THE PEOPLE ex rel. MICHAEL J. WALLER, Plaintiff-Appellee, v. 1996 SATURN, VIN 1G82H5282TZ113572, Defendant (Darrick Henderson, Claimant-Appellant).
No. 2-97-0570
Second District
Opinion filed August 19, 1998.
298 Ill. App. 3d 464
Contrary to defendant‘s argument, therefore, the fact that the battery occurred on or about a place of public accommodation was not used as an aggravating factor twice. It was used only once, as the basis for the felony on which the armed violencе conviction was predicated. Thus, there was no double enhancement.
Although we affirm defendant‘s convictions of armed violence, aggravated battery, armed robbery, unlawful possession of a weapon by a felon, and mob action, we reverse his conviction of possession of a firearm without a FOID card. In People v. Davis, 177 Ill. 2d 495, 508 (1997), the supreme court held that the penalty for violations of section 2(a)(1) of the Firearm Owners Identification Card Act (
The judgment of the circuit court of Kane County is affirmed in part and reversed in part.
Affirmed in part and reversed in part.
THOMAS and HUTCHINSON, JJ., concur.
Ligy J. Pullappally, Linda A. Rothnagel, and Bernard H. Shapiro, all of Prairie State Legal Services, Inc., of Waukegan, for appellants.
Michael J. Waller, State‘s Attorney, of Waukegan (Martin P. Moltz, of
JUSTICE THOMAS delivered the opinion of the court.
Claimant, Darrick Henderson, appeals the forfeiture of his vehicle, a 1996 Saturn, pursuant to section 36-1 of the Criminal Code of 1961 (the Code) (
The facts underlying the action for forfeiture are as follоws. On August 14, 1996, around 12:40 p.m., Sergeant Gary Bitler of the Round Lake Beach police department was stationed at a Super K mart parking lot in Round Lake Beach. While in the parking lot, Bitler observed a Saturn pull into the lot and park halfway between the Super K mart store and Sears Hardware. Bitler radioed Officer Richard Chirrello, who also was stationed in the parking lot, and told him about the Saturn. Bitler observed a man, later identified as Darryl Smith, get out of the car and walk by Sears Hardware. Several minutes later, Darryl exited Sears and walked back to the car with a square package hidden beneath his shirt. Darryl got into the car and a few minutes later a man later identified as Michael Smith got out of the car, got a bag from the trunk of the car, placed something in the bag, and then carried the bag back into Sears Hardware. A few minutes later Michael left Sears and walked back to the car, this time without the package.
After Michael got back into the car, Darryl and the claimant, Darrick Henderson, got out of the car and walked toward the Super K mart store. Bitler then went into Sears Hardware and spoke to the clerk. The clerk told Bitler that a man had just returned an item for $63.89 in cash. The man did not have a receipt for the item. The clerk also told Bitler that she was the only clerk working and that no one had purchased the item that day. The clerk later identified Michael Smith as the one who had returned the item.
Bitler then went back to the parking lot and saw claimant and Darryl Smith leave the Super K mart. Darryl had some things in his hand. Darryl and claimant gоt back into the car, at which time Darryl, Michael, and claimant got into an argument. Darryl then walked back to the Super K mart, and Michael and claimant drove away. At this point, Bitler stopped the car and advised Michael and the claimant that they were under arrest. Bitler later spoke with an employee of Super K mart, who identified the items in Darryl‘s possession as items taken from the store. Those items included a pair of blue shorts worth $17.99, a white shirt worth $9.99, and a Bulls cap worth $10.99.
Claimant then testified on his own behalf. He said that he was the owner of the 1996 Saturn seized by the Round Lake Beach police department. Claimant bought the car new for around $17,000 and paid cash for the difference between the amount of his trade-in and the purchase price.
Claimant testified that on the day he was arrested he was not employed and was living in his car. Claimant was on an excused absence from Motorola due to difficulty with drugs and alcohol. He claimed that on August 14, 1996, he was slеeping in his car. He awoke to find himself with Darryl Smith in the parking lot where he later was arrested. Claimant went into K mart to use the washroom. When claimant came out of the washroom, Darryl was right behind him and, when they walked back to the car, claimant saw Michael. An argument then ensued between Darryl and Michael, but claimant did not know what the argument was about. Darryl then left and Michael drove away, at which time claimant and Michael were arrested. Claimant denied that he told Chirrello any of the things to which Chirrello had testifiеd. Claimant said at the time of his arrest he was not aware that Darryl and Michael had stolen anything, although he was aware that they were arguing over money. Claimant denied that he had a partnership with Darryl and Michael and denied that they had agreed to steal from stores and return the stolen items for cash. Claimant admitted that in the past he had returned items for Darryl and Michael but denied that he had been with them when the items were stolen.
