.1989, ch. 56 1/2, par. 712(a)(4).) Intervenor argues that there was no evidence to relate his property to the cannabis found in the trunk of the car owned by another.

Intervenor argues that he was not in possession of the cannabis and thus cannot have committed a violation of section 5 of the Act, which prohibits the knowing possession of cannabis with intent to deliver it. Intervenor was neither the driver nor owner of the car, and thus he argues that there was no evidence to show he had knowledge, control, or possession of or access to the cannabis in the trunk. The trial court made an explicit finding that both Rodriguez and intervenor were in possession of the cannabis with intent to deliver it.

Possession may be either actual or constructive, but the terms are not mutually exclusive; they form a continuum based on the relative immediacy of control. (People v. Gore (1983), 115 Ill.App.3d 1054, 1057, 71 Ill.Dec. 463, 450 N.E.2d 1342.) In Gore, the driver of a car was determined not to have been guilty beyond a reasonable doubt of knowing possession when a bag of cannabis was found under a passenger's seat, and there were...