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                                   Appellate Court                          Date: 2016.12.14
                                                                            15:35:04 -06'00'




      People ex rel. Kelly v. One 2008 Chevrolet TrailBlazer, 2016 IL App (5th) 150338



Appellate Court        THE PEOPLE ex rel. BRENDAN F. KELLY, State’s Attorney of
Caption                St. Clair County, Plaintiff-Appellant, v. ONE 2008 CHEVROLET
                       TRAILBLAZER, Defendant (Latoya Radford and Nathaniel D.
                       Dukes, Claimants-Appellees).



District & No.         Fifth District
                       Docket No. 5-15-0338



Rule 23 order filed    September 19, 2016
Motion to publish
granted                October 26, 2016
Opinion filed          October 26, 2016


Decision Under         Appeal from the Circuit Court of St. Clair County, Nos. 15-FA-047,
Review                 15-MR-179 cons.; the Hon. Robert P. LeChien, Judge, presiding.



Judgment               Reversed and remanded.


Counsel on             Brendan F. Kelly, State’s Attorney, of Belleville (Patrick Delfino,
Appeal                 David J. Robinson, and Kelly M. Stacey, all of State’s Attorneys
                       Appellate Prosecutor’s Office, of Mt. Vernon, of counsel), for the
                       People.

                       Latoya Radford and Nathaniel D. Dukes, appellees pro se.
     Panel                    PRESIDING JUSTICE SCHWARM delivered the judgment of the
                              court, with opinion.
                              Justices Goldenhersh and Moore concurred in the judgment and
                              opinion.


                                                OPINION

¶1         On May 17, 2015, following a traffic stop in Fairview Heights, claimant Nathaniel D.
       Dukes was arrested and charged with driving under the influence of alcohol (DUI) (625 ILCS
       5/11-501 (West 2014)) and driving while license revoked (DWLR) (625 ILCS 5/6-303 (West
       2014)). The registered owner of the 2008 Chevrolet TrailBlazer (VIN 1GNET13H582256890)
       that Dukes had been driving at the time of his arrest was his live-in girlfriend, claimant Latoya
       Radford.
¶2         On May 18, 2015, when interviewed by a detective with the Fairview Heights police
       department, Dukes stated, among other things, that Radford allowed him to use her TrailBlazer
       “whenever he need[ed] it” and that the vehicle essentially belonged to “both of them.” Dukes
       explained that he could not title a vehicle in his own name because his driver’s license had
       been revoked.
¶3         On May 21, 2015, the State commenced a forfeiture action against the TrailBlazer pursuant
       to article 36 of the Criminal Code of 2012 (720 ILCS 5/36-1 et seq. (West 2014)). Specifically,
       pursuant to section 36-1.5, the State filed a request that the circuit court hold a preliminary
       review hearing to determine whether there was probable cause that the vehicle “may be subject
       to forfeiture.” 720 ILCS 5/36-1.5 (West 2014). Stating that Dukes was the “driver” of the
       TrailBlazer and that Radford was the “registered owner,” the request referred to both as “the
       known claimants.”
¶4         An affidavit in support of forfeiture was attached as an exhibit to the State’s request for a
       preliminary review hearing. The affidavit set forth a detailed account of the events that led to
       Dukes’s arrest and stated, among other things, that Dukes had been observed driving the
       TrailBlazer erratically, that he had exhibited slurred speech and smelled of alcohol when the
       vehicle was stopped, and that a subsequent breath test revealed that his blood alcohol
       concentration was nearly twice the legal limit of 0.08. See 625 ILCS 5/11-501(a)(1) (West
       2014). The affidavit further stated that Dukes had been arrested or convicted for DUI on five
       prior occasions since 1997 and that his driver’s license was both suspended and revoked. The
       affidavit identified the TrailBlazer by its vehicle identification number and its license plate
       number. The affidavit did not reference Radford at all, nor did it reference the statements that
       Dukes had made when interviewed on May 18, 2015.
¶5         On June 2, 2015, the cause proceeded to a preliminary review hearing. A transcript of the
       hearing is not included in the record on appeal, but the record indicates that the aforementioned
       affidavit was the only evidence presented for the circuit court’s consideration. See 720 ILCS
       5/36-1.5(b) (West 2014) (“The rules of evidence shall not apply to any proceeding conducted
       under this Section.”). At the conclusion of the hearing, the circuit court entered a written order
       finding that the State had failed to establish probable cause that Radford knew or should have
       known that Dukes would be driving her TrailBlazer on the date that it was seized. The court


