
No. 2--04--0603

______________________________________________________________________________



IN THE



APPELLATE COURT OF ILLINOIS



SECOND DISTRICT

______________________________________________________________________________



THE PEOPLE 
ex
 
rel.
 JOSEPH BIRKETT,	)	Appeal from the Circuit

State's Attorney of Du Page County, Illinois,	)	Court of Du Page County.

)

Plaintiff-Appellee,	)

)

v.	)	No. 03--MR--974

)

1995 PONTIAC TRANS AM,	)

VIN 2G2FV22P5S2200525,	)

)

Defendant	)	Honorable

)	Edward R. Duncan, Jr.,

(Brian Baker, Claimant-Appellant).	)	Judge, Presiding.

______________________________________________________________________________



JUSTICE BYRNE delivered 
the
 opinion of 
the
 court:



The State filed a verified complaint seeking 
the
 forfeiture of a 1995 Pontiac Trans Am, VIN 2G2FV22P5S2200525
.  The complaint alleged that 
the
 Trans Am
 was subject to forfeiture pursuant to section 505(a)(3) of 
the
 Illinois Controlled Substances Act (Substances Act) (720 ILCS 570/505(a)(3) (West 2002)) and 
the
 provisions of 
the
 Drug Asset Forfeiture Procedure Act (Forfeiture Act) (725 ILCS 150/1 
et
 
seq.
 (West 2002)).  
The complaint alleged that 
the
 car was used or was intended to be used to facilitate 
a
 violation of 
the
 Substances Act and was seized from claimant, Brian Baker, on June 7, 2003.  Claimant filed a verified claim asserting that 
he was 
the
 owner of the
 
Trans Am
 and that it was not forfeitable, as 
the
 car was not used to facilitate any alleged illegal possession of drugs.

Following a bench trial, 
the
 trial court found that 
the
 
use of 
the
 Trans Am 
facilitated 
the
 illegal possession of drugs within 
the
 meaning of 
the
 Substances Act and ordered 
the
 forfeiture of 
the
 
Trans Am 
to 
the
 State as provided by law.  Claimant appeals, contending that 
the
 trial court erred by ordering 
the
 
Trans Am
 forfeited, because 
the
 car did not facilitate 
the
 concealment of 
the
 drugs found in 
the
 car, as they were in plain view, within claimant's control, and 
the
 drugs were for his personal use and not for sale or delivery.  
W
e affirm
.

BACKGROUND

The following evidence was admitted at trial.  
Officer Thomas Kozielski of 
the
 Westmont police department testified that he was on routine bicycle patrol when he stopped claimant's car for a routine traffic violation and observed a "small bagg[ie] approximately half inch by half inch with a folded up piece of aluminum foil inside of it" in 
the
 center cup console of 
the
 car.  Kozielski stated that 
he could see the baggie in plain view in 
the
 center cup console.
  Kozielski testified that he specialized in training in narcotics detection and street identification.  Based on his training and experience, he believed that 
the
 package contained illegal narcotics.

Kozielski further testified that, when he asked claimant what was inside 
the
 package, claimant "actually grabbed 
the
 *** small bagg[ie] and tried to swallow it."  Kozielski explained that a struggle ensued, in which he tried to stop claimant from swallowing 
the
 baggie.  During 
the
 struggle, claimant knocked over a "purple Crown Royal [bag] inside of 
his
 vehicle," causing
 other items inside 
the
 bag to fall onto 
the
 floorboard on 
the
 driver's side of 
the
 car.  Kozielski identified 
the
 contents that spilled from 
the
 bag: a lighter and pipe commonly used to smoke narcotics; four small baggies containing a powdery substance; and three other baggies, each of which contained a substance folded into a foil package.  The substances 
later tested positive for heroin and cocaine
.

Kozielski testified that his attempt to get claimant to spit out 
the
 foil packet that claimant had taken from 
the
 
center cup console proved unsuccessful.  He later asked claimant what was in 
the
 packet and claimant told him it was heroin.

