| |||||||
| |||||||
| |||||||
1 | AN ACT concerning criminal law.
| ||||||
2 | Be it enacted by the People of the State of Illinois, | ||||||
3 | represented in the General Assembly:
| ||||||
4 | Section 5. The Seizure and Forfeiture Reporting Act is | ||||||
5 | amended by changing Sections 10 and 15 and by adding Section 20 | ||||||
6 | as follows: | ||||||
7 | (5 ILCS 810/10) | ||||||
8 | (This Section may contain text from a Public Act with a | ||||||
9 | delayed effective date )
| ||||||
10 | Sec. 10. Reporting by law enforcement agency.
| ||||||
11 | (a) Each law enforcement agency that seizes property | ||||||
12 | subject to reporting under this Act shall report the following | ||||||
13 | information about property seized or forfeited under State law:
| ||||||
14 | (1) the name of the law enforcement agency that seized | ||||||
15 | the property;
| ||||||
16 | (2) the date of the seizure;
| ||||||
17 | (3) the type of property seized, including a building, | ||||||
18 | vehicle, boat, cash, negotiable security, or firearm, | ||||||
19 | except reporting is not required for seizures of contraband | ||||||
20 | including alcohol, gambling devices, drug paraphernalia, | ||||||
21 | and controlled substances;
| ||||||
22 | (4) a description of the property seized and the | ||||||
23 | estimated value of the property and if the property is a |
| |||||||
| |||||||
1 | conveyance, the description shall include the make, model, | ||||||
2 | year, and vehicle identification number or serial number; | ||||||
3 | and
| ||||||
4 | (5) the location where the seizure occurred.
| ||||||
5 | The filing requirement shall be met upon filing Illinois | ||||||
6 | State Police Notice/Inventory of Seized Property (Form 4-64) | ||||||
7 | the form 4-64 with the State's Attorney's Office in the county | ||||||
8 | where the forfeiture action is being commenced or with the | ||||||
9 | Attorney General's Office if the forfeiture action is being | ||||||
10 | commenced by that office, and the forwarding of Form the form | ||||||
11 | 4-64 upon approval of the State's Attorney's Office or the | ||||||
12 | Attorney General's Office to the Department of State Police | ||||||
13 | Asset Forfeiture Section. With regard to seizures for which | ||||||
14 | Form form 4-64 is not required to be filed, the filing | ||||||
15 | requirement shall be met by the filing of an annual summary | ||||||
16 | report with the Department of State Police no later than 60 | ||||||
17 | days after December 31 of that year. | ||||||
18 | (b) Each law enforcement agency, including a drug task | ||||||
19 | force or Metropolitan Enforcement Group (MEG) unit, that | ||||||
20 | receives proceeds from forfeitures subject to reporting under | ||||||
21 | this Act shall file an annual report with the Department of | ||||||
22 | State Police no later than 60 days after December 31 of that | ||||||
23 | year. The format of the report shall be developed by the | ||||||
24 | Department of State Police and shall be completed by the law | ||||||
25 | enforcement agency. The report shall include, at a minimum, the | ||||||
26 | amount of funds and other property distributed to the law |
| |||||||
| |||||||
1 | enforcement agency by the Department of State Police, the | ||||||
2 | amount of funds expended by the law enforcement agency, and the | ||||||
3 | category of expenditure, including:
| ||||||
4 | (1) crime, gang, or abuse prevention or intervention | ||||||
5 | programs;
| ||||||
6 | (2) compensation or services for crime victims;
| ||||||
7 | (3) witness protection, informant fees, and controlled | ||||||
8 | purchases of contraband;
| ||||||
9 | (4) salaries, overtime, and benefits, as permitted by | ||||||
10 | law;
| ||||||
11 | (5) operating expenses, including but not limited to, | ||||||
12 | capital expenditures for vehicles, firearms, equipment, | ||||||
13 | computers, furniture, office supplies, postage, printing, | ||||||
14 | membership fees paid to trade associations, and fees for | ||||||
15 | professional services including auditing, court reporting, | ||||||
16 | expert witnesses, and attorneys;
| ||||||
17 | (6) travel, meals, entertainment, conferences, | ||||||
18 | training, and continuing education seminars;
and | ||||||
19 | (7) other expenditures of forfeiture proceeds.
| ||||||
20 | (c) The Department of State Police shall establish and | ||||||
21 | maintain on its official website a public database that | ||||||
22 | includes annual aggregate data for each law enforcement agency | ||||||
23 | that reports seizures of property under subsection (a) of this | ||||||
24 | Section, that receives distributions of forfeiture proceeds | ||||||
25 | subject to reporting under this Act, or reports expenditures | ||||||
26 | under subsection (b) of this Section. This aggregate data shall |
| |||||||
| |||||||
1 | include, for each law enforcement agency:
| ||||||
2 | (1) the total number of asset seizures reported by each | ||||||
3 | law enforcement agency during the calendar year; | ||||||
4 | (2) the monetary value of all currency or its | ||||||
5 | equivalent seized by the law enforcement agency during the | ||||||
6 | calendar year; | ||||||
7 | (3) the number of conveyances seized by the law | ||||||
8 | enforcement agency during the calendar year, and the | ||||||
9 | aggregate estimated value; | ||||||
10 | (4) the aggregate estimated value of all other property | ||||||
11 | seized by the law enforcement agency during the calendar | ||||||
12 | year; | ||||||
13 | (5) the monetary value of distributions by the | ||||||
14 | Department of State Police of forfeited currency or auction | ||||||
15 | proceeds from forfeited property to the law enforcement | ||||||
16 | agency during the calendar year; and | ||||||
17 | (6) the total amount of the law enforcement agency's | ||||||
18 | expenditures of forfeiture proceeds during the calendar | ||||||
19 | year, categorized as provided under subsection (b) of this | ||||||
20 | Section.
| ||||||
21 | The database shall not provide names, addresses, phone | ||||||
22 | numbers, or other personally identifying information of owners | ||||||
23 | or interest holders, persons, business entities, covert office | ||||||
24 | locations, or business entities involved in the forfeiture | ||||||
25 | action and shall not disclose the vehicle identification number | ||||||
26 | or serial number of any conveyance.
|
| |||||||
| |||||||
1 | (d) The Department of State Police shall adopt rules to | ||||||
2 | administer the asset forfeiture program, including the | ||||||
3 | categories of authorized expenditures consistent with the | ||||||
4 | statutory guidelines for each of the included forfeiture | ||||||
5 | statutes, the use of forfeited funds, other expenditure | ||||||
6 | requirements, and the reporting of seizure and forfeiture | ||||||
7 | information. The Department may adopt rules necessary to | ||||||
8 | implement this Act through the use of emergency rulemaking | ||||||
9 | under Section 5-45 of the Illinois Administrative Procedure Act | ||||||
10 | for a period not to exceed 180 days after the effective date of | ||||||
11 | this Act.
| ||||||
12 | (e) The Department of State Police shall have authority and | ||||||
13 | oversight over all law enforcement agencies receiving | ||||||
14 | forfeited funds from the Department. This authority shall | ||||||
15 | include enforcement of rules and regulations adopted by the | ||||||
16 | Department and sanctions for violations of any rules and | ||||||
17 | regulations, including the withholding of distributions of | ||||||
18 | forfeiture proceeds from the law enforcement agency in | ||||||
19 | violation.
| ||||||
20 | (f) Upon application by a law enforcement agency to the | ||||||
21 | Department of State Police, the reporting of a particular asset | ||||||
22 | forfeited under this Section may be delayed if the asset in | ||||||
23 | question was seized from a person who has become a confidential | ||||||
24 | informant under the agency's confidential informant policy, or | ||||||
25 | if the asset was seized as part of an ongoing investigation. | ||||||
26 | This delayed reporting shall be granted by the Department of |
| |||||||
| |||||||
1 | State Police for a maximum period of 6 months if the | ||||||
2 | confidential informant is still providing cooperation to law | ||||||
3 | enforcement or the investigation is still ongoing, after which | ||||||
4 | and at that time the asset shall be reported as required under | ||||||
5 | this Act. | ||||||
6 | (g) The Department of State Police shall , on or before | ||||||
7 | January 1, 2019, establish and implement the requirements of | ||||||
8 | this Act.
In order to implement the reporting and public | ||||||
9 | database requirements under this Act, the Department of State | ||||||
10 | Police Asset Forfeiture Section requires a one-time upgrade of | ||||||
11 | its information technology software and hardware. This | ||||||
12 | one-time upgrade shall be funded by a temporary allocation of | ||||||
13 | 5% of all forfeited currency and 5% of the auction proceeds | ||||||
14 | from each forfeited asset, which are to be distributed after | ||||||
15 | the effective date of this Act. The Department of State Police | ||||||
16 | shall transfer these funds at the time of distribution to a | ||||||
17 | separate fund established by the Department of State Police. | ||||||
18 | Moneys Monies deposited in this fund shall be accounted for and | ||||||
19 | shall be used only to pay for the actual one-time cost of | ||||||
20 | purchasing and installing the hardware and software required to | ||||||
21 | comply with this new reporting and public database requirement. | ||||||
22 | Moneys Monies deposited in the fund shall not be subject to | ||||||
23 | reappropriation re-appropriation , reallocation, or | ||||||
24 | redistribution for any other purpose. After sufficient funds | ||||||
25 | are transferred to the fund to cover the actual one-time cost | ||||||
26 | of purchasing and installing the hardware and software required |
| |||||||
| |||||||
1 | to comply with this new reporting and public database | ||||||
2 | requirement, no additional funds shall be transferred to the | ||||||
3 | fund for any purpose. At the completion of the one-time upgrade | ||||||
4 | of the information technology hardware and software to comply | ||||||
5 | with this new reporting and public database requirement, any | ||||||
6 | remaining funds in the fund shall be returned to the | ||||||
7 | participating agencies under the distribution requirements of | ||||||
8 | the statutes from which the funds were transferred, and the | ||||||
9 | fund shall no longer exist.
| ||||||
10 | (h)(1) The Department of State Police, in consultation with | ||||||
11 | and subject to the approval of the Chief Procurement Officer, | ||||||
12 | may procure a single contract or multiple contracts to | ||||||
13 | implement the provisions of this Act. | ||||||
14 | (2) A contract or contracts under this subsection (h) are | ||||||
15 | not subject to the Illinois Procurement Code, except for | ||||||
16 | Sections 20-60, 20-65, 20-70, and 20-160 and Article 50 of that | ||||||
17 | Code, provided that the Chief Procurement Officer may, in | ||||||
18 | writing with justification, waive any certification required | ||||||
19 | under Article 50 of the Illinois Procurement Code. The | ||||||
20 | provisions of this paragraph (2), other than this sentence, are | ||||||
21 | inoperative on and after July 1, 2019.
| ||||||
22 | (Source: P.A. 100-512, eff. 7-1-18.) | ||||||
23 | (5 ILCS 810/15) | ||||||
24 | (This Section may contain text from a Public Act with a | ||||||
25 | delayed effective date )
|
| |||||||
| |||||||
1 | Sec. 15. Fund audits.
| ||||||
2 | (a) The Auditor General shall conduct , as a part of its | ||||||
3 | 2-year 2 year compliance audit, an audit of the State Asset | ||||||
4 | Forfeiture Fund for compliance with the requirements of this | ||||||
5 | Act. The audit shall include, but not be limited to, the | ||||||
6 | following determinations:
| ||||||
7 | (1) if detailed records of all receipts and | ||||||
8 | disbursements from the State Asset Forfeiture Fund are | ||||||
9 | being maintained;
| ||||||
10 | (2) if administrative costs charged to the fund are | ||||||
11 | adequately documented and are reasonable; and | ||||||
12 | (3) if the procedures for making disbursements under | ||||||
13 | the Act are adequate.
| ||||||
14 | (b) The Department of State Police, and any other entity or | ||||||
15 | person that may have information relevant to the audit, shall | ||||||
16 | cooperate fully and promptly with the Office of the Auditor | ||||||
17 | General in conducting the audit. The Auditor General shall | ||||||
18 | begin the audit during the next regular 2-year two year | ||||||
19 | compliance audit of the Department of State Police and | ||||||
20 | distribute the report upon completion under Section 3-14 of the | ||||||
21 | Illinois State Auditing Act.
| ||||||
22 | (Source: P.A. 100-512, eff. 7-1-18.) | ||||||
23 | (5 ILCS 810/20 new) | ||||||
24 | Sec. 20. Applicability. This Act and the changes made to | ||||||
25 | this Act by this amendatory Act of the 100th General Assembly |
| |||||||
| |||||||
1 | only apply to property seized on and after July 1, 2018. | ||||||
2 | Section 10. The Department of State Police Law of the
Civil | ||||||
3 | Administrative Code of Illinois is amended by changing Section | ||||||
4 | 2605-585 as follows: | ||||||
5 | (20 ILCS 2605/2605-585) | ||||||
6 | Sec. 2605-585. Money Laundering Asset Recovery Fund. | ||||||
7 | Moneys and the sale proceeds distributed to the Department of | ||||||
8 | State Police under paragraph (3) of Section 29B-26 pursuant to | ||||||
9 | clause (h)(6)(C) of Section 29B-1 of the Criminal Code of 1961 | ||||||
10 | or the Criminal Code of 2012 shall be deposited in a special | ||||||
11 | fund in the State treasury to be known as the Money Laundering | ||||||
12 | Asset Recovery Fund. The moneys deposited in the Money | ||||||
13 | Laundering Asset Recovery Fund shall be appropriated to and | ||||||
14 | administered by the Department of State Police for State law | ||||||
15 | enforcement purposes.
| ||||||
16 | (Source: P.A. 96-1234, eff. 7-23-10; 97-1150, eff. 1-25-13.) | ||||||
17 | Section 15. The Illinois Food, Drug and Cosmetic Act is | ||||||
18 | amended by changing Section 3.23 as follows: | ||||||
19 | (410 ILCS 620/3.23) | ||||||
20 | (Text of Section before amendment by P.A. 100-512 )
| ||||||
21 | Sec. 3.23. Legend drug prohibition. | ||||||
22 | (a) In this Section: |
| |||||||
| |||||||
1 | "Legend drug" means a drug limited by the Federal Food, | ||||||
2 | Drug and Cosmetic Act to being dispensed by or upon a medical | ||||||
3 | practitioner's prescription because the drug is: | ||||||
4 | (1) habit forming; | ||||||
5 | (2) toxic or having potential for harm; or | ||||||
6 | (3) limited in use by the new drug application for the | ||||||
7 | drug to use only under a medical practitioner's | ||||||
8 | supervision. | ||||||
9 | "Medical practitioner" means any person licensed to | ||||||
10 | practice medicine in all its branches in the State. | ||||||
11 | "Deliver" or "delivery" means the actual, constructive, or | ||||||
12 | attempted transfer of possession of a legend drug, with or | ||||||
13 | without consideration, whether or not there is an agency | ||||||
14 | relationship. | ||||||
15 | "Manufacture" means the production, preparation, | ||||||
16 | propagation, compounding, conversion, or processing of a | ||||||
17 | legend drug, either directly or indirectly, by extraction from | ||||||
18 | substances of natural origin, or independently by means of | ||||||
19 | chemical synthesis, or by a combination of extraction and | ||||||
20 | chemical synthesis, and includes any packaging or repackaging | ||||||
21 | of the substance or labeling of its container. "Manufacture" | ||||||
22 | does not include: | ||||||
23 | (1) by an ultimate user, the preparation or compounding | ||||||
24 | of a legend drug for his own use; or | ||||||
25 | (2) by a medical practitioner, or his authorized agent | ||||||
26 | under his supervision, the preparation, compounding, |
| |||||||
| |||||||
1 | packaging, or labeling of a legend drug: | ||||||
2 | (A) as an incident to his administering or | ||||||
3 | dispensing of a legend drug in the course of his | ||||||
4 | professional practice; or | ||||||
5 | (B) as an incident to lawful research, teaching, or | ||||||
6 | chemical analysis and not for sale. | ||||||
7 | "Prescription" has the same meaning ascribed to it in | ||||||
8 | Section 3 of the Pharmacy Practice Act. | ||||||
9 | (b) It is unlawful for any person to knowingly manufacture | ||||||
10 | or deliver or possess with the intent to manufacture or deliver | ||||||
11 | a legend drug of 6 or more pills, tablets, capsules, or caplets | ||||||
12 | or 30 ml or more of a legend drug in liquid form who is not | ||||||
13 | licensed by applicable law to prescribe or dispense legend | ||||||
14 | drugs or is not an employee of the licensee operating in the | ||||||
15 | normal course of business under the supervision of the | ||||||
16 | licensee. Any person who violates this Section is guilty of a | ||||||
17 | Class 3 felony, the fine for which shall not exceed $100,000. A | ||||||
18 | person convicted of a second or subsequent violation of this | ||||||
19 | Section is guilty of a Class 1 felony, the fine for which shall | ||||||
20 | not exceed $250,000. | ||||||
21 | (c) The following are subject to forfeiture: | ||||||
22 | (1) all substances that have been manufactured, | ||||||
23 | distributed, dispensed, or possessed in violation of this | ||||||
24 | Act; | ||||||
25 | (2) all raw materials, products, and equipment of any
| ||||||
26 | kind which are used, or intended for use in manufacturing,
|
| |||||||
| |||||||
1 | distributing, dispensing, administering, or possessing any | ||||||
2 | substance in 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 items (1) and (2) of this subsection (c), but: | ||||||
8 | (A) no conveyance used by any person as a common
| ||||||
9 | carrier in the transaction of business as a common | ||||||
10 | carrier is subject to forfeiture under this Section | ||||||
11 | unless it appears that the owner or other person in | ||||||
12 | charge of the conveyance is a consenting party or privy | ||||||
13 | to a violation of this Act; | ||||||
14 | (B) no conveyance is subject to forfeiture
under | ||||||
15 | this Section by reason of any act or omission which the | ||||||
16 | owner proves to have been committed or omitted without | ||||||
17 | his knowledge or consent; and | ||||||
18 | (C) a forfeiture of a conveyance encumbered by
a | ||||||
19 | bona fide security interest is subject to the interest | ||||||
20 | of the secured party if he neither had knowledge of nor | ||||||
21 | consented to the act or omission; | ||||||
22 | (4) all money, things of value, books, records, and
| ||||||
23 | research products and materials including formulas, | ||||||
24 | microfilm, tapes, and data that are used, or intended to be | ||||||
25 | used in violation of this Act; | ||||||
26 | (5) everything of value furnished, or intended to be
|
| |||||||
| |||||||
1 | furnished, in exchange for a substance in violation of this | ||||||
2 | Act, all proceeds traceable to such an exchange, and all | ||||||
3 | moneys, negotiable instruments, and securities used, or | ||||||
4 | intended to be used, to commit or in any manner to | ||||||
5 | facilitate any violation of this Act; and | ||||||
6 | (6) all real property, including any right, title,
and | ||||||
7 | interest, including, but not limited to, any leasehold | ||||||
8 | interest or the beneficial interest in a land trust, in the | ||||||
9 | whole of any lot or tract of land and any appurtenances or | ||||||
10 | improvements, which is used or intended to be used, in any | ||||||
11 | manner or part, to commit, or in any manner to facilitate | ||||||
12 | the commission of, any violation or act that constitutes a | ||||||
13 | violation of Section 33.1 of this Act or that is the | ||||||
14 | proceeds of any violation or act that constitutes a | ||||||
15 | violation of Section 33.1 of this Act. | ||||||
16 | (d) Property subject to forfeiture under this Act may be | ||||||
17 | seized by the Director of the Department of State Police or any | ||||||
18 | peace officer upon process or seizure warrant issued by any | ||||||
19 | court having jurisdiction over the property. Seizure by the | ||||||
20 | Director of the Department of State Police or any peace officer | ||||||
21 | without process may be made: | ||||||
22 | (1) if the seizure is incident to inspection under
an | ||||||
23 | administrative inspection warrant; | ||||||
24 | (2) if the property subject to seizure has been the
| ||||||
25 | subject of a prior judgment in favor of the State in a | ||||||
26 | criminal proceeding, or in an injunction or forfeiture |
| |||||||
| |||||||
1 | proceeding based upon this Act or the Drug Asset Forfeiture | ||||||
2 | Procedure Act; | ||||||
3 | (3) if there is probable cause to believe that the
| ||||||
4 | property is directly or indirectly dangerous to health or | ||||||
5 | safety; | ||||||
6 | (4) if there is probable cause to believe that the
| ||||||
7 | property is subject to forfeiture under this Act and the | ||||||
8 | property is seized under circumstances in which a | ||||||
9 | warrantless seizure or arrest would be reasonable; or | ||||||
10 | (5) in accordance with the Code of Criminal
Procedure | ||||||
11 | of 1963. | ||||||
12 | (e) In the event of seizure pursuant to subsection (c) of | ||||||
13 | this Section, forfeiture proceedings shall be instituted in | ||||||
14 | accordance with the Drug Asset Forfeiture Procedure Act. | ||||||
15 | (f) Property taken or detained under this Section shall not | ||||||
16 | be subject to replevin, but is deemed to be in the custody of | ||||||
17 | the Director of the Department of State Police subject only to | ||||||
18 | the order and judgments of the circuit court having | ||||||
19 | jurisdiction over the forfeiture proceedings and the decisions | ||||||
20 | of the State's Attorney under the Drug Asset Forfeiture | ||||||
21 | Procedure Act. If property is seized under this Act, then the | ||||||
22 | seizing agency shall promptly conduct an inventory of the | ||||||
23 | seized property and estimate the property's value, and shall | ||||||
24 | forward a copy of the inventory of seized property and the | ||||||
25 | estimate of the property's value to the Director of the | ||||||
26 | Department of State Police. Upon receiving notice of seizure, |
| |||||||
| |||||||
1 | the Secretary may: | ||||||
2 | (1) place the property under seal; | ||||||
3 | (2) remove the property to a place designated by the
| ||||||
4 | Secretary; | ||||||
5 | (3) keep the property in the possession of the
seizing | ||||||
6 | agency; | ||||||
7 | (4) remove the property to a storage area for
| ||||||
8 | safekeeping or, if the property is a negotiable instrument | ||||||
9 | or money and is not needed for evidentiary purposes, | ||||||
10 | deposit it in an interest bearing account; | ||||||
11 | (5) place the property under constructive seizure by
| ||||||
12 | posting notice of pending forfeiture on it, by giving | ||||||
13 | notice of pending forfeiture to its owners and interest | ||||||
14 | holders, or by filing notice of pending forfeiture in any | ||||||
15 | appropriate public record relating to the property; or | ||||||
16 | (6) provide for another agency or custodian,
including | ||||||
17 | an owner, secured party, or lienholder, to take custody of | ||||||
18 | the property upon the terms and conditions set by the | ||||||
19 | Director of the Department of State Police. | ||||||
20 | (g) If the Department suspends or revokes a registration, | ||||||
21 | all legend drugs owned or possessed by the registrant at the | ||||||
22 | time of suspension or the effective date of the revocation | ||||||
23 | order may be placed under seal. No disposition may be made of | ||||||
24 | substances under seal until the time for taking an appeal has | ||||||
25 | elapsed or until all appeals have been concluded unless a | ||||||
26 | court, upon application therefor, orders the sale of perishable |
| |||||||
| |||||||
1 | substances and the deposit of the proceeds of the sale with the | ||||||
2 | court. Upon a revocation rule becoming final, all substances | ||||||
3 | may be forfeited to the Department. | ||||||
4 | (h) If property is forfeited under this Act, then the | ||||||
5 | Director of the Department of State Police must sell all such | ||||||
6 | property unless such property is required by law to be | ||||||
7 | destroyed or is harmful to the public, and shall distribute the | ||||||
8 | proceeds of the sale, together with any moneys forfeited or | ||||||
9 | seized, in accordance with subsection (i) of this Section. Upon | ||||||
10 | the application of the seizing agency or prosecutor who was | ||||||
11 | responsible for the investigation, arrest or arrests, and | ||||||
12 | prosecution that led to the forfeiture, the Director of the | ||||||
13 | Department of State Police may return any item of forfeited | ||||||
14 | property to the seizing agency or prosecutor for official use | ||||||
15 | in the enforcement of laws if the agency or prosecutor can | ||||||
16 | demonstrate that the item requested would be useful to the | ||||||
17 | agency or prosecutor in their enforcement efforts. If any | ||||||
18 | forfeited conveyance, including an aircraft, vehicle, or | ||||||
19 | vessel, is returned to the seizing agency or prosecutor, then | ||||||
20 | the conveyance may be used immediately in the enforcement of | ||||||
21 | the criminal laws of the State. Upon disposal, all proceeds | ||||||
22 | from the sale of the conveyance must be used for drug | ||||||
23 | enforcement purposes. If any real property returned to the | ||||||
24 | seizing agency is sold by the agency or its unit of government, | ||||||
25 | then the proceeds of the sale shall be delivered to the | ||||||
26 | Director of the Department of State Police and distributed in |
| |||||||
| |||||||
1 | accordance with subsection (i) of this Section. | ||||||
2 | (i) All moneys and the sale proceeds of all other property | ||||||
3 | forfeited and seized under this Act shall be distributed as | ||||||
4 | follows: | ||||||
5 | (1) 65% shall be distributed to the metropolitan
| ||||||
6 | enforcement group, local, municipal, county, or State law | ||||||
7 | enforcement agency or agencies which conducted or | ||||||
8 | participated in the investigation resulting in the | ||||||
9 | forfeiture. The distribution shall bear a reasonable | ||||||
10 | relationship to the degree of direct participation of the | ||||||
11 | law enforcement agency in the effort resulting in the | ||||||
12 | forfeiture, taking into account the total value of the | ||||||
13 | property forfeited and the total law enforcement effort | ||||||
14 | with respect to the violation of the law upon which the | ||||||
15 | forfeiture is based. Amounts distributed to the agency or | ||||||
16 | agencies shall be used for the enforcement of laws. | ||||||
17 | (2) 12.5% shall be distributed to the Office of
the | ||||||
18 | State's Attorney of the county in which the prosecution | ||||||
19 | resulting in the forfeiture was instituted, deposited in a | ||||||
20 | special fund in the county treasury and appropriated to the | ||||||
21 | State's Attorney for use in the enforcement of laws. In | ||||||
22 | counties over 3,000,000 population, 25% will be | ||||||
23 | distributed to the Office of the State's Attorney for use | ||||||
24 | in the enforcement of laws governing cannabis and | ||||||
25 | controlled substances. If the prosecution is undertaken | ||||||
26 | solely by the Attorney General, the portion provided |
| |||||||
| |||||||
1 | hereunder shall be distributed to the Attorney General for | ||||||
2 | use in the enforcement of laws. | ||||||
3 | (3) 12.5% shall be distributed to the Office of the
| ||||||
4 | State's Attorneys Appellate Prosecutor and deposited in a | ||||||
5 | separate fund of that office to be used for additional | ||||||
6 | expenses incurred in the investigation, prosecution and | ||||||
7 | appeal of cases. The Office of the State's Attorneys | ||||||
8 | Appellate Prosecutor shall not receive distribution from | ||||||
9 | cases brought in counties with over 3,000,000 population. | ||||||
10 | (4) 10% shall be retained by the Department of State
| ||||||
11 | Police for expenses related to the administration and sale | ||||||
12 | of seized and forfeited property.
