People v. 1996 GMC Savana Van , 2019 IL App (1st) 131658-U ( 2019 )

2019 IL App (1st) 131658-UTHIRD DIVISION
December 26, 2019
No. 1-13-1658
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
ex rel., ANITA ALVAREZ State’s Attorney of ) Circuit Court of
Cook County, Illinois, ) Cook County.
)
Plaintiff-Appellee, )
)
v. ) No. 12 COFO 1131
)
1996 GMC SAVANA VAN )
VIN# IGDFG15MXT1018409, )
)
Defendant, ) Honorable
) David A. Skryd,
(Christopher Tobin, Claimant-Appellant). ) Judge Presiding.
______________________________________________________________________________
JUSTICE HOWSE delivered the judgment of the court.
Presiding Justice Ellis and Justice McBride concurred in the judgment.
ORDER
¶1 Held: We reverse the April 1, 2013 judgment of forfeiture and the April 22, 2013 order
denying the claimant’s motion to reconsider; there was no evidence claimant possessed a
felony quantity of cannabis thereby subjecting the vehicle at issue to forfeiture under
section 12 of the Cannabis Control Act, 720 ILC 550/12 (2010).
¶2 This forfeiture action stems from the seizure of a vehicle after its driver was arrested after
6.6 grams of cannabis were recovered from his person. Following a trial, a forfeiture judgment
was entered pursuant to section 12 of the Cannabis Control Act. The claimant of the vehicle
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filed a motion to reconsider which was denied by the trial court. Thereafter, the claimant timely
appealed. For the reasons set forth below, we reverse the trial court’s forfeiture judgment and
order denying the claimant’s motion to reconsider.
¶3 BACKGROUND
¶4 The People of the State of Illinois (State) instituted a forfeiture action against a 1996
GMC Savana Van vehicle identification number IGDFG15MXT1018409 (GMC) pursuant to
725 ILCS 150/9(H) (West 2010), 720 ILCS 5/29B-1(h) (West 2010), 720 ILCS 570/505(f) (West
2010), 720 ILCS 550/12 (West 2010), and 720 ILCS 646/85 (West 2010).
¶5 The State’s Complaint for Forfeiture stated that on December 16, 2011 the Evanston
Police Department seized the GMC. The GMC was curbed after an officer observed the vehicle
speeding and swerving. When the officer approached the vehicle and spoke to the driver,
Christopher Tobin (claimant), claimant stated that he “just dropped off some high school kids
*** and was heading back home.” Claimant was asked by the officer to exit the vehicle and “as
[claimant] exited the vehicle, the officer smelled an odor of alcohol beverage emanating from his
breath” and “also smelled burnt cannabis emanating from [claimant’s] person.” The officer
conducted a custodial search “and found a large plastic bag containing nine (9) individual
wrapped baggies of suspect cannabis” which claimant admitted belonged to him. The State was
later “granted leave to amend its complaint to reflect that the officer recovered 1,000 individual
baggies.”
¶6 The Evanston Police Department Offense/Incident Report stated that claimant passed all
field sobriety tests conducted. The report noted “Suspect cannabis, field tested positive.” The
report also noted that the GMC was searched and items including the following were
inventoried: a cooler with ice containing ten Miller Highlife cans and one Mike’s Hard
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Lemonade as well as approximately 1,000 small clear induvial baggies. In both the police report
and Evanston Police Department Arrest Report no cannabis or other illegal drugs were listed as
being found in the GMC. Claimant was arrested and taken to the Evanston Police Department
for processing.
¶7 Claimant filed a verified claim as well as an Answer in Civil Asset Forfeiture Proceeding
seeking return of the GMC stating that he was the sole and rightful owner of the vehicle which
he argued was not subject to forfeiture because he was “not legally accountable for the conduct
giving rise to the forfeiture, did not acquiesce in it, and did not know and could not reasonably
have known of the conduct or that the conduct was likely to occur and thus cannot be held liable
under 725 ILCS 150/8(A)(i)” and he was “not legally accountable for the conduct giving rise to
the forfeiture, or did not solicit, conspire, or attempt to commit the conduct giving rise to the
forfeiture under 725 ILCS 150/8(A)(ii).” Claimant’s verified claim also stated that “the vehicle
was used to transport numerous individuals prior to its seizure” and claimant “had no knowledge
of the conduct of the individual’s actions nor did he consent to any illegal activity transpiring
within his vehicle.”
