Bill Text: IL SB2268 | 2011-2012 | 97th General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Amends the Code of Criminal Procedure of 1963. Makes a technical change in a Section concerning a search without a warrant.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2011-08-23 - Public Act . . . . . . . . . 97-0544 [SB2268 Detail]
Download: Illinois-2011-SB2268-Amended.html
Bill Title: Amends the Code of Criminal Procedure of 1963. Makes a technical change in a Section concerning a search without a warrant.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2011-08-23 - Public Act . . . . . . . . . 97-0544 [SB2268 Detail]
Download: Illinois-2011-SB2268-Amended.html
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1 | AMENDMENT TO SENATE BILL 2268
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2 | AMENDMENT NO. ______. Amend Senate Bill 2268 on page 2, | ||||||
3 | line 3, by inserting after " Section, " the following: | ||||||
4 | " and after taking into account the respective interests of all | ||||||
5 | known claimants to the property including the State, "; and
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6 | on page 2, by inserting immediately after line 8 the following:
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7 | "Section 6. The Cannabis Control Act is amended by changing | ||||||
8 | Section 12 as follows:
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9 | (720 ILCS 550/12) (from Ch. 56 1/2, par. 712)
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10 | Sec. 12. (a) The following are subject to forfeiture:
| ||||||
11 | (1) all substances containing cannabis which have been | ||||||
12 | produced,
manufactured, delivered, or possessed in | ||||||
13 | violation of this Act;
| ||||||
14 | (2) all raw materials, products and equipment of any | ||||||
15 | kind which are
produced, delivered, or possessed in |
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| |||||||
1 | connection with any substance
containing cannabis in | ||||||
2 | violation of this Act;
| ||||||
3 | (3) all conveyances, including aircraft, vehicles or | ||||||
4 | vessels, which
are used, or intended for use, to transport, | ||||||
5 | or in any manner to
facilitate the transportation, sale, | ||||||
6 | receipt, possession, or
concealment of property described | ||||||
7 | in paragraph (1) or (2) that constitutes
a felony violation | ||||||
8 | of the Act, but:
| ||||||
9 | (i) no conveyance used by any person as a common | ||||||
10 | carrier in the
transaction of business as a common | ||||||
11 | carrier is subject to forfeiture
under this Section | ||||||
12 | unless it appears that the owner or other person in
| ||||||
13 | charge of the conveyance is a consenting party or privy | ||||||
14 | to a violation
of this Act;
| ||||||
15 | (ii) no conveyance is subject to forfeiture under | ||||||
16 | this Section by
reason of any act or omission which the | ||||||
17 | owner proves to have been
committed or omitted without | ||||||
18 | his knowledge or consent;
| ||||||
19 | (iii) a forfeiture of a conveyance encumbered by a | ||||||
20 | bona fide
security interest is subject to the interest | ||||||
21 | of the secured party if he
neither had knowledge of nor | ||||||
22 | consented to the act or omission;
| ||||||
23 | (4) all money, things of value, books, records, and | ||||||
24 | research
products and materials including formulas, | ||||||
25 | microfilm, tapes, and data
which are used, or intended for | ||||||
26 | use in a felony violation of this Act;
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| |||||||
1 | (5) everything of value furnished or intended to be | ||||||
2 | furnished by any
person in exchange for a substance in | ||||||
3 | violation of this Act, all proceeds
traceable to such an | ||||||
4 | exchange, and all moneys, negotiable instruments, and
| ||||||
5 | securities used, or intended to be used, to commit or in | ||||||
6 | any manner to
facilitate any felony violation of this Act;
| ||||||
7 | (6) all real property, including any right, title, and | ||||||
8 | interest including, but not limited to, any leasehold | ||||||
9 | interest or the beneficial interest to a land trust, in the | ||||||
10 | whole of any lot or tract of land and any appurtenances or | ||||||
11 | improvements, that is used or intended to be used to | ||||||
12 | facilitate the manufacture, distribution, sale, receipt, | ||||||
13 | or concealment of property described in paragraph (1) or | ||||||
14 | (2) of this subsection (a) that constitutes a felony | ||||||
15 | violation of more than 2,000 grams of a substance | ||||||
16 | containing cannabis or that is the proceeds of any felony | ||||||
17 | violation of this Act. | ||||||
18 | (b) Property subject to forfeiture under this Act may be | ||||||
19 | seized by
the Director or any peace officer upon process or | ||||||
20 | seizure warrant issued by
any court having jurisdiction over | ||||||
21 | the property. Seizure by the Director
or any peace officer | ||||||
22 | without process may be made:
| ||||||
23 | (1) if the property subject to seizure has been the | ||||||
24 | subject of a
prior judgment in favor of the State in a | ||||||
25 | criminal proceeding or
in an injunction or forfeiture | ||||||
26 | proceeding based upon this Act or the Drug
Asset Forfeiture |
| |||||||
| |||||||
1 | Procedure Act;
| ||||||
2 | (2) if there is probable cause to believe that the | ||||||
3 | property is
directly or indirectly dangerous to health or | ||||||
4 | safety;
| ||||||
5 | (3) if there is probable cause to believe that the | ||||||
6 | property is subject
to forfeiture under this Act and the | ||||||
7 | property is seized under
circumstances in which a | ||||||
8 | warrantless seizure or arrest would be reasonable; or
| ||||||
9 | (4) in accordance with the Code of Criminal Procedure | ||||||
10 | of 1963.
