                                           FIRST DIVISION
                                           June 12, 2006




No. 1-04-2624

THE PEOPLE OF THE STATE OF ILLINOIS,   )     Appeal from the
                                       )     Circuit Court of
          Plaintiff-Appellant,         )     Cook County.
                                       )
                       v.              )
                                       )
$111,900, U.S.C.,                      )
                                       )
          Defendant,                   )
                                       )
KEVIN GANIOUS and DARREN WILSON,       )     Honorable
                                       )     Laurence J. Dunford,
          Claimants-Appellees.         )     Judge Presiding.

     JUSTICE BURKE delivered the opinion of the court:

     Plaintiff the People of the State of Illinois appeals from an

order of the circuit court granting claimants 1 Kevin Ganious and

Darren Wilson's motion for a directed finding on the State's

complaint for forfeiture, ordering the return of $111,900 United

States currency to claimants and their attorneys.    On appeal, the

State contends that the trial court erred in (1) granting a

directed verdict in favor of claimants because, as a matter of law,

the totality of the circumstances established probable cause; (2)

     1
      Although attorney Steven Greenberg apparently appeared on
behalf of both claimants, on September 10, 2004, we granted
attorney Charles Snowden leave to file an appearance on behalf of
Wilson, which he did. Thereafter, we granted Greenberg leave to
withdraw his appearance on behalf of Wilson. Wilson has not filed
a brief before this court, nor adopted the brief filed by Ganious.
1-04-2624

failing to apply the statutory presumption of close proximity to

establish probable cause; and (3) permitting Ganious and Wilson to

join their claims since they did not share a common defense.           For

the reasons set forth below, we reverse and remand this cause.


                           STATEMENT OF FACTS

      On June 2, 2002, the State filed a complaint for forfeiture

pursuant to the Drug Asset Forfeiture Procedure Act (Forfeiture

Act) (725 ILCS 150/1 et seq. (West 2004)), seeking the forfeiture

of $111,900 recovered from Ganious.        In this complaint, the State

alleged that on February 27, the police responded to a 911 call at

7754 South Burnham, #2, in Chicago.           The police were met by

Ganious, who stated he had found $20,000 and a gun in the 6800

block of South Maplewood and that the people who owned them were

going to be looking for him.            The police then recovered the

following items from Ganious' bedroom: a .32 caliber Smith and

Wesson revolver from the top shelf of the bedroom closet; a

suitcase containing $64,450 from under a futon in the bedroom; a

second case containing $39,400; and seven individually wrapped

rock-like substances (suspect cocaine) from the dresser.         According

to   the   complaint,   sometime   after   this   date,    Ganious   denied

ownership of the money and stated he found it while doing rehab

work for Darren Wilson at 6106 South Maplewood.           The State relied

upon section 7 of the Forfeiture Act to establish probable cause to

forfeit the money.      This section provides:


                                    2
1-04-2624

                    "The following situations shall give rise

            to a presumption that the property described

            therein      was   furnished       or    intended    to    be

            furnished     in   exchange        for   a   substance     in

            violation of the Illinois Controlled Substance

            Act   ***,    or   is   the       proceeds    of    such   an

            exchange, and therefore forfeitable under this

            Act, such presumptions being rebuttable by a

            preponderance of the evidence:

                    (1) All moneys, coin, or currency found

            in close proximity to forfeitable substances

            ***."     725 ILCS 150/7 (West 2004).

     On June 6, Ganious filed a response to the complaint, stating

that he had found the money on February 17.                    On June 27, Wilson

filed a verified claim, stating that he was the owner of 6106 South

Maplewood and everything therein.             Specifically, Wilson stated that

the $111,900 found in the false ceiling was and is his.                     According

to Wilson, he acquired the money on February 21, 1997, when he

acquired the building.         Wilson also filed a motion to dismiss the

State's complaint for lack of jurisdiction.

     On August 29, Wilson filed a motion for summary judgment

against Ganious, stating that he had no colorable claim to the

money because it was found on Wilson's property.                  In an affidavit

attached to this motion, Wilson averred that on February 17, he had

hired Ganious to do rehab work at his building.                   Thereafter, the

                                          3
1-04-2624

State responded to Wilson's motion to dismiss and motion for

summary   judgment,   raising   the       issue   of   standing   as   to   both

claimants.    On October 31, during a status hearing, it was made a

matter of record that Wilson and Ganious had made an agreement

that, if the money was to be returned to them, they would split it.