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       noted that its finding was based on “a lack of evidence.” The court therefore determined that
       the State had failed to establish probable cause for purposes of section 36-1.5 and ordered that
       the TrailBlazer be returned to Radford.
¶6         On June 30, 2015, the State filed a motion asking that the circuit court reconsider its June 2,
       2015, order. The motion alleged that the affidavit in support of forfeiture overwhelmingly
       supported a finding of probable cause that the TrailBlazer “may” be subject to forfeiture and
       that “the elements of ‘knowledge and consent’ are not part of the legal standard for a
       preliminary review determination.” The State thus requested that the court enter an order
       finding probable cause so that the matter could proceed pursuant to section 36-2.
¶7         On August 4, 2015, the circuit court denied the State’s motion to reconsider following a
       hearing. On August 20, 2015, the State filed its notice of appeal.

¶8                                              DISCUSSION
¶9          Asserting that the TrailBlazer was subject to forfeiture based solely on the fact that Dukes
       used it in the commission of the offenses of DUI and DWLR, the State argues that the circuit
       court improperly determined that the State was required to preliminarily prove that Radford
       knew or should have known that Dukes would be driving the vehicle on the date that it was
       seized. The State further argues that the circuit court’s finding that the State failed to establish
       probable cause is against the manifest weight of the evidence. We agree.
¶ 10        An article 36 forfeiture proceeding is a civil proceeding in rem. People v. Dugan, 109 Ill.
       2d 8, 17 (1985). The State therefore brings its action against the seized property “pursuant to
       the legal fiction that the property itself is guilty of facilitating a crime.” People v. A Parcel of
       Property Commonly Known as 1945 North 31st Street, 217 Ill. 2d 481, 497 (2005).
¶ 11        The legislative policy underlying statutes allowing vehicle forfeitures is to repress crimes
       that are facilitated by vehicles. People v. 1995 Ford Van, 348 Ill. App. 3d 303, 309 (2004).
       Courts have also noted that repeat DUI offenders and individuals who would commit the
       offense while their licenses are revoked or suspended are particularly concerning. See People
       v. One 2000 GMC, 357 Ill. App. 3d 873, 877-78 (2005); Toia v. People, 333 Ill. App. 3d 523,
       530-31 (2002).
¶ 12        The circuit court’s findings in a forfeiture proceeding will not be disturbed on appeal
       unless they are against the manifest weight of the evidence. People v. 1998 Lexus GS 300, 402
       Ill. App. 3d 462, 465 (2010). A finding is against the manifest weight of the evidence where
       “the opposite conclusion is clearly evident.” Best v. Best, 223 Ill. 2d 342, 350 (2006). Issues
       involving the interpretation of a forfeiture statute, however, are reviewed de novo. People
       ex rel. Nerheim v. 2005 Black Chevrolet Corvette, 2015 IL App (2d) 131267, ¶ 19.
¶ 13        Section 36-1 provides that any vehicle used with the knowledge and consent of the owner
       in the commission of an enumerated offense may be seized and impounded by the arresting law
       enforcement agency. 720 ILCS 5/36-1(a) (West 2014). Section 36-1’s list of offenses is fairly
       extensive and includes crimes such as aggravated kidnapping, armed robbery, arson, burglary,
       DUI, DWLR, first degree murder, predatory criminal sexual assault of a child, and stalking. Id.
       A vehicle is deemed to have been “used in the commission of an offense described in Section
       36-1” (720 ILCS 5/36-2(d) (West 2014)) if the offense was “in some way facilitated by the
       utilization of the vehicle” (People ex rel. Mihm v. Miller, 89 Ill. App. 3d 148, 149 (1980); see
       also People v. Adams, 318 Ill. App. 3d 539, 544 (2001)).