¶8 A bystander’s report was filed in this matter of the one-day trial which commenced on
April 1, 2013. The report set forth the evidence adduced at trial to include the following: the
forfeiture case arose out of claimant’s arrest on or about December 16, 2011 for which he was
charged with possession of cannabis. The State’s sole witness was Officer Sense who testified
he stopped claimant who was driving the GMC for a traffic infraction on or about December 16,
2011 at approximately 1:15 am. The officer spoke to claimant who indicated he was on his way
home. The officer smelled alcohol on claimant and asked him to exit the vehicle whereupon the
officer detected an order of cannabis. The officer patted down claimant and recovered nine
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baggies containing suspect cannabis. Claimant was placed under arrest while he conducted a
search of the GMC and found small individual baggies under the driver’s seat. No cannabis was
recovered from the GMC. Upon claimant’s arrest the GMC was held for forfeiture proceedings.
¶9 Officer Sense testified that the suspect cannabis recovered from claimant’s person was
submitted to the Illinois State Police Crime Lab where 2.9 grams of plant material tested positive
for cannabis and the remaining 3.7 grams were not analyzed. The report was admitted into
evidence. Officer Sense testified that the cannabis recovered was a misdemeanor quantity.
Claimant presented no evidence in support of his claim.
¶ 10 At the close of the State’s case, claimant’s counsel made a motion for directed finding
arguing the vehicle was not subject to forfeiture because a felony amount of cannabis was not
recovered precluding forfeiture of the GMC. Counsel also argued there was no evidence the
GMC was used to facilitate possession or distribution of cannabis. The motion for directed
finding was denied by the trial court. This argument was reiterated in claimant’s counsel’s
closing argument.
¶ 11 At the conclusion of trial that same day, the trial court entered a Judgment Order stating
the GMC “is adjudged forfeited in accordance with the provisions of *** 720 ILCS 550/12
(Cannabis Control Act)[.]” The judgment provided that the GMC “be delivered to the Director
of the Illinois State Police for disposition according to law[.]” The judgment further stated that
“said order of forfeiture shall terminate any and all right, title or interest of each and everyone of
those persons or parties claiming an interest in said [GMC.]”
¶ 12 On April 3, 2013, claimant filed a motion to reconsider the forfeiture judgment in which
he argued forfeiture was improper because no evidence was presented by the [State] that
[claimant] possessed a quantity of cannabis that could be charged as a felony” where the State
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sought “forfeiture under the Cannabis Control Act 720 ILCS 550/12 which states in relevant
part that vehicles or vessels which are used, or intended for use, to facilitate the transportation,
sale, receipt[,] possession or concealment of cannabis that constitutes a felony violation of the
Act.” (emphasis in original.) Claimant also argued that forfeiture was improper because the
cannabis was on his person “for his personal use” and that “no cannabis was found inside of the
baggies found in the vehicle” citing Neal v. Ryan, 284 Ill. App. 3d 318 (1996), and People ex rel.
Birkett v. 1995 Pontiac Trans Am., 358 Ill. App. 3d 184 (2005).
¶ 13 On April 22, 2013, the trial court denied claimant’s motion to reconsider after reviewing
the motion and hearing argument from counsel. Thereafter, claimant timely appealed.
¶ 14 On January 22, 2014, the State was granted an extension until February 21, 2014 to file
its responsive brief. The State did not file a responsive brief nor did it seek another extension.
More than five years later, on November 7, 2019, this Court entered an order providing that this
appeal would be taken on claimant’s brief only.