| ||||||
11 | (c) In the event of seizure pursuant to subsection (b), | ||||||
12 | notice shall be given forthwith to all known interest holders | ||||||
13 | that forfeiture
proceedings , including a preliminary review, | ||||||
14 | shall be instituted in accordance with the
Drug Asset | ||||||
15 | Forfeiture Procedure Act and such proceedings shall thereafter | ||||||
16 | be instituted in accordance with that Act .
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17 | (c-1) In the event the State's Attorney is of the opinion | ||||||
18 | that real property is subject to forfeiture under this Act, | ||||||
19 | forfeiture proceedings shall be instituted in accordance with | ||||||
20 | the Drug Asset Forfeiture Procedure Act. The exemptions from | ||||||
21 | forfeiture provisions of Section 8 of the Drug Asset Forfeiture | ||||||
22 | Procedure Act are applicable. | ||||||
23 | (d) Property taken or detained under this Section shall not | ||||||
24 | be
subject to replevin, but is deemed to be in the custody of | ||||||
25 | the Director
subject only to the order and judgments of the | ||||||
26 | circuit court having
jurisdiction over the forfeiture |
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| |||||||
1 | proceedings and the decisions of the
State's Attorney under the | ||||||
2 | Drug Asset Forfeiture Procedure Act. When
property is seized | ||||||
3 | under this Act, the seizing agency shall promptly
conduct an | ||||||
4 | inventory of the seized property, estimate the property's | ||||||
5 | value,
and shall forward a copy of the inventory of seized | ||||||
6 | property and the
estimate of the property's value to the | ||||||
7 | Director. Upon receiving notice of
seizure, the Director may:
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8 | (1) place the property under seal;
| ||||||
9 | (2) remove the property to a place designated by him;
| ||||||
10 | (3) keep the property in the possession of the seizing | ||||||
11 | agency;
| ||||||
12 | (4) remove the property to a storage area for | ||||||
13 | safekeeping or, if the
property is a negotiable instrument | ||||||
14 | or money and is not needed for
evidentiary purposes, | ||||||
15 | deposit it in an interest bearing account;
| ||||||
16 | (5) place the property under constructive seizure by | ||||||
17 | posting notice of
pending forfeiture on it, by giving | ||||||
18 | notice of pending forfeiture to its
owners and interest | ||||||
19 | holders, or by filing notice of pending forfeiture in
any | ||||||
20 | appropriate public record relating to the property; or
| ||||||
21 | (6) provide for another agency or custodian, including | ||||||
22 | an owner, secured
party, or lienholder, to take custody of | ||||||
23 | the property upon the terms and
conditions set by the | ||||||
24 | Director.
| ||||||
25 | (e) No disposition may be made of property under seal until | ||||||
26 | the time
for taking an appeal has elapsed or until all appeals |
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1 | have been
concluded unless a court, upon application therefor, | ||||||
2 | orders the sale of
perishable substances and the deposit of the | ||||||
3 | proceeds of the sale with
the court.
| ||||||
4 | (f) When property is forfeited under this Act the Director | ||||||
5 | shall
sell all such property unless such property is required | ||||||
6 | by law to be
destroyed or is harmful to the public, and shall | ||||||
7 | distribute the proceeds of
the sale, together with any moneys | ||||||
8 | forfeited or seized, in accordance
with subsection (g). | ||||||
9 | However, upon the application of the seizing agency or
| ||||||
10 | prosecutor who was responsible for the investigation, arrest or | ||||||
11 | arrests and
prosecution which lead to the forfeiture, the | ||||||
12 | Director may return any item
of forfeited property to the | ||||||
13 | seizing agency or prosecutor for official use
in the | ||||||
14 | enforcement of laws relating to cannabis or controlled | ||||||
15 | substances,
if the agency or prosecutor can demonstrate that | ||||||
16 | the item requested would
be useful to the agency or prosecutor | ||||||
17 | in their enforcement efforts. When any forfeited conveyance, | ||||||
18 | including an aircraft, vehicle, or vessel, is returned to the | ||||||
19 | seizing agency or prosecutor, the conveyance may be used | ||||||
20 | immediately in the enforcement of the criminal laws of this | ||||||
21 | State. Upon disposal, all proceeds from the sale of the | ||||||
22 | conveyance must be used for drug enforcement purposes. When
any | ||||||
23 | real property returned to the seizing agency is sold by the | ||||||
24 | agency or
its unit of government, the proceeds of the sale | ||||||
25 | shall be delivered to the
Director and distributed in | ||||||
26 | accordance with subsection (g).
