People v. $940 United States Currency

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Appellate Court Date: 2020.05.22
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People v. $940 United States Currency, 2019 IL App (3d) 180102Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant,
Caption v. $940 UNITED STATES CURRENCY, Defendant (Anthony
Alexander, Claimant-Appellee).
District & No. Third District
No. 3-18-0102
Filed November 15, 2019
Decision Under Appeal from the Circuit Court of Will County, No. 17-MR-2714; the
Review Hon. Carmen Goodman, Judge, presiding.
Judgment Affirmed.
Counsel on James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, David
Appeal J. Robinson, and Nicholas A. Atwood, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
No brief filed for appellee.
Panel JUSTICE McDADE delivered the judgment of the court.
Justice Wright specially concurred, with opinion.
Presiding Justice Schmidt dissented, with opinion.
OPINION
¶1 The State filed a complaint for forfeiture of $940 United States currency after the police
recovered the currency, along with 4.5 grams of cannabis, while executing an arrest warrant.
Claimant asserted that he owned the currency, that it derived from a title loan, and that he
borrowed it to pay bills. Subsequently, claimant filed a motion to dismiss the State’s complaint,
alleging that the State incorrectly asserted that he was involved in a felony transaction, entitling
it to seek forfeiture of the $940. The State filed a motion to strike arguing that claimant
improperly brought the motion to dismiss under section 2-619 of the Code of Civil Procedure
(735 ILCS 5/2-619 (West 2016)). The State later filed an amended complaint that was identical
to the first but for its excision of the word “felony.” A hearing was held on the motions, and
the trial court granted claimant’s motion to dismiss. The State orally moved for reconsideration
of the ruling, which the court denied. The State appealed. We affirm.
¶2 I. BACKGROUND
¶3 In October 2017, the State filed a complaint for forfeiture pursuant to sections 12(a)(4) and
12(a)(5) of the Cannabis Control Act (Act) (720 ILCS 550/12(a)(4), (5) (West 2016)). In the
complaint, the State alleged that, on July 25, 2017, the narcotics unit of the Joliet Police
Department executed an arrest warrant for claimant, Anthony Alexander, at a residence in
Joliet, Illinois. The officers observed, in plain view, four clear plastic bags containing a plant-
like substance. The substance tested positive for the presence of cannabis and weighed about
4.5 grams. The officers also observed and seized $940 United States currency. The State
alleged that the $940 was used to facilitate a felony violation under the Act, that the money
was subject to forfeiture, and that it should be released to the director of the Illinois State Police
for distribution as directed by statute. Alexander filed a verified claim asserting his interest in
the $940.
¶4 In December 2017, Alexander filed a pro se motion to dismiss the complaint pursuant to
section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2016)), arguing that
the complaint could not be sustained because the sections of the Act pursuant to which he had
been charged required a felony violation, that he had neither been involved in nor charged with
a felony violation, that the complaint was defective on its face, and that plaintiff lacked the
statutory ability to “sue Defendant property under the Cannabis Control Act.” Alexander
further asserted in the motion to dismiss that he had been issued compliance ticket No. 50717
by the City of Joliet charging him with an ordinance violation for possession of the cannabis.
He asked the court to take judicial notice of the ticket. The State filed a motion to strike the
motion to dismiss because Alexander failed to allege any of the nine enumerated grounds for
dismissal under section 2-619.
¶5 Thereafter, the State filed an amended complaint in which the sole change was the removal
of the word “felony.” Alexander responded, arguing that he received the $940 from a title loan
he took out on his vehicle to pay his bills. In February 2018, a hearing was held on the motions.
The State acknowledged at the motion hearing and has also confirmed in its brief in this appeal
that Alexander was indeed charged with an ordinance violation. The trial court granted the
motion to dismiss, stating:
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“My viewpoint of the cannabis [Act] or my reading of the cannabis [Act] and the
way that I was trained that it has to be a felony amount. I mean we just—in fact the
new law is trying to eliminate these little small amounts that we take from people.