The court found that Chirrello‘s testimony was generally credible and that the evidence was overwhelming that the car was used to fa-
On appeal, claimant first contends that the trial court erred in finding that the forfeiture of his car was authorized by section 36-1 of the Code. Claimant argues that, pursuant to the plain language of the statute, his vehicle could not have been usеd in the commission of a burglary. Claimant contends that the crime of burglary, as defined by statute, is limited to the act of entering with the intent to commit a felony or theft and does not contain elements concerning the disposition of the stolen property or the concealment of the property. Consequently, because the act of burglary was committed when claimant and his partners entered Sears Hardware and K mart with the intent to commit a theft, claimant‘s vehicle was not used in the commission of a burglary.
Clаimant‘s argument is without merit. Section 36-1 of the Code provides that “[a]ny *** vehicle *** used with the knowledge and consent of the owner in the commission of, or in the attempt to commit *** an offense prohibited by (a) Section *** 19-1 [burglary] *** may be seized and delivered forthwith to the sheriff of the county of seizure.”
A review of the case law indicates that the phrase “used in the commission of [an offense]” means that the vehicle was an integral part of the crime. For example, in a case similar to the instant case, the supreme court upheld the forfeiture of the defendant‘s car on the ground that it was used in the commission of an armed robbery. People ex rel. Hanrahan v. One 1965 Oldsmobile, 52 Ill. 2d 37 (1972), rev‘d on other grounds, 409 U.S. 38, 34 L. Ed. 2d 47, 93 S. Ct. 30 (1972). In that case, the defendant and another man “stuck up” a food store, then got into a car and drove off. One 1965 Oldsmobile, 52 Ill. 2d at 39. The supreme court noted that “property whose intrinsic nature does not make it contraband per se may nevertheless be subject to confiscation depending upon its use.” One 1965 Oldsmobile, 52 Ill. 2d at 43. The court concluded that the fаcts in the case established that the defendant‘s vehicle was an integral part of the crime, as it was used to facilitate the commission of a felony. One 1965 Oldsmobile, 52 Ill. 2d at 44.
Similarly, in People v. Dugan, 109 Ill. 2d 8 (1985), the defendants appealed the forfeiture of their car pursuant to section 36-1. The forfeiture complaint alleged that the car was used in the commission of a gambling offense. Dugan, 109 Ill. 2d at 16. The defendants’ gambling convictions arose from their operation of a private club where patrons bet on card and dice games. Dugan, 109 Ill. 2d at 10. At the time it was seized, the сar was found to contain playing cards, membership cards for the club, poker chips, gambling table covers, and $30,000 in cash. Dugan, 109 Ill. 2d at 17. The defendants denied that the car was used in the commission of an offense and argued that, at most, it was a repository for money that had been gambled. Dugan, 109 Ill. 2d at 17. The supreme court upheld the forfeiture of the car, finding that the use of the car as a mobile office or safe was sufficiently connected to the gambling activity to be considered to have been used in the gambling offense. Dugan, 109 Ill. 2d at 18.
Likewise, in People ex rel. Carey v. 1975 Mercedes 4-Door, 86 Ill. App. 3d 893 (1980), thе trial court ordered the forfeiture of the defendant‘s vehicle pursuant to section 36-1, finding that the vehicle had been used in the delivery of a controlled substance. On seven occasions the claimant, a physician, had sold a controlled substance to an undercover agent from his office. 1975 Mercedes, 86 Ill. App. 3d at 893. At the suggestion of the agent, the claimant agreed that the eighth transaction would occur outside his office and agreed to use his car trunk as a temporary depository for the substance prior to the sale. 1975 Mercedes, 86 Ill. App. 3d at 893-94. When the claimant removed the drugs from the car trunk and gave them to the agent, he was arrested and his car was seized. 1975 Mercedes, 86 Ill. App. 3d at 894.
On appeal, the claimant in the 1975 Mercedes case contended that the use of the vehicle had been suggested by the agents and the only purpose the car had in the sale was to allow the agents to videotape the transaction, thus removing his car from the scope of the forfeiture
These cases establish that, in order to show that the State is entitled to the forfeiture of a vehicle, it must show by a preponderance of the evidence that the vehicle was an integral part of and was connected to the underlying offense. The trial court properly construed the forfeiture statute to require such a showing for a forfeiture arising from the commission of a burglary. Moreover, the evidence in this case established that defendant‘s car was used to get to and from the site of the burglaries and that the car trunk was used to exchange the stolen property and to secrete the stolen property. The trial court found that this evidence was sufficient to establish that claimant‘s car was an integral part of the burglary offense. We agree with the trial court that forfeiture would be authorized in a case in which a claimant‘s car was used in the commission of a burglary. Our analysis, however, does not end there. We must next determine whether, as claimant contends in his second issue on appeal, the forfeiture of claimant‘s vehicle violates the excessive fine clause of the eighth amendment.