Kozielski stated that, after he arrested claimant and took him to 
the
 station, claimant
 agreed to speak with Officer Bright of 
the
 Westmont police department
.  Kozielski related that he was present during 
the
 interview.  The prosecutor asked Kozielski if claimant told 
the
 officers during 
the
 interview where he went to purchase 
the
 drugs.  Kozielski responded that claimant told 
them
 that he had "recently" driven "to 
the
 west side of Chicago on Cicero Avenue on approximately Kilody [
sic
] Street" to purchase 
the
 drugs.  Kozielski also related that claimant told them that 
the
 
drugs were for his personal use.  Claimant subsequently pled guilty to possession of narcotics
.

After 
the
 State rested its case, 
claimant moved for a directed finding, contending that 
the
 State failed to fulfill its burden of proof.  In particular, claimant asserted 
that 
the
 State failed to present any evidence that 
the
 use of 
the
 
Trans Am
 aided him in 
the
 possession of 
the
 controlled substances found in his car, because 
he did not use the
 car to conceal 
the
 drugs; they were in plain view.

The trial court disagreed, finding that 
the
 State had met its burden.  The court noted that it heard 
the
 testimony that 
the
 vehicle was used to go 
to the
 
west side of Chicago to purchase 
the
 drugs and that it had transported 
the
 drugs.  The court held that 
the
 fact that 
the
 drugs were in plain view did not obviate 
the
 applicability of section 505(a)(3) of 
the
 Substances Act, because 
the
 plain language of 
the
 statute permits forfeiture where a claimant's vehicle is used to "facilitate both 
the
 possession and 
the
 transportation of 
the
 narcotics."  The court stated that 
claimant used the vehicle to buy 
the
 narcotics and had them in his vehicle as opposed to his clothing.  Accordingly, it denied 
the
 motion.

Following 
the
 denial of 
the
 motion, claimant recalled 
Kozielski
 to 
the
 stand and asked him questions only regarding how 
the
 contents of 
the
 Crown Royal bag spilled onto 
the
 floorboard of 
the
 car.  Apparently, claimant's counsel was concerned with whether his client deliberately tried to use 
the
 
Trans Am
 to facilitate 
concealment of 
the
 drugs
.  However, no matter how counsel phrased 
the
 questions, Kozielski could not answer 
them because he did not pay attention to how 
the
 contents of 
the
 Crown Royal bag emptied onto 
the
 floorboard, since at the time he was worried 
about retrieving 
the
 contraband from claimant's mouth
.

During closing argument, claimant continued to argue 
that 
the
re had to be some attempt by 
the
 possessor of 
the
 illegal substance to use 
the
 vehicle to conceal the substance or otherwise defeat 
the
 law enforcement officer's arrest in order to subject 
the
 car to forfeiture and that there was no evidence that he used 
the
 
Trans Am
 in that manner
.  
The court disagreed.  It believed that, under 
the
 plain language of 
the
 statute, 
the
 
Trans Am 
was used to facilitate both 
the
 possession and 
the
 transportation of 
the
 narcotics.  The court deduced that, if 
the
 statute applied only to vehicles used for 
the
 delivery of narcotics, then 
the
 words "possession" and "transportation" in 
the
 statute would be surplusage.  
Accordingly, 
the
 court found by a preponderance of 
the
 evidence that 
the
 
Trans Am 
was used to facilitate claimant's possessory drug offense, and 
the
 car was ordered forfeited.  
Claimant timely appeals.

ANALYSIS

On appeal, claimant contends that 
the
 trial court erred by ordering 
the
 
Trans Am 
forfeited
. 
 
We disagree for 
the
 following reasons.

The Forfeiture Act sets out uniform procedures for 
the
 seizure and forfeiture of property under 
the
 Substances Act.  The Forfeiture Act is to be liberally construed to effectuate its remedial purpose (725 ILCS 150/13 (West 2002)).  
People ex rel. Birkett v. 1998 Chevrolet Corvette
, 331 
Ill. App. 3d
 453, 459 (2002).  "With respect to a forfeiture proceeding, 
the
 Forfeiture Act controls over 
the
 Substances Act."  
1998 Chevrolet Corvette
, 331 
Ill. App. 3d
 
at 459.