Motion to dismiss is granted. You are to return the $940.00.
It’s an ordinance violation. It’s an ordinance violation. It’s an ordinance violation.
I understand that you first alleged that it was a felony amount, then you changed it, but
it doesn’t change the law in and of itself. I know that there is a reading by some judges
and there is a reading by the State that it’s any small amount, but if that was the case,
we wouldn’t go through the scales and the this and the delivery and that. We can just
say that they had, you know, residue and take people’s property. I don’t think that that
was the intent of the forfeiture law at all. Motion to dismiss is granted under these
particular circumstances. He’s saying that it doesn’t allege an offense, period, and that’s
as clear as it can be whether he said the eight different ways of a motion to dismiss in
terms of criminal or in terms of the civil proceedings.”
¶6 The State orally requested the court to reconsider its ruling, arguing that a felony violation
is not required to prove it is entitled to forfeit the $940. The trial court denied the request,
stating “[there] still had to be some type of exchange here. There was nothing here to indicate
that was—would have brought it up. It had to be some intent. Given that the motion to
reconsider is denied.” Although the circuit court’s docket entry reflects the dismissal was
without prejudice, the file was closed after the order of dismissal was entered, giving rise to a
reasonable inference that, notwithstanding the notation, the dismissal was with prejudice. The
State appealed.
¶7 II. ANALYSIS
¶8 Initially we note that no brief was filed by the appellee in this appeal. We are nonetheless
able to decide the merits of the appeal because the record before us is not complicated and the
claimed errors are such that we can easily resolve the issues without the aid of an adversarial
analysis. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133
(1976).
¶9 On appeal, the State raises both procedural and substantive challenges to the trial court’s
decision. The State contends a procedural error occurred when the court granted defendant’s
motion to dismiss because it had been improperly asserted as a section 2-619 motion (735
ILCS 5/2-619 (West 2016)). The State also contends that the trial court erred substantively
when it held that (1) in order to forfeit the currency, the State must prove it was furnished or
intended to be furnished by Alexander in exchange for a felony amount of cannabis; (2) the
motion to dismiss responded to the State’s original complaint and not to the amended
complaint, which did not allege that Alexander was involved in a felony violation; and (3) the
State met the presumption that Alexander furnished or intended to furnish money in exchange
for cannabis under section 7(1) (725 ILCS 150/7(1) (West 2016)) because its amended
complaint alleged that the cannabis and $940 were in close proximity and Alexander failed to
rebut the presumption because he did not provide any evidence to support his claim that the
$940 derived from a title loan.
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¶ 10 Procedural Challenge—Section 2-619 Dismissal
¶ 11 Section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2016)) allows a
litigant to obtain an involuntary dismissal of an action or claim based upon specific,
enumerated defects or defenses. Dawson v. City of Geneseo, 2018 IL App (3d) 170625, ¶ 17.
The purpose of a section 2-619 motion to dismiss is to dispose of issues of law and easily
proved issues of fact at the outset of litigation. Id. In such a motion, the moving party admits
the legal sufficiency of the complaint but asserts an affirmative defense or other matter to
defeat the nonmoving party’s claim. Id. The court must construe all of the pleadings and
supporting documents in the light most favorable to the nonmoving party. Id. On appeal, a
dismissal under section 2-619 is reviewed de novo. Id.¶ 12 Alexander’s dismissal motion does not specifically identify an enumerated ground for
dismissal set forth in section 2-619. That motion asserted in its entirety as follows:
“CLAIMANT, Anthony Alexander, moves this Court to dismiss the instant case and in
support states:
1. Plaintiff’s Complaint alleges that the Joliet Police Department seized ‘4.5 grams’
of suspected cannabis from Claimant. Pl. Compl ¶ 3.