| ||||||
13 | (Source: P.A. 96-573, eff. 8-18-09.) | ||||||
14 | (Text of Section after amendment by P.A. 100-512 ) | ||||||
15 | Sec. 3.23. Legend drug prohibition. | ||||||
16 | (a) In this Section: | ||||||
17 | "Legend drug" means a drug limited by the Federal Food, | ||||||
18 | Drug and Cosmetic Act to being dispensed by or upon a medical | ||||||
19 | practitioner's prescription because the drug is: | ||||||
20 | (1) habit forming; | ||||||
21 | (2) toxic or having potential for harm; or | ||||||
22 | (3) limited in use by the new drug application for the | ||||||
23 | drug to use only under a medical practitioner's | ||||||
24 | supervision. | ||||||
25 | "Medical practitioner" means any person licensed to |
| |||||||
| |||||||
1 | practice medicine in all its branches in the State. | ||||||
2 | "Deliver" or "delivery" means the actual, constructive, or | ||||||
3 | attempted transfer of possession of a legend drug, with or | ||||||
4 | without consideration, whether or not there is an agency | ||||||
5 | relationship. | ||||||
6 | "Manufacture" means the production, preparation, | ||||||
7 | propagation, compounding, conversion, or processing of a | ||||||
8 | legend drug, either directly or indirectly, by extraction from | ||||||
9 | substances of natural origin, or independently by means of | ||||||
10 | chemical synthesis, or by a combination of extraction and | ||||||
11 | chemical synthesis, and includes any packaging or repackaging | ||||||
12 | of the substance or labeling of its container. "Manufacture" | ||||||
13 | does not include: | ||||||
14 | (1) by an ultimate user, the preparation or compounding | ||||||
15 | of a legend drug for his own use; or | ||||||
16 | (2) by a medical practitioner, or his authorized agent | ||||||
17 | under his supervision, the preparation, compounding, | ||||||
18 | packaging, or labeling of a legend drug: | ||||||
19 | (A) as an incident to his administering or | ||||||
20 | dispensing of a legend drug in the course of his | ||||||
21 | professional practice; or | ||||||
22 | (B) as an incident to lawful research, teaching, or | ||||||
23 | chemical analysis and not for sale. | ||||||
24 | "Prescription" has the same meaning ascribed to it in | ||||||
25 | Section 3 of the Pharmacy Practice Act. | ||||||
26 | (b) It is unlawful for any person to knowingly manufacture |
| |||||||
| |||||||
1 | or deliver or possess with the intent to manufacture or deliver | ||||||
2 | a legend drug of 6 or more pills, tablets, capsules, or caplets | ||||||
3 | or 30 ml or more of a legend drug in liquid form who is not | ||||||
4 | licensed by applicable law to prescribe or dispense legend | ||||||
5 | drugs or is not an employee of the licensee operating in the | ||||||
6 | normal course of business under the supervision of the | ||||||
7 | licensee. Any person who violates this Section is guilty of a | ||||||
8 | Class 3 felony, the fine for which shall not exceed $100,000. A | ||||||
9 | person convicted of a second or subsequent violation of this | ||||||
10 | Section is guilty of a Class 1 felony, the fine for which shall | ||||||
11 | not exceed $250,000. | ||||||
12 | (c) The following are subject to forfeiture: | ||||||
13 | (1) (blank); | ||||||
14 | (2) all raw materials, products, and equipment of any
| ||||||
15 | kind which are used, or intended for use in manufacturing,
| ||||||
16 | distributing, dispensing, administering, or possessing any | ||||||
17 | substance in violation of this Section; | ||||||
18 | (3) all conveyances, including aircraft, vehicles, or
| ||||||
19 | vessels, which are used, or intended for use, to transport, | ||||||
20 | or in any manner to facilitate the transportation, sale, | ||||||
21 | receipt, possession, or concealment of any substance | ||||||
22 | manufactured, distributed, dispensed, or possessed in | ||||||
23 | violation of this Section or property described in | ||||||
24 | paragraph (2) of this subsection (c), but: | ||||||
25 | (A) no conveyance used by any person as a common
| ||||||
26 | carrier in the transaction of business as a common |
| |||||||
| |||||||
1 | carrier is subject to forfeiture under this Section | ||||||
2 | unless it appears that the owner or other person in | ||||||
3 | charge of the conveyance is a consenting party or privy | ||||||
4 | to the violation; | ||||||
5 | (B) no conveyance is subject to forfeiture
under | ||||||
6 | this Section by reason of any act or omission which the | ||||||
7 | owner proves to have been committed or omitted without | ||||||
8 | his knowledge or consent; and | ||||||
9 | (C) a forfeiture of a conveyance encumbered by
a | ||||||
10 | bona fide security interest is subject to the interest | ||||||
11 | of the secured party if he neither had knowledge of nor | ||||||
12 | consented to the act or omission; | ||||||
13 | (4) all money, things of value, books, records, and
| ||||||
14 | research products and materials including formulas, | ||||||
15 | microfilm, tapes, and data that are used, or intended to be | ||||||
16 | used in violation of this Section; | ||||||
17 | (5) everything of value furnished, or intended to be
| ||||||
18 | furnished, in exchange for a substance in violation of this | ||||||
19 | Section, all proceeds traceable to such an exchange, and | ||||||
20 | all moneys, negotiable instruments, and securities used, | ||||||
21 | or intended to be used, to commit or in any manner to | ||||||
22 | facilitate any violation of this Section; and | ||||||
23 | (6) all real property, including any right, title,
and | ||||||
24 | interest, including, but not limited to, any leasehold | ||||||
25 | interest or the beneficial interest in a land trust, in the | ||||||
26 | whole of any lot or tract of land and any appurtenances or |
| |||||||
| |||||||
1 | improvements, which is used or intended to be used, in any | ||||||
2 | manner or part, to commit, or in any manner to facilitate | ||||||
3 | the commission of, any violation or act that constitutes a | ||||||
4 | violation of this Section or that is the proceeds of any | ||||||
5 | violation or act that constitutes a violation of this | ||||||
6 | Section. | ||||||
7 | (d) Property subject to forfeiture under this Act may be | ||||||
8 | seized under the Drug Asset Forfeiture Procedure Act. In the | ||||||
9 | event of seizure, forfeiture proceedings shall be instituted | ||||||
10 | under the Drug Asset Forfeiture Procedure Act. | ||||||
11 | (e) Forfeiture under this Act is subject to an 8th | ||||||
12 | Amendment amendment to the United States Constitution | ||||||
13 | disproportionate penalties analysis as provided under Section | ||||||
14 | 9.5 of the Drug Asset Forfeiture Procedure Act. | ||||||
15 | (f) With regard to possession of legend drug offenses only, | ||||||
16 | a sum of currency with a value of less than $500 shall not be | ||||||
17 | subject to forfeiture under this Act. For all other offenses | ||||||
18 | under this Act, a sum of currency with a value of less than | ||||||
19 | currency with a value of under $100 shall not be subject to | ||||||
20 | forfeiture under this Act. In seizures of currency in excess of | ||||||
21 | these amounts, this Section shall not create an exemption for | ||||||
22 | these amounts. | ||||||
23 | (f-5) For felony offenses involving possession of legend | ||||||
24 | drug only, no property shall be subject to forfeiture under | ||||||
25 | this Act because of the possession of less than 2 single unit | ||||||
26 | doses of a legend drug controlled substance . This exemption |
| |||||||
| |||||||
1 | shall not apply in instances when the possessor, or another | ||||||
2 | person at the direction of the possessor, is engaged in the | ||||||
3 | destruction of any amount of a legend drug. The amount of a | ||||||
4 | single unit dose shall be the State's burden to prove in its | ||||||
5 | their case in chief. | ||||||
6 | (g) If the Department suspends or revokes a registration, | ||||||
7 | all legend drugs owned or possessed by the registrant at the | ||||||
8 | time of suspension or the effective date of the revocation | ||||||
9 | order may be placed under seal. No disposition may be made of | ||||||
10 | substances under seal until the time for taking an appeal has | ||||||
11 | elapsed or until all appeals have been concluded unless a | ||||||
12 | court, upon application therefor, orders the sale of perishable | ||||||
13 | substances and the deposit of the proceeds of the sale with the | ||||||
14 | court. Upon a revocation rule becoming final, all substances | ||||||
15 | are subject to seizure and forfeiture under the Drug Asset | ||||||
16 | Forfeiture Procedure Act. | ||||||
17 | (h) (Blank). | ||||||
18 | (i) (Blank). | ||||||
19 | (j) Contraband, including legend drugs possessed without a | ||||||
20 | prescription or other authorization under State or federal law, | ||||||
21 | is not subject to forfeiture. No property right exists in | ||||||
22 | contraband. Contraband is subject to seizure and shall be | ||||||
23 | disposed of according to State law.
| ||||||
24 | (k) The changes made to this Section by Public Act 100-0512 | ||||||
25 | and this amendatory Act of the 100th General Assembly only | ||||||
26 | apply to property seized on and after July 1, 2018. |
| |||||||
| |||||||
1 | (Source: P.A. 100-512, eff. 7-1-18.) | ||||||
2 | Section 20. The Criminal Code of 2012 is amended by | ||||||
3 | changing Sections 17-10.6, 29B-1, 33G-6, 36-1.1, 36-1.3, | ||||||
4 | 36-1.4, 36-1.5, 36-2, 36-2.1, 36-2.2, 36-2.5, 36-2.7, and 36-7 | ||||||
5 | and by adding Sections 29B-0.5, 29B-2, 29B-3, 29B-4, 29B-5, | ||||||
6 | 29B-6, 29B-7, 29B-8, 29B-9, 29B-10, 29B-11, 29B-12, 29B-13, | ||||||
7 | 29B-14, 29B-15, 29B-16, 29B-17, 29B-18, 29B-19, 29B-20, | ||||||
8 | 29B-21, 29B-22, 29B-23, 29B-24, 29B-25, 29B-26, 29B-27, and | ||||||
9 | 36-10 as follows: | ||||||
10 | (720 ILCS 5/17-10.6) | ||||||
11 | (Text of Section before amendment by P.A. 100-512 ) | ||||||
12 | Sec. 17-10.6. Financial institution fraud. | ||||||
13 | (a) Misappropriation of financial institution property. A | ||||||
14 | person commits misappropriation of a financial institution's | ||||||
15 | property whenever he or she knowingly obtains or exerts | ||||||
16 | unauthorized control over any of the moneys, funds, credits, | ||||||
17 | assets, securities, or other property owned by or under the | ||||||
18 | custody or control of a financial institution, or under the | ||||||
19 | custody or care of any agent, officer, director, or employee of | ||||||
20 | such financial institution. | ||||||
21 | (b) Commercial bribery of a financial institution. | ||||||
22 | (1) A person commits commercial bribery of a financial | ||||||
23 | institution when he or she knowingly confers or offers or | ||||||
24 | agrees to confer any benefit upon any employee, agent, or |
| |||||||
| |||||||
1 | fiduciary without the consent of the latter's employer or | ||||||
2 | principal, with the intent to influence his or her conduct | ||||||
3 | in relation to his or her employer's or principal's | ||||||
4 | affairs. | ||||||
5 | (2) An employee, agent, or fiduciary of a financial | ||||||
6 | institution commits commercial bribery of a financial | ||||||
7 | institution when, without the consent of his or her | ||||||
8 | employer or principal, he or she knowingly solicits, | ||||||
9 | accepts, or agrees to accept any benefit from another | ||||||
10 | person upon an agreement or understanding that such benefit | ||||||
11 | will influence his or her conduct in relation to his or her | ||||||
12 | employer's or principal's affairs. | ||||||
13 | (c) Financial institution fraud. A person commits | ||||||
14 | financial institution fraud when he or she knowingly executes | ||||||
15 | or attempts to execute a scheme or artifice: | ||||||
16 | (1) to defraud a financial institution; or | ||||||
17 | (2) to obtain any of the moneys, funds, credits, | ||||||
18 | assets, securities, or other property owned by or under the | ||||||
19 | custody or control of a financial institution, by means of | ||||||
20 | pretenses, representations, or promises he or she knows to | ||||||
21 | be false. | ||||||
22 | (d) Loan fraud. A person commits loan fraud when he or she | ||||||
23 | knowingly, with intent to defraud, makes any false statement or | ||||||
24 | report, or overvalues any land, property, or security, with the | ||||||
25 | intent to influence in any way the action of a financial | ||||||
26 | institution to act upon any application, advance, discount, |
| |||||||
| |||||||
1 | purchase, purchase agreement, repurchase agreement, | ||||||
2 | commitment, or loan, or any change or extension of any of the | ||||||
3 | same, by renewal, deferment of action, or otherwise, or the | ||||||
4 | acceptance, release, or substitution of security. | ||||||
5 | (e) Concealment of collateral. A person commits | ||||||
6 | concealment of collateral when he or she, with intent to | ||||||
7 | defraud, knowingly conceals, removes, disposes of, or converts | ||||||
8 | to the person's own use or to that of another any property | ||||||
9 | mortgaged or pledged to or held by a financial institution. | ||||||
10 | (f) Financial institution robbery. A person commits | ||||||
11 | robbery when he or she knowingly, by force or threat of force, | ||||||
12 | or by intimidation, takes, or attempts to take, from the person | ||||||
13 | or presence of another, or obtains or attempts to obtain by | ||||||
14 | extortion, any property or money or any other thing of value | ||||||
15 | belonging to, or in the care, custody, control, management, or | ||||||
16 | possession of, a financial institution. | ||||||
17 | (g) Conspiracy to commit a financial crime. | ||||||
18 | (1) A person commits conspiracy to commit a financial | ||||||
19 | crime when, with the intent that any violation of this | ||||||
20 | Section be committed, he or she agrees with another person | ||||||
21 | to the commission of that offense. | ||||||
22 | (2) No person may be convicted of conspiracy to commit | ||||||
23 | a financial crime unless an overt act or acts in | ||||||
24 | furtherance of the agreement is alleged and proved to have | ||||||
25 | been committed by that person or by a co-conspirator and | ||||||
26 | the accused is a part of a common scheme or plan to engage |
| |||||||
| |||||||
1 | in the unlawful activity. | ||||||
2 | (3) It shall not be a defense to conspiracy to commit a | ||||||
3 | financial crime that the person or persons with whom the | ||||||
4 | accused is alleged to have conspired: | ||||||
5 | (A) has not been prosecuted or convicted; | ||||||
6 | (B) has been convicted of a different offense; | ||||||
7 | (C) is not amenable to justice; | ||||||
8 | (D) has been acquitted; or | ||||||
9 | (E) lacked the capacity to commit the offense. | ||||||
10 | (h) Continuing financial crimes enterprise. A person | ||||||
11 | commits a continuing financial crimes enterprise when he or she | ||||||
12 | knowingly, within an 18-month period, commits 3 or more | ||||||
13 | separate offenses constituting any combination of the | ||||||
14 | following: | ||||||
15 | (1) an offense under this Section; | ||||||
16 | (2) a felony offense in violation of Section 16A-3 or | ||||||
17 | subsection (a) of Section 16-25 or paragraph (4) or (5) of | ||||||
18 | subsection (a) of Section 16-1 of this Code for the purpose | ||||||
19 | of reselling or otherwise re-entering the merchandise in | ||||||
20 | commerce, including conveying the merchandise to a | ||||||
21 | merchant in exchange for anything of value; or | ||||||
22 | (3) if involving a financial institution, any other | ||||||
23 | felony offense under this Code. | ||||||
24 | (i) Organizer of a continuing financial crimes enterprise. | ||||||
25 | (1) A person commits being an organizer of a continuing | ||||||
26 | financial crimes enterprise when he or she: |
| |||||||
| |||||||
1 | (A) with the intent to commit any offense, agrees | ||||||
2 | with another person to the commission of any | ||||||
3 | combination of the following offenses on 3 or
more | ||||||
4 | separate occasions within an 18-month period: | ||||||
5 | (i) an offense under this Section; | ||||||
6 | (ii) a felony offense in violation of Section | ||||||
7 | 16A-3 or subsection (a) of Section 16-25 or | ||||||
8 | paragraph (4) or (5) of subsection (a) of Section | ||||||
9 | 16-1 of this Code for the purpose of reselling or | ||||||
10 | otherwise re-entering the merchandise in commerce, | ||||||
11 | including conveying the merchandise to a merchant | ||||||
12 | in exchange for anything of value; or | ||||||
13 | (iii) if involving a financial institution, | ||||||
14 | any other felony offense under this Code; and | ||||||
15 | (B) with respect to the other persons within the | ||||||
16 | conspiracy, occupies a position of organizer, | ||||||
17 | supervisor, or financier or other position of | ||||||
18 | management. | ||||||
19 | (2) The person with whom the accused agreed to commit | ||||||
20 | the 3 or more offenses under this Section, or, if involving | ||||||
21 | a financial institution, any other felony offenses under | ||||||
22 | this Code, need not be the same person or persons for each | ||||||
23 | offense, as long as the accused was a part of the common | ||||||
24 | scheme or plan to engage in each of the 3 or more alleged | ||||||
25 | offenses. | ||||||
26 | (j) Sentence. |
| |||||||
| |||||||
1 | (1) Except as otherwise provided in this subsection, a | ||||||
2 | violation of this Section, the full value of which: | ||||||
3 | (A) does not exceed $500, is a Class A misdemeanor; | ||||||
4 | (B) does not exceed $500, and the person has been | ||||||
5 | previously convicted of a financial crime or any type | ||||||
6 | of theft, robbery, armed robbery, burglary, | ||||||
7 | residential burglary, possession of burglary tools, or | ||||||
8 | home invasion, is guilty of a Class 4 felony; | ||||||
9 | (C) exceeds $500 but does not exceed $10,000, is a | ||||||
10 | Class 3 felony; | ||||||
11 | (D) exceeds $10,000 but does not exceed $100,000, | ||||||
12 | is a Class 2 felony; | ||||||
13 | (E) exceeds $100,000 but does not exceed $500,000, | ||||||
14 | is a Class 1 felony; | ||||||
15 | (F) exceeds $500,000 but does not exceed | ||||||
16 | $1,000,000, is a Class 1 non-probationable felony; | ||||||
17 | when a charge of financial crime, the full value of | ||||||
18 | which exceeds $500,000 but does not exceed $1,000,000, | ||||||
19 | is brought, the value of the financial crime involved | ||||||
20 | is an element of the offense to be resolved by the | ||||||
21 | trier of fact as either exceeding or not exceeding | ||||||
22 | $500,000; | ||||||
23 | (G) exceeds $1,000,000, is a Class X felony; when a | ||||||
24 | charge of financial crime, the full value of which | ||||||
25 | exceeds $1,000,000, is brought, the value of the | ||||||
26 | financial crime involved is an element of the offense |
| |||||||
| |||||||
1 | to be resolved by the trier of fact as either exceeding | ||||||
2 | or not exceeding $1,000,000. | ||||||
3 | (2) A violation of subsection (f) is a Class 1 felony. | ||||||
4 | (3) A violation of subsection (h) is a Class 1 felony. | ||||||
5 | (4) A violation for subsection (i) is a Class X felony. | ||||||
6 | (k) A "financial crime" means an offense described in this | ||||||
7 | Section. | ||||||
8 | (l) Period of limitations. The period of limitations for | ||||||
9 | prosecution of any offense defined in this Section begins at | ||||||
10 | the time when the last act in furtherance of the offense is | ||||||
11 | committed.