     On April 24, 2003, the trial court entered an order denying

Wilson's motion to dismiss as well as his motion for summary

judgment.    The case was then continued from time to time.            On March

12, 2004, the State filed a motion to strike the claim and answer

of Ganious on the basis that he had no legal ownership interest in

the money and, therefore, lacked standing.             Attached to the motion
                                                   2
were excerpts from Ganious' deposition.                 In this deposition,

Ganious admitted that the money was in close proximity to the

cocaine at his home and that, when he carried the money into his

home, he had had cocaine in his pocket.            According to Ganious, he

was performing drywall work at Wilson's property and after he had

taken down the old ceiling to put in a new drywall ceiling, "it

[the suitcase] came out of the ceiling."                Ganious stated that

inside the suitcase was a black bag containing the money.                   When

Ganious discovered the money in the suitcase, he "thanked God,"

called a cab, and went home.      When Ganious arrived home, he moved

some of the money from the suitcase to his attache case.               Ganious

stated that he never counted the money and denied being afraid that

     2
     The entire deposition transcript is not part of the record on
appeal.

                                      4
1-04-2624

the money might belong to drug dealers who would come looking for

him.   According to Ganious, the suitcase that fell from the ceiling

was the same suitcase the police took from his bedroom.

       On May 6, Ganious responded to the State's motion to strike,

arguing that, as the finder of the lost money, he had a legal

ownership   interest   in   it   and,       thus,   standing   to   contest   the

forfeiture.    Thereafter, the State responded and, ultimately, the

trial court denied the State's motion to strike Ganious' answer.



       On August 5, a bench trial was held.               It was the State's

position that it demonstrated probable cause for forfeiture of the

money based on the presumption that it was found in close proximity

to cocaine.   Officer Windhorst testified that on February 27, 2002,

at approximately 11:30 p.m., he and his partner, Officer Walsh,

went to 7754 South Burnham, #2, responding to a 911 call that a

child had been shot.    The officers were met at the apartment door

by Ganious.   The officers immediately asked Ganious where the shot

child was, at which time he responded that no child had been shot

and he just told the 911 operator that so the police would arrive

quicker.    Ganious then told the officers he had found some money,

approximately $20,000, and was afraid that the person who owned the

money would come to get him.      Ganious requested federal protection.

 Ganious took the officers to his bedroom and showed them where the

suitcase with the money in it was.              According to Windhorst, he

recovered the suitcase from under a couch or futon type of couch.

                                        5
1-04-2624

Windhorst stated that the bedroom was 8 x 10 feet, there was a

closet, a dresser, and the futon.     While Windhorst was retrieving

the suitcase, Walsh inquired of Ganious whether a gun was involved,

to which he responded in the affirmative and stated it was in the

closet.    Windhorst then retrieved the gun from the closet.   As the

officers were talking to Ganious, Windhorst glanced to his left and

observed a dish on top of the dresser with seven clear plastic bags

containing a white, rock-like substance.    Windhorst, believing the

substance to be crack cocaine, retrieved these bags as well.     The

substance was later sent to the lab and tested positive for

cocaine.    As the police were preparing to leave, Ganious asked

them, "Do you want the other one?"       When Windhorst inquired of

Ganious, "The other what?," Ganious responded, "The other suitcase.

 It's under the couch."   Windhorst recovered a second smaller case,

opened it, and discovered more money.      The police then left with

the items they had recovered as well as Ganious.        According to

Windhorst, when he asked Ganious where he had found the money,

Ganious stated that he had found it in an abandoned building in the

6800 block of South Maplewood.   When Windhorst asked Ganious who he

was afraid of, Ganious refused to answer and just kept repeating

that he wanted federal protection.

     At the police station, Ganious was placed in a room and kept

yelling that he wanted protection.    According to Windhorst, as time

went on, Ganious' demeanor changed and he was saying, "I made a

mistake.    I'm sorry.   I just want my money back."   Prior to this

                                  6
1-04-2624

time, however, Windhorst called for the canine unit.              When the

canine unit arrived, Windhorst was instructed to take one of the

cases out to the parking lot and hide it under a car, which he did.

 The canine officer let the dog go, who "went in a zigzag pattern

immediately" to the car and started barking and biting at the case.

 According   to   the   canine   officer,     this   was     a     positive

identification for the odor of drugs.           After this, Windhorst

retrieved the case and took it back into the station.            Both cases

were then emptied and the money was counted.     Windhorst stated that

the larger suitcase was about 22 to 24 inches by 18 inches by 7 to

8 inches.

     Upon examination by Ganious' attorney, Windhorst admitted

that, prior to putting the suitcase under the car, the dog did not

sniff the ground or underside of the vehicle to see if it was

alerted in any way, nor was the suitcase ever opened for a test on

the money.   Windhorst also stated that no money was recovered from

Ganious' living room and he did not believe the officers ever

stepped foot in the living room.       When asked whether the futon was

right next to the dresser, Windhorst responded, "No.         The dresser

was to my left where the suspect cocaine was.              The futon was

directly in front of it."   Windhorst admitted that the police did

not find any scales, materials for packaging cocaine, cooking

vessels, or anything else showing there was some kind of narcotics

operation occurring in the home.

     Officer Thomas Roper next testified on behalf of the State.

