delivered the opinion of the court:
The State declared a nonjudicial forfeiture of property pursuant to section 6 of the Drug Asset Forfeiture Procedure Act (Act) (725 ILCS 150/6 (West 1998)). Petitioner, Darrel W Barker (whose name also appears in the record as “Darrell W. Barker”), the property’s owner, petitioned to vacate the forfeiture, alleging that he did not receive adequate notice of the proceeding. The trial court granted the petition, holding that the State did not accord petitioner due process. The State appeals. We affirm.
The facts are essentially undisputed. On August 9, 1999, petitioner filed his “Motion to Vacate Declaration of Forfeiture” (petition). The petition alleged the following. On May 11, 1999, petitioner was arrested for a drug offense (the criminal case). On May 12, 1999, in case No. 99 — OP—53, Gloria Barker, petitioner’s wife, obtained an order of protection barring him from their home at 12795 Kennedy Hill Road in Byron. Petitioner has not lived there since May 11, 1999. Petitioner promptly posted bond in the criminal case and was released.
On May 14, 1999, petitioner notified the office of the circuit clerk of Ogle County that he now resided at 628 Kishwaukee Road in Rockford. On June 2, 1999, petitioner and his attorney appeared in court in case No. 99 — OP—53. The court dismissed Gloria Barker’s petition but ordered that, as a condition of petitioner’s bond in the criminal case, he was to have no contact with Gloria Barker.
Petitioner alleged further that the State notified him by mail addressed to 12795 Kennedy Hill Road in Byron that his $2,354 cash was subject to a nonjudicial forfeiture. However, petitioner did not know of the attempt to serve him by mail at the Byron address. He did not receive notice until July 9, 1999, when his daughter told him that he had a certified letter at the Byron post office. Petitioner asserted that the State knew that petitioner was barred from the Byron address and from contact with Gloria Barker, who lived there. Therefore, petitioner claimed, he did not receive proper notice of the forfeiture.
The rest of the record reveals the following facts. On May 12, 1999, petitioner posted $10,000 cash bond after he was charged with possession of cannabis with intent to deliver. Petitioner signed the bond form and gave his address as 12795 Kennedy Hill Road in Byron. On May 14, 1999, petitioner filed a note with the circuit clerk of Ogle County. The note stated that petitioner had moved from the Byron address to the Rockford address. At the hearing on petitioner’s petition, the trial court observed that this note was “attached to the bond” in the court file.
On May 19, 1999, the State’s Attorney sent a “Notice of Pending Forfeiture” (Notice) by certified mail, return receipt requested, to petitioner at the Byron address. Twice, the post office tried unsuccessfully to deliver the Notice. On June 4, 1999, the Notice was returned as “unclaimed.” On July 6, 1999, the State’s Attorney filed a declaration of forfeiture and sent the Notice by certified mail to petitioner at the Byron address. On July 8, 1999, petitioner signed the return receipt for the Notice. On August 9, 1999, petitioner filed his petition.
In December 1999, the cause proceeded to a hearing. The trial judge observed that, originally, the State’s Attorney’s office mailed the Notice to the Byron address even though petitioner had already told the circuit court clerk’s office of his new address. The State argued that, if petitioner later moved, he had the burden to tell the State his new address. Gloria Barker’s civil suit did not relieve him of this burden because the State was not a party to that suit. Generally, the State had no obligation to “try to follow people around and try to figure out where they are.” Also, the mere return of the Notice as “unclaimed” did not alert the State to the possibility that petitioner had moved.
Petitioner responded that, until he actually received the Notice, he had never been told that the money seized in May might be forfeited. He maintained that, by promptly notifying the circuit clerk’s office of his new address, petitioner did all he could to enable the State to notify him of any forfeiture.
After allowing petitioner to file an affidavit supporting his petition, the court granted the petition. Relying in part on our opinion in People v. Smith,
On appeal, the State argues that the trial court erred in holding that the State’s efforts to notify petitioner of the forfeiture did not satisfy due process. The State asserts that Smith is distinguishable and that petitioner received an adequate opportunity to respond to the forfeiture petition. For the reasons that follow, we disagree with the State and affirm the trial court, although not on the exact grounds on which the trial court relied.
The underlying facts are essentially undisputed. Therefore, whether petitioner received notice in accord with due process is a question of law that we review de novo. See Quantum Pipeline Co. v. Illinois Commerce Comm’n,
The Act sets forth the procedures for the seizure and civil forfeiture of drug-related assets. Where, as here, nonreal property with a value of less than $20,000 is seized, the State’s Attorney must provide notice of the pending forfeiture to the owner of the property in accordance with section 4 of the Act. See 725 ILCS 150/4(A) (West 1998). Section 4 provides that, if the owner’s name and current address are known, notice of the pending forfeiture may be provided by personal service or “mailing a copy of the notice by certified mail, return receipt requested, to that address.” (Emphasis added.) 725 ILCS 150/4(A)(1) (West 1998). The phrase “return receipt requested” is not idle language. People ex rel. Devine v. $30,700.00 United States Currency,
We also conclude that the State’s attempt of service denied Barker due process. Due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co.,
Although mailing a notice to an incorrect address does not necessarily violate due process, the case law reveals three scenarios where such notice is inadequate. The most extreme situation is when the government actually knows the party’s correct address but mails the notice to the wrong address. See Robinson v. Hanrahan,
In the third scenario where notice falls short of due process, the State acts reasonably in initially sending the notice to a particular address. However, later developments charge the State with knowing that it is not reasonably likely that the party has received the notice. If the State does not then take reasonable measures to try to notify the party at his correct address, it has not accorded the party due process. The State need not go to heroic lengths, and its efforts may satisfy due process even if they do not result in actual notice. However, the State must do something before it deprives the party of his property.