2. Claimant was subsequently charged for the ordinance violation of Possession of
Cannabis by the City of Joliet, in Compliance Ticket # 50717. Claimant asks this Court
to take judicial notice of the ticket.
3. Plaintiff alleges that the instant case is brought pursuant to ‘a felony violation of
the Cannabis Control Act’ and states that the violation occurred under § 720 ILCS
550/12(a)(4) & (a)(5).
4. Both (a)(4) and (a)(5) require that the property in the forfeiture action must have
been involved in a ‘felony violation of [the Cannabis Control] Act.’
5. Claimant was not involved in any felony violation of the Cannabis Control Act,
and was never charged with any felony violation of the Cannabis Control Act.
6. Plaintiff’s complaint is defective on its face and Plaintiff lacks the statutory
ability to sue Defendant property under the Cannabis Control Act.
CLAIMANT prays this Court to dismiss the instant action, pursuant to § 735 ILCS
5/2-619 as Plaintiff lacks the ability to sue Defendant property under the Cannabis
Control Act.”
The gist of Alexander’s motion is that the State is statutorily barred from maintaining the claim
because the two sections of the statute pursuant to which the State seeks forfeiture require that
the underlying transaction be chargeable as a felony and that it could not be and was not so
charged. In an effort to strike the motion, the State argued that it was not brought under any of
the nine enumerated grounds for dismissal under section 2-619 but merely denies a factual
allegation. A motion made under section 2-619 is limited to one of the nine grounds that bars
relief. Hill v. Butler, 107 Ill. App. 3d 721, 728 (1982). A motion solely seeking to deny the
factual allegations of a complaint is not properly pled under section 2-619. Id. We consider
whether Alexander’s motion asserts a defense addressable by section 2-619.
¶ 13 It seems clear that none of the first eight defenses set out in section 2-619(a) applies.
However, subsection (a)(9) does appear to include the defense alleged by Alexander. It
provides: “(9) That the claim asserted against defendant is barred by other affirmative matter
avoiding the legal effect of or defeating the claim.” Here, the motion to dismiss attacks the
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State’s authority under the statute for bringing an action to forfeit currency where no felony
was involved. Such a basis for dismissal, if established, would constitute an affirmative matter
defeating the forfeiture claim; a section 2-619(a)(9) motion is procedurally appropriate for
advancing that argument.
¶ 14 Alleged Substantive Defects of Dismissal
¶ 15 Further, the State argues that the trial court also erred substantively in that it misconstrued
the forfeiture statute when it made its ruling on the motion to dismiss. The trial court granted
the motion to dismiss on the basis that, in order to prove the State is entitled to forfeiture under
section 12(a)(5), the State must show that Alexander furnished or intended to furnish the $940
in exchange for a felony amount of cannabis. We can affirm the trial court on its enunciated
basis or on any grounds supported by the record. People v. Lee, 2016 IL App (2d) 150359,
¶ 14.
¶ 16 Pertinent to the State’s amended complaint, section 12(a) lists the type of property subject
to forfeiture as follows:
“(a) The following are subject to forfeiture:
***
(4) all money, things of value, books, records, and research products and
materials including formulas, microfilm, tapes, and data which are used, or intended
for use in a felony violation of this Act;
(5) everything of value furnished or intended to be furnished by any person in
exchange for a substance in violation of this Act, all proceeds traceable to such an
exchange, and all moneys, negotiable instruments, and securities used, or intended
to be used, to commit or in any manner to facilitate any felony violation of this
Act[.]” Pub. Act 99-686, § 5 (eff. July 29, 2016) (amending 720 ILCS 550/12).