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1 | (g) All monies and the sale proceeds of all other property | ||||||
2 | forfeited and
seized under this Act shall be distributed as | ||||||
3 | follows:
| ||||||
4 | (1) 65% shall be distributed to the metropolitan | ||||||
5 | enforcement group,
local, municipal, county, or state law | ||||||
6 | enforcement agency or agencies which
conducted or | ||||||
7 | participated in the investigation resulting in the | ||||||
8 | forfeiture.
The distribution shall bear a reasonable | ||||||
9 | relationship to the degree of
direct participation of the | ||||||
10 | law enforcement agency in the effort resulting
in the | ||||||
11 | forfeiture, taking into account the total value of the | ||||||
12 | property
forfeited and the total law enforcement effort | ||||||
13 | with respect to the
violation of the law upon which the | ||||||
14 | forfeiture is based.
Amounts distributed to the agency or | ||||||
15 | agencies shall be used for the
enforcement of laws | ||||||
16 | governing cannabis and controlled substances or for | ||||||
17 | security cameras used for the prevention or detection of | ||||||
18 | violence, except
that amounts distributed to the Secretary | ||||||
19 | of State shall be deposited into
the Secretary of State | ||||||
20 | Evidence Fund to be used as provided in Section
2-115 of | ||||||
21 | the Illinois Vehicle Code.
| ||||||
22 | (2)(i) 12.5% shall be distributed to the Office of the | ||||||
23 | State's
Attorney of the county in which the prosecution | ||||||
24 | resulting in the forfeiture
was instituted, deposited in a | ||||||
25 | special fund in the county treasury and
appropriated to the | ||||||
26 | State's Attorney for use in the enforcement of laws
|
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| |||||||
1 | governing cannabis and controlled substances. In counties | ||||||
2 | over 3,000,000
population, 25% will be distributed to the | ||||||
3 | Office of the State's Attorney for use in the
enforcement | ||||||
4 | of laws governing cannabis and controlled substances. If | ||||||
5 | the
prosecution is undertaken solely by the Attorney | ||||||
6 | General, the portion
provided hereunder shall be | ||||||
7 | distributed to the Attorney General for use in
the | ||||||
8 | enforcement of laws governing cannabis and controlled | ||||||
9 | substances.
| ||||||
10 | (ii) 12.5% shall be distributed to the Office of the | ||||||
11 | State's Attorneys
Appellate Prosecutor and deposited in | ||||||
12 | the Narcotics Profit Forfeiture Fund
of that Office to be | ||||||
13 | used for additional expenses incurred in the
| ||||||
14 | investigation, prosecution and appeal of cases arising | ||||||
15 | under laws governing
cannabis and controlled substances. | ||||||
16 | The Office of the State's Attorneys
Appellate Prosecutor | ||||||
17 | shall not receive distribution from cases brought in
| ||||||
18 | counties with over 3,000,000 population.
| ||||||
19 | (3) 10% shall be retained by the Department of State | ||||||
20 | Police for expenses
related to the administration and sale | ||||||
21 | of seized and forfeited property.
| ||||||
22 | (Source: P.A. 94-1004, eff. 7-3-06; 95-989, eff. 10-3-08.)