¶ 15 ANALYSIS
¶ 16 On appeal, claimant argues the trial court erred as a matter of law in entering its forfeiture
judgment and order denying his motion to reconsider because the State presented no evidence
that (1) claimant possessed a quantity of cannabis sufficient to subject the GMC to forfeiture and
(2) that the GMC was used or intended for use in violation of any relevant statute. As set forth
below we reverse the trial court’s judgment and order denying claimant’s motion to reconsider
based on claimant’s first argument that he did not possess a quantity of cannabis sufficient to
subject the GMC to forfeiture.
¶ 17 This court will not reverse a trial court’s order regarding forfeiture unless the ruling is
against the manifest weight of the evidence. People v. ex rel. Burmila v. One 1988 Chevrolet
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Auto., VIN No. 1G1LD1110JY504863, 221 Ill. App. 3d 238, 239 (1991). Generally, we review a
trial court’s ruling on a motion to reconsider under the abuse of discretion standard; however,
where the motion to reconsider only asks the trial court to reevaluate its application of the law to
the case as it existed at the time of judgement, the standard of review is de novo. Belluomini v.
Zaryczny, 2014 IL App (1st) 122664, ¶ 20.
¶ 18 The judgment states that the GMC was adjudged forfeited pursuant to 720 ILC 550/12
(West 2010) of the Cannabis Control Act (Act). Section 550/12(a) of the Act authorizes
forfeiture of vehicles used in the commission of a felony violation of the Act and states as
follows:
“(a) The following are subject to forfeiture:
(1) all substances containing cannabis which have been produced, manufactured,
delivered, or possessed in violation of this Act;
(2) all raw materials, products and equipment of any kind which are produced,
delivered, or possessed in connection with any substance containing cannabis in
violation of this Act;
(3) all conveyances, including *** vehicles ****, which are used, or intended for
use, to transport, or in any manner to facilitate the transportation, sale, receipt,
possession, or concealment of property described in paragraph (1) or (2) that
constitutes a felony violation of the Act, ***” 720 ILCS 550/12(a) (West 2010).
¶ 19 “The forfeiture provision of the [Act] applies only where a vehicle facilitates a felony
violation of the Act.” People v. One 2000 Ford F-350 Pickup Truck, 338 Ill. App. 3d 575, 582
(2003). “The burden is on the State to show by a preponderance of the evidence its right to
forfeiture.” People ex. rel Burmila, 221 Ill. App. 3d at 239.
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¶ 20 The evidence at trial established that 6.6 grams of cannabis were recovered from
claimant’s person. Section 4 of the Act provides that a person who knowingly possesses an
amount “more than 2.5 grams but not more than 10 grams of any substance containing cannabis
is guilty of a Class B misdemeanor[.]” 720 ILCS 550/4(b) (West 2010). Furthermore, section 5
of the Act provides that any person who knowingly manufactures, delivers, or possesses with
intent to deliver “more than 2.5 grams but not more than 10 grams of any substance containing
cannabis is guilty of a Class A misdemeanor[.]” 720 ILCS 550/5(b) (West 2010).
¶ 21 Upon review of the record, we find no evidence of a felony violation of the Act which is
required for forfeiture of a vehicle. See One 2000 Ford F-350 Pickup Truck, 338 Ill. App. 3d at
582. The evidence at trial established that only 6.6 grams of cannabis were recovered from
claimant’s person. Pursuant to sections 4 and 5 of the Act this amount of cannabis, even if
intended for sale or distribution, equates only to a misdemeanor, not a felony. See 720 ILCS
550/4(b) and 5(b) (West 2010). The State’s witness, Officer Sense, also confirmed that the
cannabis recovered from claimant was only a misdemeanor quantity.
¶ 22 We see no other evidence in the record of any other property described in paragraphs one
or two of section 12(a) that would constitute a felony violation of the Act as required in section
12(a)(3) for forfeiture of claimant’s GMC. See 720 ILCS 550/12(a)(3) (West 2010).
Accordingly, we find the trial court erred when it entered its forfeiture judgment and order
denying claimant’s motion to reconsider. In light of our decision here, we need not address the
other arguments raised by claimant.
CONCLUSION
¶ 23 For the foregoing reasons, the judgment of the circuit court of Cook County and April 22,
2013 order denying claimant’s motion to reconsider are reversed.
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¶ 24 Reversed.
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