People v. Black in Color Leather Vest With Attached Outlaws Motorcycle Club Patches

• Decision Date: 23 February 2016
• Docket Number: No. 2–15–0495.,2–15–0495.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. BLACK IN COLOR LEATHER VEST WITH ATTACHED OUTLAWS MOTORCYCLE CLUB PATCHES, Defendant (AOA15 Civic Organization, Inc., Claimant–Appellant).
• Court: United States Appellate Court of Illinois

58 N.E.3d 38
405 Ill.Dec. 231

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
BLACK IN COLOR LEATHER VEST WITH ATTACHED OUTLAWS MOTORCYCLE CLUB PATCHES, Defendant (AOA15 Civic Organization, Inc., Claimant–Appellant).

No. 2–15–0495.

Appellate Court of Illinois, Second District.

Feb. 23, 2016.
Rehearing Denied March 15, 2016.

58 N.E.3d 39

Joel Rabb, of Hesik-Prybylo, of Oak Park, for appellant.

Louis A. Bianchi, State's Attorney, of Woodstock (Jana Blake Dickson, Assistant State's Attorney, of counsel), for the People.

OPINION

Presiding Justice SCHOSTOK delivered the judgment of the court, with opinion:

405 Ill.Dec. 232

¶ 1 The claimant, AOA15 Civic Organization, Inc., better known as the Outlaws Motorcycle Club (the Outlaws), appeals from the April 17, 2015, judgment of the circuit court of McHenry County ordering that three black leather vests with attached Outlaws' patches be forfeited. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 The forfeiture action arose out of an incident that occurred on November 30, 2012, at the Lizard Lounge in Wonder Lake. After six members of the Outlaws entered the lounge, two separate physical altercations ensued and several patrons became the victims of aggravated battery. Four members of the Outlaws—Robert Bellmore, Luciano Flores, Michael Blumer, and Kathleen McKevitt (the defendants)—were arrested and charged with aggravated battery and mob action. On February 8, 2013, the defendants' leather vests, bearing the patches of the Outlaws, were seized.

¶ 4 On August 19, 2014, Flores, McKevitt, and Bellmore entered negotiated plea agreements in which they agreed to plead guilty and to forfeit all Outlaws-related property that had been seized by the sheriff's department during the defendants' arrests.¹

¶ 5 On September 12, 2014, the Outlaws filed a motion to intervene in the criminal proceedings, claiming a property interest in the patches attached to the defendants' black leather vests. The trial court denied the motion.

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¶ 6 On October 17, 2014, the State filed a complaint for forfeiture pursuant to section 36–1 of the Criminal Code of 2012 (Code) (720 ILCS 5/36–1 (West 2014) ) and section 40 of the Illinois Streetgang Terrorism Omnibus Prevention Act (Act) (740 ILCS 147/40 (West 2014) ). The State asserted that the Outlaws were a commonly recognized gang and that the black leather vests, worn by the defendants during the commission of the crimes charged, were used directly or indirectly to facilitate street-gang activity. As such, the vests were subject to forfeiture.

¶ 7 Also on October 17, 2014, the trial court entered an order providing that the Outlaws were “deemed to be a party of interest in the Article 36 seizure matter.”

¶ 8 On October 29, 2014, the Outlaws filed a motion to dismiss the forfeiture action, stating that it was untimely because the State did not initiate it within 60 days of the date of the seizure of the vests, in 2013.

¶ 9 On December 5, 2014, the trial court denied the Outlaws' motion to dismiss. The trial court explained that the property was not originally seized for purposes of forfeiture but instead pursuant to a search warrant, to be held until the criminal cases were disposed of. As such, the State's forfeiture action was timely.

¶ 10 On February 13, 2015, the trial court conducted a hearing on the State's complaint. James Duffy, an investigator with the Du Page County State's Attorney's office and an expert on motorcycle gangs, testified that the Outlaws gang members use the Outlaws' patches on their vests to portray “violent intimidation.” He stated that the intimidation factor of the patches is “cultivate[d] through violence” and that it is “systematically approved through their hierarchy.” He testified that the Outlaws' patches signify membership in a one-percenter gang, meaning a group that willfully engages in criminal activity. He testified that the vests were used to facilitate street-gang activity.

¶ 11 Ashley Chovanec testified that she was at the Lizard Lounge when the defendants entered, wearing their vests with Outlaws' patches. She stated that “the bar got quiet” and “[p]eople got uncomfortable.” She further stated that everyone else in the bar felt intimidated. Molly M'Gonigle, Robert Borta, and Cody Hutt testified similarly as to the effect the defendants' entrance had on the atmosphere of the bar.

¶ 12 Detective Kyle Mandernack, an expert on motorcycle gangs, testified that the Outlaws gain their reputation, influence, and membership through “violence and intimidation.” He testified that the vests and patches facilitate street-gang-related activity by identifying Outlaw members to others. He further stated that the vests and patches facilitate street-gang-related activity by creating the impression of dominance and revenge, which warns others of the consequences of “messing with” Outlaws members.

¶ 13 On cross-examination, Mandernack acknowledged that the defendants' violent actions, regardless of whether they were wearing their vests, would have constituted street-gang-related activity. Further, the defendants' simply wearing their vests, without any accompanying violent actions, would not have constituted street-gang-related activity.

¶ 14 On April 17, 2015, the trial court entered a written order granting the State's complaint. The trial court found that the evidence established that the Outlaws were a street gang within the meaning of the Act. The trial court further found that the Outlaws' vests are contraband in that they were used by the members

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of the Outlaws to facilitate street-gang activity. The trial court explained:

“The Outlaws all acted jointly. The vests identify their membership and facilitated the fights resulting in injuries to the victims. They intimidated the patrons of the bar to show Outlaw dominance and to increase their reputation.”

The Outlaws thereafter filed a timely notice of appeal.

¶ 15 ANALYSIS

¶ 16 The Outlaws' first contention on appeal is that the State did not timely file its complaint pursuant to section 40 of the Act (740 ILCS 147/40 (West 2014) ) and it did not timely issue a notice of seizure pursuant to section 36–1 of the Code (720 ILCS 5/36–1 (West 2014) ). The Outlaws insist that the criminal proceedings did not toll either the 60–day initiation requirement of section 40 of the Act or the 15–day notice requirement of section 36–1 of the Code.

¶ 17 Section 40 of the Act provides in relevant part:

“(a) The following are declared to be contraband and no person shall have a property interest in them:

(1) any

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