People ex rel. Waller v. 1996 Saturn

No. 2--97--0570

IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit
ILLINOIS ex rel. MICHAEL J. ) Court of Lake County.
WALLER, )
)
Plaintiff-Appellee, ) No. 96--MR--429
)
v. )
)
1996 SATURN, VIN )
1G82H5282TZ113572, )
)
Defendant )
) Honorable
(Darrick Henderson, Claimant- ) Henry C. Tonigan III,
Appellant). ) Judge, Presiding

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) (720 ILCS 5/36--1 (West 1996)). Claimant
contends that (1) the forfeiture was not authorized by section 36--
1, and (2) the forfeiture violated the excessive fines clause of
the eighth amendment to the United States Constitution.
The facts underlying the action for forfeiture are as follows.
On August 14, 1996, around 12:40 p.m., Sergeant Gary Bitler of the
Round Lake Beach police department was stationed at a Super Kmart
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 Kmart 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
Kmart 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 Kmart. Darryl had some things in his
hand. Darryl and claimant got back into the car, at which time
Darryl, Michael, and claimant got into an argument. Darryl then
walked back to the Super Kmart, 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 Kmart, 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.
Officer Chirrello also testified on behalf of the State and
corroborated Bitler s testimony. Chirrello said that he arrested
Darryl while Bitler arrested Michael and claimant. Chirrello then
interviewed claimant following his arrest. Claimant told Chirrello
that he and the others had a partnership and were in Round Lake
Beach to take merchandise. Claimant was the spotter, which meant
he looked to make sure no one saw his partners take the items. On
other occasions, claimant was the driver. Chirrello asked claimant
why he came to Round Lake Beach when there were other stores closer
to him in Gurnee Mills or Hawthorne Center. Claimant told
Chirrello that his card was punched at those stores. Claimant
explained that when he returned an item without an I.D., he could
only return it so many times, and then he had to sign a card to get
the money returned. Claimant told Chirrello that it was easier to
return things without a receipt in Round Lake Beach. Claimant also
told Chirrello that the three argued that the money had not been
split equally and that claimant and Michael then kicked Darryl out
of the car.
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 sleeping in his car. He
awoke to find himself with Darryl Smith in the parking lot where he
later was arrested. Claimant went into Kmart 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 testified. 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 facilitate burglaries. The car was used to get to and from
the site of the robberies, and the car trunk was used to exchange
the stolen property and to secrete the stolen property. The court
did not find the claimant s testimony to be credible. Rather, the
court held that the claimant knew the intended use of the car and
was a participant in that use and that the use of the car was more
than a mere incidental use. Accordingly, the State established the
basis for the forfeiture of the vehicle. The court noted that the
harshness of the penalty presented a closer question. However, the
court concluded that, while the penalty was significant, it did not
violate the excessive fine clause of the eighth amendment.
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 used 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 Kmart with the intent to commit a theft, claimant s
vehicle was not used in the commission of a burglary.
Claimant 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." 720 ILCS 5/36--1 (West 1996). Section 19--1 of
the statute states that "[a] person commits burglary when without
authority he knowingly enters or without authority remains within
a building *** with intent to commit therein a felony or theft."
720 ILCS 5/19--1 (West 1996). By including the offense of burglary
in the list of crimes for which forfeiture is authorized, the
legislature clearly contemplated a broader reading of the burglary
statute than that proffered by claimant. Under claimant s reading
of the statute, a vehicle could never be used in the commission of
a burglary unless the burglar literally drove into a building. We
decline to give the statute such a strained reading.
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 facts 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 car 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), the 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 statute. 1975 Mercedes, 86 Ill. App. 3d at 894.
The appellate court disagreed, finding that the record showed that
"the car was an integral, constituent part of the offense arising
from the sale transaction." 1975 Mercedes, 86 Ill. App. 3d at 894.
Therefore, the use of the car fell within the scope of the
forfeiture statute. 1975 Mercedes, 86 Ill. App. 3d at 894.
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 Located 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 (730 ILCS
5/5-9-1(a)(1) (West 1996)). Because there were two separate
burglary offenses, the total fine available was $20,000, which was
not excessive compared with the value of claimant s vehicle
($17,000, minus depreciation).
Neither the claimant nor the State, however, has properly
weighed the inherent gravity of the offense 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. 725, 732 (C.D. Cal. 1994). 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 than nonviolent crimes, completed crimes are more serious
than attempted crimes, and intentional conduct is more culpable
than negligent conduct." Zumirez Drive, 845 F. Supp. at 733. In
addition, because a civil forfeiture may be instituted without
showing a claimant is guilty of any offensive conduct, a court
should first determine into which category a claimant s conduct
falls. Zumirez Drive, 845 F. Supp. at 733. These categories
include situations where "(1) the claimant has been convicted of
the criminal act or acts underlying the forfeiture; (2) the
claimant has never been charged with any crime; and (3) the
claimant has been charged and acquitted of the act or acts
underlying the forfeiture." Zumirez Drive, 845 F. Supp. at 733.
The gravity of a claimant s conduct decreases in each situation.
Zumirez Drive, 845 F. Supp. at 733. It is easy for a court to
evaluate the gravity of the offensive conduct in the first
situation because the claimant did in fact commit the offense that
formed the basis of the government s probable cause to forfeit the
property. Zumirez Drive, 845 F. Supp. at 733.
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 (730 ILCS 5/5-8-1(a)(5) (West 1996)) and a fine of
$10,000 for each offense (730 ILCS 5/5-9-1(a)(1) (West 1996)).
Because there were two burglaries in this case, the maximum fine
was $20,000. Therefore, the criminal penalties available for
claimant s conduct also supported a finding that the claimant s
offense was serious and that the forfeiture was not
disproportionate to the severity of the offenses.
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 property. Claimant argues that we should place a higher
value on his car because he was homeless and living out of his car
at the time of his arrest. Although we are cognizant of the
hardship the forfeiture will cause claimant, we do not believe that
hardship outweighs the gravity of claimant s conduct. Accordingly,
we find that the first prong of the test weighs in favor of the
forfeiture.
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 looked
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 not
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 exchange 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 have taken less
than an hour to accomplish, we find that the claimant s vehicle
played an extensive and pervasive role in the commission of those
burglaries. Further, our supreme court has stated that the
"inherent case-by-case nature of *** forfeiture actions precludes
simple cookbook application of any method of review." 1989 Ford
Truck, 162 Ill. 2d at 90. Accordingly, we find that the third
prong of the balancing test also weighs in favor of the forfeiture
of claimant s vehicle.
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, very 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 gambling materials and $30,000 in cash. The
defendant in People ex rel. Carey v. 1975 Mercedes 4-door, 86 Ill.
App. 3d 893 (1980), used his vehicle to deliver controlled
substances.
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.