In a proceeding under 
the
 Forfeiture Act, 
the
 State has 
the
 initial burden to "show 
the
 existence of probable cause for forfeiture of 
the
 property."  725 ILCS 150/9 (G) (West 2002); 
People v. $1,124,905 U.S. Currency
, 177 
Ill. 2d
 314, 326 (1997).  Where 
the
 State satisfies its burden of establishing probable cause, then 
the
 burden shifts to 
the
 claimant to show by a preponderance of 
the
 evidence that 
the
 property is 
not
 subject to forfeiture.  725 ILCS 150/9 (G) (West 2002); 
People v. 1515 Coolidge Avenue
, 308 
Ill. App. 3d
 805, 810 (1999).  During 
the
 State's probable cause portion of 
the
 proceeding, "the court must receive and consider, among other things, all relevant hearsay evidence and information" (725 ILCS 150/9(B) (West 2002)), whereas during all other portions of 
the
 proceeding, 
the
 law of evidence related to civil actions applies (725 ILCS 150/9(B) (West 2002)).  
Astro Van
, 177 
Ill. 2d
 at 326-27.  "The trial court may rely on circumstantial evidence to assist in establishing probable cause to support 
the
 forfeiture of 
the
 property."  
1998 Chevrolet Corvette
, 331 
Ill. App. 3d
 at 460.  "Because 
the
 trial court is best suited to evaluate 
the
 testimony of 
the
 witnesses and to draw reasonable inferences from 
the
 evidence, [we] will not reverse an order of forfeiture unless 
the
 trial court's decision is against 
the
 manifest weight of 
the
 evidence."  
1998 Chevrolet Corvette
, 331 
Ill. App. 3d
 at 459.

Section 505(a)(3) of 
the
 Substances Act provides that a vehicle is subject to forfeiture if it is used or intended for use "in any manner to facilitate 
the
 transportation, sale, receipt, possession, or concealment of property."  720 ILCS 570/505(a)(3) (West 2002).  According to 
the
 supreme court, 
the
 key term in 
the
 forfeiture statute is "facilitate," which means "to make easier or less difficult."  
People ex rel. Waller v. 1989 Ford F350 Truck
, 162 
Ill. 2d
 
78, 84 (1994); 
People v. 1988 Mercury Cougar
, 154 
Ill. 2d
 27, 32 (1992); 
People v. 1946 Buick
, 127 
Ill. 2d
 374, 377 (1989).

Claimant argues that 
the
 State failed to present any evidence that 
the
 
Trans Am
 facilitated his 
possession of 
the
 controlled substances, because 
the
 contraband in 
the
 Crown Royal bag and 
the
 
contraband left in 
the
 cup holder 
were in 
his
 immediate possession 
and in plain view.  In support of his argument, claimant compares his case to other cases in which 
courts found forfeiture appropriate only when 
the
 claimants used their
 cars or attempted to use 
their
 cars to conceal
 contraband.  For example, claimant cites 
1946 Buick
, 127 
Ill. 2d
 374, wherein 
the
 driver attempted to rub cocaine into 
the
 floor fibers of his vehicle to conceal it from a police officer during a traffic stop.  The court found that 
the
 use of 
the
 vehicle facilitated 
the
 concealment of 
the
 drugs and ordered 
the
 vehicle forfeited.  
1946 Buick
, 127 
Ill. 2d
 at 378.  Claimant argues that, unlike 
the
 claimant in 
1946 Buick
, 
he did not attempt to conceal 
the
 contraband in 
the
 
Trans Am, 
the
 drugs were in plain view, and therefore he
 was not using 
the
 car to facilitate 
the
 possession of 
the
 drugs.

No one disputes that 
the
 
Trans Am 
did not facilitate 
the
 concealment of 
the
 drugs.  
However,
 claimant reads 
the
 statute too narrowly by focusing his argument
 on 
whether the 
vehicle facilitated 
the
 
concealment
 of 
the
 drugs. 
 The statute provides that a vehicle is subject to forfeiture if it is used or intended for use "in any manner to facilitate 
the
 transportation, sale, receipt, possession, or concealment of property."  720 ILCS 570/505(a)(3) (West 2002).  Thus, given 
the
 evidence presented, the
 question to be asked in this case 
is not whether 
the
 use of 
the
 
Trans Am 
facilitated 
the
 concealment of 
the
 drugs, but whether 
the
 car facilitated 
the
 possession or transportation of 
the
 drugs.  
Whether 
the
 drugs were in plain view or in a purple bag on 
the
 seat is irrelevant, so long as it can be proved that 
the
 vehicle was being used to facilitate 
one of the
 means
 described in
 
section 505(a)(3).
  Contrary to claimant's contention, 
the
 fact that 
the
 drugs were in plain view or in a bag that spilled onto 
the
 floorboard of 
the
 car does not destroy 
the
 nexus between 
the
 drugs and 
the
 use of 
the
 vehicle.