The Illinois Supreme Court has adopted a multifactor analysis of the excessive fine issue in forfeiture cases. In People ex rel. Waller v. 1989 Ford F350 Truck, 162 Ill. 2d 78, 89-90 (1994), the court held that the most appropriate starting point in the excessive fine analysis was a three-prong test set forth in United States v. Real Property Locаted at 6625 Zumirez Drive, 845 F. Supp. 725 (C.D. Cal. 1994). This test weighs the following factors:
“‘(i) the inherent gravity of the offense compared with the harshness of the penalty; (ii) whether the property was an integral part of the commission of the crime; and (iii) whether the criminal activity involving the defendant property was extensive in terms of time and/or spatial use.‘” 1989 Ford F350 Truck, 162 Ill. 2d at 90, quoting Zumirez Drive, 845 F. Supp. at 732.
Applying the multifactor test, claimant first alleges that the harshness of the penalty was excessive compared with the inherent gravity of the offense. Claimant argues that the forfeiture of his vehicle was an unconstitutionally excessive penalty for the theft of property worth less than $103. In response, the State contends that the basis for the forfeiture in this case was burglary, a felony punishable by a fine of $10,000 for each offense (
Neither the claimant nor the State, however, has properly weighed the inherent gravity of the offеnse against the harshness of the penalty. Claimant‘s argument that this court should compare the value of his vehicle with the value of the goods taken misapprehends the inherent gravity analysis. The relevant issue in civil in rem forfeiture proceedings is not how much the confiscated property is worth but instead is whether the property has a close enough relationship to the offense. United States v. 5307 West 90th Street, 955 F. Supp. 881, 884-85 (N.D. Ill. 1996). Thus, the district court for the Northern District of Illinois has rejected a claim that the disparity between the forfeiture of a $110,000 home for a drug offense involving $14,000 worth of cocaine would constitute an excessive fine in violation of the eighth amendment. 5307 West 90th Street, 955 F. Supp. at 884. We agree with the district court and reject an inherent gravity analysis that focuses on the value of the forfeited property versus the value of the stolen goods.
Similarly, the court in Zumirez Drive rejected an analysis that simply compared the maximum fine available for an offense with the claimant‘s equity interest in the forfeited property. Zumirez Drive, 845 F. Supp. at 732. In Zumirez Drive, such an analysis would have required the court to calculate a punishment for the claimant as if he had been convicted of a crime of which he actually had been acquitted. Zumirez Drive, 845 F. Supp. at 732. While the maximum punishment available for a crime may be relevant in a case where, as here, the evidence established the claimant‘s extensive participation in the offense that served as the basis of the forfeiture, we believe that this factor goes only toward weighing the gravity of the claimant‘s offense and cannot alone form the basis of the inherent gravity analysis. In fact, this approach has been utilized by this court in a case where the claimant in a forfeiture proceeding had been convicted of the offense that formed the basis of the forfeiture. See People v. $5,970 United States Currency, 279 Ill. App. 3d 583 (1996). In determining the inherent gravity of the claimant‘s conduct, this court found that the claimant‘s offense was serious, in part based upon the significant fine imposed for the offense. $5,970 United States Currency, 279 Ill. App. 3d at 592. Likewise, we find that the maximum fine available in this case is relevant to determine the seriousness of claimant‘s conduct, but does not alone determine whether the inherent gravity of claimant‘s conduct outweighs the harshness of the penalty.
In weighing the inherent gravity of an offense against the fine imposed, it has been accepted “that violent crimes are more serious
In this case, claimant‘s crime was nonviolent, but it was completed and was intentional, thereby rendering the claimant‘s conduct more serious. Further, claimant was charged with burglary and was allowed to plead guilty to two counts of misdemeanor retail theft. The trial court found that the evidence was overwhelming that claimant‘s car was used to facilitate burglaries, that the claimant knew the intended use of the car, and that the claimant extensively participated in the use of the property in the commission of the offenses. Consequently, claimant‘s conduct fell within the first, most grave, category, because he did in fact commit the offense that formed the basis of the government‘s probable cause to forfeit the property.
Additionally, as noted by the State, burglary is a Class 2 felony punishable by a sentence of three to seven years’ imprisonment (
Finally, the court in Zumirez Drive suggested that in evaluating the harshness of the penalty against the fine imposed a court must consider not only the monetary value of the property forfeited but also the intangible value of the property. Zumirez Drive, 845 F. Supp. at 734. A higher value is placed on real property, particularly a home, than on personal property. Zumirez Drive, 845 F. Supp. at 734.