                                   7
1-04-2624

On February 27, 2002, Roper met Ganious and Walsh at the police

station as the officer on call for the asset forfeiture unit.                  It

was Roper's duty to attempt to ascertain the ownership of the

money.     In this regard, he tried to question Ganious.                However,

Ganious would not speak to Roper, but "turned his back and cowered

in a corner, crouched down in a corner."            Although Roper called

Ganious' name two to three times, Ganious would not respond.               Roper

ceased trying to interview him, but left him a card.

      Approximately one month later, Roper received a call from

Ganious.    At this time, Ganious stated he had found the money while

doing plaster work at 6106 South Maplewood.             According to Ganious,

he was tearing out plaster and a suitcase fell from the ceiling in

the far west corner of the bedroom in the rear of the apartment.

After ascertaining the owner of the property, Roper spoke with

Wilson on the telephone and advised him of the events that had

transpired.    Wilson acknowledged owning the building, but denied

any   knowledge   of   the   money.       Thereafter,    Roper   went    to   the

building, spoke with the current resident, and requested to view

the bedroom.      Roper observed that the corner of the bedroom, as

described by Ganious, had been freshly painted.              Roper wanted to

ascertain the space between the ceiling and the floor above it, but

did not want to damage the ceiling by poking a hole in it.                    The

resident advised him that the room next door was not finished.                 At

this time, Roper measured the floor joists in the ceiling, which

were 16 inches apart and the clearance between the ceiling and

                                      8
1-04-2624

floor above it was 2 to 3 inches.     According to Roper, this ceiling

was the same height as the ceiling in the bedroom.         Roper then

testified that he spoke with Wilson both before and after viewing

the property and Wilson indicated that he had no idea about the

money in the ceiling.

     Upon cross-examination by Ganious' attorney, Roper stated

that, prior to his attempt to speak with Ganious, he spoke to the

arresting officers who advised him that Ganious appeared to be in a

drug-induced stupor during their interview of him and he appeared

nervous and agitated, and that, while at Ganious' apartment,

Ganious had closed his curtains and shades while leading the police

through his residence, spoke in whispers to make sure no one would

overhear him, and requested a towel or blanket to put over his head

to conceal his identity.   Roper further testified that when he went

to Wilson's building, he observed that rehab work had been done,

but was not able to verify who had done it.    Roper also stated that

while counting the money, he observed that a majority of the bills

were 2000 and 2001 bills and that some of the stacks were $10s in

sequence.   According to him, because the majority of the bills were

2000 and 2001, it was his belief that the money had not been hidden

for a long time.   The State then rested and Wilson's attorney moved

for a directed finding as to his client.

     The parties then presented arguments with respect to the

motion for a directed finding.   Thereafter, the court first found

that Ganious was in a drug-induced stupor at the time of the search

                                  9
1-04-2624

and seizure and when he was questioned by the police.        It then

noted that two cases had been found, one under the futon and maybe

one under a couch.    However, the court stated that it was assuming

the two cases were found in the same place.    Thereafter, the court

noted that, while cocaine was found on the top of a dresser, there

was no description of the dimensions of the dresser or its height.

 The court further found that while a "sniff test" was done, there

was no "hit" on the money, but only on the suitcase.       The court

then stated that it did not believe the State had established a

nexus since it did not think the cocaine on the dresser and the

money under the futon were close enough in proximity.    Thereafter,

the court denied the State's complaint for forfeiture.

     Subsequently, the court granted a motion to strike Roper's

testimony with respect to his opinions, specifically, the ceiling

depth.    The court then ordered that the money be paid to Wilson as

owner of the property since the court believed the money to be

treasure trove.     The parties made additional arguments as to who

should receive the money.    Subsequent to these arguments, the trial

court stated that the money was to be returned to both claimants.

Thereafter, the trial court entered an order, granting judgment in

favor of Ganious and Wilson and staying enforcement of the judgment

until September 2.    On September 2, the State filed its notice of

appeal.    The State also filed a motion to stay pending an appeal,

which was denied.    The trial court ordered that the money was to be

released to claimants.      On the same day, we granted the State's

                                  10
1-04-2624

emergency motion for a stay until further order of this court.


                                    ANALYSIS

     In a proceeding under the Forfeiture Act, the State has the

initial burden of demonstrating probable cause for forfeiture of

money recovered from illegal drug activities.              People v. A Parcel

of Property Commonly Known As 1945 North 31st Street, Decatur,

Macon County, Illinois, 217 Ill. 2d 481, 498, 841 N.E.2d 928 (2005)

(1945 North 31st Street).       The legislature has declared that the

Forfeiture Act is to be liberally, not strictly, construed. 1945

North 31st Street, 217 Ill. 2d at 496-97.                 In 1945 North 31st

Street, the court reiterated the rules relevant to establishing

probable cause:

                  "To     satisfy      the      probable     cause

            requirement    under     the     Forfeiture    Act,   a

            complaint for forfeiture must allege facts

            providing reasonable grounds for the belief

            that there exists a nexus between the property

            and illegal drug activity, supported by less

            than prima facie proof but more than mere

            suspicion.     [Citation.]         Probable cause in

            this context requires only a probability or

            substantial chance of the nexus and not an

            actual showing.        [Citations.]"      1945 North

            31st Street, 217 Ill. 2d at 505.