| ||||||
12 | (m) Forfeiture. Any violation of subdivision (2) of | ||||||
13 | subsection (h) or subdivision (i)(1)(A)(ii) shall be subject to | ||||||
14 | the remedies, procedures, and forfeiture as set forth in | ||||||
15 | subsections (f) through (s) of Section 29B-1 of this Code. | ||||||
16 | (Source: P.A. 96-1551, eff. 7-1-11; incorporates P.A. 96-1532, | ||||||
17 | eff. 1-1-12, and 97-147, eff. 1-1-12; 97-1109, eff. 1-1-13.) | ||||||
18 | (Text of Section after amendment by P.A. 100-512 ) | ||||||
19 | Sec. 17-10.6. Financial institution fraud. | ||||||
20 | (a) Misappropriation of financial institution property. A | ||||||
21 | person commits misappropriation of a financial institution's | ||||||
22 | property whenever he or she knowingly obtains or exerts | ||||||
23 | unauthorized control over any of the moneys, funds, credits, | ||||||
24 | assets, securities, or other property owned by or under the | ||||||
25 | custody or control of a financial institution, or under the |
| |||||||
| |||||||
1 | custody or care of any agent, officer, director, or employee of | ||||||
2 | such financial institution. | ||||||
3 | (b) Commercial bribery of a financial institution. | ||||||
4 | (1) A person commits commercial bribery of a financial | ||||||
5 | institution when he or she knowingly confers or offers or | ||||||
6 | agrees to confer any benefit upon any employee, agent, or | ||||||
7 | fiduciary without the consent of the latter's employer or | ||||||
8 | principal, with the intent to influence his or her conduct | ||||||
9 | in relation to his or her employer's or principal's | ||||||
10 | affairs. | ||||||
11 | (2) An employee, agent, or fiduciary of a financial | ||||||
12 | institution commits commercial bribery of a financial | ||||||
13 | institution when, without the consent of his or her | ||||||
14 | employer or principal, he or she knowingly solicits, | ||||||
15 | accepts, or agrees to accept any benefit from another | ||||||
16 | person upon an agreement or understanding that such benefit | ||||||
17 | will influence his or her conduct in relation to his or her | ||||||
18 | employer's or principal's affairs. | ||||||
19 | (c) Financial institution fraud. A person commits | ||||||
20 | financial institution fraud when he or she knowingly executes | ||||||
21 | or attempts to execute a scheme or artifice: | ||||||
22 | (1) to defraud a financial institution; or | ||||||
23 | (2) to obtain any of the moneys, funds, credits, | ||||||
24 | assets, securities, or other property owned by or under the | ||||||
25 | custody or control of a financial institution, by means of | ||||||
26 | pretenses, representations, or promises he or she knows to |
| |||||||
| |||||||
1 | be false. | ||||||
2 | (d) Loan fraud. A person commits loan fraud when he or she | ||||||
3 | knowingly, with intent to defraud, makes any false statement or | ||||||
4 | report, or overvalues any land, property, or security, with the | ||||||
5 | intent to influence in any way the action of a financial | ||||||
6 | institution to act upon any application, advance, discount, | ||||||
7 | purchase, purchase agreement, repurchase agreement, | ||||||
8 | commitment, or loan, or any change or extension of any of the | ||||||
9 | same, by renewal, deferment of action, or otherwise, or the | ||||||
10 | acceptance, release, or substitution of security. | ||||||
11 | (e) Concealment of collateral. A person commits | ||||||
12 | concealment of collateral when he or she, with intent to | ||||||
13 | defraud, knowingly conceals, removes, disposes of, or converts | ||||||
14 | to the person's own use or to that of another any property | ||||||
15 | mortgaged or pledged to or held by a financial institution. | ||||||
16 | (f) Financial institution robbery. A person commits | ||||||
17 | robbery when he or she knowingly, by force or threat of force, | ||||||
18 | or by intimidation, takes, or attempts to take, from the person | ||||||
19 | or presence of another, or obtains or attempts to obtain by | ||||||
20 | extortion, any property or money or any other thing of value | ||||||
21 | belonging to, or in the care, custody, control, management, or | ||||||
22 | possession of, a financial institution. | ||||||
23 | (g) Conspiracy to commit a financial crime. | ||||||
24 | (1) A person commits conspiracy to commit a financial | ||||||
25 | crime when, with the intent that any violation of this | ||||||
26 | Section be committed, he or she agrees with another person |
| |||||||
| |||||||
1 | to the commission of that offense. | ||||||
2 | (2) No person may be convicted of conspiracy to commit | ||||||
3 | a financial crime unless an overt act or acts in | ||||||
4 | furtherance of the agreement is alleged and proved to have | ||||||
5 | been committed by that person or by a co-conspirator and | ||||||
6 | the accused is a part of a common scheme or plan to engage | ||||||
7 | in the unlawful activity. | ||||||
8 | (3) It shall not be a defense to conspiracy to commit a | ||||||
9 | financial crime that the person or persons with whom the | ||||||
10 | accused is alleged to have conspired: | ||||||
11 | (A) has not been prosecuted or convicted; | ||||||
12 | (B) has been convicted of a different offense; | ||||||
13 | (C) is not amenable to justice; | ||||||
14 | (D) has been acquitted; or | ||||||
15 | (E) lacked the capacity to commit the offense. | ||||||
16 | (h) Continuing financial crimes enterprise. A person | ||||||
17 | commits a continuing financial crimes enterprise when he or she | ||||||
18 | knowingly, within an 18-month period, commits 3 or more | ||||||
19 | separate offenses constituting any combination of the | ||||||
20 | following: | ||||||
21 | (1) an offense under this Section; | ||||||
22 | (2) a felony offense in violation of Section 16A-3 or | ||||||
23 | subsection (a) of Section 16-25 or paragraph (4) or (5) of | ||||||
24 | subsection (a) of Section 16-1 of this Code for the purpose | ||||||
25 | of reselling or otherwise re-entering the merchandise in | ||||||
26 | commerce, including conveying the merchandise to a |
| |||||||
| |||||||
1 | merchant in exchange for anything of value; or | ||||||
2 | (3) if involving a financial institution, any other | ||||||
3 | felony offense under this Code. | ||||||
4 | (i) Organizer of a continuing financial crimes enterprise. | ||||||
5 | (1) A person commits being an organizer of a continuing | ||||||
6 | financial crimes enterprise when he or she: | ||||||
7 | (A) with the intent to commit any offense, agrees | ||||||
8 | with another person to the commission of any | ||||||
9 | combination of the following offenses on 3 or
more | ||||||
10 | separate occasions within an 18-month period: | ||||||
11 | (i) an offense under this Section; | ||||||
12 | (ii) a felony offense in violation of Section | ||||||
13 | 16A-3 or subsection (a) of Section 16-25 or | ||||||
14 | paragraph (4) or (5) of subsection (a) of Section | ||||||
15 | 16-1 of this Code for the purpose of reselling or | ||||||
16 | otherwise re-entering the merchandise in commerce, | ||||||
17 | including conveying the merchandise to a merchant | ||||||
18 | in exchange for anything of value; or | ||||||
19 | (iii) if involving a financial institution, | ||||||
20 | any other felony offense under this Code; and | ||||||
21 | (B) with respect to the other persons within the | ||||||
22 | conspiracy, occupies a position of organizer, | ||||||
23 | supervisor, or financier or other position of | ||||||
24 | management. | ||||||
25 | (2) The person with whom the accused agreed to commit | ||||||
26 | the 3 or more offenses under this Section, or, if involving |
| |||||||
| |||||||
1 | a financial institution, any other felony offenses under | ||||||
2 | this Code, need not be the same person or persons for each | ||||||
3 | offense, as long as the accused was a part of the common | ||||||
4 | scheme or plan to engage in each of the 3 or more alleged | ||||||
5 | offenses. | ||||||
6 | (j) Sentence. | ||||||
7 | (1) Except as otherwise provided in this subsection, a | ||||||
8 | violation of this Section, the full value of which: | ||||||
9 | (A) does not exceed $500, is a Class A misdemeanor; | ||||||
10 | (B) does not exceed $500, and the person has been | ||||||
11 | previously convicted of a financial crime or any type | ||||||
12 | of theft, robbery, armed robbery, burglary, | ||||||
13 | residential burglary, possession of burglary tools, or | ||||||
14 | home invasion, is guilty of a Class 4 felony; | ||||||
15 | (C) exceeds $500 but does not exceed $10,000, is a | ||||||
16 | Class 3 felony; | ||||||
17 | (D) exceeds $10,000 but does not exceed $100,000, | ||||||
18 | is a Class 2 felony; | ||||||
19 | (E) exceeds $100,000 but does not exceed $500,000, | ||||||
20 | is a Class 1 felony; | ||||||
21 | (F) exceeds $500,000 but does not exceed | ||||||
22 | $1,000,000, is a Class 1 non-probationable felony; | ||||||
23 | when a charge of financial crime, the full value of | ||||||
24 | which exceeds $500,000 but does not exceed $1,000,000, | ||||||
25 | is brought, the value of the financial crime involved | ||||||
26 | is an element of the offense to be resolved by the |
| |||||||
| |||||||
1 | trier of fact as either exceeding or not exceeding | ||||||
2 | $500,000; | ||||||
3 | (G) exceeds $1,000,000, is a Class X felony; when a | ||||||
4 | charge of financial crime, the full value of which | ||||||
5 | exceeds $1,000,000, is brought, the value of the | ||||||
6 | financial crime involved is an element of the offense | ||||||
7 | to be resolved by the trier of fact as either exceeding | ||||||
8 | or not exceeding $1,000,000. | ||||||
9 | (2) A violation of subsection (f) is a Class 1 felony. | ||||||
10 | (3) A violation of subsection (h) is a Class 1 felony. | ||||||
11 | (4) A violation for subsection (i) is a Class X felony. | ||||||
12 | (k) A "financial crime" means an offense described in this | ||||||
13 | Section. | ||||||
14 | (l) Period of limitations. The period of limitations for | ||||||
15 | prosecution of any offense defined in this Section begins at | ||||||
16 | the time when the last act in furtherance of the offense is | ||||||
17 | committed.
| ||||||
18 | (m) Forfeiture. Any violation of subdivision (2) of | ||||||
19 | subsection (h) or subdivision (i)(1)(A)(ii) shall be subject to | ||||||
20 | the remedies, procedures, and forfeiture as set forth in | ||||||
21 | Article 29B subsections (f) through (s) of Section 29B-1 of | ||||||
22 | this Code. | ||||||
23 | Property seized or forfeited under this Section is subject | ||||||
24 | to reporting under the Seizure and Forfeiture Reporting Act. | ||||||
25 | (Source: P.A. 100-512, eff. 7-1-18.) |
| |||||||
| |||||||
1 | (720 ILCS 5/29B-0.5 new) | ||||||
2 | Sec. 29B-0.5. Definitions. In this Article: | ||||||
3 | "Conduct" or "conducts" includes, in addition to its | ||||||
4 | ordinary
meaning, initiating, concluding, or participating in | ||||||
5 | initiating or concluding
a transaction. | ||||||
6 | "Criminally derived property" means: (1) any property, | ||||||
7 | real or personal, constituting
or
derived from proceeds | ||||||
8 | obtained, directly or indirectly, from activity that | ||||||
9 | constitutes a felony under State, federal, or foreign law; or | ||||||
10 | (2) any property
represented to be property constituting or | ||||||
11 | derived from proceeds obtained,
directly or indirectly, from | ||||||
12 | activity that constitutes a felony under State, federal, or | ||||||
13 | foreign law. | ||||||
14 | "Department" means the Department of State Police of this | ||||||
15 | State or its successor agency. | ||||||
16 | "Director" means the Director of State Police or his or her | ||||||
17 | designated agents. | ||||||
18 | "Financial institution" means any bank; saving and loan
| ||||||
19 | association; trust company; agency or branch of a foreign bank | ||||||
20 | in the
United States; currency exchange; credit union; mortgage | ||||||
21 | banking
institution; pawnbroker; loan or finance company; | ||||||
22 | operator of a credit card
system; issuer, redeemer, or cashier | ||||||
23 | of travelers checks, checks, or money
orders; dealer in | ||||||
24 | precious metals, stones, or jewels; broker or dealer in
| ||||||
25 | securities or commodities; investment banker; or investment | ||||||
26 | company. |
| |||||||
| |||||||
1 | "Financial transaction" means a purchase, sale, loan, | ||||||
2 | pledge, gift,
transfer, delivery, or other disposition | ||||||
3 | utilizing criminally derived property,
and with respect to | ||||||
4 | financial institutions, includes a deposit, withdrawal,
| ||||||
5 | transfer between accounts, exchange of currency, loan, | ||||||
6 | extension of credit,
purchase or sale of any stock, bond, | ||||||
7 | certificate of deposit or other monetary
instrument, use of | ||||||
8 | safe deposit box, or any other payment, transfer or delivery | ||||||
9 | by, through, or to a
financial institution.
"Financial
| ||||||
10 | transaction" also
means a transaction which without regard to | ||||||
11 | whether the funds, monetary
instruments, or real or personal | ||||||
12 | property involved in the transaction are
criminally derived, | ||||||
13 | any transaction which in any way or degree: (1) involves
the | ||||||
14 | movement of funds by wire or any other means; (2) involves one | ||||||
15 | or more
monetary instruments; or (3) the transfer of title to | ||||||
16 | any real or personal
property.
The receipt by an attorney of | ||||||
17 | bona fide fees for the purpose
of legal representation is not a | ||||||
18 | financial transaction for purposes of this
Article. | ||||||
19 | "Form 4-64" means the Illinois State Police | ||||||
20 | Notice/Inventory of Seized Property (Form 4-64). | ||||||
21 | "Knowing that the property involved in a financial | ||||||
22 | transaction represents the proceeds of some form of unlawful | ||||||
23 | activity" means that the person knew the property involved in | ||||||
24 | the transaction represented proceeds from some form, though not | ||||||
25 | necessarily which form, of activity that constitutes a felony | ||||||
26 | under State, federal, or foreign law. |
| |||||||
| |||||||
1 | "Monetary instrument" means United States coins and | ||||||
2 | currency;
coins and currency of a foreign country; travelers | ||||||
3 | checks; personal checks,
bank checks, and money orders; | ||||||
4 | investment securities; bearer
negotiable instruments; bearer | ||||||
5 | investment securities; or bearer securities
and certificates | ||||||
6 | of stock in a form that title passes upon
delivery. | ||||||
7 | "Specified criminal activity" means any violation of | ||||||
8 | Section 29D-15.1 and any violation of Article 29D of this Code. | ||||||
9 | "Transaction reporting requirement under State law" means | ||||||
10 | any violation as defined under the Currency Reporting Act.
| ||||||
11 | (720 ILCS 5/29B-1) (from Ch. 38, par. 29B-1)
| ||||||
12 | (Text of Section before amendment by P.A. 100-512 )
| ||||||
13 | Sec. 29B-1. (a) A person commits the offense of money | ||||||
14 | laundering:
| ||||||
15 | (1) when, knowing that the property involved in a | ||||||
16 | financial transaction represents the proceeds of some form | ||||||
17 | of unlawful activity, he or she conducts or attempts to | ||||||
18 | conduct such a financial transaction which in fact involves | ||||||
19 | criminally derived property: | ||||||
20 | (A) with the intent to promote the carrying on of | ||||||
21 | the unlawful activity from which the criminally | ||||||
22 | derived property was obtained; or | ||||||
23 | (B) where he or she knows or reasonably should know | ||||||
24 | that the financial transaction is designed in whole or | ||||||
25 | in part: |
| |||||||
| |||||||
1 | (i) to conceal or disguise the nature, the | ||||||
2 | location, the source, the ownership or the control | ||||||
3 | of the criminally derived property; or | ||||||
4 | (ii) to avoid a transaction reporting | ||||||
5 | requirement under State law; or | ||||||
6 | (1.5) when he or she transports, transmits, or | ||||||
7 | transfers, or attempts to transport, transmit, or transfer | ||||||
8 | a monetary instrument: | ||||||
9 | (A) with the intent to promote the carrying on of | ||||||
10 | the unlawful activity from which the criminally | ||||||
11 | derived property was obtained; or | ||||||
12 | (B) knowing, or having reason to know, that the | ||||||
13 | financial transaction is designed in whole or in part: | ||||||
14 | (i) to conceal or disguise the nature, the | ||||||
15 | location, the source, the ownership or the control | ||||||
16 | of the criminally derived property; or | ||||||
17 | (ii) to avoid a transaction reporting | ||||||
18 | requirement under State law;
or
| ||||||
19 | (2) when, with the intent to:
| ||||||
20 | (A) promote the carrying on of a specified criminal | ||||||
21 | activity as defined
in this Article; or
| ||||||
22 | (B) conceal or disguise the nature, location, | ||||||
23 | source, ownership, or
control of property believed to | ||||||
24 | be the proceeds of a specified criminal
activity as | ||||||
25 | defined by subdivision (b)(6); or | ||||||
26 | (C) avoid a transaction reporting requirement |
| |||||||
| |||||||
1 | under State law,
| ||||||
2 | he or she conducts or attempts to conduct a financial | ||||||
3 | transaction
involving property he or she believes to be the | ||||||
4 | proceeds of specified criminal
activity as defined by | ||||||
5 | subdivision (b)(6) or property used to conduct or
| ||||||
6 | facilitate specified criminal activity as defined by | ||||||
7 | subdivision (b)(6).
| ||||||
8 | (b) As used in this Section:
| ||||||
9 | (0.5) "Knowing that the property involved in a | ||||||
10 | financial transaction represents the proceeds of some form | ||||||
11 | of unlawful activity" means that the person knew the | ||||||
12 | property involved in the transaction represented proceeds | ||||||
13 | from some form, though not necessarily which form, of | ||||||
14 | activity that constitutes a felony under State, federal, or | ||||||
15 | foreign law.
| ||||||
16 | (1) "Financial transaction" means a purchase, sale, | ||||||
17 | loan, pledge, gift,
transfer, delivery or other | ||||||
18 | disposition utilizing criminally derived property,
and | ||||||
19 | with respect to financial institutions, includes a | ||||||
20 | deposit, withdrawal,
transfer between accounts, exchange | ||||||
21 | of currency, loan, extension of credit,
purchase or sale of | ||||||
22 | any stock, bond, certificate of deposit or other monetary
| ||||||
23 | instrument, use of safe deposit box, or any other payment, | ||||||
24 | transfer or delivery by, through, or to a
financial | ||||||
25 | institution.
For purposes of clause (a)(2) of this Section, | ||||||
26 | the term "financial
transaction" also
means a transaction |
| |||||||
| |||||||
1 | which without regard to whether the funds, monetary
| ||||||
2 | instruments, or real or personal property involved in the | ||||||
3 | transaction are
criminally derived, any transaction which | ||||||
4 | in any way or degree: (1) involves
the movement of funds by | ||||||
5 | wire or any other means; (2) involves one or more
monetary | ||||||
6 | instruments; or (3) the transfer of title to any real or | ||||||
7 | personal
property.