Here, the forfeited property was claimant‘s car, which was personal
Claimant next argues that the second prong of the Zumirez Drive test weighs against the forfeiture of his vehicle. The second prong of the test focuses on whether the property was an integral part of the commission of the offense. The Zumirez Drive court looked to whether the property and the criminal activities were sufficiently interrelated to find the property tainted by unlawful use, thereby rendering the property forfeitable. Zumirez Drive, 845 F. Supp. at 737. Claimant argues that in evaluating this prong of the balancing test the trial court erroneously lookеd to whether his vehicle facilitated the offense, rather than whether the vehicle was an integral part of the offense.
We disagree. As noted above, in order to establish that it was entitled to the forfeiture of claimant‘s vehicle, the State had to show by a preponderance of the evidence that the vehicle was an integral part of and was connected to the underlying offense of burglary. The trial court held that the State had made such a showing, and we find nothing in the record to negate the trial court‘s finding. Accordingly, we find that the second prong of the Zumirez Drive balancing test also weighs in favor of the forfeiture of claimant‘s vehicle.
The third prong of the Zumirez Drive test is whether the criminal activity involving the claimant‘s vehicle was extensive in terms of time and/or spatial use. Under this factor, the court looks not only at whether the property was an integral part of the criminal activity but also whether the property played an extensive or pervasive role in the commission of the crime. Zumirez Drive, 845 F. Supp. at 734. Claimant argues that his vehicle does nоt satisfy this prong because it was only used on one occasion, for less than one hour.
Contrary to claimant‘s attempt to minimize the time and spatial use of his vehicle, the record in this case showed that claimant and his accomplices drove from the Waukegan area to Round Lake Beach because claimant could not return items without a receipt at stores closer to him. Claimant drove to Round Lake Beach intending to take merchandise, and claimant‘s vehicle was used to еxchange the stolen merchandise between the parties and to hide the stolen merchandise. The burglaries would have been much more difficult to accomplish without claimant‘s vehicle. In addition, the trial court found that claimant‘s vehicle was being used in a theft ring, a conclusion which finds support in the record. While the actual burglaries at issue may
Applying the three-prong balancing test to the present case, then, we find that the trial court properly determined that the forfeiture of claimant‘s vehicle did not violate the excessive fines clause of the eighth amendment. We therefore affirm the trial court‘s finding in favor of the forfeiture.
For the foregoing reasons, we affirm the judgment of the circuit court of Lake County.
Affirmed.
BOWMAN, J., concurs.
JUSTICE RATHJE, dissenting:
I respectfully dissent. The forfeiture of claimant‘s vehicle was a violation of his eighth amendment right not to have an excessive fine imposed upon him.
Lost in the majority‘s extensive legal analysis is the fact that the actual crime committed by claimant involved the theft of items worth a little over $100. For that, he has lost his automobile and, vеry possibly, his chance to come to grips with the problems that led to the subject offense.
Further, the majority discounts claimant‘s contention that, in determining the intangible value of the property involved, a higher value should be placed on his car because he was homeless and living in it. The majority states that it is cognizant of the hardship caused by the forfeiture but that any hardship is outweighed by the gravity of the crime. When looking at the actual crime involved, I am hard-pressed to view the term “gravity” as having any relationship to this circumstance. Also, I would submit that few of us are fully cognizant of the hardship imposed upon a person by the forfeiture of the one piece of property that has any substantial monetary value to him.
The cases cited by the majority are instructive. People ex rel. Hanrahan v. One 1965 Oldsmobile, 52 Ill. 2d 37 (1972), involved a crime of violence, namely, armed robbery. In People v. Dugan, 109 Ill. 2d 8 (1985), when the subject vehicle was seized, it contained various
Conversely, the instant offense is not a crime of violence. Nor does it involve large sums of money or narcotics trafficking. Indeed, when one considers the many criminal activities in which an automobile plays an integral part, one can hardly imagine a more petty offense involving a car than the instant one.
Moreover, the majority‘s conclusion will encourage an overzealous prosecutor to inflate charges against an unknowing defendant whose crime ostensibly involves an automobile and to later reduce the charges to fit correctly the crime in order to obtain the very type of forfeiture found here.
Finally, the ends of justice are not served by this result. Defendant pleaded guilty to two counts of misdemeanor retail theft and received his proper punishment for those acts. Unsatisfied with that just result, the State has now taken from claimant one of the very few means by which he could begin to rebuild his life.
This punishment does not fit the crime. It should be reversed.