People v. $1,124,905
Annotate this Case
People v. $1,124,905, No. 79106 (9/18/97)
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket No. 79106--Agenda 2--January 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. $1,124,905 U.S.
CURRENCY AND ONE 1988 CHEVROLET ASTRO VAN (Jesus Mena,
Appellant).
Opinion filed September 18, 1997.
JUSTICE NICKELS delivered the opinion of the court:
In this appeal, we examine the forfeiture of $1,124,905 police
discovered in a van Jesus Mena was driving. The State initiated
civil forfeiture proceedings in the circuit court of McLean County
by filing a complaint against the currency and the van pursuant to
the Drug Asset Forfeiture Procedure Act (725 ILCS 150/1 et seq.
(West 1994)). In response, Jesus filed a claim and verified answer
and subsequently an amended answer, contesting only the forfeiture
of the currency. In his answers, Jesus declined to respond to
certain interrogatories required by the Act (725 ILCS 150/9(D)
(West 1994)), asserting his fifth amendment privilege. On the
State's motion, the circuit court struck Jesus' answers, finding
that Jesus lacked standing to contest the forfeiture. Jesus
declined to replead and the circuit court entered an order of
default and an order of forfeiture. The appellate court declined to
determine whether Jesus possessed standing, and instead found it
dispositive that the State had established probable cause to
forfeit the property. 269 Ill. App. 3d 952. We granted Jesus'
petition for leave to appeal. 155 Ill. 2d R. 315.
BACKGROUND
On July 9, 1993, the Illinois State Police seized a van
containing $1,124,905. Pursuant to the Drug Asset Forfeiture
Procedure Act (725 ILCS 150/5 (West 1994)), the police notified the
State's Attorney for McLean County of the seizure of the property.
On August 19, 1993, the drug enforcement prosecutor for the McLean
County State's Attorney's office filed a complaint for forfeiture
in the circuit court. The complaint set forth the following
allegations:
"1. That on July 9, 1993, a trooper of the Illinois
State Police stopped to assist motorists standing outside
an apparently stranded 1988 Chevrolet Astro Van, VIN
1GNCM15Z1JB169536, Illinois registration tag SVG543;
2. That said stop occurred on Interstate 55
southbound at or near milepost 185 in McLean County,
Illinois;
3. That Jesus Mena, Elena B. Mena and a one year old
child were the motorists found outside the vehicle;
4. That following said stop, the trooper and a back-
up learned that the automobile [was] registered to Melvin
J. DeJesus;
5. That following said stop, the troopers conducted
a lawful search of the vehicle;
6. That during the course of said search the
troopers found compartments built into the floor of the
vehicle;
7. That the troopers found the sum of $1,124,905.00
U.S. Currency in the compartment of the vehicle.
8. That the U.S. Currency was furnished or intended
to be furnished in exchange for a substance, or the
proceeds thereof, in violation of the Controlled
Substances Act;
9. That the troopers seized the above-captioned
property which is subject to forfeiture based upon the
statutory provisions of 720 ILCS 570/505 (1993) as
amended."
After filing the complaint for forfeiture, the State sent a
copy of the complaint as notice of the forfeiture to Jesus and
Elena Mena, and to Melvin DeJesus. The State also provided notice
to other interested parties by publication. In the affidavit for
publication, the State's Attorney stated that "I believe Jesus and
Elena Mena and Melvin DeJesus to be the owner(s) of the property"
and that "there may be other owners or interested parties who,
after due and diligent inquiry, I have been unable to ascertain
addresses for." All the notices further provided that an answer
contesting the forfeiture must be filed within 45 days at the risk
of default.
Only Jesus Mena filed a claim and answer contesting the
forfeiture. In his answer, Jesus Mena contested forfeiture of the
currency only.
The State moved to strike the answer on grounds that the
answer did not comply with the requirements of the Drug Asset
Forfeiture Procedure Act (725 ILCS 150/1 et seq. (West 1994)).
Specifically, the motion challenged Jesus' answer on grounds that
the answer did not specify the extent of his interest in the
property as required by section 9(D)(iii) of the Act (725 ILCS
150/9(D)(iii) (West 1994)); that the answer did not set forth the
date, identity of transferor and circumstances of his acquisition
of the property as required by section 9(D)(iv) (725 ILCS
150/9(D)(iv) (West 1994)); that the answer did not identify any
defenses contained in section 8 of the Act that Jesus intended to
rely on as required by section 9(D)(vi) (725 ILCS 150/9(D)(vi)
(West 1994)); and that the answer did not include all essential
facts supporting each allegation as required by section 9(D)(vii)
(725 ILCS 150/9(D)(vii) (West 1994)). The State's motion to strike
was granted and Jesus was granted leave to file an amended answer
satisfying the statutory requirements.
In the time allowed for filing the amended answer, Jesus
instead filed a motion to strike the State's complaint and a motion
to make the complaint more definite and certain. The thrust of both
motions was an attack on the factual sufficiency of the allegations
in the complaint for forfeiture. Jesus challenged the allegations
contained in paragraphs five and eight in the complaint, requesting
facts to support the allegations that the search was lawful and
that the currency was furnished or intended to be furnished for a
controlled substance.
The trial court denied Jesus' motion to strike the complaint.
The trial court granted in part Jesus' motion to make the complaint
more definite by requiring the State to amend its allegation
concerning the lawfulness of the search to include the fact that
the search was pursuant to the consent of Jesus. The trial court
found no problem with the allegation in paragraph eight and
therefore accepted the State's amended complaint.
Jesus subsequently filed a timely amended claim and answer. In
his amended answer, Jesus claimed exclusive ownership of the
currency. Jesus refused, however, to allege the date and
circumstances of his acquisition of this ownership interest,
asserting his fifth amendment privilege. The trial court granted
the State's subsequent motion to strike the amended answer, finding
that the allegations in the answer did not satisfy the requirements
of the statute necessary to show standing.
Jesus elected to stand on his answer. The State then filed a
motion seeking an order of default and forfeiture. Neither Jesus
nor his attorney appeared at the hearing on the motion. In support
of the motion, the State for the first time submitted the affidavit
of Illinois State Police Sergeant Mike Snyders. In his affidavit,
Sergeant Snyders recounted the circumstances surrounding his
seizure of the van and currency.
In his affidavit, Sergeant Snyders states that he is the
coordinator of the Illinois State Police Highway Interdiction
Program and that he has extensive training and experience in drug
interdiction. On July 9, 1993, he observed a van with its hood open
on the side of the highway and stopped to assist. At the van, he
found a man and woman, later identified as Jesus and Elena Mena,
and a small child. Jesus indicated that the van had overheated.
Sergeant Snyders then asked Jesus if the van belonged to him.
Jesus responded that the van belonged to a friend, but he did not
know the friend's name or how to get in touch with him. Jesus
presented Sergeant Snyders with the van's title, which listed the
owner as Melvin J. DeJesus. Jesus could not give the owner's
address or phone number or explain how he was supposed to return
the van. Sergeant Snyders' affidavit further states that Jesus and
Elena gave conflicting stories regarding their destination. Jesus
reported that they were heading to St. Louis to look for work.
Elena reported they were heading to Texas. Sergeant Snyders
characterized Jesus and Elena as appearing nervous and scared.
According to the affidavit, Sergeant Snyders told Jesus that
he was very suspicious about the story. Sergeant Snyders then asked
Jesus if he had any large amounts of cash in the van. Jesus laughed
and said that he did not have any large amounts of cash and he was
not transporting anything for anyone else. Jesus then gave consent
for Sergeant Snyders and a backup officer to search the van.
During the search of the van, Sergeant Snyders observed
evidence that the van had been altered to create a compartment in
the floor. Sergeant Snyders noticed that the spare tire had been
removed from the outside of the van and the undercarriage had been
sprayed with a black, oily substance. Sergeant Snyders also noticed
that inside the van the floor was flat, but the exterior showed a
tapered shape. In addition, the center bench showed evidence it had
been removed, including fasteners that did not match and carpeting
that did not fit properly.
Sergeant Snyders then pulled back the carpeting and discovered
a layer of plywood and a thin metal floor with a trap door.
Sergeant Snyders discovered, inside the trap door, a compartment
full of cash bundles. There were 112 cellophane and duct tape
bundles with the number 10 written on them and one bundle with the
number five written on it. A later count revealed a total of
$1,124,905.
Sergeant Snyders' affidavit further provides that Jesus, Elena
and the child were transported from the scene to the police
station. During an interview at the station, Jesus admitted that
DeJesus had hired him to transport the van and had given him money
for traveling expenses. Jesus denied any knowledge of the trap door
or its contents. Jesus further stated that DeJesus gave him two
phone numbers to call once he arrived in El Paso, Texas, and he was
to receive $3,500 payment for delivery of the van.
Jesus agreed to call DeJesus from the police station while an
officer listened to the phone call. When Jesus placed the call, a
man answered and asked Jesus if there was a problem. Jesus told the
man that the police had found the money. The man said he would get
in touch with DeJesus and told Jesus to call back. Jesus called
back 15 minutes later and DeJesus answered the phone. After Jesus
related the events surrounding the discovery of the money, DeJesus
told him to "tolerate the whip and keep your mouth shut."
Sergeant Snyders' affidavit also detailed the course of his
follow-up investigation. Sergeant Snyders obtained Melvin DeJesus'
photograph from the Secretary of State and traveled to Chicago to
locate and interview DeJesus, the registered owner of the van. The
occupants at the address listed on the title and registration told
Snyders that they did not know a Melvin DeJesus or recognize his
picture. In addition, Sergeant Snyders learned that the social
security number listed on DeJesus' driver's license was registered
to a Melvin DeJesus, age 11 years.
Relying on the information contained in the affidavit, the
trial judge entered an order forfeiting the van and currency. Jesus
appealed from the forfeiture order, arguing that the trial court
erred in: (1) denying his motion to strike the complaint for
forfeiture; (2) finding probable cause to believe that the currency
was traceable to an illegal drug transaction; and (3) striking his
answer and ruling he did not have standing to contest the
forfeiture.
The appellate court held that Jesus waived his objection to
the State's complaint by pleading over. 269 Ill. App. 3d at 956. In
so finding, the appellate court rejected Jesus' contention that
because his answer had been stricken, it was as if his answer had
not been filed and therefore he had not waived any objection to the
complaint. 269 Ill. App. 3d at 956. The appellate court declined to
determine whether Jesus had standing to contest the forfeiture,
instead finding that regardless of whether Jesus could demonstrate
standing, the State had satisfied its burden for forfeiture. 269
Ill. App. 3d at 955-62.