In 
People v. One 2000 Ford F-350 Pickup Truck
, 338 
Ill. App. 3d
 575 (2003), an officer stopped a truck for speeding and 
asked the claimant-driver to accompany him to his squad car, where he
 detected 
a strong odor of cannabis coming from 
the
 claimant.  A trooper arrived at 
the
 scene and confirmed 
the
 officer's impression about 
the
 smell of marijuana. 
 The 
claimant admitted that there was a small amount of cannabis in 
the
 console of his truck
.  The officers then
 searched 
the
 truck and found a pipe and a plastic bag with a large amount of what appeared to be marijuana.  They also found a small amount of marijuana underneath a duffel bag that was placed in a toolbox in 
the
 bed of 
the
 truck.  The claimant admitted that 
the
 marijuana was his and that there was more inside 
the
 duffel bag.  The officers re-searched 
the
 duffel bag and found four plastic bags, each containing marijuana.  During his interview at 
the
 jail, 
the
 claimant stated that 
the
 marijuana was for his personal use and that he was on his way to Arkansas.
  
One 2000 Ford
, 338 
Ill. App. 3d
 at 578.

The State sought 
the
 forfeiture of 
the
 truck after 
the
 claimant was arrested and charged with possession.  Following a hearing, 
the
 trial court ordered 
the
 truck forfeited.  The claimant contended on appeal that 
the
 truck should not have been forfeited, because it did not facilitate his possession of 
the
 marijuana.  We disagreed and found that, 
because 
the
 claimant told 
the
 officer that he was taking 
the
 marijuana to Arkansas, 
the
 claimant intended to use
 
the
 truck to facilitate possession of 
the
 drugs
.  
One 2000 Ford
, 338 
Ill. App. 3d
 at 581.  We commented further that 
the
 forfeiture statute also specifically 
applies to vehicles that facilitate 
the
 "transportation" of marijuana and that it made no difference that the claimant could have moved it some other way.  
One 2000 Ford
, 338 
Ill. App. 3d
 at 581-82.

We found 
1989 Ford F350
 
helpful to our case.  D
uring 
the
 trial in that case, evidence was presented that the
 claimant had told 
the
 police that he was delivering 
cocaine, which had been found on his person, to his employee. 
 The
 supreme court concluded that 
the preponderance of 
the
 
evidence demonstrated that 
the
 claimant's truck was used in facilitating 
the
 transportation of cocaine because of 
the
 
claimant's statement that he was delivering 
the
 cocaine to his employee.  
1989 Ford F350
, 
162 
Ill. 2d
 at 86. 
 Thus, similar to 
One 2000 Ford
, 
the
 statement
 demonstrated 
the
 
claimant's 
intent to transport 
the
 drugs to another location.  See 
One 2000 Ford
, 338 
Ill. App. 3d
 at 582.

We further noted in 
One 2000 Ford
 
that 
1989 Ford F350
 did not require that a vehicle be used to facilitate 
the
 
delivery
 of 
the
 drugs to another person before it can be forfeited.  We observed that the 
supreme court 
specifically held that " 'the preponderance of 
the
 evidence demonstrated that 
defendant
's truck was used in facilitating 
the
 
transportation
 of cocaine.' "  (Emphasis in original.)  
One 2000 Ford
, 338 
Ill. App. 3d
 at 582, quoting 
1989 Ford F350
, 162 
Ill. 2d
 at 86
. 
 We also observed that 
the
 claimant's proposed construction would read 
the
 words "possession" and "transportation" out of 
the
 statute, permitting forfeiture only where a vehicle facilitated 
the
 "delivery" of drugs.  
One 2000 Ford
, 338 
Ill. App. 3d
 at 582. 

