People v. $280,020 United States Currency

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State: Illinois

Court: 1st District Appellate

Docket No: 1-04-3633 Rel

Case Date: 04/20/2007

Preview:FIFTH DIVISION April 20, 2007

No. 1-04-3633 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. $280,020 UNITED STATES CURRENCY, Defendant (Shayne Kolody and Stephen M. Komie, Claimants-Appellees). ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

Honorable William J. Haddad, Judge Presiding.

JUSTICE GALLAGHER delivered the opinion of the court: This appeal arises from the dismissal of the State's amended complaint for forfeiture of $280,020 in United States currency carried by claimant Shayne Kolody and seized by police when Kolody boarded an Amtrak train at Union Station in Chicago. Because we determine that the trial court erred when it dismissed the amended complaint upon a motion for reconsideration, we reverse and remand for further proceedings.

1-04-3633 FACTS On April 26, 2001, the State began civil forfeiture proceedings by filing a complaint under the Drug Asset Forfeiture Procedure Act (the Forfeiture Act or the Act) (725 ILCS 150/1 et seq. (West 2000)). An amended complaint was later filed, alleging that on January 23, 2001, officers from the Chicago Police Department Narcotics Transportation Team were informed that Kolody would be traveling on an Amtrak train from Chicago to Seattle, Washington. The officers learned that Kolody was traveling on a one-way ticket for which he paid cash within 24 hours of the train's departure. Officers intercepted Kolody, a Canadian citizen, when he identified himself to a train attendant while boarding. According to the amended complaint, after Kolody responded inconsistently to the officers' questions about his travel to Chicago and his activities here, Kolody consented to a search of himself and his luggage, which contained a total of $280,020 in 17 bundles of cellophane-wrapped United States currency in $10, $20, $50 and $100 denominations. A dog trained in narcotics detection indicated the presence of narcotics odor on the currency. No drugs were found. The amended complaint alleged that the currency in Kolody's baggage was "used or intended to be used to facilitate the sale and/or possession of a controlled substance and/or cannabis, or were proceeds from the sale or distribution of controlled substances and/or cannabis." The complaint described Kolody's previous encounters with United States and Canadian customs agents in 2000 and alleged that Kolody lives in Surrey, British Columbia, which is a "major source area for cannabis."

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1-04-3633 PROCEDURAL HISTORY Kolody and his attorney, Stephen M. Komie of Chicago (hereinafter referred to as the claimants), moved to dismiss the State's initial complaint under section 2-615 and section 2-619 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-615, 2-619 (West 2000)). The claimants argued that the complaint failed to allege sufficient facts demonstrating a nexus between the money recovered from Kolody's bags and illegal drug activity. The claimants further contended that even assuming the facts of the complaint were true, no allegations were offered as to the source of the money that was seized, which they argued was an affirmative matter defeating the State's claim. In addition, the claimants alleged that the complaint should be dismissed because the State lacked probable cause to seize the property at the time of the search. The claimants also moved to strike immaterial matter from the complaint. After striking portions of the complaint that described general characteristics of drug trafficking, Judge Paul Karkula, in a written order, granted the claimants' motion to dismiss the complaint, concluding that the complaint did not establish a nexus between the money recovered from Kolody's bags and a wrongful act. Judge Karkula allowed the State to amend its complaint. Judge James Murray heard the parties' arguments on the State's amended complaint. In a 16-page memorandum opinion, Judge Murray concluded that the amended complaint stated a cause of action for forfeiture of the currency because it established "a reasonable nexus between the currency and illegal drug activity." The judge concluded that the State was not required to show that probable cause for the forfeiture of the property existed when the complaint was filed. Judge Murray held that the probable cause determination "is to be made at trial as long as the

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1-04-3633 [c]omplaint for [f]orfeiture presents some factual support between the currency and drug activity." On that basis, Judge Murray denied the claimants' motion to dismiss the amended complaint. The judge further determined that the claimants had not raised an affirmative matter that would defeat the State's assertions and thus denied the claimants' motion to dismiss the amended complaint under section 2-619 of the Code. After deciding the motions to dismiss the amended complaint, Judge Murray then denied the claimants' motion to strike portions of the complaint. The claimants filed a motion to reconsider Judge Murray's rulings on the motions to dismiss and the motion to strike. The claimants argued that the amended complaint did not allege a nexus between the currency and illegal drug activity and that Judge Murray "repeatedly ignored established forfeiture law." Judge William Haddad heard the claimants' motions to reconsider because Judge Murray was no longer serving on the bench at that time. In a written order, Judge Haddad vacated Judge Murray's orders and granted the claimants' motion to dismiss the State's amended complaint pursuant to section 2-615 of the Code. While noting Judge Murray's determination that the amended complaint sufficiently alleged a connection between the money and illegal activity, Judge Haddad concluded that both the original and the amended complaint "merely allege suspicions of law enforcement officers that resemble a narration of a `drug carrier profile,' rather than the narration of a complaint for probable cause" under the Forfeiture Act. Judge Haddad's order continued: "The complaints fail to allege a legal nexus between the defendant res and criminal activity that gives rise to forfeiture under the Constitutions of the United

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1-04-3633 States and the State of Illinois or the statutory scheme and relevant case law which authorize forfeiture. Complaints in forfeiture ought to identify through some means the `misconduct giving rise to the forfeiture' (725 ILCS 150/6) through some notion of who, what, where, how and/or when the misconduct occurred

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