The receipt by an attorney of bona fide | ||||||
8 | fees for the purpose
of legal representation is not a | ||||||
9 | financial transaction for purposes of this
Section.
| ||||||
10 | (2) "Financial institution" means any bank; saving and | ||||||
11 | loan
association; trust company; agency or branch of a | ||||||
12 | foreign bank in the
United States; currency exchange; | ||||||
13 | credit union, mortgage banking
institution; pawnbroker; | ||||||
14 | loan or finance company; operator of a credit card
system; | ||||||
15 | issuer, redeemer or cashier of travelers checks, checks or | ||||||
16 | money
orders; dealer in precious metals, stones or jewels; | ||||||
17 | broker or dealer in
securities or commodities; investment | ||||||
18 | banker; or investment company.
| ||||||
19 | (3) "Monetary instrument" means United States coins | ||||||
20 | and currency;
coins and currency of a foreign country; | ||||||
21 | travelers checks; personal checks,
bank checks, and money | ||||||
22 | orders; investment securities; bearer
negotiable | ||||||
23 | instruments; bearer investment securities; or bearer | ||||||
24 | securities
and certificates of stock in such form that | ||||||
25 | title thereto passes upon
delivery.
| ||||||
26 | (4) "Criminally derived property" means: (A) any |
| |||||||
| |||||||
1 | property, real or personal, constituting
or
derived from | ||||||
2 | proceeds obtained, directly or indirectly, from activity | ||||||
3 | that constitutes a felony under State, federal, or foreign | ||||||
4 | law; or (B) any property
represented to be property | ||||||
5 | constituting or derived from proceeds obtained,
directly | ||||||
6 | or indirectly, from activity that constitutes a felony | ||||||
7 | under State, federal, or foreign law.
| ||||||
8 | (5) "Conduct" or "conducts" includes, in addition to | ||||||
9 | its ordinary
meaning, initiating, concluding, or | ||||||
10 | participating in initiating or concluding
a transaction.
| ||||||
11 | (6) "Specified criminal activity" means any violation | ||||||
12 | of Section 29D-15.1
(720 ILCS 5/29D-15.1) and any violation | ||||||
13 | of Article 29D of this Code.
| ||||||
14 | (7) "Director" means the Director of State Police or | ||||||
15 | his or her designated agents. | ||||||
16 | (8) "Department" means the Department of State Police | ||||||
17 | of the State of Illinois or its successor agency.
| ||||||
18 | (9) "Transaction reporting requirement under State | ||||||
19 | law" means any violation as defined under the Currency | ||||||
20 | Reporting Act.
| ||||||
21 | (c) Sentence.
| ||||||
22 | (1) Laundering of criminally derived property of a | ||||||
23 | value not exceeding
$10,000 is a Class 3 felony;
| ||||||
24 | (2) Laundering of criminally derived property of a | ||||||
25 | value exceeding
$10,000 but not exceeding $100,000 is a | ||||||
26 | Class 2 felony;
|
| |||||||
| |||||||
1 | (3) Laundering of criminally derived property of a | ||||||
2 | value exceeding
$100,000 but not exceeding $500,000 is a | ||||||
3 | Class 1 felony;
| ||||||
4 | (4) Money laundering in violation of subsection (a)(2) | ||||||
5 | of this Section
is a Class X felony;
| ||||||
6 | (5) Laundering of criminally derived property of a | ||||||
7 | value exceeding
$500,000 is a
Class 1 non-probationable | ||||||
8 | felony;
| ||||||
9 | (6) In a prosecution under clause (a)(1.5)(B)(ii) of | ||||||
10 | this Section, the sentences are as follows: | ||||||
11 | (A) Laundering of property of a value not exceeding | ||||||
12 | $10,000 is a Class 3 felony; | ||||||
13 | (B) Laundering of property of a value exceeding | ||||||
14 | $10,000 but not exceeding $100,000 is a Class 2 felony; | ||||||
15 | (C) Laundering of property of a value exceeding | ||||||
16 | $100,000 but not exceeding $500,000 is a Class 1 | ||||||
17 | felony; | ||||||
18 | (D) Laundering of property of a value exceeding | ||||||
19 | $500,000 is a Class 1 non-probationable felony. | ||||||
20 | (d) Evidence. In a prosecution under this Article, either | ||||||
21 | party may introduce the following evidence pertaining to the | ||||||
22 | issue of whether the property or proceeds were known to be some | ||||||
23 | form of criminally derived property or from some form of | ||||||
24 | unlawful activity: | ||||||
25 | (1) A financial transaction was conducted or | ||||||
26 | structured or attempted in violation of the reporting |
| |||||||
| |||||||
1 | requirements of any State or federal law; or | ||||||
2 | (2) A financial transaction was conducted or attempted | ||||||
3 | with the use of a false or fictitious name or a forged | ||||||
4 | instrument; or | ||||||
5 | (3) A falsely altered or completed written instrument | ||||||
6 | or a written instrument that contains any materially false | ||||||
7 | personal identifying information was made, used, offered | ||||||
8 | or presented, whether accepted or not, in connection with a | ||||||
9 | financial transaction; or | ||||||
10 | (4) A financial transaction was structured or | ||||||
11 | attempted to be structured so as to falsely report the | ||||||
12 | actual consideration or value of the transaction; or | ||||||
13 | (5) A money transmitter, a person engaged in a trade or | ||||||
14 | business or any employee of a money transmitter or a person | ||||||
15 | engaged in a trade or business, knows or reasonably should | ||||||
16 | know that false personal identifying information has been | ||||||
17 | presented and incorporates the false personal identifying | ||||||
18 | information into any report or record; or | ||||||
19 | (6) The criminally derived property is transported or | ||||||
20 | possessed in a fashion inconsistent with the ordinary or | ||||||
21 | usual means of transportation or possession of such | ||||||
22 | property and where the property is discovered in the | ||||||
23 | absence of any documentation or other indicia of legitimate | ||||||
24 | origin or right to such property; or | ||||||
25 | (7) A person pays or receives substantially less than | ||||||
26 | face value for one or more monetary instruments; or |
| |||||||
| |||||||
1 | (8) A person engages in a transaction involving one or | ||||||
2 | more monetary instruments, where the physical condition or | ||||||
3 | form of the monetary instrument or instruments makes it | ||||||
4 | apparent that they are not the product of bona fide | ||||||
5 | business or financial transactions. | ||||||
6 | (e) Duty to enforce this Article. | ||||||
7 | (1) It is the duty of the Department of State Police, | ||||||
8 | and its agents, officers, and investigators, to enforce all | ||||||
9 | provisions of this Article, except those specifically | ||||||
10 | delegated, and to cooperate with all agencies charged with | ||||||
11 | the enforcement of the laws of the United States, or of any | ||||||
12 | state, relating to money laundering. Only an agent, | ||||||
13 | officer, or investigator designated by the Director may be | ||||||
14 | authorized in accordance with this Section to serve seizure | ||||||
15 | notices, warrants, subpoenas, and summonses under the | ||||||
16 | authority of this State. | ||||||
17 | (2) Any agent, officer, investigator, or peace officer | ||||||
18 | designated by the Director may: (A) make seizure of | ||||||
19 | property pursuant to the provisions of this Article; and | ||||||
20 | (B) perform such other law enforcement duties as the | ||||||
21 | Director designates. It is the duty of all State's | ||||||
22 | Attorneys to prosecute violations of this Article and | ||||||
23 | institute legal proceedings as authorized under this | ||||||
24 | Article. | ||||||
25 | (f) Protective orders. | ||||||
26 | (1) Upon application of the State, the court may enter |
| |||||||
| |||||||
1 | a restraining order or injunction, require the execution of | ||||||
2 | a satisfactory performance bond, or take any other action | ||||||
3 | to preserve the availability of property described in | ||||||
4 | subsection (h) for forfeiture under this Article: | ||||||
5 | (A) upon the filing of an indictment, information, | ||||||
6 | or complaint charging a violation of this Article for | ||||||
7 | which forfeiture may be ordered under this Article and | ||||||
8 | alleging that the property with respect to which the | ||||||
9 | order is sought would be subject to forfeiture under | ||||||
10 | this Article; or
| ||||||
11 | (B) prior to the filing of such an indictment, | ||||||
12 | information, or complaint, if, after notice to persons | ||||||
13 | appearing to have an interest in the property and | ||||||
14 | opportunity for a hearing, the court determines that: | ||||||
15 | (i) there is probable cause to believe that the | ||||||
16 | State will prevail on the issue of forfeiture and | ||||||
17 | that failure to enter the order will result in the | ||||||
18 | property being destroyed, removed from the | ||||||
19 | jurisdiction of the court, or otherwise made | ||||||
20 | unavailable for forfeiture; and | ||||||
21 | (ii) the need to preserve the availability of | ||||||
22 | the property through the entry of the requested | ||||||
23 | order outweighs the hardship on any party against | ||||||
24 | whom the order is to be entered. | ||||||
25 | Provided, however, that an order entered pursuant | ||||||
26 | to subparagraph (B) shall be effective for not more |
| |||||||
| |||||||
1 | than 90 days, unless extended by the court for good | ||||||
2 | cause shown or unless an indictment, information, | ||||||
3 | complaint, or administrative notice has been filed. | ||||||
4 | (2) A temporary restraining order under this | ||||||
5 | subsection may be entered upon application of the State | ||||||
6 | without notice or opportunity for a hearing when an | ||||||
7 | indictment, information, complaint, or administrative | ||||||
8 | notice has not yet been filed with respect to the property, | ||||||
9 | if the State demonstrates that there is probable cause to | ||||||
10 | believe that the property with respect to which the order | ||||||
11 | is sought would be subject to forfeiture under this Section | ||||||
12 | and that provision of notice will jeopardize the | ||||||
13 | availability of the property for forfeiture. Such a | ||||||
14 | temporary order shall expire not more than 30 days after | ||||||
15 | the date on which it is entered, unless extended for good | ||||||
16 | cause shown or unless the party against whom it is entered | ||||||
17 | consents to an extension for a longer period. A hearing | ||||||
18 | requested concerning an order entered under this paragraph | ||||||
19 | shall be held at the earliest possible time and prior to | ||||||
20 | the expiration of the temporary order. | ||||||
21 | (3) The court may receive and consider, at a hearing | ||||||
22 | held pursuant to this subsection (f), evidence and | ||||||
23 | information that would be inadmissible under the Illinois | ||||||
24 | rules of evidence.
| ||||||
25 | (4) Order to repatriate and deposit. | ||||||
26 | (A) In general. Pursuant to its authority to enter |
| |||||||
| |||||||
1 | a pretrial restraining order under this Section, the | ||||||
2 | court may order a defendant to repatriate any property | ||||||
3 | that may be seized and forfeited and to deposit that | ||||||
4 | property pending trial with the Illinois State Police | ||||||
5 | or another law enforcement agency designated by the | ||||||
6 | Illinois State Police. | ||||||
7 | (B) Failure to comply. Failure to comply with an | ||||||
8 | order under this subsection (f) is punishable as a | ||||||
9 | civil or criminal contempt of court.
| ||||||
10 | (g) Warrant of seizure. The State may request the issuance | ||||||
11 | of a warrant authorizing the seizure of property described in | ||||||
12 | subsection (h) in the same manner as provided for a search | ||||||
13 | warrant. If the court determines that there is probable cause | ||||||
14 | to believe that the property to be seized would be subject to | ||||||
15 | forfeiture, the court shall issue a warrant authorizing the | ||||||
16 | seizure of such property. | ||||||
17 | (h) Forfeiture. | ||||||
18 | (1) The following are subject to forfeiture: | ||||||
19 | (A) any property, real or personal, constituting, | ||||||
20 | derived from, or traceable to any proceeds the person | ||||||
21 | obtained directly or indirectly, as a result of a | ||||||
22 | violation of this Article; | ||||||
23 | (B) any of the person's property used, or intended | ||||||
24 | to be used, in any manner or part, to commit, or to | ||||||
25 | facilitate the commission of, a violation of this | ||||||
26 | Article; |
| |||||||
| |||||||
1 | (C) all conveyances, including aircraft, vehicles | ||||||
2 | or vessels, which are used, or intended for use, to | ||||||
3 | transport, or in any manner to facilitate the | ||||||
4 | transportation, sale, receipt, possession, or | ||||||
5 | concealment of property described in subparagraphs (A) | ||||||
6 | and (B), but: | ||||||
7 | (i) no conveyance used by any person as a | ||||||
8 | common carrier in the transaction of business as a | ||||||
9 | common carrier is subject to forfeiture under this | ||||||
10 | Section unless it appears that the owner or other | ||||||
11 | person in charge of the conveyance is a consenting | ||||||
12 | party or privy to a violation of this Article; | ||||||
13 | (ii) no conveyance is subject to forfeiture | ||||||
14 | under this Section by reason of any act or omission | ||||||
15 | which the owner proves to have been committed or | ||||||
16 | omitted without his or her knowledge or consent; | ||||||
17 | (iii) a forfeiture of a conveyance encumbered | ||||||
18 | by a bona fide security interest is subject to the | ||||||
19 | interest of the secured party if he or she neither | ||||||
20 | had knowledge of nor consented to the act or | ||||||
21 | omission; | ||||||
22 | (D) all real property, including any right, title, | ||||||
23 | and interest (including, but not limited to, any | ||||||
24 | leasehold interest or the beneficial interest in a land | ||||||
25 | trust) in the whole of any lot or tract of land and any | ||||||
26 | appurtenances or improvements, which is used or |
| |||||||
| |||||||
1 | intended to be used, in any manner or part, to commit, | ||||||
2 | or in any manner to facilitate the commission of, any | ||||||
3 | violation of this Article or that is the proceeds of | ||||||
4 | any violation or act that constitutes a violation of | ||||||
5 | this Article.
| ||||||
6 | (2) Property subject to forfeiture under this Article | ||||||
7 | may be seized by the Director or any peace officer upon | ||||||
8 | process or seizure warrant issued by any court having | ||||||
9 | jurisdiction over the property. Seizure by the Director or | ||||||
10 | any peace officer without process may be made: | ||||||
11 | (A) if the seizure is incident to a seizure | ||||||
12 | warrant; | ||||||
13 | (B) if the property subject to seizure has been the | ||||||
14 | subject of a prior judgment in favor of the State in a | ||||||
15 | criminal proceeding, or in an injunction or forfeiture | ||||||
16 | proceeding based upon this Article; | ||||||
17 | (C) if there is probable cause to believe that the | ||||||
18 | property is directly or indirectly dangerous to health | ||||||
19 | or safety; | ||||||
20 | (D) if there is probable cause to believe that the | ||||||
21 | property is subject to forfeiture under this Article | ||||||
22 | and the property is seized under circumstances in which | ||||||
23 | a warrantless seizure or arrest would be reasonable; or | ||||||
24 | (E) in accordance with the Code of Criminal | ||||||
25 | Procedure of 1963. | ||||||
26 | (3) In the event of seizure pursuant to paragraph (2), |
| |||||||
| |||||||
1 | forfeiture proceedings shall be instituted in accordance | ||||||
2 | with subsections (i) through (r). | ||||||
3 | (4) Property taken or detained under this Section shall | ||||||
4 | not be subject to replevin, but is deemed to be in the | ||||||
5 | custody of the Director subject only to the order and | ||||||
6 | judgments of the circuit court having jurisdiction over the | ||||||
7 | forfeiture proceedings and the decisions of the State's | ||||||
8 | Attorney under this Article. When property is seized under | ||||||
9 | this Article, the seizing agency shall promptly conduct an | ||||||
10 | inventory of the seized property and estimate the | ||||||
11 | property's value and shall forward a copy of the inventory | ||||||
12 | of seized property and the estimate of the property's value | ||||||
13 | to the Director. Upon receiving notice of seizure, the | ||||||
14 | Director may: | ||||||
15 | (A) place the property under seal; | ||||||
16 | (B) remove the property to a place designated by | ||||||
17 | the Director; | ||||||
18 | (C) keep the property in the possession of the | ||||||
19 | seizing agency; | ||||||
20 | (D) remove the property to a storage area for | ||||||
21 | safekeeping or, if the property is a negotiable | ||||||
22 | instrument or money and is not needed for evidentiary | ||||||
23 | purposes, deposit it in an interest bearing account; | ||||||
24 | (E) place the property under constructive seizure | ||||||
25 | by posting notice of pending forfeiture on it, by | ||||||
26 | giving notice of pending forfeiture to its owners and |
| |||||||
| |||||||
1 | interest holders, or by filing notice of pending | ||||||
2 | forfeiture in any appropriate public record relating | ||||||
3 | to the property; or | ||||||
4 | (F) provide for another agency or custodian, | ||||||
5 | including an owner, secured party, or lienholder, to | ||||||
6 | take custody of the property upon the terms and | ||||||
7 | conditions set by the Director. | ||||||
8 | (5) When property is forfeited under this Article, the | ||||||
9 | Director shall sell all such property unless such property | ||||||
10 | is required by law to be destroyed or is harmful to the | ||||||
11 | public, and shall distribute the proceeds of the sale, | ||||||
12 | together with any moneys forfeited or seized, in accordance | ||||||
13 | with paragraph (6). However, upon the application of the | ||||||
14 | seizing agency or prosecutor who was responsible for the | ||||||
15 | investigation, arrest or arrests and prosecution which | ||||||
16 | lead to the forfeiture, the Director may return any item of | ||||||
17 | forfeited property to the seizing agency or prosecutor for | ||||||
18 | official use in the enforcement of laws, if the agency or | ||||||
19 | prosecutor can demonstrate that the item requested would be | ||||||
20 | useful to the agency or prosecutor in its enforcement | ||||||
21 | efforts. When any real property returned to the seizing | ||||||
22 | agency is sold by the agency or its unit of government, the | ||||||
23 | proceeds of the sale shall be delivered to the Director and | ||||||
24 | distributed in accordance with paragraph (6). | ||||||
25 | (6) All monies and the sale proceeds of all other | ||||||
26 | property forfeited and seized under this Article shall be |
| |||||||
| |||||||
1 | distributed as follows: | ||||||
2 | (A) 65% shall be distributed to the metropolitan | ||||||
3 | enforcement group, local, municipal, county, or State | ||||||
4 | law enforcement agency or agencies which conducted or | ||||||
5 | participated in the investigation resulting in the | ||||||
6 | forfeiture. The distribution shall bear a reasonable | ||||||
7 | relationship to the degree of direct participation of | ||||||
8 | the law enforcement agency in the effort resulting in | ||||||
9 | the forfeiture, taking into account the total value of | ||||||
10 | the property forfeited and the total law enforcement | ||||||
11 | effort with respect to the violation of the law upon | ||||||
12 | which the forfeiture is based. Amounts distributed to | ||||||
13 | the agency or agencies shall be used for the | ||||||
14 | enforcement of laws. | ||||||
15 | (B)(i) 12.5% shall be distributed to the Office of | ||||||
16 | the State's Attorney of the county in which the | ||||||
17 | prosecution resulting in the forfeiture was | ||||||
18 | instituted, deposited in a special fund in the county | ||||||
19 | treasury and appropriated to the State's Attorney for | ||||||
20 | use in the enforcement of laws. In counties over | ||||||
21 | 3,000,000 population, 25% shall be distributed to the | ||||||
22 | Office of the State's Attorney for use in the | ||||||
23 | enforcement of laws. If the prosecution is undertaken | ||||||
24 | solely by the Attorney General, the portion provided | ||||||
25 | hereunder shall be distributed to the Attorney General | ||||||
26 | for use in the enforcement of laws. |
| |||||||
| |||||||
1 | (ii) 12.5% shall be distributed to the Office of | ||||||
2 | the State's Attorneys Appellate Prosecutor and | ||||||
3 | deposited in the Narcotics Profit Forfeiture Fund of | ||||||
4 | that office to be used for additional expenses incurred | ||||||
5 | in the investigation, prosecution and appeal of cases | ||||||
6 | arising under laws. The Office of the State's Attorneys | ||||||
7 | Appellate Prosecutor shall not receive distribution | ||||||
8 | from cases brought in counties with over 3,000,000 | ||||||
9 | population. | ||||||
10 | (C) 10% shall be retained by the Department of | ||||||
11 | State Police for expenses related to the | ||||||
12 | administration and sale of seized and forfeited | ||||||
13 | property. | ||||||
14 | Moneys and the sale proceeds distributed to the | ||||||
15 | Department of State Police under this Article shall be | ||||||
16 | deposited in the Money Laundering Asset Recovery Fund | ||||||
17 | created in the State treasury and shall be used by the | ||||||
18 | Department of State Police for State law enforcement | ||||||
19 | purposes. | ||||||
20 | (7) All moneys and sale proceeds of property forfeited | ||||||
21 | and seized under this Article and distributed according to | ||||||
22 | paragraph (6) may also be used to purchase opioid | ||||||
23 | antagonists as defined in Section 5-23 of the Alcoholism | ||||||
24 | and Other Drug Abuse and Dependency Act. | ||||||
25 | (i) Notice to owner or interest holder. | ||||||
26 | (1) Whenever notice of pending forfeiture or service of |
| |||||||
| |||||||
1 | an in rem complaint is required under the provisions of | ||||||
2 | this Article, such notice or service shall be given as | ||||||
3 | follows: | ||||||
4 | (A) If the owner's or interest holder's name and | ||||||
5 | current address are known, then by either personal | ||||||
6 | service or mailing a copy of the notice by certified | ||||||
7 | mail, return receipt requested, to that address. For | ||||||
8 | purposes of notice under this Section, if a person has | ||||||
9 | been arrested for the conduct giving rise to the | ||||||
10 | forfeiture, then the address provided to the arresting | ||||||
11 | agency at the time of arrest shall be deemed to be that | ||||||
12 | person's known address. Provided, however, if an owner | ||||||
13 | or interest holder's address changes prior to the | ||||||
14 | effective date of the notice of pending forfeiture, the | ||||||
15 | owner or interest holder shall promptly notify the | ||||||
16 | seizing agency of the change in address or, if the | ||||||
17 | owner or interest holder's address changes subsequent | ||||||
18 | to the effective date of the notice of pending | ||||||
19 | forfeiture, the owner or interest holder shall | ||||||
20 | promptly notify the State's Attorney of the change in | ||||||
21 | address; or | ||||||
22 | (B) If the property seized is a conveyance, to the | ||||||
23 | address reflected in the office of the agency or | ||||||
24 | official in which title or interest to the conveyance | ||||||
25 | is required by law to be recorded, then by mailing a | ||||||
26 | copy of the notice by certified mail, return receipt |
| |||||||
| |||||||
1 | requested, to that address; or | ||||||
2 | (C) If the owner's or interest holder's address is | ||||||
3 | not known, and is not on record as provided in | ||||||
4 | paragraph (B), then by publication for 3 successive | ||||||
5 | weeks in a newspaper of general circulation in the | ||||||