                                       11
1-04-2624

The   strength    of   the   connection   need   not   be   a   substantial

connection.      People v. $1,124,905 U.S. Currency and One 1988

Chevrolet Astro Van, 177 Ill. 2d 314, 338, 685 N.E.2d 1370 (1997).

 "[T]he government's evidence need not exclude other plausible

hypotheses of the source of the money."          1945 North 31st Street,

217 Ill. 2d at 505.      Moreover, the State need not tie the money to

a specific drug transaction.      $1,124,905 U.S. Currency, 177 Ill. 2d

at 336.   "[I]t is the totality of the circumstances, not a minute

parsing of each item of information, that leads to a finding of

probable cause."       1945 North 31st Street, 217 Ill. 2d at 505.

      Probable cause can be established if the State demonstrates

that a presumption exists.        See People v. $5,970 United States

Currency, 279 Ill. App. 3d 583, 588, 664 N.E.2d 1115 (1996).

Specifically, "[a] presumption arises [under section 7 of the

Forfeiture Act] that currency was furnished or intended to be

furnished in exchange for drugs when the currency is found in close

proximity   to    forfeitable   substances."      $5,970    United   States

Currency, 279 Ill. App. 3d at 587.          "During the probable cause

portion of the proceeding, the court must receive and consider,

among other things, all relevant hearsay evidence and information.'

 [Citation.]"     1945 North 31st Street, 217 Ill. 2d at 505.

      Once the State satisfies its burden to establish probable

cause, the burden shifts to the claimants to demonstrate, by a

preponderance of the evidence, that the money is not subject to

forfeiture.      1945 North 31st Street, 217 Ill. 2d at 497.         During

                                    12
1-04-2624

this portion of the proceeding, "the law of evidence relating to

civil actions applies."     1945 North 31st Street, 217 Ill. 2d at

505.

       "[I]n a forfeiture case, the circuit court, as the trier of

fact, determines the credibility of the witnesses and evaluates

their testimony."    1945 North 31st Street, 217 Ill. 2d at 507.

Morever, "the court may draw reasonable inferences and reach

conclusions to which the evidence lends itself."       1945 North 31st

Street, 217 Ill. 2d at 507-08.    Since "the circuit court bases its

conclusion upon its assessment of the evidence, a reviewing court

will not reverse an order of forfeiture unless it is against the

manifest weight of the evidence."      1945 North 31st Street, 217 Ill.

2d at 508.

       The State contends that the trial court erred in failing to

apply the statutory presumption of close proximity, which alone is

sufficient to establish probable cause.       The State maintains that

we review this issue de novo.    According to the State, since all of

the items were found within an 8 x 10 foot bedroom, they were

sufficiently near to establish the statutory presumption.      In this

regard, the State argues that the question should not be one of

feet or inches, but should be made on a case-by-case basis.

       Ganious contends that the trial court properly declined to

apply the statutory presumption because there was no evidence

showing the distance between the money and the drugs.         Ganious,

too, maintains that we review this determination de novo because it

                                  13
1-04-2624

involved the trial court's interpretation of close proximity.

Ganious argues that the State fails to cite any Illinois authority

holding that the distance should not be defined in feet or inches;

rather, it cites only to an out-of-state case.              Ganious further

argues that there was no evidence presented that the two cases were

taken from under the same couch or futon.           According to Ganious, if

Windhorst had grabbed the first suitcase, he would surely have seen

the second one under the same futon.           Because he did not, Ganious

maintains this casts doubt on the fact the two cases were under the
              3
same couch.       Likewise, Ganious maintains that the State is really

reaching when it cites to two Maryland cases because the statutes

are different and the facts are distinguishable.            In this regard,

Ganious argues that he offered a cogent and coherent reason for

having the money and how it got into his bedroom, which was

corroborated by Wilson.         Ultimately, Ganious maintains that the

money and drugs must be in reach of each other for the statutory

presumption to apply.

     Initially, we agree with the State that if the statutory

presumption       is   demonstrated,   this   is   sufficient   to   establish

probable cause.        See $5,970 United States Currency, 279 Ill. App.