For reasons that follow, we reverse the order forfeiting the
currency and remand this cause to the circuit court. Section I
examines the relevant forfeiture provisions of the Illinois
Controlled Substances Act (720 ILCS 570/505 (West 1994)). Section
II reviews the procedures for judicial forfeiture set forth in the
Drug Asset Forfeiture Procedure Act (720 ILCS 570/100 et seq. (West
1994)). Section III analyzes the issue of whether Jesus possesses
standing to contest the forfeiture of the currency. Section IV
considers the effect of asserting the fifth amendment privilege in
response to the statutory interrogatories contained in the Drug
Asset Forfeiture Procedure Act. Section V first determines that
Jesus did not waive his challenge to the State's complaint. Section
V then examines the appropriate standard for pleading probable
cause for forfeiture, concluding that the State's complaint fails
to state a cause of action. Accordingly, the appropriate relief is
to remand the cause to the circuit court for further proceedings.
ANALYSIS
I. Controlled Substances Act
The State sought forfeiture of the property pursuant to
section 505 of the Controlled Substances Act (720 ILCS 570/505
(West 1994)). We have previously examined section 505(a)(3), which
provides for the forfeiture of vehicles and other conveyances "used
*** in any manner to facilitate" a drug violation. 720 ILCS
570/505(a)(3) (West 1994); see People ex rel. Waller v. 1989 Ford
F350 Truck, 162 Ill. 2d 78 (1994); People v. One 1986 White Mazda
Pickup Truck, 162 Ill. 2d 67 (1994). We determined that the term
"facilitate" requires that the conveyance make the possession of
the controlled substance in some way " `easier or less difficult' "
in order to support forfeiture. One 1986 White Mazda Pickup Truck,
162 Ill. 2d at 69; People v. 1946 Buick, 127 Ill. 2d 374, 377
(1989). Jesus, however, does not contest the forfeiture of the van,
instead only contesting the forfeiture of the currency.
The State sought forfeiture of the currency pursuant to
section 505(a)(5) of the Act (720 ILCS 570/505(a)(5) (West 1994)).
Section 505(a)(5) provides for the forfeiture of:
"everything of value furnished, or intended to be
furnished, in exchange for a substance in violation of
this Act, all proceeds traceable to such an exchange, and
all moneys, negotiable instruments, and securities used,
or intended to be used, to commit or in any manner to
facilitate any violation of this Act." 720 ILCS
570/505(a)(5) (West 1994).
Thus, three categories of property are subject to forfeiture
pursuant to section 505(a)(5):
(1) anything of value which is furnished or intended
to be furnished in exchange for a controlled substance;
(2) all proceeds that can be traced to the exchange
of a controlled substance; and
(3) all moneys, negotiable instruments, and
securities used or intended to be used in any manner to
facilitate a controlled substances violation.
The Controlled Substances Act further provides that property
subject to forfeiture may be seized by any peace officer without
judicial process where the seizure is reasonable and supported by
probable cause. See 720 ILCS 570/505(b)(4) (West 1994). In the
event of such a seizure, forfeiture proceedings are to be
instituted pursuant to the Drug Asset Forfeiture Procedure Act (725
ILCS 150/1 et seq. (West 1994)). 720 ILCS 570/505(c) (West 1994).
II. Drug Asset Forfeiture Procedure Act
In an effort to deter violations of the Controlled Substances
Act (720 ILCS 570/100 et seq. (West 1994)) and the Cannabis Control
Act (720 ILCS 550/1 et seq. (West 1994)), the General Assembly
enacted the Drug Asset Forfeiture Procedure Act (725 ILCS 150/1 et
seq. (West 1994)) establishing uniform procedures for the seizure
and forfeiture of drug related assets. The Act is to be interpreted
in light of the federal forfeiture provisions contained in 21
U.S.C. sec. 881 (1994) as interpreted by the federal courts, except
to the extent that the provisions expressly conflict. 720 ILCS
550/2 (West 1994). In addition, the Act is to be liberally
construed to effectuate its remedial purpose. 725 ILCS 550/13 (West
1994).
Where the property seized is "non-real property that exceeds
$20,000 in value excluding the value of any conveyance, or is real
property," the Act provides for a judicial in rem procedure. 725
ILCS 150/9 (West 1994). The State's Attorney initiates the action
by filing a verified complaint for forfeiture of the property. 725
ILCS 150/9(A) (West 1994). The Act provides that only an owner or
interest holder may file an answer asserting a claim against the
property. 725 ILCS 150/9(C) (West 1994). In addition, the answer
must contain certain information, including the circumstances
surrounding the claimant's acquisition of the property. 725 ILCS
150/9(D) (West 1994).
The Act provides that the State shall have the initial burden
to show the existence of probable cause for forfeiture of the
property. 725 ILCS 150/9(G) (West 1994). Where the State satisfies
its burden of establishing probable cause, then the burden shifts
to the claimant to show by a preponderance of the evidence that the
property is not subject to forfeiture. 725 ILCS 150/9(G) (West
1994). A claimant may satisfy this burden by establishing one of
the innocent-owner defenses listed in the Act. 725 ILCS 150/8 (West
1994). During the probable cause portion of the proceeding, "the
court must receive and consider, among other things, all relevant
hearsay evidence and information." 725 ILCS 150/9(B) (West 1994).
During all other portions of the proceeding, the law of evidence
relating to civil actions applies. 725 ILCS 150/9(B) (West 1994).
III. Standing
We find it appropriate to first consider whether Jesus has
standing to contest the forfeiture of the currency. Relying on
federal case law, the State argues that a claimant bears an initial
burden to establish standing to contest the forfeiture. See, e.g.,
United States v. $121,100 in United States Currency, 999 F.2d 1503,
1505 (11th Cir. 1993). In order to satisfy this burden, the State
argues, a claimant must file an answer that satisfies the statutory
prerequisites listed in the Drug Asset Forfeiture Procedure Act
(720 ILCS 150/9(D) (West 1994)). These prerequisites to standing
include alleging facts supporting an ownership interest in the
property. See 720 ILCS 150/9(D)(vii) (West 1994). Thus, the State
maintains that the trial court properly struck Jesus' answer
because it failed to allege specific facts establishing his
standing.
The State further argues that a claimant may not assert his
fifth amendment privilege against compulsory self-incrimination to
avoid answering questions relating to standing. The State relies on
United States v. Rylander, 460 U.S. 752, 75 L. Ed. 2d 521, 103 S. Ct. 1548 (1983), where the Supreme Court noted that the fifth
amendment privilege is not a substitute for evidence and may not be
used to avoid meeting a burden of production. As a claimant bears
the burden of production on the issue of his standing, he may not
use the fifth amendment as an excuse for failing to prove his
standing. See United States v. United States Currency & Coin:
$558,110, 626 F. Supp. 517, 520 (S.D. Ohio 1985).
Jesus argues he demonstrated his standing to contest the
forfeiture. Jesus relies on United States v. $38,570 in United
States Currency, 950 F.2d 1108, 1113 (5th Cir. 1992), where a claim
of exclusive ownership coupled with the allegations in the State's
complaint were found sufficient to confer standing to a claimant.
Jesus notes that his answer asserted exclusive ownership of the
property and the State's complaint alleges that the currency was
recovered from a van in which Jesus was traveling. In addition, the
State treated Jesus as an owner by sending him a copy of the
complaint and listing him as an owner in the affidavit for
publication.
Despite the parties' reliance on federal precedent, we believe
that Illinois law controls whether an individual possesses standing
to contest the forfeiture of property under the Act. The doctrine
of standing, like the related doctrines of mootness, ripeness and
justiciability, seeks to insure that courts decide actual
controversies and not abstract questions. In re Marriage of
Rodriguez, 131 Ill. 2d 273, 279-80 (1989). The primary focus of the
inquiry is whether a party has a real interest in the outcome of
the controversy. In re Marriage of Rodriguez, 131 Ill. 2d at 280.
In Illinois, standing is part of the common law. However, federal
principles of standing are grounded largely on the jurisdictional
case and controversy requirements imposed by article III of the
United States Constitution. United States v. 116 Emerson St., 942 F.2d 74, 78 (1st Cir. 1991); see also United States v. $103,387.27
in United States Currency, 863 F.2d 555, 560 n.10 (7th Cir. 1988)
(distinguishing between article III standing and statutory
standing); United States v. $38,000 in United States Currency, 816 F.2d 1538, 1544 (11th Cir. 1987) (same).
In Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462 (1988), this court rejected federal principles of standing.
In Greer, plaintiffs challenged an administrative agency's approval
of mortgage financing relating to a housing project. The agency
challenged plaintiff's standing, arguing that a plaintiff must
demonstrate both prongs of the federal test for standing
articulated in Association of Data Processing Service
Organizations, Inc. v. Camp, 397 U.S. 150, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970). The Data Processing test requires that a plaintiff
challenging an administrative action demonstrate: (1) that the
illegal action will cause the plaintiff to suffer injury in fact;
and (2) that the interest asserted by the plaintiff lies within the
zone of interest sought to be protected by the statute in question.
Association of Data Processing Service Organizations, Inc., 397 U.S. at 155-56, 25 L. Ed. 2d at 189, 90 S. Ct. at 830-31 (1970);
see also Torres v. $36,256.80 United States Currency, 25 F.3d 1154,
1158 (1994) (applying Data Processing test to determine standing
under federal forfeiture statute).
This court in Greer rejected application of the Data
Processing test for standing as needlessly restrictive. Greer, 122 Ill. 2d at 492; see also Cussack v. Howlett, 44 Ill. 2d 233, 236
(1969) (rejecting federal law as to ripeness). In so holding, this
court recognized that state courts are more liberal in recognizing
the standing of parties than the federal courts. Greer, 122 Ill. 2d
at 491. In addition, this court criticized the federal zone of
interest test as confusing standing with the merits of the
underlying suit. Greer, 122 Ill. 2d at 492. Thus, the Greer court
concluded that standing in Illinois requires only "some injury in
fact to a legally cognizable interest." Greer, 122 Ill. 2d at 492;
see also In re Estate of Burgeson, 125 Ill. 2d 477, 486 (1988).
In Greer, this court also rejected the defendant's underlying
assumption that a plaintiff bears the burden of establishing
standing. The Greer court explained that a plaintiff need not
allege facts supporting standing because in Illinois standing is an
affirmative defense. Greer, 122 Ill. 2d at 494. Therefore, it was
the defendant's burden to plead and prove lack of standing. Greer,
122 Ill. 2d at 494.
We find no reason to depart from these principles when
determining standing under the Drug Asset Forfeiture Procedure Act.
The doctrine of standing is designed to preclude persons having no
interest in a controversy from bringing suit, but it should not be
an obstacle to the litigation of a valid claim. In re Marriage of
Rodriguez, 131 Ill. 2d at 280. In imposing a burden of proof on a
claimant to prove ownership to satisfy standing, the federal courts
have muddied the issue of standing with the merits of the
underlying suit. Indeed, where the State seeks forfeiture of
currency and alleges that the currency was furnished or intended to
be furnished for drugs or the proceeds thereof, a basic allegation
is who committed the act that makes the property forfeitable. In
addition, ownership of the property is central to an innocent-owner
defense.
We further note that the provisions of the Act are entirely
consistent with the principles regarding standing articulated in
Greer. The Act explicitly lays out the respective burdens imposed
on the State and the claimant at the forfeiture hearing. Section
9(G) provides that the State has the burden to establish probable
cause, and if that burden is satisfied, then the burden shifts to
the claimant to prove that his or her interest is not subject to
forfeiture. In explicitly allocating these burdens, the Act does
not place any initial burden on a claimant to prove his interest in
the property.