6 | county in which the seizure occurred. | ||||||
7 | (2) Notice served under this Article is effective upon | ||||||
8 | personal service, the last date of publication, or the | ||||||
9 | mailing of written notice, whichever is earlier. | ||||||
10 | (j) Notice to State's Attorney. The law enforcement agency | ||||||
11 | seizing property for forfeiture under this Article shall, | ||||||
12 | within 90 days after seizure, notify the State's Attorney for | ||||||
13 | the county, either where an act or omission giving rise to the | ||||||
14 | forfeiture occurred or where the property was seized, of the | ||||||
15 | seizure of the property and the facts and circumstances giving | ||||||
16 | rise to the seizure and shall provide the State's Attorney with | ||||||
17 | the inventory of the property and its estimated value. When the | ||||||
18 | property seized for forfeiture is a vehicle, the law | ||||||
19 | enforcement agency seizing the property shall immediately | ||||||
20 | notify the Secretary of State that forfeiture proceedings are | ||||||
21 | pending regarding such vehicle. | ||||||
22 | (k) Non-judicial forfeiture. If non-real property that | ||||||
23 | exceeds $20,000 in value excluding the value of any conveyance, | ||||||
24 | or if real property is seized under the provisions of this | ||||||
25 | Article, the State's Attorney shall institute judicial in rem | ||||||
26 | forfeiture proceedings as described in subsection (l) of this |
| |||||||
| |||||||
1 | Section within 45 days from receipt of notice of seizure from | ||||||
2 | the seizing agency under subsection (j) of this Section. | ||||||
3 | However, if non-real property that does not exceed $20,000 in | ||||||
4 | value excluding the value of any conveyance is seized, the | ||||||
5 | following procedure shall be used: | ||||||
6 | (1) If, after review of the facts surrounding the | ||||||
7 | seizure, the State's Attorney is of the opinion that the | ||||||
8 | seized property is subject to forfeiture, then within 45 | ||||||
9 | days after the receipt of notice of seizure from the | ||||||
10 | seizing agency, the State's Attorney shall cause notice of | ||||||
11 | pending forfeiture to be given to the owner of the property | ||||||
12 | and all known interest holders of the property in | ||||||
13 | accordance with subsection (i) of this Section. | ||||||
14 | (2) The notice of pending forfeiture must include a | ||||||
15 | description of the property, the estimated value of the | ||||||
16 | property, the date and place of seizure, the conduct giving | ||||||
17 | rise to forfeiture or the violation of law alleged, and a | ||||||
18 | summary of procedures and procedural rights applicable to | ||||||
19 | the forfeiture action. | ||||||
20 | (3)(A) Any person claiming an interest in property | ||||||
21 | which is the subject of notice under paragraph (1) of this | ||||||
22 | subsection (k), must, in order to preserve any rights or | ||||||
23 | claims to the property, within 45 days after the effective | ||||||
24 | date of notice as described in subsection (i) of this | ||||||
25 | Section, file a verified claim with the State's Attorney | ||||||
26 | expressing his or her interest in the property. The claim |
| |||||||
| |||||||
1 | must set forth: | ||||||
2 | (i) the caption of the proceedings as set forth on | ||||||
3 | the notice of pending forfeiture and the name of the | ||||||
4 | claimant; | ||||||
5 | (ii) the address at which the claimant will accept | ||||||
6 | mail; | ||||||
7 | (iii) the nature and extent of the claimant's | ||||||
8 | interest in the property; | ||||||
9 | (iv) the date, identity of the transferor, and | ||||||
10 | circumstances of the claimant's acquisition of the | ||||||
11 | interest in the property;
| ||||||
12 | (v) the name and address of all other persons known | ||||||
13 | to have an interest in the property; | ||||||
14 | (vi) the specific provision of law relied on in | ||||||
15 | asserting the property is not subject to forfeiture; | ||||||
16 | (vii) all essential facts supporting each | ||||||
17 | assertion; and | ||||||
18 | (viii) the relief sought. | ||||||
19 | (B) If a claimant files the claim and deposits with the | ||||||
20 | State's Attorney a cost bond, in the form of a cashier's | ||||||
21 | check payable to the clerk of the court, in the sum of 10% | ||||||
22 | of the reasonable value of the property as alleged by the | ||||||
23 | State's Attorney or the sum of $100, whichever is greater, | ||||||
24 | upon condition that, in the case of forfeiture, the | ||||||
25 | claimant must pay all costs and expenses of forfeiture | ||||||
26 | proceedings, then the State's Attorney shall institute |
| |||||||
| |||||||
1 | judicial in rem forfeiture proceedings and deposit the cost | ||||||
2 | bond with the clerk of the court as described in subsection | ||||||
3 | (l) of this Section within 45 days after receipt of the | ||||||
4 | claim and cost bond. In lieu of a cost bond, a person | ||||||
5 | claiming interest in the seized property may file, under | ||||||
6 | penalty of perjury, an indigency affidavit which has been | ||||||
7 | approved by a circuit court judge. | ||||||
8 | (C) If none of the seized property is forfeited in the | ||||||
9 | judicial in rem proceeding, the clerk of the court shall | ||||||
10 | return to the claimant, unless the court orders otherwise, | ||||||
11 | 90% of the sum which has been deposited and shall retain as | ||||||
12 | costs 10% of the money deposited. If any of the seized | ||||||
13 | property is forfeited under the judicial forfeiture | ||||||
14 | proceeding, the clerk of the court shall transfer 90% of | ||||||
15 | the sum which has been deposited to the State's Attorney | ||||||
16 | prosecuting the civil forfeiture to be applied to the costs | ||||||
17 | of prosecution and the clerk shall retain as costs 10% of | ||||||
18 | the sum deposited. | ||||||
19 | (4) If no claim is filed or bond given within the 45 | ||||||
20 | day period as described in paragraph (3) of this subsection | ||||||
21 | (k), the State's Attorney shall declare the property | ||||||
22 | forfeited and shall promptly notify the owner and all known | ||||||
23 | interest holders of the property and the Director of State | ||||||
24 | Police of the declaration of forfeiture and the Director | ||||||
25 | shall dispose of the property in accordance with law. | ||||||
26 | (l) Judicial in rem procedures. If property seized under |
| |||||||
| |||||||
1 | the provisions of this Article is non-real property that | ||||||
2 | exceeds $20,000 in value excluding the value of any conveyance, | ||||||
3 | or is real property, or a claimant has filed a claim and a cost | ||||||
4 | bond under paragraph (3) of subsection (k) of this Section, the | ||||||
5 | following judicial in rem procedures shall apply: | ||||||
6 | (1) If, after a review of the facts surrounding the | ||||||
7 | seizure, the State's Attorney is of the opinion that the | ||||||
8 | seized property is subject to forfeiture, then within 45 | ||||||
9 | days of the receipt of notice of seizure by the seizing | ||||||
10 | agency or the filing of the claim and cost bond, whichever | ||||||
11 | is later, the State's Attorney shall institute judicial | ||||||
12 | forfeiture proceedings by filing a verified complaint for | ||||||
13 | forfeiture and, if the claimant has filed a claim and cost | ||||||
14 | bond, by depositing the cost bond with the clerk of the | ||||||
15 | court. When authorized by law, a forfeiture must be ordered | ||||||
16 | by a court on an action in rem brought by a State's | ||||||
17 | Attorney under a verified complaint for forfeiture. | ||||||
18 | (2) During the probable cause portion of the judicial | ||||||
19 | in rem proceeding wherein the State presents its | ||||||
20 | case-in-chief, the court must receive and consider, among | ||||||
21 | other things, all relevant hearsay evidence and | ||||||
22 | information. The laws of evidence relating to civil actions | ||||||
23 | apply to all other portions of the judicial in rem | ||||||
24 | proceeding. | ||||||
25 | (3) Only an owner of or interest holder in the property | ||||||
26 | may file an answer asserting a claim against the property |
| |||||||
| |||||||
1 | in the action in rem. For purposes of this Section, the | ||||||
2 | owner or interest holder shall be referred to as claimant. | ||||||
3 | Upon motion of the State, the court shall first hold a | ||||||
4 | hearing, wherein any claimant must establish by a | ||||||
5 | preponderance of the evidence, that he or she has a lawful, | ||||||
6 | legitimate ownership interest in the property and that it | ||||||
7 | was obtained through a lawful source. | ||||||
8 | (4) The answer must be signed by the owner or interest | ||||||
9 | holder under penalty of perjury and must set forth: | ||||||
10 | (A) the caption of the proceedings as set forth on | ||||||
11 | the notice of pending forfeiture and the name of the | ||||||
12 | claimant; | ||||||
13 | (B) the address at which the claimant will accept | ||||||
14 | mail; | ||||||
15 | (C) the nature and extent of the claimant's | ||||||
16 | interest in the property; | ||||||
17 | (D) the date, identity of transferor, and | ||||||
18 | circumstances of the claimant's acquisition of the | ||||||
19 | interest in the property; | ||||||
20 | (E) the name and address of all other persons known | ||||||
21 | to have an interest in the property; | ||||||
22 | (F) all essential facts supporting each assertion; | ||||||
23 | and | ||||||
24 | (G) the precise relief sought.
| ||||||
25 | (5) The answer must be filed with the court within 45 | ||||||
26 | days after service of the civil in rem complaint. |
| |||||||
| |||||||
1 | (6) The hearing must be held within 60 days after | ||||||
2 | filing of the answer unless continued for good cause.
| ||||||
3 | (7) The State shall show the existence of probable | ||||||
4 | cause for forfeiture of the property. If the State shows | ||||||
5 | probable cause, the claimant has the burden of showing by a | ||||||
6 | preponderance of the evidence that the claimant's interest | ||||||
7 | in the property is not subject to forfeiture.
| ||||||
8 | (8) If the State does not show existence of probable | ||||||
9 | cause, the court shall order the interest in the property | ||||||
10 | returned or conveyed to the claimant and shall order all | ||||||
11 | other property forfeited to the State. If the State does | ||||||
12 | show existence of probable cause, the court shall order all | ||||||
13 | property forfeited to the State. | ||||||
14 | (9) A defendant convicted in any criminal proceeding is | ||||||
15 | precluded from later denying the essential allegations of | ||||||
16 | the criminal offense of which the defendant was convicted | ||||||
17 | in any proceeding under this Article regardless of the | ||||||
18 | pendency of an appeal from that conviction. However, | ||||||
19 | evidence of the pendency of an appeal is admissible. | ||||||
20 | (10) An acquittal or dismissal in a criminal proceeding | ||||||
21 | does not preclude civil proceedings under this Article; | ||||||
22 | however, for good cause shown, on a motion by the State's | ||||||
23 | Attorney, the court may stay civil forfeiture proceedings | ||||||
24 | during the criminal trial for a related criminal indictment | ||||||
25 | or information alleging a money laundering violation. Such | ||||||
26 | a stay shall not be available pending an appeal. Property |
| |||||||
| |||||||
1 | subject to forfeiture under this Article shall not be | ||||||
2 | subject to return or release by a court exercising | ||||||
3 | jurisdiction over a criminal case involving the seizure of | ||||||
4 | such property unless such return or release is consented to | ||||||
5 | by the State's Attorney. | ||||||
6 | (11) All property declared forfeited under this | ||||||
7 | Article vests in this State on the commission of the | ||||||
8 | conduct giving rise to forfeiture together with the | ||||||
9 | proceeds of the property after that time. Any such property | ||||||
10 | or proceeds subsequently transferred to any person remain | ||||||
11 | subject to forfeiture and thereafter shall be ordered | ||||||
12 | forfeited. | ||||||
13 | (12) A civil action under this Article must be | ||||||
14 | commenced within 5 years after the last conduct giving rise | ||||||
15 | to forfeiture became known or should have become known or 5 | ||||||
16 | years after the forfeitable property is discovered, | ||||||
17 | whichever is later, excluding any time during which either | ||||||
18 | the property or claimant is out of the State or in | ||||||
19 | confinement or during which criminal proceedings relating | ||||||
20 | to the same conduct are in progress. | ||||||
21 | (m) Stay of time periods. If property is seized for | ||||||
22 | evidence and for forfeiture, the time periods for instituting | ||||||
23 | judicial and non-judicial forfeiture proceedings shall not | ||||||
24 | begin until the property is no longer necessary for evidence. | ||||||
25 | (n) Settlement of claims. Notwithstanding other provisions | ||||||
26 | of this Article, the State's Attorney and a claimant of seized |
| |||||||
| |||||||
1 | property may enter into an agreed-upon settlement concerning | ||||||
2 | the seized property in such an amount and upon such terms as | ||||||
3 | are set out in writing in a settlement agreement. | ||||||
4 | (o) Property constituting attorney fees. Nothing in this | ||||||
5 | Article applies to property which constitutes reasonable bona | ||||||
6 | fide attorney's fees paid to an attorney for services rendered | ||||||
7 | or to be rendered in the forfeiture proceeding or criminal | ||||||
8 | proceeding relating directly thereto where such property was | ||||||
9 | paid before its seizure, before the issuance of any seizure | ||||||
10 | warrant or court order prohibiting transfer of the property and | ||||||
11 | where the attorney, at the time he or she received the property | ||||||
12 | did not know that it was property subject to forfeiture under | ||||||
13 | this Article. | ||||||
14 | (p) Construction. It is the intent of the General Assembly | ||||||
15 | that the forfeiture provisions of this Article be liberally | ||||||
16 | construed so as to effect their remedial purpose. The | ||||||
17 | forfeiture of property and other remedies hereunder shall be | ||||||
18 | considered to be in addition to, and not exclusive of, any | ||||||
19 | sentence or other remedy provided by law. | ||||||
20 | (q) Judicial review. If property has been declared | ||||||
21 | forfeited under subsection (k) of this Section, any person who | ||||||
22 | has an interest in the property declared forfeited may, within | ||||||
23 | 30 days after the effective date of the notice of the | ||||||
24 | declaration of forfeiture, file a claim and cost bond as | ||||||
25 | described in paragraph (3) of subsection (k) of this Section. | ||||||
26 | If a claim and cost bond is filed under this Section, then the |
| |||||||
| |||||||
1 | procedures described in subsection (l) of this Section apply. | ||||||
2 | (r) Burden of proof of exemption or exception. It is not | ||||||
3 | necessary for the State to negate any exemption or exception in | ||||||
4 | this Article in any complaint, information, indictment or other | ||||||
5 | pleading or in any trial, hearing, or other proceeding under | ||||||
6 | this Article. The burden of proof of any exemption or exception | ||||||
7 | is upon the person claiming it. | ||||||
8 | (s) Review of administrative decisions.
All administrative | ||||||
9 | findings, rulings, final determinations, findings, and | ||||||
10 | conclusions of the State's Attorney's Office under this Article | ||||||
11 | are final and conclusive decisions of the matters involved. Any | ||||||
12 | person aggrieved by the decision may obtain review of the | ||||||
13 | decision pursuant to the provisions of the Administrative | ||||||
14 | Review Law and the rules adopted pursuant to that Law. Pending | ||||||
15 | final decision on such review, the administrative acts, orders, | ||||||
16 | and rulings of the State's Attorney's Office remain in full | ||||||
17 | force and effect unless modified or suspended by order of court | ||||||
18 | pending final judicial decision. Pending final decision on such | ||||||
19 | review, the acts, orders, and rulings of the State's Attorney's | ||||||
20 | Office remain in full force and effect, unless stayed by order | ||||||
21 | of court. However, no stay of any decision of the | ||||||
22 | administrative agency shall issue unless the person aggrieved | ||||||
23 | by the decision establishes by a preponderance of the evidence | ||||||
24 | that good cause exists for the stay. In determining good cause, | ||||||
25 | the court shall find that the aggrieved party has established a | ||||||
26 | substantial likelihood of prevailing on the merits and that |
| |||||||
| |||||||
1 | granting the stay will not have an injurious effect on the | ||||||
2 | general public.
| ||||||
3 | (Source: P.A. 99-480, eff. 9-9-15.)
| ||||||
4 | (Text of Section after amendment by P.A. 100-512 )
| ||||||
5 | Sec. 29B-1. Money laundering. | ||||||
6 | (a) A person commits the offense of money laundering:
| ||||||
7 | (1) when, knowing that the property involved in a | ||||||
8 | financial transaction represents the proceeds of some form | ||||||
9 | of unlawful activity, he or she conducts or attempts to | ||||||
10 | conduct the such a financial transaction which in fact | ||||||
11 | involves criminally derived property: | ||||||
12 | (A) with the intent to promote the carrying on of | ||||||
13 | the unlawful activity from which the criminally | ||||||
14 | derived property was obtained; or | ||||||
15 | (B) where he or she knows or reasonably should know | ||||||
16 | that the financial transaction is designed in whole or | ||||||
17 | in part: | ||||||
18 | (i) to conceal or disguise the nature, the | ||||||
19 | location, the source, the ownership or the control | ||||||
20 | of the criminally derived property; or | ||||||
21 | (ii) to avoid a transaction reporting | ||||||
22 | requirement under State law; or | ||||||
23 | (1.5) when he or she transports, transmits, or | ||||||
24 | transfers, or attempts to transport, transmit, or transfer | ||||||
25 | a monetary instrument: |
| |||||||
| |||||||
1 | (A) with the intent to promote the carrying on of | ||||||
2 | the unlawful activity from which the criminally | ||||||
3 | derived property was obtained; or | ||||||
4 | (B) knowing, or having reason to know, that the | ||||||
5 | financial transaction is designed in whole or in part: | ||||||
6 | (i) to conceal or disguise the nature, the | ||||||
7 | location, the source, the ownership or the control | ||||||
8 | of the criminally derived property; or | ||||||
9 | (ii) to avoid a transaction reporting | ||||||
10 | requirement under State law;
or
| ||||||
11 | (2) when, with the intent to:
| ||||||
12 | (A) promote the carrying on of a specified criminal | ||||||
13 | activity as defined
in this Article; or
| ||||||
14 | (B) conceal or disguise the nature, location, | ||||||
15 | source, ownership, or
control of property believed to | ||||||
16 | be the proceeds of a specified criminal
activity as | ||||||
17 | defined in this Article by subdivision (b)(6) ; or | ||||||
18 | (C) avoid a transaction reporting requirement | ||||||
19 | under State law,
| ||||||
20 | he or she conducts or attempts to conduct a financial | ||||||
21 | transaction
involving property he or she believes to be the | ||||||
22 | proceeds of specified criminal
activity as defined by | ||||||
23 | subdivision (b)(6) or property used to conduct or
| ||||||
24 | facilitate specified criminal activity as defined in this | ||||||
25 | Article by subdivision (b)(6) .
| ||||||
26 | (b) (Blank). As used in this Section:
|
| |||||||
| |||||||
1 | (0.5) "Knowing that the property involved in a | ||||||
2 | financial transaction represents the proceeds of some form | ||||||
3 | of unlawful activity" means that the person knew the | ||||||
4 | property involved in the transaction represented proceeds | ||||||
5 | from some form, though not necessarily which form, of | ||||||
6 | activity that constitutes a felony under State, federal, or | ||||||
7 | foreign law.
| ||||||
8 | (1) "Financial transaction" means a purchase, sale, | ||||||
9 | loan, pledge, gift,
transfer, delivery or other | ||||||
10 | disposition utilizing criminally derived property,
and | ||||||
11 | with respect to financial institutions, includes a | ||||||
12 | deposit, withdrawal,
transfer between accounts, exchange | ||||||
13 | of currency, loan, extension of credit,
purchase or sale of | ||||||
14 | any stock, bond, certificate of deposit or other monetary
| ||||||
15 | instrument, use of safe deposit box, or any other payment, | ||||||
16 | transfer or delivery by, through, or to a
financial | ||||||
17 | institution.
For purposes of clause (a)(2) of this Section, | ||||||
18 | the term "financial
transaction" also
means a transaction | ||||||
19 | which without regard to whether the funds, monetary
| ||||||
20 | instruments, or real or personal property involved in the | ||||||
21 | transaction are
criminally derived, any transaction which | ||||||
22 | in any way or degree: (1) involves
the movement of funds by | ||||||
23 | wire or any other means; (2) involves one or more
monetary | ||||||
24 | instruments; or (3) the transfer of title to any real or | ||||||
25 | personal
property.
The receipt by an attorney of bona fide | ||||||
26 | fees for the purpose
of legal representation is not a |
| |||||||
| |||||||
1 | financial transaction for purposes of this
Section.
| ||||||
2 | (2) "Financial institution" means any bank; saving and | ||||||
3 | loan
association; trust company; agency or branch of a | ||||||
4 | foreign bank in the
United States; currency exchange; | ||||||
5 | credit union, mortgage banking
institution; pawnbroker; | ||||||
6 | loan or finance company; operator of a credit card
system; | ||||||
7 | issuer, redeemer or cashier of travelers checks, checks or | ||||||
8 | money
orders; dealer in precious metals, stones or jewels; | ||||||
9 | broker or dealer in
securities or commodities; investment | ||||||
10 | banker; or investment company.
| ||||||
11 | (3) "Monetary instrument" means United States coins | ||||||
12 | and currency;
coins and currency of a foreign country; | ||||||
13 | travelers checks; personal checks,
bank checks, and money | ||||||
14 | orders; investment securities; bearer
negotiable | ||||||
15 | instruments; bearer investment securities; or bearer | ||||||
16 | securities
and certificates of stock in such form that | ||||||
17 | title thereto passes upon
delivery.
| ||||||
18 | (4) "Criminally derived property" means: (A) any | ||||||
19 | property, real or personal, constituting
or
derived from | ||||||
20 | proceeds obtained, directly or indirectly, from activity | ||||||
21 | that constitutes a felony under State, federal, or foreign | ||||||
22 | law; or (B) any property
represented to be property | ||||||
23 | constituting or derived from proceeds obtained,
directly | ||||||
24 | or indirectly, from activity that constitutes a felony | ||||||
25 | under State, federal, or foreign law.
| ||||||
26 | (5) "Conduct" or "conducts" includes, in addition to |
| |||||||
| |||||||
1 | its ordinary
meaning, initiating, concluding, or | ||||||
2 | participating in initiating or concluding
a transaction.
| ||||||
3 | (6) "Specified criminal activity" means any violation | ||||||
4 | of Section 29D-15.1
(720 ILCS 5/29D-15.1) and any violation | ||||||
5 | of Article 29D of this Code.
| ||||||
6 | (7) "Director" means the Director of State Police or | ||||||
7 | his or her designated agents. | ||||||
8 | (8) "Department" means the Department of State Police | ||||||
9 | of the State of Illinois or its successor agency. | ||||||
10 | (9) "Transaction reporting requirement under State | ||||||
11 | law" means any violation as defined under the Currency | ||||||
12 | Reporting Act.
| ||||||
13 | (c) Sentence.
