People v. Ziomek

• Decision Date: 01 February 1989
• Docket Number: No. 87-0504,87-0504
• Citation: 128 Ill.Dec. 356,179 Ill.App.3d 303,534 N.E.2d 538
• Parties: , 128 Ill.Dec. 356 The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Leonard ZIOMEK, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 538

534 N.E.2d 538

179 Ill.App.3d 303, 128 Ill.Dec. 356

The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Leonard ZIOMEK, Defendant-Appellee.

No. 87-0504.

Appellate Court of Illinois,

First District, Third Division.

Feb. 1, 1989.

Richard M. Daley, State's Atty., Chicago (Kenneth T. McCurry, James E. Fitzgerald and Robert McNamara, of counsel), for plaintiff-appellant.

Paul A. McWilliams and Edwin J. Belz, Palatine, for defendant-appellee.

Justice McNAMARA delivered the opinion of the court:

Defendant Leonard Ziomek was charged with unlawful use of weapons, and charged under the Municipal Code of Chicago with failure to register a deadly weapon, and unlawful possession of fireworks. Weapons and ammunition were confiscated from defendant's Chicago home, but the evidence was later suppressed and the arrest quashed on Fourth Amendment grounds. The trial court then granted defendant's motion for the return of the illegally seized weapons, but directed that the property be returned outside the borders of the City of Chicago. The State appeals the order returning the weapons to defendant.

On January 13, 1984, defendant was arrested and the following property confiscated:

UZI 9 mm

Smith and Wesson 41 Magnum

Browning 9 mm

Ruger 357 Magnum

Ruger 22 Caliber

Walther PPKS .380 Caliber

Colt 45 Caliber

Walther PP 7.65 mm

AMT 380 Backup

Derringer 22 Caliber

Remington 35 Caliber

Marlin 22 Cal., Long Rifle

New Haven 20 gauge shotgun

Blank Starter Pistol

Three Flintlock Pistols

Two 22 Caliber Crossman Pellet Pistols

Crossbow

Gerber Knife

13 Arrows

3000 Rounds of Ammunition

25 Ammunition Cases

Walnut Display Case

On March 1, 1984, following the granting of defendant's motion to quash the arrest and suppress the evidence, the court ordered the seized weapons confiscated and destroyed. On June 16, 1986, defendant petitioned for the return of the seized property.

On September 23, 1986, a hearing was held to determine if defendant was entitled to the return of the property. The trial court ruled that all of the property except the UZI 9 mm weapon should be returned to defendant. On October 29, 1986 the State argued in a hearing for reconsideration that defendant could not legally possess the unregistered weapons and ammunition in Chicago. On January 14, 1987, the trial court ruled that defendant had a property right in the guns, but that he could not lawfully possess them within Chicago. The court ordered the property be returned to defendant outside the city limits of Chicago.

Forfeiture proceedings are in rem and therefore civil in nature. (People v. Moore (1951), 410 Ill. 241, 102 N.E.2d 146; People v. Hermann (1986), 150 Ill.App.3d 224, 103 Ill.Dec. 525, 501 N.E.2d 842.) After a conviction, or the dismissal of criminal charges, Fourth Amendment issues are not involved because the guilt or innocence of defendant is not at issue. (See generally W. LaFave, 4 Search and Seizure § 11.2(h) at 273, fn. 255 (2d ed. 1987).) The only issue concerns the contraband nature of the forfeitable property. (In re $27,440 (1987), 164 Ill.App.3d 44, 115 Ill.Dec. 293, 517 N.E.2d 704.) The State must prove its right to the items by a preponderance of the evidence. (People v. LeShoure (1986), 143 Ill.App.3d 839, 97 Ill Dec. 880, 493 N.E.2d 687 cert. denied (1987), 480 U.S. 931, 107 S.Ct. 1568, 94 L.Ed.2d 760.) The trial court decision will be upheld unless contrary to law or contrary to the manifest weight of the evidence. (People v. LeShoure.) Whether the property is contraband and subject to confiscation depends "upon the nature of its use at the time of the seizure." People v. Moore, 410 Ill. at 252, 102 N.E.2d 146 (emphasis added).

The State argues that the trial court improperly ordered the return of the seized property because at the time of the seizure mere possession by defendant constituted a violation of the relevant Chicago ordinances, and thus the property was contraband per se. Defendant counters that a gun alone cannot be contraband per se, and that subsequent to the time of the seizure the weapons could be moved out of Chicago and therefore no longer qualify as contraband of any kind.

The parties here correctly focus their analysis upon the issue of whether or not the property is contraband per se. A careful review of the qualities of the property reveals the arsenal in the present case is contraband per se.