¶ 17 Under the plain language of section 12(a)(4), the State must prove that the property to be
seized (here $940) was used or was intended to be used in a felony violation. Whether a felony
violation is required under section 12(a)(5) is more complicated in this case. We note that 26
years ago this court considered this issue and found that a felony is not required under section
12(a)(5) in some circumstances. In People ex rel. Burmila v. Nine Hundred Six Dollars in
United States Currency, 242 Ill. App. 3d 467, 468 (1993), the State argued that the trial court
had erroneously determined that, under the forfeiture statute, the State was required to show
that the claimant had a felony conviction. On appeal, the Burmila court held that section
12(a)(5) contains two distinct subjects of forfeiture: (1) things of value that were to be
exchanged for an illegal substance and (2) monetary items that are to be used to commit or
facilitate a felony. Id. at 469. The court explained that “[s]ection 12(a)(5) provides that property
intended to be exchanged for cannabis is forfeitable, regardless of whether it was part of a
felony transaction.” (Emphasis in original and added.) Id. In other words, to be entitled to
forfeiture, the State need not prove a felony offense occurred if it can show that the money was
intended to be exchanged for cannabis.
¶ 18 In the instant case, in order to show that such an exchange occurred or was intended to
occur, the State relies on the following presumption described in section 7 of the Drug Asset
Forfeiture Procedure Act (725 ILCS 150/7 (West 2016)):
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“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 Substances Act, the Cannabis Control Act, or the
Methamphetamine Control and Community Protection 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,
to forfeitable drug manufacturing or distributing paraphernalia, or to forfeitable records
of the importation, manufacture or distribution of substances[.]” (Emphasis added.)
We have scoured both the original and amended versions of the State’s forfeiture complaint,
and contrary to the State’s argument, nowhere does it allege that the currency it seeks to forfeit
was found in close proximity to the drugs. The sole fact in the amended complaint relative to
the location of the drugs asserts: “Additionally, $940.00 United States currency was located
and seized, as well.” The State also cites the report of proceedings as additional support that it
has alleged the money was “in close proximity” to the seized cannabis. A review of the
transcript reveals that, although the State acquiesced to the trial court’s bare conclusory inquiry
of whether there was “close proximity,” there were no facts presented during the hearing
alleging where the currency was found relative to the drugs. Thus the amended complaint and
the State’s argument at the hearing fail to give rise to the presumption from which the State
claims to benefit. Failing that presumption, the State can only claim the $940 by forfeiture if it
proves that the “moneys *** [were] used, or intended to be used, to commit or in any manner
facilitate any felony violation of this Act.” Pub. Act 99-686, § 5 (eff. July 29, 2016) (amending
720 ILCS 550/12).
¶ 19 III. CONCLUSION
¶ 20 We find that the trial court did not err is finding the claimant’s motion to dismiss was
properly brought under section 2-619. We also find that the trial court did not err in dismissing
the amended complaint. Accordingly, the judgment of the circuit court of Will County is
affirmed.
¶ 21 Affirmed.
¶ 22 JUSTICE WRIGHT, specially concurring:
¶ 23 I agree that the trial court’s decision should be affirmed. I reach the same conclusion as the
author but for different reasons. It is well established that we may affirm the trial court on any
basis in the record. People v. Lee, 2016 IL App (2d) 150359, ¶ 14.
¶ 24 While I share the State’s view that the motion filed by the self-represented litigant was
miscaptioned as a section 2-619 motion to dismiss, I disagree that the miscaptioned motion
should have been treated as a section 2-615 motion to dismiss. Based on the uncontested facts
set forth in the pleadings, I conclude that the trial court properly considered the miscaptioned
motion as a motion for summary judgment. On this basis, I would affirm summary judgment
in favor of defendant. Here, the uncontested facts reveal the State was not entitled to retain the
confiscated funds based on statute. Therefore, I would affirm the trial court’s final order
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denying the State’s request for forfeiture.
¶ 25 PRESIDING JUSTICE SCHMIDT, dissenting:
¶ 26 I would reverse. The issues raised by defendant and relied upon by the trial judge are a
matter of proof, not pleading. See Burmila, 242 Ill. App. 3d 467.
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