| ||||||
14 | (1) Laundering of criminally derived property of a | ||||||
15 | value not exceeding
$10,000 is a Class 3 felony;
| ||||||
16 | (2) Laundering of criminally derived property of a | ||||||
17 | value exceeding
$10,000 but not exceeding $100,000 is a | ||||||
18 | Class 2 felony;
| ||||||
19 | (3) Laundering of criminally derived property of a | ||||||
20 | value exceeding
$100,000 but not exceeding $500,000 is a | ||||||
21 | Class 1 felony;
| ||||||
22 | (4) Money laundering in violation of subsection (a)(2) | ||||||
23 | of this Section
is a Class X felony;
| ||||||
24 | (5) Laundering of criminally derived property of a | ||||||
25 | value exceeding
$500,000 is a
Class 1 non-probationable | ||||||
26 | felony;
|
| |||||||
| |||||||
1 | (6) In a prosecution under clause (a)(1.5)(B)(ii) of | ||||||
2 | this Section, the sentences are as follows: | ||||||
3 | (A) Laundering of property of a value not exceeding | ||||||
4 | $10,000 is a Class 3 felony; | ||||||
5 | (B) Laundering of property of a value exceeding | ||||||
6 | $10,000 but not exceeding $100,000 is a Class 2 felony; | ||||||
7 | (C) Laundering of property of a value exceeding | ||||||
8 | $100,000 but not exceeding $500,000 is a Class 1 | ||||||
9 | felony; | ||||||
10 | (D) Laundering of property of a value exceeding | ||||||
11 | $500,000 is a Class 1 non-probationable felony. | ||||||
12 | (d) Evidence. In a prosecution under this Article, either | ||||||
13 | party may introduce the following evidence pertaining to the | ||||||
14 | issue of whether the property or proceeds were known to be some | ||||||
15 | form of criminally derived property or from some form of | ||||||
16 | unlawful activity: | ||||||
17 | (1) A financial transaction was conducted or | ||||||
18 | structured or attempted in violation of the reporting | ||||||
19 | requirements of any State or federal law; or | ||||||
20 | (2) A financial transaction was conducted or attempted | ||||||
21 | with the use of a false or fictitious name or a forged | ||||||
22 | instrument; or | ||||||
23 | (3) A falsely altered or completed written instrument | ||||||
24 | or a written instrument that contains any materially false | ||||||
25 | personal identifying information was made, used, offered | ||||||
26 | or presented, whether accepted or not, in connection with a |
| |||||||
| |||||||
1 | financial transaction; or | ||||||
2 | (4) A financial transaction was structured or | ||||||
3 | attempted to be structured so as to falsely report the | ||||||
4 | actual consideration or value of the transaction; or | ||||||
5 | (5) A money transmitter, a person engaged in a trade or | ||||||
6 | business or any employee of a money transmitter or a person | ||||||
7 | engaged in a trade or business, knows or reasonably should | ||||||
8 | know that false personal identifying information has been | ||||||
9 | presented and incorporates the false personal identifying | ||||||
10 | information into any report or record; or | ||||||
11 | (6) The criminally derived property is transported or | ||||||
12 | possessed in a fashion inconsistent with the ordinary or | ||||||
13 | usual means of transportation or possession of such | ||||||
14 | property and where the property is discovered in the | ||||||
15 | absence of any documentation or other indicia of legitimate | ||||||
16 | origin or right to such property; or | ||||||
17 | (7) A person pays or receives substantially less than | ||||||
18 | face value for one or more monetary instruments; or | ||||||
19 | (8) A person engages in a transaction involving one or | ||||||
20 | more monetary instruments, where the physical condition or | ||||||
21 | form of the monetary instrument or instruments makes it | ||||||
22 | apparent that they are not the product of bona fide | ||||||
23 | business or financial transactions. | ||||||
24 | (e) Duty to enforce this Article. | ||||||
25 | (1) It is the duty of the Department of State Police, | ||||||
26 | and its agents, officers, and investigators, to enforce all |
| |||||||
| |||||||
1 | provisions of this Article, except those specifically | ||||||
2 | delegated, and to cooperate with all agencies charged with | ||||||
3 | the enforcement of the laws of the United States, or of any | ||||||
4 | state, relating to money laundering. Only an agent, | ||||||
5 | officer, or investigator designated by the Director may be | ||||||
6 | authorized in accordance with this Section to serve seizure | ||||||
7 | notices, warrants, subpoenas, and summonses under the | ||||||
8 | authority of this State. | ||||||
9 | (2) Any agent, officer, investigator, or peace officer | ||||||
10 | designated by the Director may: (A) make seizure of | ||||||
11 | property pursuant to the provisions of this Article; and | ||||||
12 | (B) perform such other law enforcement duties as the | ||||||
13 | Director designates. It is the duty of all State's | ||||||
14 | Attorneys to prosecute violations of this Article and | ||||||
15 | institute legal proceedings as authorized under this | ||||||
16 | Article. | ||||||
17 | (f) Protective orders. | ||||||
18 | (1) Upon application of the State, the court may enter | ||||||
19 | a restraining order or injunction, require the execution of | ||||||
20 | a satisfactory performance bond, or take any other action | ||||||
21 | to preserve the availability of property described in | ||||||
22 | subsection (h) for forfeiture under this Article: | ||||||
23 | (A) upon the filing of an indictment, information, | ||||||
24 | or complaint charging a violation of this Article for | ||||||
25 | which forfeiture may be ordered under this Article and | ||||||
26 | alleging that the property with respect to which the |
| |||||||
| |||||||
1 | order is sought would be subject to forfeiture under | ||||||
2 | this Article; or | ||||||
3 | (B) prior to the filing of such an indictment, | ||||||
4 | information, or complaint, if, after notice to persons | ||||||
5 | appearing to have an interest in the property and | ||||||
6 | opportunity for a hearing, the court determines that: | ||||||
7 | (i) there is probable cause to believe that the | ||||||
8 | State will prevail on the issue of forfeiture and | ||||||
9 | that failure to enter the order will result in the | ||||||
10 | property being destroyed, removed from the | ||||||
11 | jurisdiction of the court, or otherwise made | ||||||
12 | unavailable for forfeiture; and | ||||||
13 | (ii) the need to preserve the availability of | ||||||
14 | the property through the entry of the requested | ||||||
15 | order outweighs the hardship on any party against | ||||||
16 | whom the order is to be entered. | ||||||
17 | Provided, however, that an order entered pursuant | ||||||
18 | to subparagraph (B) shall be effective for not more | ||||||
19 | than 90 days, unless extended by the court for good | ||||||
20 | cause shown or unless an indictment, information, | ||||||
21 | complaint, or administrative notice has been filed. | ||||||
22 | (2) A temporary restraining order under this | ||||||
23 | subsection may be entered upon application of the State | ||||||
24 | without notice or opportunity for a hearing when an | ||||||
25 | indictment, information, complaint, or administrative | ||||||
26 | notice has not yet been filed with respect to the property, |
| |||||||
| |||||||
1 | if the State demonstrates that there is probable cause to | ||||||
2 | believe that the property with respect to which the order | ||||||
3 | is sought would be subject to forfeiture under this Section | ||||||
4 | and that provision of notice will jeopardize the | ||||||
5 | availability of the property for forfeiture. Such a | ||||||
6 | temporary order shall expire not more than 30 days after | ||||||
7 | the date on which it is entered, unless extended for good | ||||||
8 | cause shown or unless the party against whom it is entered | ||||||
9 | consents to an extension for a longer period. A hearing | ||||||
10 | requested concerning an order entered under this paragraph | ||||||
11 | shall be held at the earliest possible time and prior to | ||||||
12 | the expiration of the temporary order. | ||||||
13 | (3) The court may receive and consider, at a hearing | ||||||
14 | held pursuant to this subsection (f), evidence and | ||||||
15 | information that would be inadmissible under the Illinois | ||||||
16 | rules of evidence.
| ||||||
17 | (4) Order to repatriate and deposit. | ||||||
18 | (A) In general. Pursuant to its authority to enter | ||||||
19 | a pretrial restraining order under this Section, the | ||||||
20 | court may order a defendant to repatriate any property | ||||||
21 | that may be seized and forfeited and to deposit that | ||||||
22 | property pending trial with the Illinois State Police | ||||||
23 | or another law enforcement agency designated by the | ||||||
24 | Illinois State Police. | ||||||
25 | (B) Failure to comply. Failure to comply with an | ||||||
26 | order under this subsection (f) is punishable as a |
| |||||||
| |||||||
1 | civil or criminal contempt of court.
| ||||||
2 | (g) Warrant of seizure. The State may request the issuance | ||||||
3 | of a warrant authorizing the seizure of property described in | ||||||
4 | subsection (h) in the same manner as provided for a search | ||||||
5 | warrant. If the court determines that there is probable cause | ||||||
6 | to believe that the property to be seized would be subject to | ||||||
7 | forfeiture, the court shall issue a warrant authorizing the | ||||||
8 | seizure of such property. | ||||||
9 | (h) Forfeiture. | ||||||
10 | (1) The following are subject to forfeiture: | ||||||
11 | (A) any property, real or personal, constituting, | ||||||
12 | derived from, or traceable to any proceeds the person | ||||||
13 | obtained directly or indirectly, as a result of a | ||||||
14 | violation of this Article; | ||||||
15 | (B) any of the person's property used, or intended | ||||||
16 | to be used, in any manner or part, to commit, or to | ||||||
17 | facilitate the commission of, a violation of this | ||||||
18 | Article; | ||||||
19 | (C) all conveyances, including aircraft, vehicles | ||||||
20 | or vessels, which are used, or intended for use, to | ||||||
21 | transport, or in any manner to facilitate the | ||||||
22 | transportation, sale, receipt, possession, or | ||||||
23 | concealment of property described in subparagraphs (A) | ||||||
24 | and (B), but: | ||||||
25 | (i) no conveyance used by any person as a | ||||||
26 | common carrier in the transaction of business as a |
| |||||||
| |||||||
1 | common carrier is subject to forfeiture under this | ||||||
2 | Section unless it appears that the owner or other | ||||||
3 | person in charge of the conveyance is a consenting | ||||||
4 | party or privy to a violation of this Article; | ||||||
5 | (ii) no conveyance is subject to forfeiture | ||||||
6 | under this Section by reason of any act or omission | ||||||
7 | which the owner proves to have been committed or | ||||||
8 | omitted without his or her knowledge or consent; | ||||||
9 | (iii) a forfeiture of a conveyance encumbered | ||||||
10 | by a bona fide security interest is subject to the | ||||||
11 | interest of the secured party if he or she neither | ||||||
12 | had knowledge of nor consented to the act or | ||||||
13 | omission; | ||||||
14 | (D) all real property, including any right, title, | ||||||
15 | and interest (including, but not limited to, any | ||||||
16 | leasehold interest or the beneficial interest in a land | ||||||
17 | trust) in the whole of any lot or tract of land and any | ||||||
18 | appurtenances or improvements, which is used or | ||||||
19 | intended to be used, in any manner or part, to commit, | ||||||
20 | or in any manner to facilitate the commission of, any | ||||||
21 | violation of this Article or that is the proceeds of | ||||||
22 | any violation or act that constitutes a violation of | ||||||
23 | this Article. | ||||||
24 | (2) Property subject to forfeiture under this Article | ||||||
25 | may be seized by the Director or any peace officer upon | ||||||
26 | process or seizure warrant issued by any court having |
| |||||||
| |||||||
1 | jurisdiction over the property. Seizure by the Director or | ||||||
2 | any peace officer without process may be made: | ||||||
3 | (A) if the seizure is incident to a seizure | ||||||
4 | warrant; | ||||||
5 | (B) if the property subject to seizure has been the | ||||||
6 | subject of a prior judgment in favor of the State in a | ||||||
7 | criminal proceeding, or in an injunction or forfeiture | ||||||
8 | proceeding based upon this Article; | ||||||
9 | (C) if there is probable cause to believe that the | ||||||
10 | property is directly or indirectly dangerous to health | ||||||
11 | or safety; | ||||||
12 | (D) if there is probable cause to believe that the | ||||||
13 | property is subject to forfeiture under this Article | ||||||
14 | and the property is seized under circumstances in which | ||||||
15 | a warrantless seizure or arrest would be reasonable; or | ||||||
16 | (E) in accordance with the Code of Criminal | ||||||
17 | Procedure of 1963. | ||||||
18 | (3) In the event of seizure pursuant to paragraph (2), | ||||||
19 | forfeiture proceedings shall be instituted in accordance | ||||||
20 | with subsections (i) through (r). | ||||||
21 | (4) Property taken or detained under this Section shall | ||||||
22 | not be subject to replevin, but is deemed to be in the | ||||||
23 | custody of the Director subject only to the order and | ||||||
24 | judgments of the circuit court having jurisdiction over the | ||||||
25 | forfeiture proceedings and the decisions of the State's | ||||||
26 | Attorney under this Article. When property is seized under |
| |||||||
| |||||||
1 | this Article, the seizing agency shall promptly conduct an | ||||||
2 | inventory of the seized property and estimate the | ||||||
3 | property's value and shall forward a copy of the inventory | ||||||
4 | of seized property and the estimate of the property's value | ||||||
5 | to the Director. Upon receiving notice of seizure, the | ||||||
6 | Director may: | ||||||
7 | (A) place the property under seal; | ||||||
8 | (B) remove the property to a place designated by | ||||||
9 | the Director; | ||||||
10 | (C) keep the property in the possession of the | ||||||
11 | seizing agency; | ||||||
12 | (D) remove the property to a storage area for | ||||||
13 | safekeeping or, if the property is a negotiable | ||||||
14 | instrument or money and is not needed for evidentiary | ||||||
15 | purposes, deposit it in an interest bearing account; | ||||||
16 | (E) place the property under constructive seizure | ||||||
17 | by posting notice of pending forfeiture on it, by | ||||||
18 | giving notice of pending forfeiture to its owners and | ||||||
19 | interest holders, or by filing notice of pending | ||||||
20 | forfeiture in any appropriate public record relating | ||||||
21 | to the property; or | ||||||
22 | (F) provide for another agency or custodian, | ||||||
23 | including an owner, secured party, or lienholder, to | ||||||
24 | take custody of the property upon the terms and | ||||||
25 | conditions set by the Director. | ||||||
26 | (5) When property is forfeited under this Article, the |
| |||||||
| |||||||
1 | Director shall sell all such property unless such property | ||||||
2 | is required by law to be destroyed or is harmful to the | ||||||
3 | public, and shall distribute the proceeds of the sale, | ||||||
4 | together with any moneys forfeited or seized, in accordance | ||||||
5 | with paragraph (6). | ||||||
6 | (6) All monies and the sale proceeds of all other | ||||||
7 | property forfeited and seized under this Article shall be | ||||||
8 | distributed as follows: | ||||||
9 | (A) 65% shall be distributed to the metropolitan | ||||||
10 | enforcement group, local, municipal, county, or State | ||||||
11 | law enforcement agency or agencies which conducted or | ||||||
12 | participated in the investigation resulting in the | ||||||
13 | forfeiture. The distribution shall bear a reasonable | ||||||
14 | relationship to the degree of direct participation of | ||||||
15 | the law enforcement agency in the effort resulting in | ||||||
16 | the forfeiture, taking into account the total value of | ||||||
17 | the property forfeited and the total law enforcement | ||||||
18 | effort with respect to the violation of the law upon | ||||||
19 | which the forfeiture is based. Amounts distributed to | ||||||
20 | the agency or agencies shall be used for the | ||||||
21 | enforcement of laws. | ||||||
22 | (B)(i) 12.5% shall be distributed to the Office of | ||||||
23 | the State's Attorney of the county in which the | ||||||
24 | prosecution resulting in the forfeiture was | ||||||
25 | instituted, deposited in a special fund in the county | ||||||
26 | treasury and appropriated to the State's Attorney for |
| |||||||
| |||||||
1 | use in the enforcement of laws. In counties over | ||||||
2 | 3,000,000 population, 25% shall be distributed to the | ||||||
3 | Office of the State's Attorney for use in the | ||||||
4 | enforcement of laws. If the prosecution is undertaken | ||||||
5 | solely by the Attorney General, the portion provided | ||||||
6 | hereunder shall be distributed to the Attorney General | ||||||
7 | for use in the enforcement of laws. | ||||||
8 | (ii) 12.5% shall be distributed to the Office of | ||||||
9 | the State's Attorneys Appellate Prosecutor and | ||||||
10 | deposited in the Narcotics Profit Forfeiture Fund of | ||||||
11 | that office to be used for additional expenses incurred | ||||||
12 | in the investigation, prosecution and appeal of cases | ||||||
13 | arising under laws. The Office of the State's Attorneys | ||||||
14 | Appellate Prosecutor shall not receive distribution | ||||||
15 | from cases brought in counties with over 3,000,000 | ||||||
16 | population. | ||||||
17 | (C) 10% shall be retained by the Department of | ||||||
18 | State Police for expenses related to the | ||||||
19 | administration and sale of seized and forfeited | ||||||
20 | property. | ||||||
21 | Moneys and the sale proceeds distributed to the | ||||||
22 | Department of State Police under this Article shall be | ||||||
23 | deposited in the Money Laundering Asset Recovery Fund | ||||||
24 | created in the State treasury and shall be used by the | ||||||
25 | Department of State Police for State law enforcement | ||||||
26 | purposes. |
| |||||||
| |||||||
1 | (7) All moneys and sale proceeds of property forfeited | ||||||
2 | and seized under this Article and distributed according to | ||||||
3 | paragraph (6) may also be used to purchase opioid | ||||||
4 | antagonists as defined in Section 5-23 of the Alcoholism | ||||||
5 | and Other Drug Abuse and Dependency Act. | ||||||
6 | (7.5) Preliminary Review. | ||||||
7 | (A) Within 14 days of the seizure, the State shall | ||||||
8 | seek a preliminary determination from the circuit | ||||||
9 | court as to whether there is probable cause that the | ||||||
10 | property may be subject to forfeiture. | ||||||
11 | (B) The rules of evidence shall not apply to any | ||||||
12 | proceeding conducted under this Section. | ||||||
13 | (C) The court may conduct the review under | ||||||
14 | subparagraph (A) of this paragraph (7.5) | ||||||
15 | simultaneously with a proceeding under Section 109-1 | ||||||
16 | of the Code of Criminal Procedure of 1963 for a related | ||||||
17 | criminal offense if a prosecution is commenced by | ||||||
18 | information or complaint. | ||||||
19 | (D) The court may accept a finding of probable | ||||||
20 | cause at a preliminary hearing following the filing of | ||||||
21 | an information or complaint charging a related | ||||||
22 | criminal offense or following the return of indictment | ||||||
23 | by a grand jury charging the related offense as | ||||||
24 | sufficient evidence of probable cause as required | ||||||
25 | under subparagraph (A) of this paragraph (7.5). | ||||||
26 | (E) Upon a finding of probable cause as required |
| |||||||
| |||||||
1 | under this Section, the circuit court shall order the | ||||||
2 | property subject to the applicable forfeiture Act held | ||||||
3 | until the conclusion of any forfeiture proceeding. | ||||||
4 | (i) Notice to owner or interest holder. | ||||||
5 | (1) The first attempted service shall be commenced | ||||||
6 | within 28 days of the latter of filing of the verified | ||||||
7 | claim or the receipt of the notice from seizing agency by | ||||||
8 | form 4-64. A complaint for forfeiture or a notice of | ||||||
9 | pending forfeiture shall be served on a claimant if the | ||||||
10 | owner's or interest holder's name and current address are | ||||||
11 | known, then by either: (i) personal service or; (ii) | ||||||
12 | mailing a copy of the notice by certified mail, return | ||||||
13 | receipt requested and first class mail, to that address. If | ||||||
14 | no signed return receipt is received by the State's | ||||||
15 | Attorney within 28 days of mailing or no communication from | ||||||
16 | the owner or interest holder is received by the State's | ||||||
17 | Attorney documenting actual notice by the parties, the | ||||||
18 | State's Attorney shall, within a reasonable period of time, | ||||||
19 | mail a second copy of the notice by certified mail, return | ||||||
20 | receipt requested and first class mail, to that address. If | ||||||
21 | no signed return receipt is received by the State's | ||||||
22 | Attorney within 28 days of the second mailing, or no | ||||||
23 | communication from the owner or interest holder is received | ||||||
24 | by the State's Attorney documenting actual notice by the | ||||||
25 | parties, the State's Attorney shall have 60 days to attempt | ||||||
26 | to personally serve the notice by personal service, |
| |||||||
| |||||||
1 | including substitute service by leaving a copy at the usual | ||||||
2 | place of abode with some person of the family or a person | ||||||
3 | residing there, of the age of 13 years or upwards. If after | ||||||
4 | 3 attempts at service in this manner, and no service of the | ||||||
5 | notice is accomplished, the notice shall be posted in a | ||||||
6 | conspicuous manner at this address and service shall be | ||||||
7 | made by the posting. The attempts at service and the | ||||||
8 | posting if required, shall be documented by the person | ||||||
9 | attempting service and the documentation shall be made part | ||||||
10 | of a return of service returned to the State's Attorney. | ||||||
11 | The State's Attorney may utilize any Sheriff or Deputy | ||||||
12 | Sheriff, a peace officer, a private process server or | ||||||
13 | investigator, or an employee, agent, or investigator of the | ||||||
14 | State's Attorney's Office to attempt service without | ||||||
15 | seeking leave of court. After the procedures listed are | ||||||
16 | followed, service shall be effective on the owner or | ||||||
17 | interest holder on the date of receipt by the State's | ||||||
18 | Attorney of a returned return receipt requested, or on the | ||||||
19 | date of receipt of a communication from an owner or | ||||||
20 | interest holder documenting actual notice, whichever is | ||||||
21 | first in time, or on the date of the last act performed by | ||||||
22 | the State's Attorney in attempting personal service. For | ||||||
23 | purposes of notice under this Section, if a person has been | ||||||
24 | arrested for the conduct giving rise to the forfeiture, the | ||||||
25 | address provided to the arresting agency at the time of | ||||||
26 | arrest shall be deemed to be that person's known address. |
| |||||||