     3
     This argument is speculative and without any support in the
record.




                                       14
1-04-2624

3d at 588; People v. $1,002.00 U.S. Currency, 213 Ill. App. 3d 899,

904, 572 N.E.2d 385 (1991).            Although several cases in Illinois

have addressed the statutory presumption of close proximity, none

have expressly defined the breadth or parameters of the term, nor

have they set forth guidelines for determining whether an object is

in   close   proximity    to    another.       We     find    cases     from   other

jurisdictions instructive.           Although Ganious argues that out-of-

state cases are not relevant because they are based on different

statutes,    we   disagree.         Clearly,   when    there     is    no   Illinois

authority on a point, we may look to other jurisdictions for

guidance.    Allstate Insurance Co. v. Lane, 345 Ill. App. 3d 547,

552, 803 N.E.2d 102 (2003).           We believe this to be particularly

true here where the statutes of the other jurisdictions are quite

similar and utilize the same terminology in the same context.

       In $15,956 in U.S. Currency v. State, No. 05-671, ___ S.W.3d

___ (Ark. April 6, 2006), the Arkansas Supreme Court reiterated the

rules adopted in Arkansas with respect to close proximity.                     "Close

proximity" means "very near." $15,956 in U.S. Currency, slip op. at

___.   Specifically, the court stated: " '[W]hether one thing is in

close proximity to another under the forfeiture statute is to be

determined on a case-by-case basis, not by a particular number of

feet, by reference to particular rooms, or by any rule of thumb.'

[Citation.]"      $15,956 in U.S. Currency, slip op. at ___.                Thus, the

interpretation of close proximity, " 'depends upon the facts and

circumstances      existing    in   connection      with     their    application.'

                                        15
1-04-2624

[Citation.]"   $15,956 in U.S. Currency, slip op. at ___.                     See also

Limon v. State, 285 Ark. 166, 168, 685 S.W.2d 515, 516-17 (1985)

("The meaning of close proximity is to be made on a case-by-case

basis and is not subject to 'rigid rules.' [Citation.]").

     The Delaware Superior Court espoused the following rules:

                 "What    constitutes          close      proximity     was

            examined in the case of In the Matter of:

            $1,165.00 U.S. Currency, Del. Super., C.A. No.

            95M-05-009-RSG, Reynolds, Commissioner (March

            6, 1997) at 11-14, and I quote therefrom:

                 'Close     proximity'         is    a     relative

                 term.    However, there are many cases

                 construing     identical            or     similar

                 language      in   various              forfeiture

                 statutes in a number of states and

                 localities.           Analysis           of    those

                 cases indicates that close proximity

                 is not usually determined in the

                 abstract.     Rather, the courts tend

                 to      consider      the          totality       of

                 circumstances in determining whether

                 seized    money    is        in    close      enough

                 proximity     to      illegal           drugs     or

                 paraphernalia to raise an inference

                 that    the   money     was        used    in,    or

                                         16
1-04-2624

                   derived from, drug dealing. ***

                   The     'close       proximity'         provision

                   applying to money in the Act does

                   not appear to have been previously

                   construed by this Court.                 However,

                   in construing other provisions of

                   the statute, this Court has utilized

                   a probable cause approach....                   In

                   applying the test, this Court took

                   into account the totality of the

                   circumstances, ....           ***   [Citations

                   and footnotes omitted.]"            Cottman v.

                   State, No. 97M-09-020, slip ord. at

                   ___ (Del. Super. April 19, 1999)

                   (unpublished).

     Likewise, the Maryland courts have treated the determination

of close proximity in a similar manner.                    Specifically, the courts

there have held:

                   "     'The   breadth         of   the    term    "close

            proximity" deliberately has not been defined

            by either Maryland appellate court.                    Were we

            to     undertake        a    delineating          of    "close

            proximity," it is almost a foregone conclusion

            that    in    any   future     searches,         monies     will

            always be found outside the area embraced by

                                           17
1-04-2624

            our    definition.      We    shall       not,   therefore,

            attempt to define "close proximity."                Instead,

            we    shall    treat   the        term    with    the     same

            deference afforded "fraud" and "a quantity

            sufficient      to     indicate          an      intent        to

            distribute."     ***   We do not define it, but we

            know it when we see it.             In short, we shall

            determine "close proximity" on a case-by-case

            basis.' [Citation.]" Ewachiw v. Director of

            Finance of Baltimore City, 70 Md. App. 58, 64-

            65, 519 A.2d 1327, 1330 (1987).

     Lastly, the Missouri courts have stated, " 'The words "close

proximity" are words of common usage, understandable by a person of

normal intelligence.'        [Citation.]"            State v. Dillon, 41 S.W.3d

479, 486 (Mo. App. 2000).



     We   adopt     this   approach     in     Illinois.        Specifically,       the

determination of whether one object is in close proximity to

another object under the presumption of the Forfeiture Act must be

based upon a totality of the circumstances, made on a case-by-case

basis founded upon common sense.              A rigid approach based on feet,

inches, or some other esoteric formula or definition is simply not

workable nor logical.        We believe this approach is supported by

Illinois law.        First, the Forfeiture Act is to be liberally

construed.        1945   North   31st    Street,       217   Ill.     2d    at   496-97.