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23 | Section 7. The Illinois Controlled Substances Act is | ||||||
24 | amended by changing Section 505 as follows:
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| |||||||
1 | (720 ILCS 570/505) (from Ch. 56 1/2, par. 1505)
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2 | Sec. 505. (a) The following are subject to forfeiture:
| ||||||
3 | (1) all substances which have been manufactured, | ||||||
4 | distributed,
dispensed, or possessed in violation of this | ||||||
5 | Act;
| ||||||
6 | (2) all raw materials, products and equipment of any | ||||||
7 | kind which are
used, or intended for use in manufacturing, | ||||||
8 | distributing, dispensing,
administering or possessing any | ||||||
9 | substance in violation of this Act;
| ||||||
10 | (3) all conveyances, including aircraft, vehicles or | ||||||
11 | vessels, which are
used, or intended for use, to transport, | ||||||
12 | or in any manner to facilitate
the transportation, sale, | ||||||
13 | receipt, possession, or concealment of property
described | ||||||
14 | in paragraphs (1) and (2), but:
| ||||||
15 | (i) no conveyance used by any person as a common | ||||||
16 | carrier in the
transaction of business as a common | ||||||
17 | carrier is subject to forfeiture under
this Section | ||||||
18 | unless it appears that the owner or other person in | ||||||
19 | charge of
the conveyance is a consenting party or privy | ||||||
20 | to a violation of this Act;
| ||||||
21 | (ii) no conveyance is subject to forfeiture under | ||||||
22 | this Section by reason
of any act or omission which the | ||||||
23 | owner proves to have been committed or
omitted without | ||||||
24 | his knowledge or consent;
| ||||||
25 | (iii) a forfeiture of a conveyance encumbered by a | ||||||
26 | bona fide security
interest is subject to the interest |
| |||||||
| |||||||
1 | of the secured party if he neither had
knowledge of nor | ||||||
2 | consented to the act or omission;
| ||||||
3 | (4) all money, things of value, books, records, and | ||||||
4 | research
products and materials including formulas, | ||||||
5 | microfilm, tapes, and data which
are used, or intended to | ||||||
6 | be used in violation of this Act;
| ||||||
7 | (5) everything of value furnished, or intended to be | ||||||
8 | furnished, in
exchange for a substance in violation of this | ||||||
9 | Act, all proceeds traceable
to such an exchange, and all | ||||||
10 | moneys, negotiable instruments, and securities
used, or | ||||||
11 | intended to be used, to commit or in any manner to | ||||||
12 | facilitate
any violation of this Act;
| ||||||
13 | (6) all real property, including any right, title, and | ||||||
14 | interest
(including, but not limited to, any leasehold | ||||||
15 | interest or the beneficial
interest in a land trust) in the | ||||||
16 | whole of any lot or tract of land and any
appurtenances or | ||||||
17 | improvements, which is used or intended to be used, in any
| ||||||
18 | manner or part, to commit, or in any manner to facilitate | ||||||
19 | the commission
of, any violation or act that constitutes a | ||||||
20 | violation of Section 401 or 405
of this Act or that is the | ||||||
21 | proceeds of any violation or act that
constitutes a | ||||||
22 | violation of Section 401 or 405 of this Act.
| ||||||
23 | (b) Property subject to forfeiture under this Act may be | ||||||
24 | seized by the
Director or any peace officer upon process or | ||||||
25 | seizure warrant issued by
any court having jurisdiction over | ||||||
26 | the property. Seizure by the Director
or any peace officer |
| |||||||
| |||||||
1 | without process may be made:
| ||||||
2 | (1) if the seizure is incident to inspection under an | ||||||
3 | administrative
inspection warrant;
| ||||||
4 | (2) if the property subject to seizure has been the | ||||||
5 | subject of a prior
judgment in favor of the State in a | ||||||
6 | criminal proceeding, or in an injunction
or forfeiture | ||||||
7 | proceeding based upon this Act or the Drug Asset Forfeiture
| ||||||
8 | Procedure Act;
| ||||||
9 | (3) if there is probable cause to believe that the | ||||||
10 | property is directly
or indirectly dangerous to health or | ||||||
11 | safety;
| ||||||
12 | (4) if there is probable cause to believe that the | ||||||
13 | property is subject
to forfeiture under this Act and the | ||||||
14 | property is seized under
circumstances in which a | ||||||
15 | warrantless seizure or arrest would be reasonable; or
| ||||||
16 | (5) in accordance with the Code of Criminal Procedure | ||||||
17 | of 1963.
| ||||||
18 | (c) In the event of seizure pursuant to subsection (b), | ||||||
19 | notice shall be given forthwith to all known interest holders | ||||||
20 | that forfeiture
proceedings , including a preliminary review, | ||||||
21 | shall be instituted in accordance with the Drug
Asset | ||||||
22 | Forfeiture Procedure Act and such proceedings shall thereafter | ||||||
23 | be instituted in accordance with that Act .
| ||||||
24 | (d) Property taken or detained under this Section shall not | ||||||
25 | be subject
to replevin, but is deemed to be in the custody of | ||||||
26 | the Director subject
only to the order and judgments of the |
| |||||||
| |||||||
1 | circuit court having jurisdiction over
the forfeiture | ||||||
2 | proceedings and the decisions of the State's Attorney
under the | ||||||
3 | Drug Asset Forfeiture Procedure Act. When property is seized
| ||||||
4 | under this Act, the seizing agency shall promptly conduct an | ||||||
5 | inventory of
the seized property and estimate the property's | ||||||
6 | value, and shall forward a
copy of the inventory of seized | ||||||
7 | property and the estimate of the property's
value to the | ||||||
8 | Director. Upon receiving notice of seizure, the Director may:
| ||||||
9 | (1) place the property under seal;
| ||||||
10 | (2) remove the property to a place designated by the | ||||||
11 | Director;
| ||||||
12 | (3) keep the property in the possession of the seizing | ||||||
13 | agency;
| ||||||
14 | (4) remove the property to a storage area for | ||||||
15 | safekeeping or, if the
property is a negotiable instrument | ||||||
16 | or money and is not needed for
evidentiary purposes, | ||||||
17 | deposit it in an interest bearing account;
| ||||||
18 | (5) place the property under constructive seizure by | ||||||
19 | posting notice of
pending forfeiture on it, by giving | ||||||
20 | notice of pending forfeiture to its
owners and interest | ||||||
21 | holders, or by filing notice of pending forfeiture in
any | ||||||
22 | appropriate public record relating to the property; or
| ||||||
23 | (6) provide for another agency or custodian, including | ||||||
24 | an owner, secured
party, or lienholder, to take custody of | ||||||
25 | the property upon the terms and
conditions set by the | ||||||
26 | Director.