| |||||||
1 | Provided, however, if an owner or interest holder's address | ||||||
2 | changes prior to the effective date of the notice of | ||||||
3 | pending forfeiture, the owner or interest holder shall | ||||||
4 | promptly notify the seizing agency of the change in address | ||||||
5 | or, if the owner or interest holder's address changes | ||||||
6 | subsequent to the effective date of the notice of pending | ||||||
7 | forfeiture, the owner or interest holder shall promptly | ||||||
8 | notify the State's Attorney of the change in address. If | ||||||
9 | the property seized is a conveyance, notice shall also be | ||||||
10 | directed to the address reflected in the office of the | ||||||
11 | agency or official in which title or interest to the | ||||||
12 | conveyance is required by law to be recorded. | ||||||
13 | (A) (Blank); | ||||||
14 | (A-5) If the owner's or interest holder's address | ||||||
15 | is not known, and is not on record as provided in | ||||||
16 | paragraph (1), service by publication for 3 successive | ||||||
17 | weeks in a newspaper of general circulation in the | ||||||
18 | county in which the seizure occurred shall suffice for | ||||||
19 | service requirements. | ||||||
20 | (A-10) Notice to any business entity, corporation, | ||||||
21 | LLC, LLP, or partnership shall be complete by a single | ||||||
22 | mailing of a copy of the notice by certified mail, | ||||||
23 | return receipt requested and first class mail, to that | ||||||
24 | address. This notice is complete regardless of the | ||||||
25 | return of a signed "return receipt requested". | ||||||
26 | (A-15) Notice to a person whose address is not |
| |||||||
| |||||||
1 | within the State shall be completed by a single mailing | ||||||
2 | of a copy of the notice by certified mail, return | ||||||
3 | receipt requested and first class
mail to that address. | ||||||
4 | This notice is complete regardless of the return of a | ||||||
5 | signed "return receipt requested". | ||||||
6 | (A-20) Notice to a person whose address is not | ||||||
7 | within the United States shall be completed by a single | ||||||
8 | mailing of a copy of the notice by certified mail, | ||||||
9 | return receipt requested and first class mail to that | ||||||
10 | address. This notice is complete regardless of the | ||||||
11 | return of a signed "return receipt requested". If | ||||||
12 | certified mail is not available in the foreign country | ||||||
13 | where the person has an address, notice shall proceed | ||||||
14 | by paragraph (A-15) publication requirements. | ||||||
15 | (A-25) A person who the State's Attorney | ||||||
16 | reasonably should know is incarcerated within this | ||||||
17 | State, shall also include, mailing a copy of the notice | ||||||
18 | by certified mail, return receipt requested and first | ||||||
19 | class mail, to the address of the detention facility | ||||||
20 | with the inmate's name clearly marked on the envelope. | ||||||
21 | After a claimant files a verified claim with the | ||||||
22 | State's Attorney and provides an address at which they | ||||||
23 | will accept service, the complaint shall be served and | ||||||
24 | notice shall be complete upon the mailing of the | ||||||
25 | complaint to the claimant at the address the claimant | ||||||
26 | provided via certified mail, return receipt requested |
| |||||||
| |||||||
1 | and first class mail. No return receipt card need be | ||||||
2 | received, or any other attempts at service need be made | ||||||
3 | to comply with service and notice requirements under | ||||||
4 | this Section. This certified mailing, return receipt | ||||||
5 | requested shall be proof of service of the complaint on | ||||||
6 | the claimant. If notice is to be shown by actual notice | ||||||
7 | from communication with a claimant, then the State's | ||||||
8 | Attorney shall file an affidavit as proof of service | ||||||
9 | providing details of the communication which shall be | ||||||
10 | accepted as proof of service by the court. | ||||||
11 | (B) If the property seized is a conveyance, to the | ||||||
12 | address reflected in the office of the agency or | ||||||
13 | official in which title or interest to the conveyance | ||||||
14 | is required by law to be recorded, then by mailing a | ||||||
15 | copy of the notice by certified mail, return receipt | ||||||
16 | requested, to that address; or | ||||||
17 | (C) (Blank). | ||||||
18 | (2) Notice served under this Article is effective upon | ||||||
19 | personal service, the last date of publication, or the | ||||||
20 | mailing of written notice, whichever is earlier. | ||||||
21 | (j) Notice to State's Attorney. The law enforcement agency | ||||||
22 | seizing property for forfeiture under this Article shall, | ||||||
23 | within 60 days after seizure, notify the State's Attorney for | ||||||
24 | the county, either where an act or omission giving rise to the | ||||||
25 | forfeiture occurred or where the property was seized, of the | ||||||
26 | seizure of the property and the facts and circumstances giving |
| |||||||
| |||||||
1 | rise to the seizure and shall provide the State's Attorney with | ||||||
2 | the inventory of the property and its estimated value. When the | ||||||
3 | property seized for forfeiture is a vehicle, the law | ||||||
4 | enforcement agency seizing the property shall immediately | ||||||
5 | notify the Secretary of State that forfeiture proceedings are | ||||||
6 | pending regarding such vehicle. This notice shall be by the | ||||||
7 | form 4-64. | ||||||
8 | (k) Non-judicial forfeiture. If non-real property that | ||||||
9 | exceeds $20,000 in value excluding the value of any conveyance, | ||||||
10 | or if real property is seized under the provisions of this | ||||||
11 | Article, the State's Attorney shall institute judicial in rem | ||||||
12 | forfeiture proceedings as described in subsection (l) of this | ||||||
13 | Section within 28 days from receipt of notice of seizure from | ||||||
14 | the seizing agency under subsection (j) of this Section. | ||||||
15 | However, if non-real property that does not exceed $20,000 in | ||||||
16 | value excluding the value of any conveyance is seized, the | ||||||
17 | following procedure shall be used: | ||||||
18 | (1) If, after review of the facts surrounding the | ||||||
19 | seizure, the State's Attorney is of the opinion that the | ||||||
20 | seized property is subject to forfeiture, then within 45 | ||||||
21 | days after the receipt of notice of seizure from the | ||||||
22 | seizing agency, the State's Attorney shall cause notice of | ||||||
23 | pending forfeiture to be given to the owner of the property | ||||||
24 | and all known interest holders of the property in | ||||||
25 | accordance with subsection (i) of this Section. | ||||||
26 | (2) The notice of pending forfeiture must include a |
| |||||||
| |||||||
1 | description of the property, the estimated value of the | ||||||
2 | property, the date and place of seizure, the conduct giving | ||||||
3 | rise to forfeiture or the violation of law alleged, and a | ||||||
4 | summary of procedures and procedural rights applicable to | ||||||
5 | the forfeiture action. | ||||||
6 | (3)(A) Any person claiming an interest in property | ||||||
7 | which is the subject of notice under paragraph (1) of this | ||||||
8 | subsection (k), must, in order to preserve any rights or | ||||||
9 | claims to the property, within 45 days after the effective | ||||||
10 | date of notice as described in subsection (i) of this | ||||||
11 | Section, file a verified claim with the State's Attorney | ||||||
12 | expressing his or her interest in the property. The claim | ||||||
13 | must set forth: | ||||||
14 | (i) the caption of the proceedings as set forth on | ||||||
15 | the notice of pending forfeiture and the name of the | ||||||
16 | claimant; | ||||||
17 | (ii) the address at which the claimant will accept | ||||||
18 | mail; | ||||||
19 | (iii) the nature and extent of the claimant's | ||||||
20 | interest in the property; | ||||||
21 | (iv) the date, identity of the transferor, and | ||||||
22 | circumstances of the claimant's acquisition of the | ||||||
23 | interest in the property; | ||||||
24 | (v) the name and address of all other persons known | ||||||
25 | to have an interest in the property; | ||||||
26 | (vi) the specific provision of law relied on in |
| |||||||
| |||||||
1 | asserting the property is not subject to forfeiture; | ||||||
2 | (vii) all essential facts supporting each | ||||||
3 | assertion; and | ||||||
4 | (viii) the relief sought. | ||||||
5 | (B) If a claimant files the claim, then the State's | ||||||
6 | Attorney shall institute judicial in rem forfeiture | ||||||
7 | proceedings with the clerk of the court as described in | ||||||
8 | subsection (l) of this Section within 45 days after receipt | ||||||
9 | of the claim. | ||||||
10 | (C) (Blank). | ||||||
11 | (4) If no claim is filed within the 45 day period as | ||||||
12 | described in paragraph (3) of this subsection (k), the | ||||||
13 | State's Attorney shall declare the property forfeited and | ||||||
14 | shall promptly notify the owner and all known interest | ||||||
15 | holders of the property and the Director of State Police of | ||||||
16 | the declaration of forfeiture and the Director shall | ||||||
17 | dispose of the property in accordance with law. | ||||||
18 | (l) Judicial in rem procedures. If property seized under | ||||||
19 | the provisions of this Article is non-real property that | ||||||
20 | exceeds $20,000 in value excluding the value of any conveyance, | ||||||
21 | or is real property, or a claimant has filed a claim under | ||||||
22 | paragraph (3) of subsection (k) of this Section, the following | ||||||
23 | judicial in rem procedures shall apply: | ||||||
24 | (1) If, after a review of the facts surrounding the | ||||||
25 | seizure, the State's Attorney is of the opinion that the | ||||||
26 | seized property is subject to forfeiture, then within 28 |
| |||||||
| |||||||
1 | days of the receipt of notice of seizure by the seizing | ||||||
2 | agency or the filing of the claim, whichever is later, the | ||||||
3 | State's Attorney shall institute judicial forfeiture | ||||||
4 | proceedings by filing a verified complaint for forfeiture. | ||||||
5 | When authorized by law, a forfeiture must be ordered by a | ||||||
6 | court on an action in rem brought by a State's Attorney | ||||||
7 | under a verified complaint for forfeiture. | ||||||
8 | (1.5) A complaint of forfeiture shall include: | ||||||
9 | (i) a description of the property seized; | ||||||
10 | (ii) the date and place of seizure of the property; | ||||||
11 | (iii) the name and address of the law enforcement | ||||||
12 | agency making the seizure; and | ||||||
13 | (iv) the specific statutory and factual grounds | ||||||
14 | for the seizure. | ||||||
15 | (1.10) The complaint shall be served upon the person | ||||||
16 | from whom the property was seized and all persons known or | ||||||
17 | reasonably believed by the State to claim an interest in | ||||||
18 | the property, as provided in subsection (i) of this | ||||||
19 | Section. The complaint shall be accompanied by the | ||||||
20 | following written notice: | ||||||
21 | "This is a civil court proceeding subject to the Code | ||||||
22 | of Civil Procedure. You received this Complaint of | ||||||
23 | Forfeiture because the State's Attorney's office has | ||||||
24 | brought a legal action seeking forfeiture of your seized | ||||||
25 | property. This complaint starts the court process where the | ||||||
26 | State seeks to prove that your property should be forfeited |
| |||||||
| |||||||
1 | and not returned to you. This process is also your | ||||||
2 | opportunity to try to prove to a judge that you should get | ||||||
3 | your property back. The complaint lists the date, time, and | ||||||
4 | location of your first court date. You must appear in court | ||||||
5 | on that day, or you may lose the case automatically. You | ||||||
6 | must also file an appearance and answer. If you are unable | ||||||
7 | to pay the appearance fee, you may qualify to have the fee | ||||||
8 | waived. If there is a criminal case related to the seizure | ||||||
9 | of your property, your case may be set for trial after the | ||||||
10 | criminal case has been resolved. Before trial, the judge | ||||||
11 | may allow discovery, where the State can ask you to respond | ||||||
12 | in writing to questions and give them certain documents, | ||||||
13 | and you can make similar requests of the State. The trial | ||||||
14 | is your opportunity to explain what happened when your | ||||||
15 | property was seized and why you should get the property | ||||||
16 | back." | ||||||
17 | (2) The laws of evidence relating to civil actions | ||||||
18 | shall apply to proceedings under this Article with the | ||||||
19 | following exception. The parties shall be allowed to use, | ||||||
20 | and the court shall receive and consider all relevant | ||||||
21 | hearsay evidence which relates to evidentiary foundation, | ||||||
22 | chain of custody, business records, recordings, laboratory | ||||||
23 | analysis, laboratory reports, and relevant hearsay related | ||||||
24 | to the use of technology in the investigation which | ||||||
25 | resulted in the seizure of property which is now subject to | ||||||
26 | this forfeiture action. |
| |||||||
| |||||||
1 | (3) Only an owner of or interest holder in the property | ||||||
2 | may file an answer asserting a claim against the property | ||||||
3 | in the action in rem. For purposes of this Section, the | ||||||
4 | owner or interest holder shall be referred to as claimant. | ||||||
5 | Upon motion of the State, the court shall first hold a | ||||||
6 | hearing, wherein any claimant must establish by a | ||||||
7 | preponderance of the evidence, that he or she has a lawful, | ||||||
8 | legitimate ownership interest in the property and that it | ||||||
9 | was obtained through a lawful source. | ||||||
10 | (4) The answer must be signed by the owner or interest | ||||||
11 | holder under penalty of perjury and must set forth: | ||||||
12 | (A) the caption of the proceedings as set forth on | ||||||
13 | the notice of pending forfeiture and the name of the | ||||||
14 | claimant; | ||||||
15 | (B) the address at which the claimant will accept | ||||||
16 | mail; | ||||||
17 | (C) the nature and extent of the claimant's | ||||||
18 | interest in the property; | ||||||
19 | (D) the date, identity of transferor, and | ||||||
20 | circumstances of the claimant's acquisition of the | ||||||
21 | interest in the property; | ||||||
22 | (E) the name and address of all other persons known | ||||||
23 | to have an interest in the property; | ||||||
24 | (F) all essential facts supporting each assertion; | ||||||
25 | (G) the precise relief sought; and | ||||||
26 | (H) the answer shall follow the rules under the |
| |||||||
| |||||||
1 | Code of Civil Procedure. | ||||||
2 | (5) The answer must be filed with the court within 45 | ||||||
3 | days after service of the civil in rem complaint. | ||||||
4 | (6) The hearing must be held within 60 days after | ||||||
5 | filing of the answer unless continued for good cause.
| ||||||
6 | (7) At the judicial in rem proceeding, in the State's | ||||||
7 | case in chief, the State shall show by a preponderance of | ||||||
8 | the evidence that the property is subject to forfeiture. If | ||||||
9 | the State makes such a showing, the claimant shall have the | ||||||
10 | burden of production to set forth evidence that the | ||||||
11 | property is not related to the alleged factual basis of the | ||||||
12 | forfeiture. After this production of evidence, the State | ||||||
13 | shall maintain the burden of proof to overcome this | ||||||
14 | assertion. A claimant shall provide the State notice of its | ||||||
15 | intent to allege that the currency or its equivalent is not | ||||||
16 | related to the alleged factual basis of the forfeiture and | ||||||
17 | why.
As to conveyances, at the judicial in rem proceeding, | ||||||
18 | in their case in chief, the State shall show by a | ||||||
19 | preponderance of the evidence, that (1) the property is | ||||||
20 | subject to forfeiture; and (2) at least one of the | ||||||
21 | following: | ||||||
22 | (i) that the claimant was legally accountable for | ||||||
23 | the conduct giving rise to the forfeiture; | ||||||
24 | (ii) that the claimant knew or reasonably should | ||||||
25 | have known of the conduct giving rise to the | ||||||
26 | forfeiture; |
| |||||||
| |||||||
1 | (iii) that the claimant knew or reasonable should | ||||||
2 | have known that the conduct giving rise to the | ||||||
3 | forfeiture was likely to occur; | ||||||
4 | (iv) that the claimant held the property for the | ||||||
5 | benefit of, or as nominee for, any person whose conduct | ||||||
6 | gave rise to its forfeiture; | ||||||
7 | (v) that if the claimant acquired their interest | ||||||
8 | through any person engaging in any of the conduct | ||||||
9 | described above or conduct giving rise to the | ||||||
10 | forfeiture; | ||||||
11 | (1) the claimant did not acquire it as a bona | ||||||
12 | fide purchaser for value; or | ||||||
13 | (2) the claimant acquired the interest under | ||||||
14 | the circumstances that they reasonably should have | ||||||
15 | known the property was derived from, or used in, | ||||||
16 | the conduct giving rise to the forfeiture; or | ||||||
17 | (vii) that the claimant is not the true owner of | ||||||
18 | the property that is subject to forfeiture.
| ||||||
19 | (8) If the State does not meet its burden to show that | ||||||
20 | the property is subject to forfeiture, the court shall | ||||||
21 | order the interest in the property returned or conveyed to | ||||||
22 | the claimant and shall order all other property forfeited | ||||||
23 | to the State. If the State does meet its burden to show | ||||||
24 | that the property is subject to forfeiture, the court shall | ||||||
25 | order all property forfeited to the State. | ||||||
26 | (9) A defendant convicted in any criminal proceeding is |
| |||||||
| |||||||
1 | precluded from later denying the essential allegations of | ||||||
2 | the criminal offense of which the defendant was convicted | ||||||
3 | in any proceeding under this Article regardless of the | ||||||
4 | pendency of an appeal from that conviction. However, | ||||||
5 | evidence of the pendency of an appeal is admissible. | ||||||
6 | (10) On a motion by the the parties, the court may stay | ||||||
7 | civil forfeiture proceedings during the criminal trial for | ||||||
8 | a related criminal indictment or information alleging a | ||||||
9 | money laundering violation. Such a stay shall not be | ||||||
10 | available pending an appeal. Property subject to | ||||||
11 | forfeiture under this Article shall not be subject to | ||||||
12 | return or release by a court exercising jurisdiction over a | ||||||
13 | criminal case involving the seizure of such property unless | ||||||
14 | such return or release is consented to by the State's | ||||||
15 | Attorney. | ||||||
16 | Notwithstanding any other provision of this Section, | ||||||
17 | the State's burden of proof at the trial of the forfeiture | ||||||
18 | action shall be by clear and convincing evidence if: (1) a | ||||||
19 | finding of not guilty is entered as to all counts and all | ||||||
20 | defendants in a criminal proceeding relating to the conduct | ||||||
21 | giving rise to the forfeiture action; or (2) the State | ||||||
22 | receives an adverse finding at a preliminary hearing and | ||||||
23 | fails to secure an indictment in a criminal proceeding | ||||||
24 | relating to the factual allegations of the forfeiture | ||||||
25 | action. | ||||||
26 | (11) All property declared forfeited under this |
| |||||||
| |||||||
1 | Article vests in this State on the commission of the | ||||||
2 | conduct giving rise to forfeiture together with the | ||||||
3 | proceeds of the property after that time. Except as | ||||||
4 | otherwise provided in this Article, title to any such | ||||||
5 | property or proceeds subsequently transferred to any | ||||||
6 | person remain subject to forfeiture and thereafter shall be | ||||||
7 | ordered forfeited unless the person to whom the property | ||||||
8 | was transferred makes an appropriate claim and has his or | ||||||
9 | her claim adjudicated at the judicial in rem hearing. | ||||||
10 | (12) A civil action under this Article must be | ||||||
11 | commenced within 5 years after the last conduct giving rise | ||||||
12 | to forfeiture became known or should have become known or 5 | ||||||
13 | years after the forfeitable property is discovered, | ||||||
14 | whichever is later, excluding any time during which either | ||||||
15 | the property or claimant is out of the State or in | ||||||
16 | confinement or during which criminal proceedings relating | ||||||
17 | to the same conduct are in progress. | ||||||
18 | (m) Stay of time periods. If property is seized for | ||||||
19 | evidence and for forfeiture, the time periods for instituting | ||||||
20 | judicial and non-judicial forfeiture proceedings shall not | ||||||
21 | begin until the property is no longer necessary for evidence. | ||||||
22 | (n) Settlement of claims. Notwithstanding other provisions | ||||||
23 | of this Article, the State's Attorney and a claimant of seized | ||||||
24 | property may enter into an agreed-upon settlement concerning | ||||||
25 | the seized property in such an amount and upon such terms as | ||||||
26 | are set out in writing in a settlement agreement. All proceeds |
| |||||||
| |||||||
1 | from a settlement agreement shall be tendered to the Department | ||||||
2 | of State Police and distributed under paragraph (6) of | ||||||
3 | subsection (h) of this Section. | ||||||
4 | (o) Property constituting attorney fees. Nothing in this | ||||||
5 | Article applies to property which constitutes reasonable bona | ||||||
6 | fide attorney's fees paid to an attorney for services rendered | ||||||
7 | or to be rendered in the forfeiture proceeding or criminal | ||||||
8 | proceeding relating directly thereto where such property was | ||||||
9 | paid before its seizure, before the issuance of any seizure | ||||||
10 | warrant or court order prohibiting transfer of the property and | ||||||
11 | where the attorney, at the time he or she received the property | ||||||
12 | did not know that it was property subject to forfeiture under | ||||||
13 | this Article. | ||||||
14 | (p) Construction. It is the intent of the General Assembly | ||||||
15 | that the forfeiture provisions of this Article be liberally | ||||||
16 | construed so as to effect their remedial purpose. The | ||||||
17 | forfeiture of property and other remedies hereunder shall be | ||||||
18 | considered to be in addition to, and not exclusive of, any | ||||||
19 | sentence or other remedy provided by law. | ||||||
20 | (q) Judicial review. If property has been declared | ||||||
21 | forfeited under subsection (k) of this Section, any person who | ||||||
22 | has an interest in the property declared forfeited may, within | ||||||
23 | 30 days after the effective date of the notice of the | ||||||
24 | declaration of forfeiture, file a claim as described in | ||||||
25 | paragraph (3) of subsection (k) of this Section. If a claim is | ||||||
26 | filed under this Section, then the procedures described in |
| |||||||
| |||||||
1 | subsection (l) of this Section apply. | ||||||
2 | (r) (Blank). | ||||||
3 | (s) Review of administrative decisions.