The Act does provide that "[o]nly an owner of or interest
holder in the property may file an answer asserting a claim against
the property in the action in rem." 725 ILCS 150/9(C) (West 1994).
The Act further requires that the answer must set forth information
relating to the claimant's acquisition of the property. See 725
ILCS 150/9(D)(i) through (D)(viii) (West 1994). However, the Act
does not impose an initial burden on a claimant to prove these
mandatory allegations. Instead, the Act contemplates that a
claimant must prove these allegations to establish an innocent-
owner defense. See 725 ILCS 150/8 (West 1994).
Thus, where a claimant files an answer contesting forfeiture
of property under the Act, it is the State's burden to challenge
the claimant's standing to contest the forfeiture. Furthermore, the
State may successfully satisfy this burden only where the State can
prove that the claimant has not suffered an injury in fact to a
legally cognizable interest. In addition, the legally cognizable
interest should be construed broadly to "include any ***
recognizable legal or equitable interest in the property seized."
S. Rep. No. 225, 98th Cong., 2d Sess. 215 (1984).
The State may quickly dispose of frivolous claims by
contesting a claimant's standing by motion. In Greer, this court
recognized that controversies regarding standing are best resolved
by motions for summary judgment rather than judgments on the
pleadings. Greer, 122 Ill. 2d at 494. Indeed, a motion for summary
judgment allows a party to demonstrate that particular allegations
are a sham or that there is no issue of genuine fact regarding a
party's standing. Greer, 122 Ill. 2d at 494. On remand, the State
may properly challenge Jesus' standing to contest the forfeiture.
IV. Privilege Against Self-Incrimination
In his amended answer, Jesus claimed exclusive ownership of
the currency. Jesus refused, however, to allege the date and
circumstances of his acquisition of this ownership interest,
asserting his fifth amendment privilege against compulsory self-
incrimination. The State does not contest a claimant's right to
assert the fifth amendment privilege in the context of a forfeiture
proceeding. See United States v. United States Coin & Currency, 401 U.S. 715, 28 L. Ed. 2d 434, 91 S. Ct. 1041 (1971). However, the
State argues that the fifth amendment privilege is not a substitute
for evidence and may not be used as an excuse for failing to meet
a burden of production. United States v. Rylander, 460 U.S. 752, 75 L. Ed. 2d 521, 103 S. Ct. 1548 (1983). Therefore, the State argues
that the trial court did not err in striking Jesus' answer because
the answer asserted the fifth amendment privilege in response to
the statutory interrogatories necessary to show standing.
We have determined that a claimant does not bear an initial
burden of pleading and proving standing. The statutory requirements
for an answer contained in section 9(D) do not represent any burden
of proof on the issue of standing, but are merely a set of
interrogatories to be answered by a claimant to expedite the
proceedings. Therefore, Jesus' invocation of the fifth amendment
does not serve as a basis for striking his answer because it is not
being used to satisfy a burden of production on the issue of
standing.
Although asserting a fifth amendment privilege in response to
the interrogatories contained in the forfeiture statute is not
grounds to strike an answer, a claimant may not decline to answer
with impunity. It is "the prevailing rule that the Fifth Amendment
does not forbid adverse inferences against parties in civil actions
when they refuse to testify in response to probative evidence
offered against them." Baxter v. Palmigiano, 425 U.S. 308, 318, 47 L. Ed. 2d 810, 821, 96 S. Ct. 1551, 1558 (1976). Thus, a claimant
asserting a fifth amendment privilege may suffer from such an
adverse inference in the context of a motion attacking the
claimant's standing. In addition, a claimant asserting the
privilege may ultimately be unable to prove an innocent-owner
defense.
V. Review of the State's Complaint
The appellate court did not review the sufficiency of the
State's complaint for forfeiture. The appellate court found that
Jesus had waived any objection to the complaint by pleading over.
269 Ill. App. 3d 952. Similarly, the State argues that it is the
act of filing an answer, and not whether the answer is later
stricken, that serves to waive any further challenge to the
sufficiency of the complaint. We find that Jesus has not waived his
objection to the sufficiency of the State's complaint for
forfeiture. On the merits, we conclude that the complaint fails to
state a cause of action.
A. Waiver
Generally, where a trial court denies a motion to dismiss a
complaint and a defendant pleads over by filing an answer, the
defendant waives the objection to the complaint. Adcock v.
Brakegate, Ltd., 164 Ill. 2d 54, 60 (1994). The waiver rule is
designed to require a party to challenge a complaint at the
earliest possible juncture, so that deficiencies may be cured by an
amendment. This principle of waiver is a corollary to the doctrine
of aider by verdict, which provides that a verdict will cure not
only technical defects in a complaint, but also any defect in
failing to allege substantial facts which are essential to the
cause of action. Adcock, 164 Ill. 2d at 60-61.
Initially, we note that this court has rejected the State's
contention that the mere act of filing an answer forever waives the
right to challenge a complaint. In Ingersoll v. Klein, 46 Ill. 2d 42 (1970), plaintiff filed a complaint alleging the reckless
operation of an automobile. Defendant filed an answer, but the
answer was stricken for a technical defect some two years later. In
the time for filing an amended answer, defendant instead filed a
motion to strike the complaint. This court rejected the plaintiff's
contention that the stricken answer constituted an irrevocable
waiver of the right to challenge the complaint. Ingersoll, 46 Ill. 2d at 44.
More importantly, the appellate court erred in applying the
waiver rule after a judgment by default. The waiver rule and the
corollary doctrine of aider by verdict do not apply to the review
of a complaint after a default judgment. The waiver rule and the
doctrine of aider by verdict are premised on the understanding that
defects in a complaint will be later cured by a verdict based on
the evidence and instructions given at the trial. However, where a
court enters a judgment by default, there is no evidence presented
at trial and no verdict to cure the deficiencies in the complaint.
After a default judgment, a party is entitled to challenge the
sufficiency of a complaint on appeal. Suttles v. Vogel, 126 Ill. 2d 186, 193 (1988). A default admits only those material facts stated
in the complaint, it does not admit the conclusions of the pleader.
4 C. Nichols, Illinois Civil Practice sec. 4120, at 236-37 (rev.
1992). On review, a default judgment must be reversed where the
complaint upon which that judgment is premised fails to allege
facts sufficient to state a cause of action. Suttles, 126 Ill. 2d
at 193; Roe v. County of Cook, 358 Ill. 568, 570 (1934).
The appellate court further erred in considering the
information contained in Sergeant Snyders' affidavit to determine
that the State had satisfied its burden of establishing probable
cause. Sergeant Snyders' affidavit was not submitted until after
Jesus was found in default. In failing to plead, a party admits by
default only the specific factual allegations contained in the
complaint. Although the circuit court may request additional proof
of the allegations stated in the complaint after a default (see 735
ILCS 5/2--1301(d) (West 1994)), it is the allegations stated in the
complaint which must state a cause of action. In considering the
facts in the affidavit as establishing probable cause, the
appellate court effectively allowed the State to amend its
complaint after the default. Furthermore, Jesus preserved his right
to a thorough review of the sufficiency of the complaint by
challenging the complaint as it stood prior to the entry of the
default order. See Parrino v. Landon, 8 Ill. 2d 468, 475 (1956)
(applying a deferential standard of review to a complaint after
default where challenge was made for the first time on appeal). We
therefore review the sufficiency of the State's complaint on its
merits.
B. Merits
Pleadings serve to inform the court and the parties of the
legal theories relied upon and to give notice of the factual issues
which are to be tried. Yeates v. Daily, 13 Ill. 2d 510, 514 (1958).
With this purpose in mind, the Civil Practice Law provides that
pleadings are to be liberally construed with a view to doing
substantial justice between the parties. 735 ILCS 5/2--603(c) (West
1994). Furthermore, "[n]o pleading is bad in substance which
contains such information as reasonably informs the opposite party
of the nature of the claim or defense which he or she is called
upon to meet." 725 ILCS 5/2--612(b) (West 1994).
Although abandoning technical forms of pleading, Illinois
remains a fact-pleading state. People ex rel. Fahner v. Carriage
Way West, Inc., 88 Ill. 2d 300 (1981). Therefore, the allegations
in a complaint must set forth facts that satisfy the elements
necessary to support a cause of action. People ex rel. Scott v.
College Hills Corp., 91 Ill. 2d 138, 145 (1982). The sufficiency of
a complaint is an issue of law and our review is therefore de novo.
Toombs v. City of Champaign, 245 Ill. App. 3d 580, 583 (1993).
In order to state a cause of action for forfeiture, the State
must allege sufficient facts that, along with favorable inferences,
will satisfy the State's burden of establishing probable cause to
forfeit the property. The Act is based on the federal narcotics
forfeiture statute, and specifically incorporates federal case law.
725 ILCS 150/2 (West 1994). Therefore, we look to the federal
courts for guidance regarding the appropriate standard for probable
cause in the context of civil forfeiture.
The federal courts define probable cause for forfeiture as
reasonable grounds for belief of guilt, supported by less than
prima facie proof but more than mere suspicion. United States v.
One 1987 Mercedes 560 SEL, 919 F.2d 327, 331 (5th Cir. 1990). In
making this determination, there is no need to tie the property to
a specific drug transaction. However, suspicions of general
criminal activity are not enough; the government must have probable
cause to believe that the property is connected specifically to
drug activities. United States v. U.S. Currency, $30,060.00, 39 F.3d 1039, 1041 (9th Cir. 1994).
A split of authority exists in the federal circuits concerning
the strength of the connection between currency and drug activity
necessary to establish probable cause. Several circuits require
only a "nexus" between the narcotics activity and currency sought
to be forfeited. See, e.g., United States v. Daccarett, 6 F.3d 37,
55-56 (2d Cir. 1993); United States v. $5,644,540 in U.S. Currency,
799 F.2d 1357 (9th Cir. 1986); $30,060 in United States Currency,
39 F.3d 1039, 1041 (9th Cir. 1994). A similarly liberal standard
has been applied by the Second District of our appellate court. See
People ex rel. Waller v. $4,175 United States Currency, 239 Ill.
App. 3d 857, 863 (1993) (requiring a "rational relationship between
the contraband and the illegal activity").
Other federal circuits have determined that a stronger
connection to narcotics activity must be demonstrated where the
seized property is currency. These circuits have required a
"substantial connection" between the currency and drug activity to
establish probable cause to forfeit. See, e.g., United States v.
$95,945.18, United States Currency, 913 F.2d 1106, 1110 (4th Cir.
1990); United States v. 1964 Beechraft Baron Aircraft, 691 F.2d 725, 727 (5th Cir. 1982); United States v. $67,220 in United States
Currency, 957 F.2d 280, 284 (6th Cir. 1992); United States v.
$121,100 in United States Currency, 999 F.2d 1503, 1506 (11th Cir.