|
| |||||||
| |||||||
1 | (e) If the Department of Professional Regulation suspends | ||||||
2 | or revokes
a registration, all controlled substances owned or | ||||||
3 | possessed by the
registrant at the time of suspension or the | ||||||
4 | effective date of the
revocation order may be placed under | ||||||
5 | seal. No disposition may be made of
substances under seal until | ||||||
6 | the time for taking an appeal has elapsed or
until all appeals | ||||||
7 | have been concluded unless a court, upon application
therefor, | ||||||
8 | orders the sale of perishable substances and the deposit of the
| ||||||
9 | proceeds of the sale with the court. Upon a revocation rule | ||||||
10 | becoming final,
all substances may be forfeited to the | ||||||
11 | Department of Professional
Regulation.
| ||||||
12 | (f) When property is forfeited under this Act the Director | ||||||
13 | shall
sell all such property unless such property is required | ||||||
14 | by law to be
destroyed or is harmful to the public, and shall | ||||||
15 | distribute the proceeds of
the sale, together with any moneys | ||||||
16 | forfeited or seized, in accordance
with subsection (g). | ||||||
17 | However, upon the application of the seizing agency or
| ||||||
18 | prosecutor who was responsible for the investigation, arrest or | ||||||
19 | arrests and
prosecution which lead to the forfeiture, the | ||||||
20 | Director may return any item
of forfeited property to the | ||||||
21 | seizing agency or prosecutor for official use
in the | ||||||
22 | enforcement of laws relating to cannabis or controlled | ||||||
23 | substances,
if the agency or prosecutor can demonstrate that | ||||||
24 | the item requested would
be useful to the agency or prosecutor | ||||||
25 | in their enforcement efforts. When any forfeited conveyance, | ||||||
26 | including an aircraft, vehicle, or vessel, is returned to the |
| |||||||
| |||||||
1 | seizing agency or prosecutor, the conveyance may be used | ||||||
2 | immediately in the enforcement of the criminal laws of this | ||||||
3 | State. Upon disposal, all proceeds from the sale of the | ||||||
4 | conveyance must be used for drug enforcement purposes. When
any | ||||||
5 | real property returned to the seizing agency is sold by the | ||||||
6 | agency or
its unit of government, the proceeds of the sale | ||||||
7 | shall be delivered to the
Director and distributed in | ||||||
8 | accordance with subsection (g).
| ||||||
9 | (g) All monies and the sale proceeds of all other property | ||||||
10 | forfeited and
seized under this Act shall be distributed as | ||||||
11 | follows:
| ||||||
12 | (1) 65% shall be distributed to the metropolitan | ||||||
13 | enforcement group,
local, municipal, county, or state law | ||||||
14 | enforcement agency or agencies which
conducted or | ||||||
15 | participated in the investigation resulting in the | ||||||
16 | forfeiture.
The distribution shall bear a reasonable | ||||||
17 | relationship to the degree of
direct participation of the | ||||||
18 | law enforcement agency in the effort resulting
in the | ||||||
19 | forfeiture, taking into account the total value of the | ||||||
20 | property
forfeited and the total law enforcement effort | ||||||
21 | with respect to the
violation of the law upon which the | ||||||
22 | forfeiture is based.
Amounts distributed to the agency or | ||||||
23 | agencies shall be used for the
enforcement of laws | ||||||
24 | governing cannabis and controlled substances or for | ||||||
25 | security cameras used for the prevention or detection of | ||||||
26 | violence, except that
amounts distributed to the Secretary |
| |||||||
| |||||||
1 | of State shall be deposited into the
Secretary of State | ||||||
2 | Evidence Fund to be used as provided in Section 2-115 of | ||||||
3 | the
Illinois Vehicle Code.