Generally, this scenario unfolds when the original notice is returned unclaimed. Thus, in Garcia, the federal government sent the notice of forfeiture by Federal Express to the claimants’ apartment, where agents had recently seized the money the government now sought to forfeit. Five days after the notice was sent, it was returned as “undeliverable.” However, the government did nothing more to ascertain the claimants’ address or to notify them again. The court held that the initial notice was proper but that the government did not act reasonably after the notice came back undelivered. According to the court, the government need not “seek out claimants in each case where its initial notice is returned undelivered” (Garcia,
In Montgomery, federal agents entered the claimant’s apartment, arrested him, and seized money they suspected came from drug sales. The government started proceedings to forfeit the money administratively, sending the claimant notice by certified mail to the apartment. Three weeks later, the notice was returned unclaimed. The government did nothing more to notify the claimant, other than by publication, and the property was forfeited.
The Montgomery court set aside the forfeiture, reasoning that, although notice by mail usually satisfies due process, the return of the notice as unclaimed should have warned the government that the claimant likely did hot learn of the pending forfeiture. The government could not reasonably rely on a notice that it knew was unsuccessful; that was no different from deliberately mailing the notice to the wrong address at the outset. Montgomery,
Other courts have held that, when a notice is returned unclaimed, the State must try to renotify the person whose property is at stake. See, e.g., Small,
The parties agree that the facts here do not fit the first of the three scenarios we have described. The trial court did not conclude, and the record does not show, that on either May 19, 1999, or July 6, 1999, the State knowingly mailed the Notice to an incorrect address. However, the court apparently did conclude that this case fit within the second scenario we have described. The court stressed that the State should have known from matters on file that petitioner had already moved to the Rockford address; thus, the State did not act reasonably in mailing the Notice to the Byron address.
On appeal, the State asserts that the trial court unduly extended Smith to a party who, unlike the claimant in Smith, was not incarcerated at the time the State mailed him the pertinent notice. The State appears to argue that this distinction is crucial because (1) a prisoner’s address is easy to ascertain; (2) petitioner should have told the State his new address; and (3) it is possible that petitioner received the original Notice but failed to act on it, in which case the trial court’s ruling would reward him for his own lack of diligence.
The State’s attempts to confine the reasoning in Smith do not strike us as sound. In Smith, we simply applied the broad rule that due process requires notice that is reasonable in view of what the State actually knows and what the State should know through the exercise of reasonable diligence. Of course, whether the property owner is incarcerated may bear on the reasonableness of the State’s efforts and on whether his address is reasonably ascertainable. However, the fundamental question is still whether the State has acted reasonably under all the circumstances.
The State correctly asserts that the owner of seized property is required to notify promptly the seizing agency of any change of address. See 725 ILCS 150/4(1) (West 1998). The statute is silent as to the consequences to an owner for the failure to notify the State of a change of address. We will not find that the failure to so notify releases the State from its constitutional obligation (set forth above) to provide due process of law. Moreover, as noted above, the statute also requires the State to request a return receipt, and that has been interpreted to mean that service by certified mail is not valid until it is received. Devine,
Finally, the State’s speculation that petitioner may have received the Notice and deliberately ignored it is without any support in the record. Petitioner’s petition contradicts such speculation. Moreover, the State again puts the cart before the horse. As cases such as Garcia and Montgomery hold, the return of a notice as unclaimed does not entitle the State to assume that the claimant received the notice but ignored it. Rather, the State’s initial lack of success warns the State that very likely the claimant did not receive the notice and the State must act further.
That the State’s attempts to limit Smith are unpersuasive does not establish that the trial court’s reasoning was correct. We may still ask whether, when the State mailed the Notice on May 19, 1999, it was charged with knowing petitioner’s latest address. The trial court apparently reasoned that, as petitioner filed a record of his new address with the circuit clerk on May 14, 1999, the State should have known this address before it sent the Notice. We need not decide whether this reasoning is sound. We hold that, even if mailing the Notice to the Byron address the first time was reasonable, the State did not act properly after the Notice came back unclaimed. The trial court did not explicitly rely on this reasoning, but we may affirm the judgment on any ground warranted. See People v. Everette,
At the trial court hearing, the State all but conceded that, after the Notice came back unclaimed, the State did little to notify petitioner of the impending forfeiture. However, the State maintained that its obligations were minimal and that it had done enough. That was incorrect. Contrary to what the State claimed at the hearing, due process does require the State — within reason — to “try to follow people around and try to figure out where they are.” Under the facts here, the State did not fulfill its obligation.
The Notice was returned on June 7, 1999. By then, petitioner had lived in Rockford for over three weeks; his new address had been on file in the circuit clerk’s office for about as long; and he had counsel in a criminal case based on the same facts as the forfeiture proceeding. Additionally, five days earlier, the trial court had modified petitioner’s bond in the criminal case by barring him from any contact with Gloria Barker, who lived at the Byron address. Thus, by June 2, 1999 (at the latest), the State should have been aware that petitioner very likely did not live at the Byron address any more.
The State easily could have ascertained petitioner’s correct address and mailed a timely notice there or alerted petitioner through his counsel. Instead, the State waited until almost a month after the notice of pending forfeiture was returned as undeliverable and then mailed the notice of declaration of forfeiture to the same address. By the time petitioner actually received the Notice — which he did by happenstance — the period for contesting the forfeiture had expired. See 725 ILCS 150/6(C)(1) (West 1998). The State did not provide notice reasonably calculated to inform petitioner of the pending proceeding, and the trial court correctly vacated the forfeiture.
The judgment of the circuit court of Ogle County is affirmed.
Affirmed.
McLAREN and CALLUM, JJ., concur.