1993). "Under the substantial connection test, the property either
must be used or intended to be used to commit a crime, or must
facilitate the commission of a crime. At minimum, the property must
have more than an incidental or fortuitous connection to criminal
activity." United States v. Schifferli, 895 F.2d 987, 990 (4th Cir.
1990).
Those federal circuits applying the substantial connection
standard to the forfeiture of currency generally justify its
application based on the specific legislative history of section
881(a)(6), which uses the more exacting substantial connection
language. See United States v. $364,960 in United States Currency,
661 F.2d 319, 323 (5th Cir. 1981) (citing Joint Explanatory
Statement of Titles II and III, reprinted in 1978 U.S.C.C.A.N.
9518, 9522). However, section 881(a)(6) authorizes the federal
government to bring forfeiture actions against only currency and
other things of value given in exchange for drugs. 21 U.S.C. sec.
881(a)(6) (1994). Thus, many of the federal circuits applying the
substantial connection standard to the forfeiture of currency have
declined to extend that requirement to other forfeiture actions,
such as forfeitures of conveyances or real property used to
facilitate drug activity. See, e.g., United States v. One 1974
Cadillac Eldorado Sedan, 548 F.2d 421, 423 (2d Cir. 1977); 1964
Beechraft Baron Aircraft, 691 F.2d at 727; United States v. One
1984 Cadillac, 888 F.2d 1133, 1135-36 (6th Cir. 1989); United
States v. One Parcel of Real Estate Commonly Known as 916 Douglas
Avenue, Elgin, Illinois, 903 F.2d 490, 494 (7th Cir. 1990); but see
United States v. Parcel of Land & Residence at 28 Emery Street,
Merrimac, Massachusetts, 914 F.2d 1, 3 (1st Cir. 1990) (noting that
the first circuit requires a substantial connection for the
forfeiture of real property and conveyances because of the drastic
nature of the proceedings); Nnadi v. Richter, 976 F.2d 682, 686
(11th Cir. 1992) (same); Schifferli, 895 F.2d at 990. Indeed, in
declining to extend the substantial connection requirement to the
forfeiture of conveyances and real property, those federal circuits
have noted that the plain language of those sections allows for the
forfeiture of such property used "in any manner" to facilitate
drug-related offenses. See 1964 Beechraft Baron Aircraft, 691 F.2d
at 727; One Parcel of Real Estate Commonly Known as 916 Douglas
Avenue, Elgin, Illinois, 903 F.2d at 494.
Similarly, section 505(a)(5) of the Controlled Substances Act
does not share the legislative history supporting the more
restrictive gloss on probable cause. In addition, like the federal
forfeiture provisions applying to real property and conveyances,
the Controlled Substances Act provides for forfeiture of all moneys
used "in any manner to facilitate" a drug violation. 720 ILCS
570/505(a)(5) (West 1994). For this reason, we agree with the State
that forfeiture requires only some nexus, not a substantial
connection, between the currency and drug activity. Thus, a
complaint for forfeiture must allege facts providing reasonable
grounds for the belief that there exists a nexus between the
currency and illegal drug activity, supported by less than prima
facie proof but more than mere suspicion.
Although we have interpreted the language in the Act
consistently with those federal circuits applying a nexus standard,
we note that the difference in phraseology that exists in the
federal circuits is more semantic than practical. Where the State
alleges that the currency was intended to be furnished for a
controlled substance or was the proceeds thereof, the alleged nexus
is self-evident and substantial. In addition, where the State
alleges that the currency in some other way "facilitates" a
controlled substances violation, the State must still further
allege the manner in which the currency is used to make a
controlled substance violation easier in order to demonstrate the
necessary nexus. Thus, whatever distinction may exist between each
standard, it is unlikely to ever produce different outcomes in the
forfeiture of currency.
Applying these considerations, the State's complaint alleges
that the police discovered the currency after a search of the van
Jesus was driving. Paragraph eight of the State's complaint further
alleges "that the U.S. Currency was furnished or intended to be
furnished in exchange for a substance, or the proceeds thereof, in
violation of the Controlled Substances Act." The State argues that
it need not plead its evidence and that the complaint alleges an
"ultimate fact" that the money is related to drug trafficking. As
it pleads this ultimate fact, the State argues that the complaint
adequately states a cause of action for forfeiture.
Whether a particular allegation is deemed to be an ultimate
fact or a conclusion is a matter to be determined by a careful
consideration of the needs of administering particular litigation.
Van Dekerkhov v. City of Herrin, 51 Ill. 2d 374, 376 (1972). In the
context of a forfeiture proceeding, we believe that a complaint
alleging that currency is drug related must provide some supporting
detail that would provide notice to a claimant of the nature of the
drug connection. Such factual detail is acutely necessary in the
context of a civil forfeiture action, because the police may
summarily seize property without judicial sanction. 720 ILCS
570/505(b)(4) (West 1994). Thus, an appropriate motion challenging
the factual sufficiency of the State's complaint provides the first
opportunity for a claimant to challenge the seizure in order to
obtain the return of property wrongfully seized.
Federal pleading standards similarly recognize the need for
factual specificity in forfeiture complaints to accommodate the
drastic nature of the proceedings. Despite the lenient admiralty
pleading standards, special rules applicable to forfeiture
complaints require the government to "state the circumstances from
which the claim arises with such particularity that the defendant
or claimant will be able to *** commence an investigation of the
facts and to frame a responsive pleading." (Emphasis added.) See
Fed. R. Civ. P. Supplemental R. E(2)(a). Federal courts have
interpreted this language to require greater factual specificity
than is generally required under federal notice pleading. See
United States v. $39,000 in Canadian Currency, 801 F.2d 1210, 1216
(10th Cir. 1986); United States v. $38,000 in United States
Currency, 816 F.2d 1538, 1548 (11th Cir. 1987); United States v.
Daccarett, 6 F.3d 37, 47 (2d Cir. 1993).
"[A]n actionable wrong cannot be made out merely by
characterizing acts as having been wrongfully done." Adkins v.
Sarah Bush Lincoln Health Center, 129 Ill. 2d 497, 520 (1989). The
State's naked allegation that the seized currency is drug related
does not reasonably apprise an owner of the nature of the evidence
that will be presented. Beyond this allegation, the State's
complaint alleges only the discovery of a large amount of cash
during the search of a stranded motorist's van. The discovery of a
large amount of cash, without more, is insufficient to establish
probable cause. United States v. One Hundred Twenty One Thousand
One Hundred Dollars ($121,100) in United States Currency, 999 F.2d 1503, 1507 (11th Cir. 1993). The complaint provides no additional
factual support for the alleged drug connection of the currency.
For this reason, the State's complaint for forfeiture fails to
state a cause of action.
Although we have determined that the State's complaint is
factually insufficient to support a finding of probable cause, we
recognize that the State should have an opportunity to amend its
complaint. On remand, the State must present some factual support
in its complaint for the conclusory allegation that the currency is
drug related. The State need not plead its evidence, but must
allege some facts providing reasonable grounds for the belief that
there exists a nexus between the currency and some illegal drug
activity, supported by less than prima facie proof but more than
mere suspicion.
CONCLUSION
To summarize, we hold that where a claimant files an answer
contesting the forfeiture of property under the Act, it is the
State's burden to challenge the claimant's standing to contest the
forfeiture. Furthermore, the State may successfully satisfy this
burden only where the State can prove that a claimant has not
suffered an injury in fact to a legally cognizable interest. We
further hold that a claimant may decline to answer the
interrogatories contained in the Act pursuant to a claimant's
constitutional privilege against self-incrimination, but such a
refusal may result in adverse inferences against the claimant. We
have further determined that where forfeiture is ordered by
default, a claimant is entitled to challenge the sufficiency of the
complaint on appeal. To survive such scrutiny, the State's
complaint must allege facts supporting a finding of probable cause.
Furthermore, probable cause is defined as reasonable grounds for
the belief that there exists only a nexus, not a substantial
connection, between the property and the illegal drug activity,
supported by less than prima facie proof but more than mere
suspicion. Last, we find that the State's complaint fails to state
a cause of action for forfeiture.
For the reasons stated, we reverse the judgments of the
circuit and appellate courts and we remand the cause to the circuit
court to give the State the opportunity to amend its complaint and
for further proceedings consistent with this opinion.
Appellate court judgment reversed;
circuit court judgment reversed;
cause remanded.
JUSTICE BILANDIC, specially concurring:
I agree with the majority that the circuit court erred in
striking Mena's answer and that the entry of a default judgment of
forfeiture must therefore be reversed. However, I do not agree with
the majority's reasoning in reaching that conclusion. Specifically,
I disagree with the majority's assertion that the claimant in a
forfeiture action has no obligation to plead his or her standing to
contest the forfeiture. I believe that the approach to the standing
issue espoused in Chief Justice Freeman's dissent is correct. I
also disagree with the reasoning employed by the majority in
resolving the fifth amendment issue, and I would adhere to the
analysis on this issue provided by Chief Justice Freeman's dissent.
With regard to the sufficiency of the State's complaint, I
agree with the majority that the State's complaint fails to state
a claim for forfeiture. I also agree with the majority that the
State should be given the opportunity on remand to amend its
complaint.
JUSTICE HEIPLE, concurring in part and dissenting in part:
I agree with the majority that the circuit court's forfeiture
order must be reversed. I do not agree, however, that the State
should be allowed to amend its complaint. The record in this case
does not support the State's forfeiture claim.
The State's forfeiture complaint alleges only that on July 9,
1993, an Illinois state trooper stopped to assist Jesus and Elena
Mena, who were standing beside a disabled van; that the trooper
learned that the van was registered to Melvin DeJesus; and that
during a search of the vehicle, $1,124,905 was found hidden in
compartments in the floor. The complaint then states that "the U.S.
Currency was furnished or intended to be furnished in exchange for
a substance, or the proceeds thereof, in violation of the
Controlled Substances Act" and that the currency was seized as
"subject to forfeiture based upon the statutory provisions of [the
Controlled Substances Act] as amended."
The record, which consists of the complaint and the affidavit
of Illinois State Police Sergeant Mike Snyders, discloses that on
July 9, 1993, Jesus Mena was standing beside a stalled van along
southbound Interstate 55 with his wife, Elena, who was holding a
baby. Sergeant Snyders stopped to help them. According to Sergeant
Snyders, Mena and his wife appeared nervous. Mena told Snyders that
they were travelling to St. Louis to look for work, while Mena's
wife said that they were headed for Texas. Mena told Snyders that
the van belonged to a friend, although he could not remember the
friend's name or phone number. The van was registered to Melvin
DeJesus. Mena wore a beeper. Sergeant Snyders became suspicious and
questioned Mena about the van. Mena stated that there was nothing
hidden in the van and agreed to let Snyders search it.
Snyders called for police backup, and, while searching the
van, he and another officer noticed that alterations had been made
to the floor of the vehicle. The officers discovered a compartment
in the floor that contained bundles of money wrapped in cellophane
and duct tape. The cash totalled $1,124,905. At the police station,
Mena admitted that he knew money was hidden in the van and stated
that De
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket No. 79106--Agenda 2--January 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. $1,124,905 U.S.