| ||||||
4 | (2)(i) 12.5% shall be distributed to the Office of the | ||||||
5 | State's
Attorney of the county in which the prosecution | ||||||
6 | resulting in the forfeiture
was instituted, deposited in a | ||||||
7 | special fund in the county treasury and
appropriated to the | ||||||
8 | State's Attorney for use in the enforcement of laws
| ||||||
9 | governing cannabis and controlled substances. In counties | ||||||
10 | over 3,000,000
population, 25% will be distributed to the | ||||||
11 | Office of the State's Attorney for
use in the
enforcement | ||||||
12 | of laws governing cannabis and controlled substances. If | ||||||
13 | the
prosecution is undertaken solely by the Attorney | ||||||
14 | General, the portion
provided hereunder shall be | ||||||
15 | distributed to the Attorney General for use in
the | ||||||
16 | enforcement of laws governing cannabis and controlled | ||||||
17 | substances.
| ||||||
18 | (ii) 12.5% shall be distributed to the Office of the | ||||||
19 | State's Attorneys
Appellate Prosecutor and deposited in | ||||||
20 | the Narcotics Profit Forfeiture Fund
of that office to be | ||||||
21 | used for additional expenses incurred in the
| ||||||
22 | investigation, prosecution and appeal of cases arising | ||||||
23 | under laws governing
cannabis and controlled substances. | ||||||
24 | The Office of the State's Attorneys
Appellate Prosecutor | ||||||
25 | shall not receive distribution from cases brought in
| ||||||
26 | counties with over 3,000,000 population.
|
| |||||||
| |||||||
1 | (3) 10% shall be retained by the Department of State | ||||||
2 | Police for expenses
related to the administration and sale | ||||||
3 | of seized and forfeited property.
| ||||||
4 | (h) Species of plants from which controlled substances in | ||||||
5 | Schedules I
and II may be derived which have been planted or | ||||||
6 | cultivated in violation of
this Act, or of which the owners or | ||||||
7 | cultivators are unknown, or which are
wild growths, may be | ||||||
8 | seized and summarily forfeited to the State. The
failure, upon | ||||||
9 | demand by the Director or any peace officer, of the person in
| ||||||
10 | occupancy or in control of land or premises upon which the | ||||||
11 | species of
plants are growing or being stored, to produce | ||||||
12 | registration, or proof that
he is the holder thereof, | ||||||
13 | constitutes authority for the seizure and
forfeiture of the | ||||||
14 | plants.
| ||||||
15 | (Source: P.A. 94-1004, eff. 7-3-06.)
| ||||||
16 | Section 8. The Methamphetamine Control and Community | ||||||
17 | Protection Act is amended by changing Section 85 as follows:
| ||||||
18 | (720 ILCS 646/85)
| ||||||
19 | Sec. 85. Forfeiture. | ||||||
20 | (a) The following are subject to forfeiture:
| ||||||
21 | (1) all substances containing methamphetamine which | ||||||
22 | have
been produced, manufactured, delivered, or possessed | ||||||
23 | in violation of this Act;
| ||||||
24 | (2) all methamphetamine manufacturing materials which |
| |||||||
| |||||||
1 | have
been produced, delivered, or possessed in connection | ||||||
2 | with any substance containing methamphetamine in violation | ||||||
3 | of this Act;
| ||||||
4 | (3) all conveyances, including aircraft, vehicles or
| ||||||
5 | vessels, which are used, or intended for use, to transport, | ||||||
6 | or in any manner to facilitate the transportation, sale, | ||||||
7 | receipt, possession, or concealment of property described | ||||||
8 | in paragraph (1) or (2) that constitutes a felony violation | ||||||
9 | of the Act, but:
| ||||||
10 | (i) no conveyance used by any person as a common
| ||||||
11 | carrier in the transaction of business as a common | ||||||
12 | carrier is subject to forfeiture under this Section | ||||||
13 | unless it appears that the owner or other person in | ||||||
14 | charge of the conveyance is a consenting party or privy | ||||||
15 | to a violation of this Act;
| ||||||
16 | (ii) no conveyance is subject to forfeiture
under | ||||||
17 | this Section by reason of any act or omission which the | ||||||
18 | owner proves to have been committed or omitted without | ||||||
19 | his or her knowledge or consent;
| ||||||
20 | (iii) a forfeiture of a conveyance encumbered by
a | ||||||
21 | bona fide security interest is subject to the interest | ||||||
22 | of the secured party if he or she neither had knowledge | ||||||
23 | of nor consented to the act or omission;
| ||||||
24 | (4) all money, things of value, books, records, and
| ||||||
25 | research products and materials including formulas, | ||||||
26 | microfilm, tapes, and data which are used, or intended for |
| |||||||
| |||||||
1 | use in a felony violation of this Act;
| ||||||
2 | (5) everything of value furnished or intended to be
| ||||||
3 | furnished by any person in exchange for a substance in | ||||||
4 | violation of this Act, all proceeds traceable to such an | ||||||
5 | exchange, and all moneys, negotiable instruments, and | ||||||
6 | securities used, or intended to be used, to commit or in | ||||||
7 | any manner to facilitate any felony violation of this Act.