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¶ 14        Section 36-1.5 provides that “[w]ithin 14 days of the seizure, the State’s Attorney in the
       county in which the seizure occurred shall seek a preliminary determination from the circuit
       court as to whether there is probable cause that the property may be subject to forfeiture.” 720
       ILCS 5/36-1.5(a) (West 2014). “Upon making a finding of probable cause as required under
       [section 36-1.5], the circuit court shall order the property subject to the provisions of the
       applicable forfeiture Act held until the conclusion of any forfeiture proceeding.” 720 ILCS
       5/36-1.5(e) (West 2014). Notably, section 36-1.5 does not require that a vehicle owner be
       given notice of the preliminary review hearing.
¶ 15        Section 36-2 gives the State’s Attorney of the county in which the seizure occurred the
       discretion to remit a forfeiture “if he or she finds that the forfeiture was incurred without
       willful negligence or without any intention on the part of the owner *** to violate the law.” 720
       ILCS 5/36-2(a) (West 2014). Section 36-2 directs that if the State’s Attorney does not remit the
       forfeiture, then he or she “shall forthwith bring an action for forfeiture” and give notice to the
       owner of record. 720 ILCS 5/36-2(b) (West 2014). The owner may thereafter file a verified
       answer to the State’s complaint and “may appear at the hearing on the action for forfeiture.”
       720 ILCS 5/36-2(c) (West 2014).
¶ 16        At the hearing on the State’s action for forfeiture, the State has the burden of proving by a
       preponderance of the evidence that the vehicle “was used in the commission of an offense
       described in Section 36-1.” 720 ILCS 5/36-2(d) (West 2014). The burden then shifts to the
       owner to show by a preponderance of the evidence that he or she did not know, and did not
       have reason to know, that the vehicle was to be used in the commission of such an offense or
       that any of the exceptions set forth in section 36-3 are applicable. 720 ILCS 5/36-2(e) (West
       2014); Nerheim, 2015 IL App (2d) 131267, ¶ 18. Implicitly, the State could then present
       evidence to rebut the owner’s defense. See Barrett v. Fonorow, 343 Ill. App. 3d 1184, 1189
       (2003); People v. Gutierrez, 239 Ill. App. 3d 536, 541 (1992).
¶ 17        If the State fails to meet its burden of establishing that the seized vehicle was used in the
       commission of an enumerated offense, then the court must order that the vehicle be released to
       its owner. 720 ILCS 5/36-2(f) (West 2014). If the State meets its burden, then the court “may
       order” that the vehicle be forfeited. Id.
¶ 18        If the owner shows that he or she did not know, and did not have reason to know, that the
       vehicle was to be used in the commission of the offense, then the court may order that the
       vehicle be returned. Id.; People v. One 1998 GMC, 2011 IL 110236, ¶ 17. Article 36 does not,
       however, provide for the “automatic return” of the vehicle if the owner makes such a showing.
       One 1998 GMC, 2011 IL 110236, ¶ 17. “Instead, the statute makes such a return discretionary
       with the court.” Id. Thus, to the extent that article 36 provides for an innocent-owner exception
       that can be raised as an affirmative defense (see People ex rel. Foreman v. Estate of Kawa, 152
       Ill. App. 3d 792, 800 (1987)), the exception is not a “pure innocent-owner exception” (One
       1998 GMC, 2011 IL 110236, ¶ 45). We also note that such exceptions are not constitutionally
       required. Id. ¶¶ 43-47; McGrath v. City of Kankakee, 2016 IL App (3d) 140523, ¶ 23; Jackson
       v. City of Chicago, 2012 IL App (1st) 111044, ¶¶ 36-41.
¶ 19        Here, we agree with the State’s contention that by requiring it to show probable cause that
       Radford knew or should have known that Dukes would be driving her TrailBlazer on the date
       that it was seized, the circuit court improperly elevated the applicable burden of proof and
       essentially required the State to preemptively disprove an affirmative defense that, even if
       raised and accepted, would not make the return of a seized vehicle “automatic.” One 1998