CURRENCY AND ONE 1988 CHEVROLET ASTRO VAN (Jesus Mena,
Appellant).
Opinion filed September 18, 1997.
JUSTICE NICKELS delivered the opinion of the court:
In this appeal, we examine the forfeiture of $1,124,905 police
discovered in a van Jesus Mena was driving. The State initiated
civil forfeiture proceedings in the circuit court of McLean County
by filing a complaint against the currency and the van pursuant to
the Drug Asset Forfeiture Procedure Act (725 ILCS 150/1 et seq.
(West 1994)). In response, Jesus filed a claim and verified answer
and subsequently an amended answer, contesting only the forfeiture
of the currency. In his answers, Jesus declined to respond to
certain interrogatories required by the Act (725 ILCS 150/9(D)
(West 1994)), asserting his fifth amendment privilege. On the
State's motion, the circuit court struck Jesus' answers, finding
that Jesus lacked standing to contest the forfeiture. Jesus
declined to replead and the circuit court entered an order of
default and an order of forfeiture. The appellate court declined to
determine whether Jesus possessed standing, and instead found it
dispositive that the State had established probable cause to
forfeit the property. 269 Ill. App. 3d 952. We granted Jesus'
petition for leave to appeal. 155 Ill. 2d R. 315.
BACKGROUND
On July 9, 1993, the Illinois State Police seized a van
containing $1,124,905. Pursuant to the Drug Asset Forfeiture
Procedure Act (725 ILCS 150/5 (West 1994)), the police notified the
State's Attorney for McLean County of the seizure of the property.
On August 19, 1993, the drug enforcement prosecutor for the McLean
County State's Attorney's office filed a complaint for forfeiture
in the circuit court. The complaint set forth the following
allegations:
"1. That on July 9, 1993, a trooper of the Illinois
State Police stopped to assist motorists standing outside
an apparently stranded 1988 Chevrolet Astro Van, VIN
1GNCM15Z1JB169536, Illinois registration tag SVG543;
2. That said stop occurred on Interstate 55
southbound at or near milepost 185 in McLean County,
Illinois;
3. That Jesus Mena, Elena B. Mena and a one year old
child were the motorists found outside the vehicle;
4. That following said stop, the trooper and a back-
up learned that the automobile [was] registered to Melvin
J. DeJesus;
5. That following said stop, the troopers conducted
a lawful search of the vehicle;
6. That during the course of said search the
troopers found compartments built into the floor of the
vehicle;
7. That the troopers found the sum of $1,124,905.00
U.S. Currency in the compartment of the vehicle.
8. That the U.S. Currency was furnished or intended
to be furnished in exchange for a substance, or the
proceeds thereof, in violation of the Controlled
Substances Act;
9. That the troopers seized the above-captioned
property which is subject to forfeiture based upon the
statutory provisions of 720 ILCS 570/505 (1993) as
amended."
After filing the complaint for forfeiture, the State sent a
copy of the complaint as notice of the forfeiture to Jesus and
Elena Mena, and to Melvin DeJesus. The State also provided notice
to other interested parties by publication. In the affidavit for
publication, the State's Attorney stated that "I believe Jesus and
Elena Mena and Melvin DeJesus to be the owner(s) of the property"
and that "there may be other owners or interested parties who,
after due and diligent inquiry, I have been unable to ascertain
addresses for." All the notices further provided that an answer
contesting the forfeiture must be filed within 45 days at the risk
of default.
Only Jesus Mena filed a claim and answer contesting the
forfeiture. In his answer, Jesus Mena contested forfeiture of the
currency only.
The State moved to strike the answer on grounds that the
answer did not comply with the requirements of the Drug Asset
Forfeiture Procedure Act (725 ILCS 150/1 et seq. (West 1994)).
Specifically, the motion challenged Jesus' answer on grounds that
the answer did not specify the extent of his interest in the
property as required by section 9(D)(iii) of the Act (725 ILCS
150/9(D)(iii) (West 1994)); that the answer did not set forth the
date, identity of transferor and circumstances of his acquisition
of the property as required by section 9(D)(iv) (725 ILCS
150/9(D)(iv) (West 1994)); that the answer did not identify any
defenses contained in section 8 of the Act that Jesus intended to
rely on as required by section 9(D)(vi) (725 ILCS 150/9(D)(vi)
(West 1994)); and that the answer did not include all essential
facts supporting each allegation as required by section 9(D)(vii)
(725 ILCS 150/9(D)(vii) (West 1994)). The State's motion to strike
was granted and Jesus was granted leave to file an amended answer
satisfying the statutory requirements.
In the time allowed for filing the amended answer, Jesus
instead filed a motion to strike the State's complaint and a motion
to make the complaint more definite and certain. The thrust of both
motions was an attack on the factual sufficiency of the allegations
in the complaint for forfeiture. Jesus challenged the allegations
contained in paragraphs five and eight in the complaint, requesting
facts to support the allegations that the search was lawful and
that the currency was furnished or intended to be furnished for a
controlled substance.
The trial court denied Jesus' motion to strike the complaint.
The trial court granted in part Jesus' motion to make the complaint
more definite by requiring the State to amend its allegation
concerning the lawfulness of the search to include the fact that
the search was pursuant to the consent of Jesus. The trial court
found no problem with the allegation in paragraph eight and
therefore accepted the State's amended complaint.
Jesus subsequently filed a timely amended claim and answer. In
his amended answer, Jesus claimed exclusive ownership of the
currency. Jesus refused, however, to allege the date and
circumstances of his acquisition of this ownership interest,
asserting his fifth amendment privilege. The trial court granted
the State's subsequent motion to strike the amended answer, finding
that the allegations in the answer did not satisfy the requirements
of the statute necessary to show standing.
Jesus elected to stand on his answer. The State then filed a
motion seeking an order of default and forfeiture. Neither Jesus
nor his attorney appeared at the hearing on the motion. In support
of the motion, the State for the first time submitted the affidavit
of Illinois State Police Sergeant Mike Snyders. In his affidavit,
Sergeant Snyders recounted the circumstances surrounding his
seizure of the van and currency.
In his affidavit, Sergeant Snyders states that he is the
coordinator of the Illinois State Police Highway Interdiction
Program and that he has extensive training and experience in drug
interdiction. On July 9, 1993, he observed a van with its hood open
on the side of the highway and stopped to assist. At the van, he
found a man and woman, later identified as Jesus and Elena Mena,
and a small child. Jesus indicated that the van had overheated.
Sergeant Snyders then asked Jesus if the van belonged to him.
Jesus responded that the van belonged to a friend, but he did not
know the friend's name or how to get in touch with him. Jesus
presented Sergeant Snyders with the van's title, which listed the
owner as Melvin J. DeJesus. Jesus could not give the owner's
address or phone number or explain how he was supposed to return
the van. Sergeant Snyders' affidavit further states that Jesus and
Elena gave conflicting stories regarding their destination. Jesus
reported that they were heading to St. Louis to look for work.
Elena reported they were heading to Texas. Sergeant Snyders
characterized Jesus and Elena as appearing nervous and scared.
According to the affidavit, Sergeant Snyders told Jesus that
he was very suspicious about the story. Sergeant Snyders then asked
Jesus if he had any large amounts of cash in the van. Jesus laughed
and said that he did not have any large amounts of cash and he was
not transporting anything for anyone else. Jesus then gave consent
for Sergeant Snyders and a backup officer to search the van.
During the search of the van, Sergeant Snyders observed
evidence that the van had been altered to create a compartment in
the floor. Sergeant Snyders noticed that the spare tire had been
removed from the outside of the van and the undercarriage had been
sprayed with a black, oily substance. Sergeant Snyders also noticed
that inside the van the floor was flat, but the exterior showed a
tapered shape. In addition, the center bench showed evidence it had
been removed, including fasteners that did not match and carpeting
that did not fit properly.
Sergeant Snyders then pulled back the carpeting and discovered
a layer of plywood and a thin metal floor with a trap door.
Sergeant Snyders discovered, inside the trap door, a compartment
full of cash bundles. There were 112 cellophane and duct tape
bundles with the number 10 written on them and one bundle with the
number five written on it. A later count revealed a total of
$1,124,905.
Sergeant Snyders' affidavit further provides that Jesus, Elena
and the child were transported from the scene to the police
station. During an interview at the station, Jesus admitted that
DeJesus had hired him to transport the van and had given him money
for traveling expenses. Jesus denied any knowledge of the trap door
or its contents. Jesus further stated that DeJesus gave him two
phone numbers to call once he arrived in El Paso, Texas, and he was
to receive $3,500 payment for delivery of the van.
Jesus agreed to call DeJesus from the police station while an
officer listened to the phone call. When Jesus placed the call, a
man answered and asked Jesus if there was a problem. Jesus told the
man that the police had found the money. The man said he would get
in touch with DeJesus and told Jesus to call back. Jesus called
back 15 minutes later and DeJesus answered the phone. After Jesus
related the events surrounding the discovery of the money, DeJesus
told him to "tolerate the whip and keep your mouth shut."
Sergeant Snyders' affidavit also detailed the course of his
follow-up investigation. Sergeant Snyders obtained Melvin DeJesus'
photograph from the Secretary of State and traveled to Chicago to
locate and interview DeJesus, the registered owner of the van. The
occupants at the address listed on the title and registration told
Snyders that they did not know a Melvin DeJesus or recognize his
picture. In addition, Sergeant Snyders learned that the social
security number listed on DeJesus' driver's license was registered
to a Melvin DeJesus, age 11 years.
Relying on the information contained in the affidavit, the
trial judge entered an order forfeiting the van and currency. Jesus
appealed from the forfeiture order, arguing that the trial court
erred in: (1) denying his motion to strike the complaint for
forfeiture; (2) finding probable cause to believe that the currency
was traceable to an illegal drug transaction; and (3) striking his
answer and ruling he did not have standing to contest the
forfeiture.
The appellate court held that Jesus waived his objection to
the State's complaint by pleading over. 269 Ill. App. 3d at 956. In
so finding, the appellate court rejected Jesus' contention that
because his answer had been stricken, it was as if his answer had
not been filed and therefore he had not waived any objection to the
complaint. 269 Ill. App. 3d at 956. The appellate court declined to
determine whether Jesus had standing to contest the forfeiture,
instead finding that regardless of whether Jesus could demonstrate
standing, the State had satisfied its burden for forfeiture. 269
Ill. App. 3d at 955-62.
For reasons that follow, we reverse the order forfeiting the
currency and remand this cause to the circuit court. Section I
examines the relevant forfeiture provisions of the Illinois
Controlled Substances Act (720 ILCS 570/505 (West 1994)). Section
II reviews the procedures for judicial forfeiture set forth in the
Drug Asset Forfeiture Procedure Act (720 ILCS 570/100 et seq. (West
1994)). Section III analyzes the issue of whether Jesus possesses
standing to contest the forfeiture of the currency. Section IV
considers the effect of asserting the fifth amendment privilege in
response to the statutory interrogatories contained in the Drug
Asset Forfeiture Procedure Act. Section V first determines that
Jesus did not waive his challenge to the State's complaint. Section
V then examines the appropriate standard for pleading probable
cause for forfeiture, concluding that the State's complaint fails
to state a cause of action. Accordingly, the appropriate relief is
to remand the cause to the circuit court for further proceedings.