                                         18
1-04-2624

Applying a rigid formula would not serve this purpose.     Moreover,

the Illinois Supreme Court has specifically stated, with respect to

probable cause, of which this presumption relates, that the trial

court must look to the totality of the circumstances on a case-by-

case basis.   1945 North 31st Street, 217 Ill. 2d at 505.    Lastly,

use of the totality of the circumstances of a particular case,

combined with common sense, is only logical.         Close proximity

should not, and cannot, rationally be defined in precise terms.   To

do so, would result in absurd results.        If the objects were

required to be within one's reach or within reach of each other,

inconsistent and unreasonable results would occur.   For example, if

an individual who owns a Geo Metro and has money in the front seat

and drugs in the back seat, these items would logically be within

reach of each other and, thus, the statutory presumption of close

proximity would be satisfied and demonstrate the items were subject

to forfeiture.   However, if that same person owned a Navigator or

some other large SUV, items in the backseat or even in the cargo

area would not be within reach and, thus, not satisfy close

proximity.    Clearly, the legislature did not intend such absurd

results based on the size of a vehicle or the precise distance

between one object and another.    The same is true with respect to

objects' locations on premises.    As such, we agree with the State

that close proximity is not a matter of feet or inches, and

disagree with Ganious, who cites no authority to support his

position, that close proximity mandates that the objects be within

                                  19
1-04-2624

reach of each other.

       The cases addressing close proximity in Illinois further

support such a conclusion, although, again, none have so defined or

delineated the scope of this determination.                         In $5,970 United

States Currency, relied upon by the State, the claimant was stopped

for    driving    with   a    suspended        license.      $5,970    United       States

Currency, 279 Ill. App. 3d at 585.                      During a search of the

claimant's car, the police discovered a "Twinkies" box on the

passenger front floor that contained $5,970.                   $5,970 United States

Currency, 279 Ill. App. 3d at 585.               Within inches of this box, the

police also found a plastic bag containing white rocky residue,

which was determined to be cocaine residue.                   The claimant also had

a pager attached to his pocket and a search of his pocket revealed

another plastic bag with a small amount of white rocky residue, as

well as $55.99.      $5,970 United States Currency, 279 Ill. App. 3d at

586.     After a hearing, the trial court ruled in favor of the

claimant, but upon the State's motion to reconsider, reversed its

decision and ordered the money forfeited.                     $5,970 United States

Currency, 279 Ill. App. 3d at 587.              On appeal, the court concluded:

"By    adducing    evidence    that    the      currency      was     found    in   close

proximity to cocaine, the State effectively raised the presumption

that the currency was furnished or was intended to be furnished in

exchange    for   drugs,"     and,    therefore,        it    presented       sufficient

evidence    to    establish    probable        cause.        $5,970    United       States

Currency, 279 Ill. App. 3d at 588.

                                          20
1-04-2624

      In People v. $52,204.00 United States Currency, 252 Ill. App.

3d 778, 623 N.E.2d 959 (1993), the trial court entered an order

forfeiting $52,204 found in two safes located in the claimant's

son's bedroom.       In this bedroom, the police found numerous guns,

ammunition, and four safes that were two to four feet from each

other. $52,204.00 United States Currency, 252 Ill. App. 3d at 779.

 One of the safes held $51,946, a gun, and two savings passbooks,

another held $258 plus other items, and the other two were empty.

All four safes were tested for the presence of drugs and only one

of   the   empty    safes   showed   the   presence   of   cocaine   residue.

$52,204.00 United States Currency, 252 Ill. App. 3d at 780.               The

trial court ordered forfeiture of the money recovered from the

safes.     $52,204.00 United States Currency, 252 Ill. App. 3d at 781.

 On appeal, the appellate court reversed, finding that the State

failed to show that the statutory presumption based on close

proximity had been raised.       $52,204.00 United States Currency, 252

Ill. App. 3d at 783.        Specifically, the safe in which the cocaine

residue, which was a microscopic amount, was empty, and because the

State presented no evidence as to where or when the bills in the

other safes were, if they had in fact been, in close proximity to

the cocaine.       $52,204.00 United States Currency, 252 Ill. App. 3d

at 784.

      In People v. $4,175.00 U.S. Currency, 239 Ill. App. 3d 857,

607 N.E.2d 610 (1993), relied upon by Ganious, the trial court

ruled in favor of the claimant and denied the State's complaint for

                                      21
1-04-2624

forfeiture, finding that the State failed to establish probable

cause and failed to demonstrate that the statutory presumption of

close proximity was established.        $4,175.00 U.S. Currency, 239 Ill.

App. 3d at 861.   During a search of the claimant's home, the police

discovered 14 manilla envelopes containing 15.54 grams of marijuana

and $35 in the second drawer of a dresser contained in the middle

east bedroom of the home.       $4,175.00 U.S. Currency, 239 Ill. App.