| ||||||
8 | (6) all real property, including any right, title, and | ||||||
9 | interest (including, but not limited to, any leasehold | ||||||
10 | interest or the beneficial interest in a land trust) in the | ||||||
11 | whole of any lot or tract of land and any appurtenances or | ||||||
12 | improvements, which is used, or intended to be used, in any | ||||||
13 | manner or part, to commit, or in any manner to facilitate | ||||||
14 | the commission of, any violation or act that constitutes a | ||||||
15 | violation of this Act or that is the proceeds of any | ||||||
16 | violation or act that constitutes a violation of this Act.
| ||||||
17 | (b) Property subject to forfeiture under this Act may be | ||||||
18 | seized by the Director or any peace officer upon process or | ||||||
19 | seizure warrant issued by any court having jurisdiction over | ||||||
20 | the property. Seizure by the Director or any peace officer | ||||||
21 | without process may be made:
| ||||||
22 | (1) if the property subject to seizure has been the
| ||||||
23 | subject of a prior judgment in favor of the State in a | ||||||
24 | criminal proceeding or in an injunction or forfeiture | ||||||
25 | proceeding based upon this Act or the Drug Asset Forfeiture | ||||||
26 | Procedure Act;
|
| |||||||
| |||||||
1 | (2) if there is probable cause to believe that the
| ||||||
2 | property is directly or indirectly dangerous to health or | ||||||
3 | safety;
| ||||||
4 | (3) if there is probable cause to believe that the
| ||||||
5 | property is subject to forfeiture under this Act and the | ||||||
6 | property is seized under circumstances in which a | ||||||
7 | warrantless seizure or arrest would be reasonable; or
| ||||||
8 | (4) in accordance with the Code of Criminal
Procedure | ||||||
9 | of 1963.
| ||||||
10 | (c) In the event of seizure pursuant to subsection (b), | ||||||
11 | notice shall be given forthwith to all known interest holders | ||||||
12 | that forfeiture proceedings , including a preliminary review, | ||||||
13 | shall be instituted in accordance with the Drug Asset | ||||||
14 | Forfeiture Procedure Act and such proceedings shall thereafter | ||||||
15 | be instituted in accordance with that Act .
| ||||||
16 | (d) Property taken or detained under this Section is not | ||||||
17 | subject to replevin, but is deemed to be in the custody of the | ||||||
18 | Director subject only to the order and judgments of the circuit | ||||||
19 | court having jurisdiction over the forfeiture proceedings and | ||||||
20 | the decisions of the State's Attorney under the Drug Asset | ||||||
21 | Forfeiture Procedure Act. When property is seized under this | ||||||
22 | Act, the seizing agency shall promptly conduct an inventory of | ||||||
23 | the seized property, estimate the property's value, and forward | ||||||
24 | a copy of the inventory of seized property and the estimate of | ||||||
25 | the property's value to the Director. Upon receiving notice of | ||||||
26 | seizure, the Director may:
|
| |||||||
| |||||||
1 | (1) place the property under seal;
| ||||||
2 | (2) remove the property to a place designated by him or | ||||||
3 | her;
| ||||||
4 | (3) keep the property in the possession of the
seizing | ||||||
5 | agency;
| ||||||
6 | (4) remove the property to a storage area for
| ||||||
7 | safekeeping or, if the property is a negotiable instrument | ||||||
8 | or money and is not needed for evidentiary purposes, | ||||||
9 | deposit it in an interest bearing account;
| ||||||
10 | (5) place the property under constructive seizure by
| ||||||
11 | posting notice of pending forfeiture on it, by giving | ||||||
12 | notice of pending forfeiture to its owners and interest | ||||||
13 | holders, or by filing notice of pending forfeiture in any | ||||||
14 | appropriate public record relating to the property; or
| ||||||
15 | (6) provide for another agency or custodian,
including | ||||||
16 | an owner, secured party, or lienholder, to take custody of | ||||||
17 | the property upon the terms and conditions set by the | ||||||
18 | Director.
| ||||||
19 | (e) No disposition may be made of property under seal until | ||||||
20 | the time for taking an appeal has elapsed or until all appeals | ||||||
21 | have been concluded unless a court, upon application therefor, | ||||||
22 | orders the sale of perishable substances and the deposit of the | ||||||
23 | proceeds of the sale with the court.
