a claimant’s section 2-615 motion to dismiss challenging the legal sufficiency of the State’s allegations of probable cause that are apparent on the face of the complaint provides an early opportunity for a claimant to challenge the seizure in order to obtain return of the property wrongfully seized
How later courts described this case
- a claimant’s section 2-615 motion to dismiss challenging the legal sufficiency of the State’s allegations of probable cause that are apparent on the face of the complaint provides an early opportunity for a claimant to challenge the seizure in order to obtain return of the property wrongfully seized
- discussing the State’s argument that the claimant’s answer in a judicial in rem forfeiture proceeding failed to identify defenses relied upon
- “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.’ ” (quoting Baxter v. Palmigiano, 425 U.S. 308, 318 (1976))
- noting that common law standing is an “affirmative defense” which “must be pleaded or else it is waived”
Written by the judges who cited it.
The opinion
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 offleers 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 DeJesus had paid him to deliver the van to El Paso, Texas. Mena agreed to telephone the person he alleged was DeJesus. When Mena reported that the money had been found, "DeJesus” told Mena to "tolerate the whip and keep your mouth shut.” A follow-up investigation revealed that the address given on the vehicle registration was fraudulent, and that the social security number listed on the registration belonged to a Melvin DeJesus who was 11 years old.
The majority opinion correctly holds that a forfeiture complaint must allege facts that set forth reasonable grounds for the belief that a nexus exists between the seized property and illegal drug activity, supported by less than prima facie proof but more than mere suspicion. The complaint here fails to allege facts that create a reasonable basis for the belief that the currency was a product of the illegal drug trade. Instead, it merely states that a trooper stopped to assist a stranded motorist, and that $1,124,905 was found in the floor of the van. It then makes the conclusory and wholly speculative statement that the money found in the van was the product of illegal drug activity.
Even if the State had pied the facts set forth in Sergeant Snyders’ affidavit, it still would not have established a reasonable basis to conclude there was a nexus between the money and illegal drugs. No illegal drugs or drug paraphernalia were found in the van or on the person of any of the van’s occupants. There were no traces of illegal drugs on the money. The State neither alleged nor offered any evidence that the money was used in drug dealing. No connection has been shown between Mena and the drug underworld, and the State has presented no evidence as to the identity of the "real” Melvin DeJesus, or to show that he is involved in the illegal drug trade.
The concern for the distribution and consumption of illegal drugs in this country has reached a fever pitch. There is no question in my mind that civil liberties in this country have been seriously subordinated in the campaign to stamp out illegal drugs. Although a drug-free America may be a laudable desideratum, this does not warrant the destruction of individual liberties and personal and property rights. These rights, after all, are the real essence of what this country is all about. One may speculate that the money in the subject van may have been there for bad purposes. However, there is no evidence to support that conjecture. We instruct our juries that their verdicts must be based upon the evidence and not upon speculation, guess, or conjecture and that prejudice should not influence them. Courts of review should do no less. There is no nexus to connect the money in this case with illegal drug activity. Hence, it is not subject to forfeiture.