3d at 860.    This room contained female and children's clothing and

belonged to the claimant's daughter.          In the southeast bedroom,

which was the claimant's, the police discovered $4,140 in the

pocket of claimant's pants.        The record disclosed that the two

bedrooms were adjacent to each other, but their doors were not.

$4,175.00 U.S. Currency, 239 Ill. App. 3d at 860.         On appeal, the

appellate court concluded that the State failed to establish the

statutory    presumption   of   close    proximity.   Specifically,   "no

cannabis was found in plain view but rather was found in sealed

envelopes in a dresser drawer in a room containing women's and

children's clothing.   No scales, envelopes, or any other indicia of

drug trafficking were found on the person of the claimant, in his

bedroom, or in the remainder of the residence."           $4,175.00 U.S.

Currency, 239 Ill. App. 3d at 865.        In this regard, the court held

that, if it were to rule the presumption had been established based

on these facts, it would be "tantamount to determining that the

presumption exists whenever contraband and money are found in the

same premises, without a connection between them."        $4,175.00 U.S.

                                    22
1-04-2624

Currency, 239 Ill. App. 3d at 865.

     In People v. U.S. Currency $3,108, 219 Ill. App. 3d 441, 579

N.E.2d 951 (1991), relied upon by Ganious, the trial court denied

the State's complaint for forfeiture.          U.S. Currency $3,108, 219

Ill. App. 3d at 442. 4    A search of the claimant's home pursuant to

a search warrant yielded the following items from a portable safe

contained   in   his   bedroom:   $3,108,    drug   paraphernalia,   a   bag

containing four to five ounces of a white powdery substance, that

later failed to test positive for cocaine, and jewelry.                  U.S.

Currency $3,108, 219 Ill. App. 3d at 443.           Discovered in a hamper

in the bathroom, which was directly adjacent to the claimant's

bedroom, were three packets containing .80 grams of cocaine.             U.S.

Currency $3,108, 219 Ill. App. 3d at 443.              It was the State's

position that the money was subject to forfeiture because it was

discovered in close proximity to the cocaine.               U.S. Currency

$3,108, 219 Ill. App. 3d at 443.         The trial court disagreed, which

the appellate court affirmed.      Although the appellate court noted

that, while claimant's bedroom was a separate room, it "was in

close proximity to the hamper."          U.S. Currency $3,108, 219 Ill.

App. 3d at 448.        However, other individuals had access to the

hamper and, because of this, the appellate court concluded that the

State failed to establish a prima facie case for forfeiture.             U.S.

     4
     This case was decided under the State's old initial burden of
proof, preponderance of the evidence.



                                    23
1-04-2624

Currency $3,108, 219 Ill. App. 3d at 448.

     In $1,002.00 U.S. Currency, relied upon by the State here, the

trial court denied the State's complaint for forfeiture.        $1,002.00

U.S. Currency, 213 Ill. App. 3d at 900.      Following a traffic stop

of the claimant, the police found $1,022 in his pocket ($20 was

given to his passenger for transportation), a red and white capsule

in the car, and, in the backseat of the car, a red suitcase that

contained   hypodermic   needles,    balloons    with   a   white   powder

substance, and a "bottle-cap" cooker.       Both of the latter items

subsequently tested positive for heroin.        $1,002.00 U.S. Currency,

213 Ill. App. 3d at 900.    The appellate court reversed the trial

court's denial of the State's complaint for forfeiture, finding

that the statutory presumption based on close proximity had been

established through the testimony of a police officer that the

suitcase in the backseat of the car was within reach of the

claimant.   $1,002.00 U.S. Currency, 213 Ill. App. 3d at 904.

     In In re Twenty-Seven Thousand Four Hundred Forty Dollars, 164

Ill. App. 3d 44, 517 N.E.2d 704 (1987) ($27,440), relied upon by

the State and Ganious, the trial court denied the State's complaint

for forfeiture. $27,440, 164 Ill. App. 3d at 45.            Although the

facts of this case are not relevant, with respect to the statutory

presumption based upon close proximity, the court found that "the

legislature intended the presumption to apply to situations where

observable controlled substances or distributing paraphernalia,

etc., are found in near proximity to currency."         $27,440, 164 Ill.

                                    24
1-04-2624

App. 3d at 48.