ANALYSIS
I. Controlled Substances Act
The State sought forfeiture of the property pursuant to
section 505 of the Controlled Substances Act (720 ILCS 570/505
(West 1994)). We have previously examined section 505(a)(3), which
provides for the forfeiture of vehicles and other conveyances "used
*** in any manner to facilitate" a drug violation. 720 ILCS
570/505(a)(3) (West 1994); see People ex rel. Waller v. 1989 Ford
F350 Truck, 162 Ill. 2d 78 (1994); People v. One 1986 White Mazda
Pickup Truck, 162 Ill. 2d 67 (1994). We determined that the term
"facilitate" requires that the conveyance make the possession of
the controlled substance in some way " `easier or less difficult' "
in order to support forfeiture. One 1986 White Mazda Pickup Truck,
162 Ill. 2d at 69; People v. 1946 Buick, 127 Ill. 2d 374, 377
(1989). Jesus, however, does not contest the forfeiture of the van,
instead only contesting the forfeiture of the currency.
The State sought forfeiture of the currency pursuant to
section 505(a)(5) of the Act (720 ILCS 570/505(a)(5) (West 1994)).
Section 505(a)(5) provides for the forfeiture of:
"everything of value furnished, or intended to be
furnished, in exchange for a substance in violation of
this Act, all proceeds traceable to such an exchange, and
all moneys, negotiable instruments, and securities used,
or intended to be used, to commit or in any manner to
facilitate any violation of this Act." 720 ILCS
570/505(a)(5) (West 1994).
Thus, three categories of property are subject to forfeiture
pursuant to section 505(a)(5):
(1) anything of value which is furnished or intended
to be furnished in exchange for a controlled substance;
(2) all proceeds that can be traced to the exchange
of a controlled substance; and
(3) all moneys, negotiable instruments, and
securities used or intended to be used in any manner to
facilitate a controlled substances violation.
The Controlled Substances Act further provides that property
subject to forfeiture may be seized by any peace officer without
judicial process where the seizure is reasonable and supported by
probable cause. See 720 ILCS 570/505(b)(4) (West 1994). In the
event of such a seizure, forfeiture proceedings are to be
instituted pursuant to the Drug Asset Forfeiture Procedure Act (725
ILCS 150/1 et seq. (West 1994)). 720 ILCS 570/505(c) (West 1994).
II. Drug Asset Forfeiture Procedure Act
In an effort to deter violations of the Controlled Substances
Act (720 ILCS 570/100 et seq. (West 1994)) and the Cannabis Control
Act (720 ILCS 550/1 et seq. (West 1994)), the General Assembly
enacted the Drug Asset Forfeiture Procedure Act (725 ILCS 150/1 et
seq. (West 1994)) establishing uniform procedures for the seizure
and forfeiture of drug related assets. The Act is to be interpreted
in light of the federal forfeiture provisions contained in 21
U.S.C. sec. 881 (1994) as interpreted by the federal courts, except
to the extent that the provisions expressly conflict. 720 ILCS
550/2 (West 1994). In addition, the Act is to be liberally
construed to effectuate its remedial purpose. 725 ILCS 550/13 (West
1994).
Where the property seized is "non-real property that exceeds
$20,000 in value excluding the value of any conveyance, or is real
property," the Act provides for a judicial in rem procedure. 725
ILCS 150/9 (West 1994). The State's Attorney initiates the action
by filing a verified complaint for forfeiture of the property. 725
ILCS 150/9(A) (West 1994). The Act provides that only an owner or
interest holder may file an answer asserting a claim against the
property. 725 ILCS 150/9(C) (West 1994). In addition, the answer
must contain certain information, including the circumstances
surrounding the claimant's acquisition of the property. 725 ILCS
150/9(D) (West 1994).
The Act provides that the State shall have the initial burden
to show the existence of probable cause for forfeiture of the
property. 725 ILCS 150/9(G) (West 1994). Where the State satisfies
its burden of establishing probable cause, then the burden shifts
to the claimant to show by a preponderance of the evidence that the
property is not subject to forfeiture. 725 ILCS 150/9(G) (West
1994). A claimant may satisfy this burden by establishing one of
the innocent-owner defenses listed in the Act. 725 ILCS 150/8 (West
1994). During the probable cause portion of the proceeding, "the
court must receive and consider, among other things, all relevant
hearsay evidence and information." 725 ILCS 150/9(B) (West 1994).
During all other portions of the proceeding, the law of evidence
relating to civil actions applies. 725 ILCS 150/9(B) (West 1994).
III. Standing
We find it appropriate to first consider whether Jesus has
standing to contest the forfeiture of the currency. Relying on
federal case law, the State argues that a claimant bears an initial
burden to establish standing to contest the forfeiture. See, e.g.,
United States v. $121,100 in United States Currency, 999 F.2d 1503,
1505 (11th Cir. 1993). In order to satisfy this burden, the State
argues, a claimant must file an answer that satisfies the statutory
prerequisites listed in the Drug Asset Forfeiture Procedure Act
(720 ILCS 150/9(D) (West 1994)). These prerequisites to standing
include alleging facts supporting an ownership interest in the
property. See 720 ILCS 150/9(D)(vii) (West 1994). Thus, the State
maintains that the trial court properly struck Jesus' answer
because it failed to allege specific facts establishing his
standing.
The State further argues that a claimant may not assert his
fifth amendment privilege against compulsory self-incrimination to
avoid answering questions relating to standing. The State relies on
United States v. Rylander, 460 U.S. 752, 75 L. Ed. 2d 521, 103 S. Ct. 1548 (1983), where the Supreme Court noted that the fifth
amendment privilege is not a substitute for evidence and may not be
used to avoid meeting a burden of production. As a claimant bears
the burden of production on the issue of his standing, he may not
use the fifth amendment as an excuse for failing to prove his
standing. See United States v. United States Currency & Coin:
$558,110, 626 F. Supp. 517, 520 (S.D. Ohio 1985).
Jesus argues he demonstrated his standing to contest the
forfeiture. Jesus relies on United States v. $38,570 in United
States Currency, 950 F.2d 1108, 1113 (5th Cir. 1992), where a claim
of exclusive ownership coupled with the allegations in the State's
complaint were found sufficient to confer standing to a claimant.
Jesus notes that his answer asserted exclusive ownership of the
property and the State's complaint alleges that the currency was
recovered from a van in which Jesus was traveling. In addition, the
State treated Jesus as an owner by sending him a copy of the
complaint and listing him as an owner in the affidavit for
publication.
Despite the parties' reliance on federal precedent, we believe
that Illinois law controls whether an individual possesses standing
to contest the forfeiture of property under the Act. The doctrine
of standing, like the related doctrines of mootness, ripeness and
justiciability, seeks to insure that courts decide actual
controversies and not abstract questions. In re Marriage of
Rodriguez, 131 Ill. 2d 273, 279-80 (1989). The primary focus of the
inquiry is whether a party has a real interest in the outcome of
the controversy. In re Marriage of Rodriguez, 131 Ill. 2d at 280.
In Illinois, standing is part of the common law. However, federal
principles of standing are grounded largely on the jurisdictional
case and controversy requirements imposed by article III of the
United States Constitution. United States v. 116 Emerson St., 942 F.2d 74, 78 (1st Cir. 1991); see also United States v. $103,387.27
in United States Currency, 863 F.2d 555, 560 n.10 (7th Cir. 1988)
(distinguishing between article III standing and statutory
standing); United States v. $38,000 in United States Currency, 816 F.2d 1538, 1544 (11th Cir. 1987) (same).
In Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462 (1988), this court rejected federal principles of standing.
In Greer, plaintiffs challenged an administrative agency's approval
of mortgage financing relating to a housing project. The agency
challenged plaintiff's standing, arguing that a plaintiff must
demonstrate both prongs of the federal test for standing
articulated in Association of Data Processing Service
Organizations, Inc. v. Camp, 397 U.S. 150, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970). The Data Processing test requires that a plaintiff
challenging an administrative action demonstrate: (1) that the
illegal action will cause the plaintiff to suffer injury in fact;
and (2) that the interest asserted by the plaintiff lies within the
zone of interest sought to be protected by the statute in question.
Association of Data Processing Service Organizations, Inc., 397 U.S. at 155-56, 25 L. Ed. 2d at 189, 90 S. Ct. at 830-31 (1970);
see also Torres v. $36,256.80 United States Currency, 25 F.3d 1154,
1158 (1994) (applying Data Processing test to determine standing
under federal forfeiture statute).
This court in Greer rejected application of the Data
Processing test for standing as needlessly restrictive. Greer, 122 Ill. 2d at 492; see also Cussack v. Howlett, 44 Ill. 2d 233, 236
(1969) (rejecting federal law as to ripeness). In so holding, this
court recognized that state courts are more liberal in recognizing
the standing of parties than the federal courts. Greer, 122 Ill. 2d
at 491. In addition, this court criticized the federal zone of
interest test as confusing standing with the merits of the
underlying suit. Greer, 122 Ill. 2d at 492. Thus, the Greer court
concluded that standing in Illinois requires only "some injury in
fact to a legally cognizable interest." Greer, 122 Ill. 2d at 492;
see also In re Estate of Burgeson, 125 Ill. 2d 477, 486 (1988).
In Greer, this court also rejected the defendant's underlying
assumption that a plaintiff bears the burden of establishing
standing. The Greer court explained that a plaintiff need not
allege facts supporting standing because in Illinois standing is an
affirmative defense. Greer, 122 Ill. 2d at 494. Therefore, it was
the defendant's burden to plead and prove lack of standing. Greer,
122 Ill. 2d at 494.
We find no reason to depart from these principles when
determining standing under the Drug Asset Forfeiture Procedure Act.
The doctrine of standing is designed to preclude persons having no
interest in a controversy from bringing suit, but it should not be
an obstacle to the litigation of a valid claim. In re Marriage of
Rodriguez, 131 Ill. 2d at 280. In imposing a burden of proof on a
claimant to prove ownership to satisfy standing, the federal courts
have muddied the issue of standing with the merits of the
underlying suit. Indeed, where the State seeks forfeiture of
currency and alleges that the currency was furnished or intended to
be furnished for drugs or the proceeds thereof, a basic allegation
is who committed the act that makes the property forfeitable. In
addition, ownership of the property is central to an innocent-owner
defense.
We further note that the provisions of the Act are entirely
consistent with the principles regarding standing articulated in
Greer. The Act explicitly lays out the respective burdens imposed
on the State and the claimant at the forfeiture hearing. Section
9(G) provides that the State has the burden to establish probable
cause, and if that burden is satisfied, then the burden shifts to
the claimant to prove that his or her interest is not subject to
forfeiture. In explicitly allocating these burdens, the Act does
not place any initial burden on a claimant to prove his interest in
the property.