Similar to 
One 2000 Ford
,
 
we conclude that the
 preponderance of 
the
 evidence demonstrated that
 claimant intended to use 
his 
vehicle 
to facilitate 
the
 possession and transportation of 
the
 drugs.  Here, claimant told Kozielski 
that he had recently driven to 
the
 west side of Chicago to purchase 
the
 drugs
.  T
he trial court reasonably inferred from this testimony 
that claimant used 
the
 
Trans Am 
to facilitate 
the
 possession and transportation of 
the
 drugs.  We note that claimant questioned Kozielski only about 
the
 contents of 
the
 Crown Royal bag and how they ended up on 
the
 floorboard of 
the
 car. He never introduced any evidence to refute 
the
 conclusion that 
the
 car made it easier for him to transport and possess 
the
 drugs
.
 
 Thus, 
the
 State met its burden of showing probable cause for 
the
 forfeiture.

Relying on 
People ex rel. Neal v. Ryan
, 284 
Ill. App. 3d
 318 (1996), claimant asserts 
that "t
he
 Forfeiture Act was not intended to forfeit vehicles when 
the
 drugs possessed in 
the
 vehicle were for personal use only, and not for sale or delivery."  Claimant points out that 
the
 trial court found that he possessed only a small quantity of controlled substances and the
 evidence revealed 
that the
 drugs were solely for personal use and not for sale or distribution.  Claimant
 therefore concludes that his
 car should not have been forfeited. 
 Claimant misinterprets 
the
 holding in 
Neal
 and continues to read 
the
 statute too narrowly.

In 
Neal
, 
the
 police found marijuana in a duffel bag, which 
the
 claimant had been holding under his arm after he exited his car for a routine traffic stop.
  The trial court found that 
the
 drugs were seized from 
the
 claimant's person and therefore 
the
 forfeiture must fail because 
the
 truck was not used to facilitate 
the
 transportation, sale, receipt, possession, or concealment of 
the
 drugs.  The Appellate Court, Third District, agreed.  Based on a preponderance of 
the
 evidence
, the court held that 
the
 fact that the claimant had been in his truck sometime earlier did not support 
the
 conclusion that 
the
 truck made it easier for him to possess 
the
 drugs; the claimant had simply driven to work with 
the
 duffel bag and was on his way home at 
the
 end of 
the
 work day when he was arrested.  
Neal
, 284 
Ill. App. 3d
 at 325-26.

The court observed that 
the
 marijuana was for 
the
 personal use of 
the
 claimant and his wife and there was no evidence that he intended to deliver it to anyone.  
Neal
, 284 
Ill. App. 3d 
at 326.  I
n interpreting section 12 of 
the
 Cannabis Control Act (720 ILCS 550/12(a)(3) (West 2000)), which is similar to section 505(a)(3) of 
the
 Substances Act, 
the
 court also concluded that 
the
 legislature did not intend for 
the
 transportation language to be interpreted so as to forfeit vehicles where: (1) 
the
 trial court has found that 
the
 amount of cannabis is small and is solely intended for personal use and not for delivery, and 
(2) the
 use of 
the
 vehicle is completely incidental to 
the
 possession of 
the
 drugs.  
Ryan
, 284 
Ill. App. 3d
 at 326.

In 
Neal
, unlike in 
the
 present case, the preponderance of 
the
 evidence demonstrated that 
the
 claimant did not intend to use his vehicle to facilitate 
the
 transportation, sale, receipt, possession, or concealment of 
the
 marijuana.
  As such, the use of 
the
 vehicle was completely incidental to 
the
 possession of 
the
 marijuana.  Moreover,
 
we are not persuaded by 
the
 Third District's narrow interpretation of 
the
 statute.  
The language of 
the
 
statute 
does not exclude 
those cases where 
the
 
amount is small and 
for personal use only
.  
Accordingly, we decline to follow 
Neal
.

CONCLUSION

Based on 
the
 above, we conclude that 
the
 trial court's decision in ordering 
the
 forfeiture of 
the
 vehicle was not against 
the
 manifest weight of 
the
 evidence.  The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

HUTCHINSON and GILLERAN JOHNSON, JJ., concur.