Contraband per se includes property for which possession alone constitutes a criminal offense, e.g., sawed-off shotguns, narcotics and counterfeit money. (In re $53,263 (1987), 159 Ill.App.3d 114, 111 Ill.Dec. 351, 512 N.E.2d 740; People v. Gant (1986), 150 Ill.App.3d 180, 103 Ill.Dec. 334, 501 N.E.2d 355 cert. denied 484 U.S. 843, 108 S.Ct. 134, 98 L.Ed.2d 91; People v. Mudd (1977), 54 Ill.App.3d 603, 12 Ill.Dec. 414, 370 N.E.2d 37.) Such property need not be returned even if improperly seized. People v. Steskal (1973), 55 Ill.2d 157, 302 N.E.2d 321; see also United States v. Jeffers (1951), 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (narcotics); Trupiano v. United States (1948), 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (distilling equipment and intoxicating liquor), overruled on other grounds United States v. Robinowitz (1950), 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653.

"Derivative contraband" consists of property which is innocent in itself but which has been used in the perpetration of an unlawful act, e.g., a vehicle used in a robbery, or cash derived from the sale of illegal drugs. (People v. Steskal; In re $53,263.) The State may retain derivative contraband but it must show a rational relationship between the property and an unlawful purpose before the property is subject to forfeiture. In re $53,263.

In choosing the correct category of the seized property, it is vital to look at the purpose of a forfeiture provision. See United States v. Davis (S.D.Ill.1972), 346 F.Supp. 435 (return of contraband per se, such as narcotics or an unregistered still, would clearly have frustrated the express public policy against the possession of such objects) (citing United States v. Jeffers and Trupiano v. United States ). See also People v. Moore (court focuses on legislative determination that gambling implements are dangerous to public welfare, and finds such items have ceased to be regarded or treated as property and are liable to seizure and forfeiture); In re $27,440 (purpose of relevant broad-sweeping forfeiture provision is to control illegal trafficking in controlled substances); People ex rel. Stocke v. 11 Slot Machines (1979), 80 Ill.App.3d 109, 35 Ill.Dec. 471, 399 N.E.2d 305 (consideration must be given to evil to be remedied by statute prohibiting gambling and possession of gambling devices because of evil consequences which accompany it).

In Sklar v. Byrne (N.D.Ill.1983), 556 F.Supp. 736, aff'd. (7th Cir.1984), 727 F.2d 633, a Chicago ordinance requiring the registration of handguns was upheld as constitutional. The court noted findings made by the Chicago city council in regard to the registration requirement. The council found that firearms played a major role in the commission of homicide, aggravated assault and armed robbery; that improper storage of firearms and ammunition is a major factor in accidental deaths and injuries in homes; and that it is necessary and desirable to protect the residents of Chicago from the loss of property, and the injury or death connected to firearms. (Sklar 556 F.Supp. at 737-38.) The ordinance's preamble establishes that it is an attempt to limit the proliferation and convenient availability of firearms, thereby promoting the health and safety of the citizens by reducing firearm-related deaths and injuries. (Sklar, 556 F.Supp. at 739; see also United States v. One Assortment of 89 Firearms (1984), 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (purpose of Gun Control Act includes broad remedial aims concerned with widespread, indiscriminate traffic in firearms and general availability to those whose possession is contrary to the public interest, and includes encouraging local governments to enforce their gun control laws, and to adopt stricter laws).) On the basis of these public policies, the City of Chicago banned further registration after the statutory cut-off date. Moreover, the ordinance imposes monetary fines and terms of imprisonment as penalties for convictions resulting from violations of the law.

In addition, the legislature, to protect the health, safety and welfare of the public, prohibits the acquisition or possession of a firearm or ammunition without an Illinois Firearm Owner's Identification Card (Ill.Rev.Stat.1985, ch. 38, par. 83-1 et seq.) and prohibits convicted felons and others from acquiring such a card (par. 83-4). The legislature recognized that local ordinances of municipalities may impose additional registration requirements under similar public policies:

"The provisions of any ordinance enacted by any municipality which requires registration or imposes greater restrictions or limitations on the acquisition, possession and transfer of firearms than are imposed by this Act, are not invalidated or affected by this Act." Ill.Rev.Stat.1985, ch. 38, par. 83-13.1.

The classification process of contraband as derivative or per se determines the property's disposition, since once a court labels the property "contraband per se," it need not be returned. (United States v. Jeffers.) But if the court labels the property "derivative contraband," the State must prove by a preponderance of the evidence a nexus between the property and an unlawful purpose. At this point, parties may attempt to "cure" an illegality by manipulating certain pieces of the puzzle. These pieces, or factors which might play a role in a forfeiture decision, include the place and time of seizure; the person from whom the property was seized; any possible cure of the illegality; whether the property was used by defendant and how; whether the property is still...