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       GMC, 2011 IL 110236, ¶ 17. We also note that section 36-1.5 went into effect on January 1,
       2012 (see Pub. Act 97-544, § 5 (eff. Jan. 1, 2012) (adding 720 ILCS 5/36-1.5)) and that prior to
       its enactment, article 36 was deemed constitutional despite its lack of a provision providing for
       a prompt probable cause hearing (see One 1998 GMC, 2011 IL 110236, ¶¶ 48, 69, 71).
       Moreover, it has long been the law that the State’s burden at a forfeiture proceeding is to prove
       by a preponderance of the evidence that the seized vehicle was used in the commission of an
       offense described in section 36-1. See, e.g., Dugan, 109 Ill. 2d at 17; People ex rel. Hanrahan
       v. One 1965 Oldsmobile, 52 Ill. 2d 37, 41-44 (1972), rev’d on other grounds by Robinson v.
       Hanrahan, 409 U.S. 38 (1972) (per curiam); People ex rel. Ward v. 1963 Cadillac Coupe, 38
       Ill. 2d 344, 346-47 (1967). We cannot conclude that when the legislature enacted section
       36-1.5, it intended to alter the State’s well-established burden by requiring proof of facts
       which, prior thereto, the State had never been required to prove and might only have been
       required to rebut. See People v. Jones, 214 Ill. 2d 187, 199 (2005) (“In general, a statute will
       not be construed to change the settled law of the state unless its terms clearly require such a
       construction.”).
¶ 20        Additionally, by its terms, section 36-1.5 does not contemplate that issues regarding a
       vehicle owner’s consent and knowledge be considered at the preliminary hearing stage.
       Section 36-1.5(d) states that the circuit court “may accept *** as sufficient evidence of
       probable cause” a finding of probable cause made at a preliminary hearing following the filing
       of a complaint or information charging a related criminal offense or following the return of
       indictment by a grand jury charging the related criminal offense. 720 ILCS 5/36-1.5(d) (West
       2014). A probable cause determination on a related criminal offense would not require proof of
       vehicle ownership, however, or “necessarily concern the identity of the vehicle.” One 1998
       GMC, 2011 IL 110236, ¶ 48. This would seem especially so where the underlying offense is a
       crime such as arson or first degree murder. The probable cause determination would rather
       focus on whether there was probable cause that the criminal defendant committed the offense.
       Id. If pursuant to section 36-1.5, the court “may accept” a probable cause determination made
       with respect to the related criminal offense “as sufficient evidence of probable cause” that the
       vehicle “may be subject to forfeiture” (720 ILCS 5/36-1.5(a), (d) (West 2014)), then in such
       instances, the State would ostensibly need only identify the seized vehicle as having been used
       in the commission of the offense, irrespective of the owner’s knowledge and consent.
¶ 21        In any event, we conclude that to establish “probable cause that the property may be
       subject to forfeiture” (720 ILCS 5/36-1.5(a) (West 2014)), the State is only required to show
       that there is probable cause that the property may have been “used in the commission of an
       offense described in Section 36-1” (720 ILCS 5/36-2(d) (West 2014)). To pass preliminary
       review, the State is not required to allege or prove facts tending to disprove an affirmative
       defense that an owner might subsequently raise. The circuit court thus erred in determining that
       pursuant to section 36-1.5, the State had to show probable cause that Dukes had used the
       TrailBlazer with Radford’s knowledge and consent.
¶ 22        Lastly, the affidavit in support of forfeiture that the State presented at the preliminary
       review hearing specifically identified the TrailBlazer as the vehicle that Dukes had been
       driving at the time of his arrest. The affidavit further set forth facts that clearly supported a
       finding of probable cause that Dukes had used the vehicle in the commission of the offenses of
       DUI and DWLR. See One 1998 GMC, 2011 IL 110236, ¶ 68; People v. Ernst, 311 Ill. App. 3d
       672, 679 (2000); People v. Wingren, 167 Ill. App. 3d 313, 320-21 (1988). The State therefore


                                                   -5-
       established probable cause that the TrailBlazer may be subject to forfeiture. We thus find that
       the circuit court’s determination that the State had failed to establish probable cause for
       purposes of section 36-1.5 is against the manifest weight of the evidence.

¶ 23                                        CONCLUSION
¶ 24       For the foregoing reasons, we hereby reverse the judgment of the circuit court and remand
       for further proceedings pursuant to section 36-2.

¶ 25      Reversed and remanded.




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