     In People ex rel. Daley v. Nine Thousand Four Hundred and

Three Dollars, $9,403 in U.S.C., 131 Ill. App. 3d 188, 476 N.E.2d

80 (1985) ($9,403), again relied upon by both the State and

Ganious, the trial court ruled in favor of the State on its

complaint for forfeiture, finding that the statutory presumption

based on close proximity had been raised.        $9,403, 131 Ill. App. 3d

at 190-91.    In this case, a search was conducted of the claimant's

single family home.        A vial of tinfoil packets was discovered on

the kitchen table; three of which contained heroin.           $9,403, 131

Ill. App. 3d at 190.       The sum of $8,542 was found in the claimant's

bedroom, which was directly adjacent to the kitchen.        Specifically,

$7,000 was found in a dresser drawer, which also contained numerous

hypodermic needles.        Additionally, $1,450 was found in the bedroom

closet, along with a bag containing several handguns.          Lastly, on

top of the dresser, the police discovered scales, a quantity of

plastic bags, squares of tinfoil, and an ounce of powder used to

dilate heroin.       $9,403, 131 Ill. App. 3d at 190.      On appeal, the

claimant argued that "when the money sought to be forfeited is

found in a separate room from the forfeitable substance, the

presumption     is   not    raised   because   close   proximity   is   not

established."        $9,403, 131 Ill. App. 3d at 191.          The court

disagreed, finding that, in the case before it, "the funds seized

were found in a room directly adjacent to that where the heroin was

                                      25
1-04-2624

found.   Moreover, the funds were in the same room as the scale and

other drug paraphernalia."     $9,403, 131 Ill. App. 3d at 191.

According to the court, it would "not restrict or enlarge the plain

meaning of an unambiguous statute to require that controlled

substances and forfeitable items related thereto be found in the

same drawer, box, or cabinet as the money."   $9,403, 131 Ill. App.

3d at 192.

     Clearly, none of these cases have mandated a set distance in

either feet or inches.   Moreover, it is clear from these cases that

Illinois courts have found that objects in different rooms can be

in close proximity.   See U.S. Currency $3,108, 219 Ill. App. 3d at

448 (bathroom and adjacent bedroom); $9,403, 131 Ill. App. 3d at

191 (kitchen and adjacent bedroom).

     Based on the foregoing, the facts relevant to the inquiry here

are the circumstances existing in Ganious= room at the time.     In

other words, the questions of whether Ganious gave a "cogent and

coherent" reason for possessing the money, whether he was in a

drug-induced stupor when he allowed the police to take the money

and was later interviewed, the circumstances surrounding the canine

sniff, and other similar questions are simply not relevant.      In

this regard, we disagree with the trial court=s finding that the

fact no evidence was offered as to the dimensions of the dresser or

its height is dispositive.   Clearly, no case, either in Illinois or

elsewhere, has required such evidence.

     Here, the undisputed evidence shows the following.     Ganious

                                 26
1-04-2624

took the police to his bedroom, which was 8 x 10 feet.                           There can

be no question in any rational person=s mind that this is a very

small     bedroom.         In    this     bedroom,        according       to    Windhorst's

testimony, was a futon, a dresser, and a closet.                                 A gun was

retrieved from the closet.                 A suitcase and another case were

recovered from under the futon.                 In this regard, we disagree with

Ganious that this is a disputed question.                     Windhorst testified that

he was never in the living room and there is no evidence of the

presence of any other couch or futon in the apartment.                                Whether

directly    in    front     of    the     futon     or    very     near   it,    given    the

dimensions of the room, the police discovered the cocaine on the

dresser.     Clearly, given the spacial relationship of this room,

there can be no question that all of the objects were found in

close proximity, or very near, to each other.                         We therefore find

that the trial court erred in failing to apply the statutory

presumption that the money was forfeitable based on its close

proximity to the cocaine.                Specifically, we find that the trial

court erred in requiring the State to prove the dimensions or

height of the dresser or its distance from the futon.                           Certainly,

in a room this size, everything, under a common sense view, had to

be within close proximity.

     We    further     believe          that   the       trial    court    collapsed      the

necessary analysis in this case by addressing facts and factual

questions        as   to        other     issues         in      analyzing      the     close

proximity/probable cause issue.                 Since the State met its burden of

                                               27
1-04-2624

demonstrating that the statutory presumption arose, the burden then

should   have   been   shifted   to   claimants    to   demonstrate,    by   a

preponderance of the evidence, under the civil rules of procedure

and evidence, that the money was not subject to forfeiture.            As the

State argues, the trial court appears to have addressed this

question without requiring claimants to present any admissible

evidence to the court.

     Accordingly, we reverse the trial court's determination as

contrary to law and remand this cause for further proceedings

consistent with this decision and the dictates of the Forfeiture

Act, including the question of the claimants' standing under

applicable law.    Based on our conclusion, we need not address the

State's argument that the trial court erred in granting a directed

verdict in favor of claimants because, as a matter of law, the

totality of circumstances surrounding Ganious' voluntary surrender

of the money established probable cause.          However, we note in this

regard, that the State did not posit this theory or argument before

the trial court.


                                 CONCLUSION

     For the reasons stated, we reverse the judgment of the circuit

court of Cook County and remand this cause.

     Reversed and remanded.

     CAHILL, P.J., and GORDON, J., concur.




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