| ||||||
24 | (f) When property is forfeited under this Act, the Director | ||||||
25 | shall sell the property unless the property is required by law | ||||||
26 | to be destroyed or is harmful to the public, and shall |
| |||||||
| |||||||
1 | distribute the proceeds of the sale, together with any moneys | ||||||
2 | forfeited or seized, in accordance with subsection (g). | ||||||
3 | However, upon the application of the seizing agency or | ||||||
4 | prosecutor who was responsible for the investigation, arrest or | ||||||
5 | arrests and prosecution which lead to the forfeiture, the | ||||||
6 | Director may return any item of forfeited property to the | ||||||
7 | seizing agency or prosecutor for official use in the | ||||||
8 | enforcement of laws relating to methamphetamine, cannabis, or | ||||||
9 | controlled substances, if the agency or prosecutor | ||||||
10 | demonstrates that the item requested would be useful to the | ||||||
11 | agency or prosecutor in their enforcement efforts. When any | ||||||
12 | forfeited conveyance, including an aircraft, vehicle, or | ||||||
13 | vessel, is returned to the seizing agency or prosecutor, the | ||||||
14 | conveyance may be used immediately in the enforcement of the | ||||||
15 | criminal laws of this State. Upon disposal, all proceeds from | ||||||
16 | the sale of the conveyance must be used for drug enforcement | ||||||
17 | purposes. When any real property returned to the seizing agency | ||||||
18 | is sold by the agency or its unit of government, the proceeds | ||||||
19 | of the sale shall be delivered to the Director and distributed | ||||||
20 | in accordance with subsection (g).
| ||||||
21 | (g) All moneys and the sale proceeds of all other property | ||||||
22 | forfeited and seized under this Act shall be distributed as | ||||||
23 | follows:
| ||||||
24 | (1) 65% shall be distributed to the metropolitan
| ||||||
25 | enforcement group, local, municipal, county, or State law | ||||||
26 | enforcement agency or agencies which conducted or |
| |||||||
| |||||||
1 | participated in the investigation resulting in the | ||||||
2 | forfeiture. The distribution shall bear a reasonable | ||||||
3 | relationship to the degree of direct participation of the | ||||||
4 | law enforcement agency in the effort resulting in the | ||||||
5 | forfeiture, taking into account the total value of the | ||||||
6 | property forfeited and the total law enforcement effort | ||||||
7 | with respect to the violation of the law upon which the | ||||||
8 | forfeiture is based. Amounts distributed to the agency or | ||||||
9 | agencies shall be used for the enforcement of laws | ||||||
10 | governing methamphetamine, cannabis, and controlled | ||||||
11 | substances or for security cameras used for the prevention | ||||||
12 | or detection of violence, except that amounts distributed | ||||||
13 | to the Secretary of State shall be deposited into the | ||||||
14 | Secretary of State Evidence Fund to be used as provided in | ||||||
15 | Section 2-115 of the Illinois Vehicle Code.
| ||||||
16 | (2)(i) 12.5% shall be distributed to the Office of
the | ||||||
17 | State's Attorney of the county in which the prosecution | ||||||
18 | resulting in the forfeiture was instituted, deposited in a | ||||||
19 | special fund in the county treasury and appropriated to the | ||||||
20 | State's Attorney for use in the enforcement of laws | ||||||
21 | governing methamphetamine, cannabis, and controlled | ||||||
22 | substances. In counties with a population over 3,000,000, | ||||||
23 | 25% shall be distributed to the Office of the State's | ||||||
24 | Attorney for use in the enforcement of laws governing | ||||||
25 | methamphetamine, cannabis, and controlled substances. If | ||||||
26 | the prosecution is undertaken solely by the Attorney |
| |||||||
| |||||||
1 | General, the portion provided hereunder shall be | ||||||
2 | distributed to the Attorney General for use in the | ||||||
3 | enforcement of laws governing methamphetamine, cannabis, | ||||||
4 | and controlled substances.
| ||||||
5 | (ii) 12.5% shall be distributed to the Office of
the | ||||||
6 | State's Attorneys Appellate Prosecutor and deposited in | ||||||
7 | the Narcotics Profit Forfeiture Fund of that Office to be | ||||||
8 | used for additional expenses incurred in the | ||||||
9 | investigation, prosecution and appeal of cases arising | ||||||
10 | under laws governing methamphetamine, cannabis, and | ||||||
11 | controlled substances. The Office of the State's Attorneys | ||||||
12 | Appellate Prosecutor shall not receive distribution from | ||||||
13 | cases brought in counties with a population over 3,000,000.
| ||||||
14 | (3) 10% shall be retained by the Department of State
| ||||||
15 | Police for expenses related to the administration and sale | ||||||
16 | of seized and forfeited property.
| ||||||
17 | (Source: P.A. 94-556, eff. 9-11-05; 94-1004, eff. 7-3-06.)"; | ||||||
18 | and
| ||||||
19 | on page 3, line 8, by inserting after " Section, " the following: | ||||||
20 | " and after taking into account the respective interests of all | ||||||
21 | known claimants to the property including the State, ".
|