People v. $111,900, U.S.C , 366 Ill. App. 3d 21 ( 2006 )

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:
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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 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
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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.
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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.
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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
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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.
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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
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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
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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
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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.
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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
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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
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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.
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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.'
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[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
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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
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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.
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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
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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.
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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
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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.
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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.
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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.
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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
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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
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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
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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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