The Act does provide that "[o]nly an owner of or interest
holder in the property may file an answer asserting a claim against
the property in the action in rem." 725 ILCS 150/9(C) (West 1994).
The Act further requires that the answer must set forth information
relating to the claimant's acquisition of the property. See 725
ILCS 150/9(D)(i) through (D)(viii) (West 1994). However, the Act
does not impose an initial burden on a claimant to prove these
mandatory allegations. Instead, the Act contemplates that a
claimant must prove these allegations to establish an innocent-
owner defense. See 725 ILCS 150/8 (West 1994).
Thus, where a claimant files an answer contesting forfeiture
of property under the Act, it is the State's burden to challenge
the claimant's standing to contest the forfeiture. Furthermore, the
State may successfully satisfy this burden only where the State can
prove that the claimant has not suffered an injury in fact to a
legally cognizable interest. In addition, the legally cognizable
interest should be construed broadly to "include any ***
recognizable legal or equitable interest in the property seized."
S. Rep. No. 225, 98th Cong., 2d Sess. 215 (1984).
The State may quickly dispose of frivolous claims by
contesting a claimant's standing by motion. In Greer, this court
recognized that controversies regarding standing are best resolved
by motions for summary judgment rather than judgments on the
pleadings. Greer, 122 Ill. 2d at 494. Indeed, a motion for summary
judgment allows a party to demonstrate that particular allegations
are a sham or that there is no issue of genuine fact regarding a
party's standing. Greer, 122 Ill. 2d at 494. On remand, the State
may properly challenge Jesus' standing to contest the forfeiture.
IV. Privilege Against Self-Incrimination
In his amended answer, Jesus claimed exclusive ownership of
the currency. Jesus refused, however, to allege the date and
circumstances of his acquisition of this ownership interest,
asserting his fifth amendment privilege against compulsory self-
incrimination. The State does not contest a claimant's right to
assert the fifth amendment privilege in the context of a forfeiture
proceeding. See United States v. United States Coin & Currency, 401 U.S. 715, 28 L. Ed. 2d 434, 91 S. Ct. 1041 (1971). However, the
State argues that the fifth amendment privilege is not a substitute
for evidence and may not be used as an excuse for failing to meet
a burden of production. United States v. Rylander, 460 U.S. 752, 75 L. Ed. 2d 521, 103 S. Ct. 1548 (1983). Therefore, the State argues
that the trial court did not err in striking Jesus' answer because
the answer asserted the fifth amendment privilege in response to
the statutory interrogatories necessary to show standing.
We have determined that a claimant does not bear an initial
burden of pleading and proving standing. The statutory requirements
for an answer contained in section 9(D) do not represent any burden
of proof on the issue of standing, but are merely a set of
interrogatories to be answered by a claimant to expedite the
proceedings. Therefore, Jesus' invocation of the fifth amendment
does not serve as a basis for striking his answer because it is not
being used to satisfy a burden of production on the issue of
standing.
Although asserting a fifth amendment privilege in response to
the interrogatories contained in the forfeiture statute is not
grounds to strike an answer, a claimant may not decline to answer
with impunity. It is "the prevailing rule that the Fifth Amendment
does not forbid adverse inferences against parties in civil actions
when they refuse to testify in response to probative evidence
offered against them." Baxter v. Palmigiano, 425 U.S. 308, 318, 47 L. Ed. 2d 810, 821, 96 S. Ct. 1551, 1558 (1976). Thus, a claimant
asserting a fifth amendment privilege may suffer from such an
adverse inference in the context of a motion attacking the
claimant's standing. In addition, a claimant asserting the
privilege may ultimately be unable to prove an innocent-owner
defense.
V. Review of the State's Complaint
The appellate court did not review the sufficiency of the
State's complaint for forfeiture. The appellate court found that
Jesus had waived any objection to the complaint by pleading over.
269 Ill. App. 3d 952. Similarly, the State argues that it is the
act of filing an answer, and not whether the answer is later
stricken, that serves to waive any further challenge to the
sufficiency of the complaint. We find that Jesus has not waived his
objection to the sufficiency of the State's complaint for
forfeiture. On the merits, we conclude that the complaint fails to
state a cause of action.
A. Waiver
Generally, where a trial court denies a motion to dismiss a
complaint and a defendant pleads over by filing an answer, the
defendant waives the objection to the complaint. Adcock v.
Brakegate, Ltd., 164 Ill. 2d 54, 60 (1994). The waiver rule is
designed to require a party to challenge a complaint at the
earliest possible juncture, so that deficiencies may be cured by an
amendment. This principle of waiver is a corollary to the doctrine
of aider by verdict, which provides that a verdict will cure not
only technical defects in a complaint, but also any defect in
failing to allege substantial facts which are essential to the
cause of action. Adcock, 164 Ill. 2d at 60-61.
Initially, we note that this court has rejected the State's
contention that the mere act of filing an answer forever waives the
right to challenge a complaint. In Ingersoll v. Klein, 46 Ill. 2d 42 (1970), plaintiff filed a complaint alleging the reckless
operation of an automobile. Defendant filed an answer, but the
answer was stricken for a technical defect some two years later. In
the time for filing an amended answer, defendant instead filed a
motion to strike the complaint. This court rejected the plaintiff's
contention that the stricken answer constituted an irrevocable
waiver of the right to challenge the complaint. Ingersoll, 46 Ill. 2d at 44.
More importantly, the appellate court erred in applying the
waiver rule after a judgment by default. The waiver rule and the
corollary doctrine of aider by verdict do not apply to the review
of a complaint after a default judgment. The waiver rule and the
doctrine of aider by verdict are premised on the understanding that
defects in a complaint will be later cured by a verdict based on
the evidence and instructions given at the trial. However, where a
court enters a judgment by default, there is no evidence presented
at trial and no verdict to cure the deficiencies in the complaint.
After a default judgment, a party is entitled to challenge the
sufficiency of a complaint on appeal. Suttles v. Vogel, 126 Ill. 2d 186, 193 (1988). A default admits only those material facts stated
in the complaint, it does not admit the conclusions of the pleader.
4 C. Nichols, Illinois Civil Practice sec. 4120, at 236-37 (rev.
1992). On review, a default judgment must be reversed where the
complaint upon which that judgment is premised fails to allege
facts sufficient to state a cause of action. Suttles, 126 Ill. 2d
at 193; Roe v. County of Cook, 358 Ill. 568, 570 (1934).
The appellate court further erred in considering the
information contained in Sergeant Snyders' affidavit to determine
that the State had satisfied its burden of establishing probable
cause. Sergeant Snyders' affidavit was not submitted until after
Jesus was found in default. In failing to plead, a party admits by
default only the specific factual allegations contained in the
complaint. Although the circuit court may request additional proof
of the allegations stated in the complaint after a default (see 735
ILCS 5/2--1301(d) (West 1994)), it is the allegations stated in the
complaint which must state a cause of action. In considering the
facts in the affidavit as establishing probable cause, the
appellate court effectively allowed the State to amend its
complaint after the default. Furthermore, Jesus preserved his right
to a thorough review of the sufficiency of the complaint by
challenging the complaint as it stood prior to the entry of the
default order. See Parrino v. Landon, 8 Ill. 2d 468, 475 (1956)
(applying a deferential standard of review to a complaint after
default where challenge was made for the first time on appeal). We
therefore review the sufficiency of the State's complaint on its
merits.
B. Merits
Pleadings serve to inform the court and the parties of the
legal theories relied upon and to give notice of the factual issues
which are to be tried. Yeates v. Daily, 13 Ill. 2d 510, 514 (1958).
With this purpose in mind, the Civil Practice Law provides that
pleadings are to be liberally construed with a view to doing
substantial justice between the parties. 735 ILCS 5/2--603(c) (West
1994). Furthermore, "[n]o pleading is bad in substance which
contains such information as reasonably informs the opposite party
of the nature of the claim or defense which he or she is called
upon to meet." 725 ILCS 5/2--612(b) (West 1994).
Although abandoning technical forms of pleading, Illinois
remains a fact-pleading state. People ex rel. Fahner v. Carriage
Way West, Inc., 88 Ill. 2d 300 (1981). Therefore, the allegations
in a complaint must set forth facts that satisfy the elements
necessary to support a cause of action. People ex rel. Scott v.
College Hills Corp., 91 Ill. 2d 138, 145 (1982). The sufficiency of
a complaint is an issue of law and our review is therefore de novo.
Toombs v. City of Champaign, 245 Ill. App. 3d 580, 583 (1993).
In order to state a cause of action for forfeiture, the State
must allege sufficient facts that, along with favorable inferences,
will satisfy the State's burden of establishing probable cause to
forfeit the property. The Act is based on the federal narcotics
forfeiture statute, and specifically incorporates federal case law.
725 ILCS 150/2 (West 1994). Therefore, we look to the federal
courts for guidance regarding the appropriate standard for probable
cause in the context of civil forfeiture.
The federal courts define probable cause for forfeiture as
reasonable grounds for belief of guilt, supported by less than
prima facie proof but more than mere suspicion. United States v.
One 1987 Mercedes 560 SEL, 919 F.2d 327, 331 (5th Cir. 1990). In
making this determination, there is no need to tie the property to
a specific drug transaction. However, suspicions of general
criminal activity are not enough; the government must have probable
cause to believe that the property is connected specifically to
drug activities. United States v. U.S. Currency, $30,060.00, 39 F.3d 1039, 1041 (9th Cir. 1994).
A split of authority exists in the federal circuits concerning
the strength of the connection between currency and drug activity
necessary to establish probable cause. Several circuits require
only a "nexus" between the narcotics activity and currency sought
to be forfeited. See, e.g., United States v. Daccarett, 6 F.3d 37,
55-56 (2d Cir. 1993); United States v. $5,644,540 in U.S. Currency,
799 F.2d 1357 (9th Cir. 1986); $30,060 in United States Currency,
39 F.3d 1039, 1041 (9th Cir. 1994). A similarly liberal standard
has been applied by the Second District of our appellate court. See
People ex rel. Waller v. $4,175 United States Currency, 239 Ill.
App. 3d 857, 863 (1993) (requiring a "rational relationship between
the contraband and the illegal activity").
Other federal circuits have determined that a stronger
connection to narcotics activity must be demonstrated where the
seized property is currency. These circuits have required a
"substantial connection" between the currency and drug activity to
establish probable cause to forfeit. See, e.g., United States v.
$95,945.18, United States Currency, 913 F.2d 1106, 1110 (4th Cir.
1990); United States v. 1964 Beechraft Baron Aircraft, 691 F.2d 725, 727 (5th Cir. 1982); United States v. $67,220 in United States
Currency, 957 F.2d 280, 284 (6th Cir. 1992); United States v.
$121,100 in United States Currency, 999 F.2d 1503, 1506 (11th Cir.
1993). "Under the substantial connection test, the property either
must be used or intended to be used to commit a crime, or must
facilitate the commission of a crime. At minimum, the property must
have more than an incidental or fortuitous connection to criminal
activity." United States v. Schifferli, 895 F.2d 987, 990 (4th Cir.
1990).
Those federal circuits applying the substantial connection
standard to the forfeiture of currency generally justify its
application based on the specific legislative history of section
881(a)(6), which uses the more exacting substantial connection
language. See United States v. $364,960 in United States Currency,
661 F.2d 319, 323 (5th Cir. 1981) (citing Joint Explanatory
Statement of Titles II and III, reprinted in 1978 U.S.C.C.A.N.
9518, 9522). However, section 881(a)(6) authorizes the federal
government to bring forfeiture actions against only currency and
other things of value given in exchange for drugs. 21 U.S.C. sec.
881(a)(6) (1994). Thus, many of the federal circuits applying the
substantial connection standard to the forfeiture of currency have
declined to extend that requirement to other forfeiture actions,
such as forfeitures of conveyances or real property used to
facilitate drug activity. See, e.g., United States v. One 1974
Cadillac Eldorado Sedan, 548 F.2d 421, 423 (2d Cir. 1977); 1964
Beechraft Baron Aircraft, 691 F.2d at 727; United States v. One
1984 Cadillac, 888 F.2d 1133, 1135-36 (6th Cir. 1989); United
States v. One Parcel of Real Estate Commonly Known as 916 Douglas
Avenue, Elgin, Illinois, 903 F.2d 490, 494 (7th Cir. 1990); but see
United States v. Parcel of Land & Residence at 28 Emery Street,
Merrimac, Massachusetts, 914 F.2d 1, 3 (1st Cir. 1990) (noting that
the first circuit requires a substantial connection for the
forfeiture of real property and conveyances because of the drastic
nature of the proceedings); Nnadi v. Richter, 976 F.2d 682, 686
(11th Cir. 1992) (same); Schifferli, 895 F.2d at 990. Indeed, in
declining to extend the substantial connection requirement to the
forfeiture of conveyances and real property, those federal circuits
have noted that the plain language of those sections allows for the
forfeiture of such property used "in any manner" to facilitate
drug-related offenses. See 1964 Beechraft Baron Aircraft, 691 F.2d
at 727; One Parcel of Real Estate Commonly Known as 916 Douglas
Avenue, Elgin, Illinois, 903 F.2d at 494.
Similarly, section 505(a)(5) of the Controlled Substances Act
does not share the legislative history supporting the more
restrictive gloss on probable cause. In addition, like the federal
forfeiture provisions applying to real property and conveyances,
the Controlled Substances Act provides for forfeiture of all moneys
used "in any manner to facilitate" a drug violation. 720 ILCS
570/505(a)(5) (West 1994). For this reason, we agree with the State
that forfeiture requires only some nexus, not a substantial
connection, between the currency and drug activity. Thus, a
complaint for forfeiture must allege facts providing reasonable
grounds for the belief that there exists a nexus between the
currency and illegal drug activity, supported by less than prima
facie proof but more than mere suspicion.
Although we have interpreted the language in the Act
consistently with those federal circuits applying a nexus standard,
we note that the difference in phraseology that exists in the
federal circuits is more semantic than practical. Where the State
alleges that the currency was intended to be furnished for a
controlled substance or was the proceeds thereof, the alleged nexus
is self-evident and substantial. In addition, where the State
alleges that the currency in some other way "facilitates" a
controlled substances violation, the State must still further
allege the manner in which the currency is used to make a
controlled substance violation easier in order to demonstrate the
necessary nexus. Thus, whatever distinction may exist between each
standard, it is unlikely to ever produce different outcomes in the
forfeiture of currency.
Applying these considerations, the State's complaint alleges
that the police discovered the currency after a search of the van
Jesus was driving. Paragraph eight of the State's complaint further
alleges "that the U.S. Currency was furnished or intended to be
furnished in exchange for a substance, or the proceeds thereof, in
violation of the Controlled Substances Act." The State argues that
it need not plead its evidence and that the complaint alleges an
"ultimate fact" that the money is related to drug trafficking. As
it pleads this ultimate fact, the State argues that the complaint
adequately states a cause of action for forfeiture.
Whether a particular allegation is deemed to be an ultimate
fact or a conclusion is a matter to be determined by a careful
consideration of the needs of administering particular litigation.
Van Dekerkhov v. City of Herrin, 51 Ill. 2d 374, 376 (1972). In the
context of a forfeiture proceeding, we believe that a complaint
alleging that currency is drug related must provide some supporting
detail that would provide notice to a claimant of the nature of the
drug connection. Such factual detail is acutely necessary in the
context of a civil forfeiture action, because the police may
summarily seize property without judicial sanction. 720 ILCS
570/505(b)(4) (West 1994). Thus, an appropriate motion challenging
the factual sufficiency of the State's complaint provides the first
opportunity for a claimant to challenge the seizure in order to
obtain the return of property wrongfully seized.
Federal pleading standards similarly recognize the need for
factual specificity in forfeiture complaints to accommodate the
drastic nature of the proceedings. Despite the lenient admiralty
pleading standards, special rules applicable to forfeiture
complaints require the government to "state the circumstances from
which the claim arises with such particularity that the defendant
or claimant will be able to *** commence an investigation of the
facts and to frame a responsive pleading." (Emphasis added.) See
Fed. R. Civ. P. Supplemental R. E(2)(a). Federal courts have
interpreted this language to require greater factual specificity
than is generally required under federal notice pleading. See
United States v. $39,000 in Canadian Currency, 801 F.2d 1210, 1216
(10th Cir. 1986); United States v. $38,000 in United States
Currency, 816 F.2d 1538, 1548 (11th Cir. 1987); United States v.
Daccarett, 6 F.3d 37, 47 (2d Cir. 1993).
"[A]n actionable wrong cannot be made out merely by
characterizing acts as having been wrongfully done." Adkins v.
Sarah Bush Lincoln Health Center, 129 Ill. 2d 497, 520 (1989). The
State's naked allegation that the seized currency is drug related
does not reasonably apprise an owner of the nature of the evidence
that will be presented. Beyond this allegation, the State's
complaint alleges only the discovery of a large amount of cash
during the search of a stranded motorist's van. The discovery of a
large amount of cash, without more, is insufficient to establish
probable cause. United States v. One Hundred Twenty One Thousand
One Hundred Dollars ($121,100) in United States Currency, 999 F.2d 1503, 1507 (11th Cir. 1993). The complaint provides no additional
factual support for the alleged drug connection of the currency.
For this reason, the State's complaint for forfeiture fails to
state a cause of action.
Although we have determined that the State's complaint is
factually insufficient to support a finding of probable cause, we
recognize that the State should have an opportunity to amend its
complaint. On remand, the State must present some factual support
in its complaint for the conclusory allegation that the currency is
drug related. The State need not plead its evidence, but must
allege some facts providing reasonable grounds for the belief that
there exists a nexus between the currency and some illegal drug
activity, supported by less than prima facie proof but more than
mere suspicion.
CONCLUSION
To summarize, we hold that where a claimant files an answer
contesting the forfeiture of property under the Act, it is the
State's burden to challenge the claimant's standing to contest the
forfeiture. Furthermore, the State may successfully satisfy this
burden only where the State can prove that a claimant has not
suffered an injury in fact to a legally cognizable interest. We
further hold that a claimant may decline to answer the
interrogatories contained in the Act pursuant to a claimant's
constitutional privilege against self-incrimination, but such a
refusal may result in adverse inferences against the claimant. We
have further determined that where forfeiture is ordered by
default, a claimant is entitled to challenge the sufficiency of the
complaint on appeal. To survive such scrutiny, the State's
complaint must allege facts supporting a finding of probable cause.
Furthermore, probable cause is defined as reasonable grounds for
the belief that there exists only a nexus, not a substantial
connection, between the property and the illegal drug activity,
supported by less than prima facie proof but more than mere
suspicion. Last, we find that the State's complaint fails to state
a cause of action for forfeiture.
For the reasons stated, we reverse the judgments of the
circuit and appellate courts and we remand the cause to the circuit
court to give the State the opportunity to amend its complaint and
for further proceedings consistent with this opinion.
Appellate court judgment reversed;
circuit court judgment reversed;
cause remanded.
JUSTICE BILANDIC, specially concurring:
I agree with the majority that the circuit court erred in
striking Mena's answer and that the entry of a default judgment of
forfeiture must therefore be reversed. However, I do not agree with
the majority's reasoning in reaching that conclusion. Specifically,
I disagree with the majority's assertion that the claimant in a
forfeiture action has no obligation to plead his or her standing to
contest the forfeiture. I believe that the approach to the standing
issue espoused in Chief Justice Freeman's dissent is correct. I
also disagree with the reasoning employed by the majority in
resolving the fifth amendment issue, and I would adhere to the
analysis on this issue provided by Chief Justice Freeman's dissent.
With regard to the sufficiency of the State's complaint, I
agree with the majority that the State's complaint fails to state
a claim for forfeiture. I also agree with the majority that the
State should be given the opportunity on remand to amend its
complaint.
JUSTICE HEIPLE, concurring in part and dissenting in part:
I agree with the majority that the circuit court's forfeiture
order must be reversed. I do not agree, however, that the State
should be allowed to amend its complaint. The record in this case
does not support the State's forfeiture claim.
The State's forfeiture complaint alleges only that on July 9,
1993, an Illinois state trooper stopped to assist Jesus and Elena
Mena, who were standing beside a disabled van; that the trooper
learned that the van was registered to Melvin DeJesus; and that
during a search of the vehicle, $1,124,905 was found hidden in
compartments in the floor. The complaint then states that "the U.S.
Currency was furnished or intended to be furnished in exchange for
a substance, or the proceeds thereof, in violation of the
Controlled Substances Act" and that the currency was seized as
"subject to forfeiture based upon the statutory provisions of [the
Controlled Substances Act] as amended."
The record, which consists of the complaint and the affidavit
of Illinois State Police Sergeant Mike Snyders, discloses that on
July 9, 1993, Jesus Mena was standing beside a stalled van along
southbound Interstate 55 with his wife, Elena, who was holding a
baby. Sergeant Snyders stopped to help them. According to Sergeant
Snyders, Mena and his wife appeared nervous. Mena told Snyders that
they were travelling to St. Louis to look for work, while Mena's
wife said that they were headed for Texas. Mena told Snyders that
the van belonged to a friend, although he could not remember the
friend's name or phone number. The van was registered to Melvin
DeJesus. Mena wore a beeper. Sergeant Snyders became suspicious and
questioned Mena about the van. Mena stated that there was nothing
hidden in the van and agreed to let Snyders search it.
Snyders called for police backup, and, while searching the
van, he and another officer noticed that alterations had been made
to the floor of the vehicle. The officers discovered a compartment
in the floor that contained bundles of money wrapped in cellophane
and duct tape. The cash totalled $1,124,905. At the police station,
Mena admitted that he knew money was hidden in the van and stated
that De
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