All administrative | ||||||
4 | findings, rulings, final determinations, findings, and | ||||||
5 | conclusions of the State's Attorney's Office under this Article | ||||||
6 | are final and conclusive decisions of the matters involved. Any | ||||||
7 | person aggrieved by the decision may obtain review of the | ||||||
8 | decision pursuant to the provisions of the Administrative | ||||||
9 | Review Law and the rules adopted pursuant to that Law. Pending | ||||||
10 | final decision on such review, the administrative acts, orders, | ||||||
11 | and rulings of the State's Attorney's Office remain in full | ||||||
12 | force and effect unless modified or suspended by order of court | ||||||
13 | pending final judicial decision. Pending final decision on such | ||||||
14 | review, the acts, orders, and rulings of the State's Attorney's | ||||||
15 | Office remain in full force and effect, unless stayed by order | ||||||
16 | of court. However, no stay of any decision of the | ||||||
17 | administrative agency shall issue unless the person aggrieved | ||||||
18 | by the decision establishes by a preponderance of the evidence | ||||||
19 | that good cause exists for the stay. In determining good cause, | ||||||
20 | the court shall find that the aggrieved party has established a | ||||||
21 | substantial likelihood of prevailing on the merits and that | ||||||
22 | granting the stay will not have an injurious effect on the | ||||||
23 | general public. | ||||||
24 | (t) Actual physical seizure of real property subject to | ||||||
25 | forfeiture under this Act requires the issuance of a seizure | ||||||
26 | warrant. Nothing in this Section prohibits the constructive |
| |||||||
| |||||||
1 | seizure of real property through the filing of a complaint for | ||||||
2 | forfeiture in circuit court and the recording of a lis pendens | ||||||
3 | against the real property which is subject to forfeiture | ||||||
4 | without any hearing, warrant application, or judicial | ||||||
5 | approval. | ||||||
6 | (u) Property which is forfeited shall be subject to an 8th | ||||||
7 | amendment to the United States Constitution disproportionate | ||||||
8 | penalties analysis and the property forfeiture may be denied in | ||||||
9 | whole or in part if the court finds that the forfeiture would | ||||||
10 | constitute an excessive fine in violation of the 8th amendment | ||||||
11 | as interpreted by case law. | ||||||
12 | (v) If property is ordered forfeited under this Section | ||||||
13 | from a claimant who held title to the property in joint tenancy | ||||||
14 | or tenancy in common with another claimant, the court shall | ||||||
15 | determine the amount of each owner's interest in the property | ||||||
16 | according to principles of property law. | ||||||
17 | (w) A claimant or a party interested in personal property | ||||||
18 | contained within a seized conveyance may file a request with | ||||||
19 | the State's Attorney in a non-judicial forfeiture action, or a | ||||||
20 | motion with the court in a judicial forfeiture action for the | ||||||
21 | return of any personal property contained within a conveyance | ||||||
22 | which is seized under this Article. The return of personal | ||||||
23 | property shall not be unreasonably withheld if the personal | ||||||
24 | property is not mechanically or electrically coupled to the | ||||||
25 | conveyance, needed for evidentiary purposes, or otherwise | ||||||
26 | contraband. Any law enforcement agency that returns property |
| |||||||
| |||||||
1 | under a court order under this Section shall not be liable to | ||||||
2 | any person who claims ownership to the property if it is | ||||||
3 | returned to an improper party. | ||||||
4 | (x) Innocent owner hearing. | ||||||
5 | (1) After a complaint for forfeiture has been filed and | ||||||
6 | all claimants have appeared and answered, a claimant may | ||||||
7 | file a motion with the court for an innocent owner hearing | ||||||
8 | prior to trial. This motion shall be made and supported by | ||||||
9 | sworn affidavit and shall assert the following along with | ||||||
10 | specific facts which support each assertion: | ||||||
11 | (i) that the claimant filing the motion is the true | ||||||
12 | owner of the conveyance as interpreted by case law; | ||||||
13 | (ii) that the claimant was not legally accountable | ||||||
14 | for the conduct giving rise to the forfeiture or | ||||||
15 | acquiesced in the conduct; | ||||||
16 | (iii) that the claimant did not solicit, conspire, | ||||||
17 | or attempt to commit the conduct giving rise to the | ||||||
18 | forfeiture; | ||||||
19 | (iv) that the claimant did not know or did not have | ||||||
20 | reason to know that the conduct giving rise to the | ||||||
21 | forfeiture was likely to occur; and | ||||||
22 | (v) that the claimant did not hold the property for | ||||||
23 | the benefit of, or as nominee for any person whose | ||||||
24 | conduct gave rise to its forfeiture or if the owner or | ||||||
25 | interest holder acquired the interest through any | ||||||
26 | person, the owner or interest holder did not acquire it |
| |||||||
| |||||||
1 | as a bona fide purchaser for value or acquired the | ||||||
2 | interest without knowledge of the seizure of the | ||||||
3 | property for forfeiture. | ||||||
4 | (2) The claimant shall include specific facts which | ||||||
5 | support these assertions in their motion. | ||||||
6 | (3) Upon this filing, a hearing may only be conducted | ||||||
7 | after the parties have been given the opportunity to | ||||||
8 | conduct limited discovery as to the ownership and control | ||||||
9 | of the property, the claimant's knowledge, or any matter | ||||||
10 | relevant to the issues raised or facts alleged in the | ||||||
11 | claimant's motion. Discovery shall be limited to the | ||||||
12 | People's requests in these areas but may proceed by any | ||||||
13 | means allowed in the Code of Civil Procedure. | ||||||
14 | (i) After discovery is complete and the court has | ||||||
15 | allowed for sufficient time to review and investigate | ||||||
16 | the discovery responses, the court shall conduct a | ||||||
17 | hearing. At the hearing, the fact that the conveyance | ||||||
18 | is subject to forfeiture shall not be at issue. The | ||||||
19 | court shall only hear evidence relating to the issue of | ||||||
20 | innocent ownership. | ||||||
21 | (ii) At the hearing on the motion, it shall be the | ||||||
22 | burden of the claimant to prove each of the assertions | ||||||
23 | listed in paragraph (1) of this subsection (x) by a | ||||||
24 | preponderance of the evidence. | ||||||
25 | (iii) If a claimant meets his burden of proof, the | ||||||
26 | court shall grant the motion and order the property |
| |||||||
| |||||||
1 | returned to the claimant. If the claimant fails to meet | ||||||
2 | his or her burden of proof then the court shall deny | ||||||
3 | the motion. | ||||||
4 | (y) No property shall be forfeited under this Section from | ||||||
5 | a person who, without actual or constructive notice that the | ||||||
6 | property was the subject of forfeiture proceedings, obtained | ||||||
7 | possession of the property as a bona fide purchaser for value. | ||||||
8 | A person who purports to affect transfer of property after | ||||||
9 | receiving actual or constructive notice that the property is | ||||||
10 | subject to seizure or forfeiture is guilty of contempt of | ||||||
11 | court, and shall be liable to the State for a penalty in the | ||||||
12 | amount of the fair market value of the property. | ||||||
13 | (z) Forfeiture proceedings under this Section shall be | ||||||
14 | subject to the Code of Civil Procedure and the rules of | ||||||
15 | evidence relating to civil actions. | ||||||
16 | (aa) Return of property, damages, and costs. | ||||||
17 | (1) The law enforcement agency that holds custody of | ||||||
18 | property seized for forfeiture shall deliver property | ||||||
19 | ordered by the court to be returned or conveyed to the | ||||||
20 | claimant within a reasonable time not to exceed 7 days, | ||||||
21 | unless the order is stayed by the trial court or a | ||||||
22 | reviewing court pending an appeal, motion to reconsider, or | ||||||
23 | other reason. | ||||||
24 | (2) The law enforcement agency that holds custody of | ||||||
25 | property is responsible for any damages, storage fees, and | ||||||
26 | related costs applicable to property returned. The |
| |||||||
| |||||||
1 | claimant shall not be subject to any charges by the State | ||||||
2 | for storage of the property or expenses incurred in the | ||||||
3 | preservation of the property. Charges for the towing of a | ||||||
4 | conveyance shall be borne by the claimant unless the | ||||||
5 | conveyance was towed for the sole reason of seizure for | ||||||
6 | forfeiture. This Section does not prohibit the imposition | ||||||
7 | of any fees or costs by a home rule unit of local | ||||||
8 | government related to the impoundment of a conveyance under | ||||||
9 | an ordinance enacted by the unit of government. | ||||||
10 | (3) A law enforcement agency shall not retain forfeited | ||||||
11 | property for its own use or transfer the property to any | ||||||
12 | person or entity, except as provided under this Section. A | ||||||
13 | law enforcement agency may apply in writing to the Director | ||||||
14 | of State Police to request that a forfeited property be | ||||||
15 | awarded to the agency for a specifically articulated | ||||||
16 | official law enforcement use in an investigation. The | ||||||
17 | Director of State Police shall provide a written | ||||||
18 | justification in each instance detailing the reasons why | ||||||
19 | the forfeited property was placed into official use and the | ||||||
20 | justification shall be retained for a period of not less | ||||||
21 | than 3 years. | ||||||
22 | (bb) The changes made to this Section by this amendatory | ||||||
23 | Act of the 100th General Assembly are subject to Sections 2 and | ||||||
24 | 4 of the Statute on Statutes. | ||||||
25 | (Source: P.A. 99-480, eff. 9-9-15; 100-512, eff. 7-1-18.)
|
| |||||||
| |||||||
1 | (720 ILCS 5/29B-2 new) | ||||||
2 | Sec. 29B-2. Evidence in money laundering prosecutions. | ||||||
3 | In a prosecution under this Article, either party may | ||||||
4 | introduce the following evidence pertaining to the issue of | ||||||
5 | whether the property or proceeds were known to be some form of | ||||||
6 | criminally derived property or from some form of unlawful | ||||||
7 | activity: | ||||||
8 | (1) a financial transaction was conducted or | ||||||
9 | structured or attempted in violation of the reporting | ||||||
10 | requirements of any State or federal law; | ||||||
11 | (2) a financial transaction was conducted or attempted | ||||||
12 | with the use of a false or fictitious name or a forged | ||||||
13 | instrument; | ||||||
14 | (3) a falsely altered or completed written instrument | ||||||
15 | or a written instrument that contains any materially false | ||||||
16 | personal identifying information was made, used, offered | ||||||
17 | or presented, whether accepted or not, in connection with a | ||||||
18 | financial transaction; | ||||||
19 | (4) a financial transaction was structured or | ||||||
20 | attempted to be structured so as to falsely report the | ||||||
21 | actual consideration or value of the transaction; | ||||||
22 | (5) a money transmitter, a person engaged in a trade or | ||||||
23 | business, or any employee of a money transmitter or a | ||||||
24 | person engaged in a trade or business, knows or reasonably | ||||||
25 | should know that false personal identifying information | ||||||
26 | has been presented and incorporates the false personal |
| |||||||
| |||||||
1 | identifying information into any report or record; | ||||||
2 | (6) the criminally derived property is transported or | ||||||
3 | possessed in a fashion inconsistent with the ordinary or | ||||||
4 | usual means of transportation or possession of the property | ||||||
5 | and where the property is discovered in the absence of any | ||||||
6 | documentation or other indicia of legitimate origin or | ||||||
7 | right to the property; | ||||||
8 | (7) a person pays or receives substantially less than | ||||||
9 | face value for one or more monetary instruments; or | ||||||
10 | (8) a person engages in a transaction involving one or | ||||||
11 | more monetary instruments, where the physical condition or | ||||||
12 | form of the monetary instrument or instruments makes it | ||||||
13 | apparent that they are not the product of bona fide | ||||||
14 | business or financial transactions. | ||||||
15 | (720 ILCS 5/29B-3 new) | ||||||
16 | Sec. 29B-3. Duty to enforce this Article. | ||||||
17 | (a) It is the duty of the Department of State Police, and | ||||||
18 | its agents, officers, and investigators, to enforce this | ||||||
19 | Article, except those provisions otherwise specifically | ||||||
20 | delegated, and to cooperate with all agencies charged with the | ||||||
21 | enforcement of the laws of the United States, or of any state, | ||||||
22 | relating to money laundering. Only an agent, officer, or | ||||||
23 | investigator designated by the Director may be authorized in | ||||||
24 | accordance with this Section to serve seizure notices, | ||||||
25 | warrants, subpoenas, and summonses under the authority of this |
| |||||||
| |||||||
1 | State. | ||||||
2 | (b) An agent, officer, investigator, or peace officer | ||||||
3 | designated by the Director may: (1) make seizure of property | ||||||
4 | under this Article; and (2) perform other law enforcement | ||||||
5 | duties as the Director designates. It is the duty of all | ||||||
6 | State's Attorneys to prosecute violations of this Article and | ||||||
7 | institute legal proceedings as authorized under this Article. | ||||||
8 | (720 ILCS 5/29B-4 new) | ||||||
9 | Sec. 29B-4. Protective orders and warrants for forfeiture | ||||||
10 | purposes. | ||||||
11 | (a) Upon application of the State, the court may enter a | ||||||
12 | restraining order or injunction, require the execution of a | ||||||
13 | satisfactory performance bond, or take any other action to | ||||||
14 | preserve the availability of property described in Section | ||||||
15 | 29B-5 of this Article for forfeiture under this Article: | ||||||
16 | (1) upon the filing of an indictment, information, or | ||||||
17 | complaint charging a violation of this Article for which | ||||||
18 | forfeiture may be ordered under this Article and alleging | ||||||
19 | that the property with respect to which the order is sought | ||||||
20 | would be subject to forfeiture under this Article; or | ||||||
21 | (2) prior to the filing of the indictment, information, | ||||||
22 | or complaint, if, after notice to persons appearing to have | ||||||
23 | an interest in the property and opportunity for a hearing, | ||||||
24 | the court determines that: | ||||||
25 | (A) there is probable cause to believe that the |
| |||||||
| |||||||
1 | State will prevail on the issue of forfeiture and that | ||||||
2 | failure to enter the order will result in the property | ||||||
3 | being destroyed, removed from the jurisdiction of the | ||||||
4 | court, or otherwise made unavailable for forfeiture; | ||||||
5 | and | ||||||
6 | (B) the need to preserve the availability of the | ||||||
7 | property through the entry of the requested order | ||||||
8 | outweighs the hardship on any party against whom the | ||||||
9 | order is to be entered. | ||||||
10 | Provided, however, that an order entered under | ||||||
11 | paragraph (2) of this Section shall be effective for not | ||||||
12 | more than 90 days, unless extended by the court for good | ||||||
13 | cause shown or unless an indictment, information, | ||||||
14 | complaint, or administrative notice has been filed. | ||||||
15 | (b) A temporary restraining order under this subsection (b) | ||||||
16 | may be entered upon application of the State without notice or | ||||||
17 | opportunity for a hearing when an indictment, information, | ||||||
18 | complaint, or administrative notice has not yet been filed with | ||||||
19 | respect to the property, if the State demonstrates that there | ||||||
20 | is probable cause to believe that the property with respect to | ||||||
21 | which the order is sought would be subject to forfeiture under | ||||||
22 | this Article and that provision of notice will jeopardize the | ||||||
23 | availability of the property for forfeiture. The temporary | ||||||
24 | order shall expire not more than 30 days after the date on | ||||||
25 | which it is entered, unless extended for good cause shown or | ||||||
26 | unless the party against whom it is entered consents to an |
| |||||||
| |||||||
1 | extension for a longer period. A hearing requested concerning | ||||||
2 | an order entered under this subsection (b) shall be held at the | ||||||
3 | earliest possible time and prior to the expiration of the | ||||||
4 | temporary order. | ||||||
5 | (c) The court may receive and consider, at a hearing held | ||||||
6 | under this Section, evidence and information that would be | ||||||
7 | inadmissible under the Illinois rules of evidence. | ||||||
8 | (d) Under its authority to enter a pretrial restraining | ||||||
9 | order under this Section, the court may order a defendant to | ||||||
10 | repatriate any property that may be seized and forfeited and to | ||||||
11 | deposit that property pending trial with the Department of | ||||||
12 | State Police or another law enforcement agency designated by | ||||||
13 | the Department of State Police. Failure to comply with an order | ||||||
14 | under this Section is punishable as a civil or criminal | ||||||
15 | contempt of court. | ||||||
16 | (e) The State may request the issuance of a warrant | ||||||
17 | authorizing the seizure of property described in Section 29B-5 | ||||||
18 | of this Article in the same manner as provided for a search | ||||||
19 | warrant. If the court determines that there is probable cause | ||||||
20 | to believe that the property to be seized would be subject to | ||||||
21 | forfeiture, the court shall issue a warrant authorizing the | ||||||
22 | seizure of that property. | ||||||
23 | (720 ILCS 5/29B-5 new) | ||||||
24 | Sec. 29B-5. Property subject to forfeiture. The following | ||||||
25 | are subject to forfeiture: |
| |||||||
| |||||||
1 | (1) any property, real or personal, constituting, derived | ||||||
2 | from, or traceable to any proceeds the person obtained directly | ||||||
3 | or indirectly, as a result of a violation of this Article; | ||||||
4 | (2) any of the person's property used, or intended to be | ||||||
5 | used, in any manner or part, to commit, or to facilitate the | ||||||
6 | commission of, a violation of this Article; | ||||||
7 | (3) all conveyances, including aircraft, vehicles, or | ||||||
8 | vessels, which are used, or intended for use, to transport, or | ||||||
9 | in any manner to facilitate the transportation, sale, receipt, | ||||||
10 | possession, or concealment of property described in paragraphs | ||||||
11 | (1) and (2) of this Section, but: | ||||||
12 | (A) no conveyance used by any person as a common | ||||||
13 | carrier in the transaction of business as a common carrier | ||||||
14 | is subject to forfeiture under this Section unless it | ||||||
15 | appears that the owner or other person in charge of the | ||||||
16 | conveyance is a consenting party or privy to a violation of | ||||||
17 | this Article; | ||||||
18 | (B) no conveyance is subject to forfeiture under this | ||||||
19 | Article by reason of any act or omission which the owner | ||||||
20 | proves to have been committed or omitted without his or her | ||||||
21 | knowledge or consent; | ||||||
22 | (C) a forfeiture of a conveyance encumbered by a bona | ||||||
23 | fide security interest is subject to the interest of the | ||||||
24 | secured party if he or she neither had knowledge of nor | ||||||
25 | consented to the act or omission; | ||||||
26 | (4) all real property, including any right, title, and |
| |||||||
| |||||||
1 | interest, including, but not limited to, any leasehold interest | ||||||
2 | or the beneficial interest in a land trust, in the whole of any | ||||||
3 | lot or tract of land and any appurtenances or improvements, | ||||||
4 | which is used or intended to be used, in any manner or part, to | ||||||
5 | commit, or in any manner to facilitate the commission of, any | ||||||
6 | violation of this Article or that is the proceeds of any | ||||||
7 | violation or act that constitutes a violation of this Article. | ||||||
8 | (720 ILCS 5/29B-6 new) | ||||||
9 | Sec. 29B-6. Seizure. | ||||||
10 | (a) Property subject to forfeiture under this Article may | ||||||
11 | be seized by the Director or any peace officer upon process or | ||||||
12 | seizure warrant issued by any court having jurisdiction over | ||||||
13 | the property. Seizure by the Director or any peace officer | ||||||
14 | without process may be made: | ||||||
15 | (1) if the seizure is incident to a seizure warrant; | ||||||
16 | (2) if the property subject to seizure has been the | ||||||
17 | subject of a prior judgment in favor of the State in a | ||||||
18 | criminal proceeding, or in an injunction or forfeiture | ||||||
19 | proceeding based upon this Article; | ||||||
20 | (3) if there is probable cause to believe that the | ||||||
21 | property is directly or indirectly dangerous to health or | ||||||
22 | safety; | ||||||
23 | (4) if there is probable cause to believe that the | ||||||
24 | property is subject to forfeiture under this Article and | ||||||
25 | the property is seized under circumstances in which a |
| |||||||
| |||||||
1 | warrantless seizure or arrest would be reasonable; or | ||||||
2 | (5) in accordance with the Code of Criminal Procedure | ||||||
3 | of 1963. | ||||||
4 | (b) In the event of seizure under subsection (a) of this | ||||||
5 | Section, forfeiture proceedings shall be instituted in | ||||||
6 | accordance with this Article. | ||||||
7 | (c) Actual physical seizure of real property subject to | ||||||
8 | forfeiture requires the issuance of a seizure warrant. Nothing | ||||||
9 | in this Article prohibits the constructive seizure of real | ||||||
10 | property through the filing of a complaint for forfeiture in | ||||||
11 | circuit court and the recording of a lis pendens against the | ||||||
12 | real property that is subject to forfeiture without any | ||||||
13 | hearing, warrant application, or judicial approval. | ||||||
14 | (720 ILCS 5/29B-7 new) | ||||||
15 | Sec. 29B-7. Safekeeping of seized property pending | ||||||
16 | disposition. | ||||||
17 | (a) If property is seized under this Article, the seizing | ||||||
18 | agency shall promptly conduct an inventory of the seized | ||||||
19 | property and estimate the property's value and shall forward a | ||||||
20 | copy of the inventory of seized property and the estimate of | ||||||
21 | the property's value to the Director. Upon receiving notice of | ||||||
22 | seizure, the Director may: | ||||||
23 | (1) place the property under seal; | ||||||
24 | (2) remove the property to a place designated by the | ||||||
25 | Director; |
| |||||||
| |||||||
1 | (3) keep the property in the possession of the seizing | ||||||
2 | agency; | ||||||
3 | (4) remove the property to a storage area for | ||||||
4 | safekeeping or, if the property is a negotiable instrument | ||||||
5 | or money and is not needed for evidentiary purposes, | ||||||
6 | deposit it in an interest bearing account; | ||||||
7 | (5) place the property under constructive seizure by | ||||||
8 | posting notice of pending forfeiture on it, by giving | ||||||
9 | notice of pending forfeiture to its owners and interest | ||||||
10 | holders, or by filing notice of pending forfeiture in any | ||||||
11 | appropriate public record relating to the property; or | ||||||
12 | (6) provide for another agency or custodian, including | ||||||
13 | an owner, secured party, or lienholder, to take custody of | ||||||
14 | the property upon the terms and conditions set by the | ||||||
15 | Director. | ||||||
16 | (b) When property is forfeited under this Article, the | ||||||
17 | Director shall sell all the property unless the property is | ||||||
18 | required by law to be destroyed or is harmful to the public, | ||||||
19 | and shall distribute the proceeds of the sale, together with | ||||||
20 | any moneys forfeited or seized, under Section 29B-26 of this | ||||||
21 | Article. | ||||||
22 | (720 ILCS 5/29B-8 new) | ||||||
23 | Sec. 29B-8. Notice to State's Attorney. The law enforcement | ||||||
24 | agency seizing property for forfeiture under this Article | ||||||
25 | shall, within 60 days after seizure, notify the State's |
| |||||||
| |||||||
1 | Attorney for the county, either where an act or omission giving | ||||||
2 | rise to the forfeiture occurred or where the property was | ||||||
3 | seized, of the seizure of the property and the facts and | ||||||
4 | circumstances giving rise to the seizure and shall provide the | ||||||
5 | State's Attorney with the inventory of the property and its | ||||||
6 | estimated value. If the property seized for forfeiture is a | ||||||
7 | vehicle, the law enforcement agency seizing the property shall | ||||||
8 | immediately notify the Secretary of State that forfeiture | ||||||
9 | proceedings are pending regarding the vehicle. This notice | ||||||
10 | shall be by Form 4-64. | ||||||
11 | (720 ILCS 5/29B-9 new) | ||||||
12 | Sec. 29B-9. Preliminary review. | ||||||
13 | (a) Within 28 days of the seizure, the State shall seek a | ||||||
14 | preliminary determination from the circuit court as to whether | ||||||
15 | there is probable cause that the property may be subject to | ||||||
16 | forfeiture. | ||||||
17 | (b) The rules of evidence shall not apply to any proceeding | ||||||
18 | conducted under this Section. | ||||||
19 | (c) The court may conduct the review under subsection (a) | ||||||
20 | of this Section simultaneously with a proceeding under Section | ||||||
21 | 109-1 of the Code of Criminal Procedure of 1963 for a related | ||||||
22 | criminal offense if a prosecution is commenced by information | ||||||
23 | or complaint. | ||||||
24 | (d) The court may accept a finding of probable cause at a | ||||||
25 | preliminary hearing following the filing of an information or |
| |||||||
| |||||||
1 | complaint charging a related criminal offense or following the | ||||||
2 | return of indictment by a grand jury charging the related | ||||||
3 | offense as sufficient evidence of probable cause as required | ||||||
4 | under subsection (a) of this Section. | ||||||
5 | (e) Upon a finding of probable cause as required under this | ||||||
6 | Section, the circuit court shall order the property subject to | ||||||
7 | the applicable forfeiture Act held until the conclusion of any | ||||||
8 | forfeiture proceeding. | ||||||
9 | (720 ILCS 5/29B-10 new) | ||||||
10 | Sec. 29B-10. Notice to owner or interest holder. | ||||||
11 | (a) The first attempted service of notice shall be | ||||||
12 | commenced within 28 days of the latter of filing of the | ||||||
13 | verified claim or the receipt of the notice from the seizing | ||||||
14 | agency by Form 4-64. A complaint for forfeiture or a notice of | ||||||
15 | pending forfeiture shall be served on a claimant if the owner's | ||||||
16 | or interest holder's name and current address are known, then | ||||||
17 | by either: (1) personal service; or (2) mailing a copy of the | ||||||
18 | notice by certified mail, return receipt requested, and first | ||||||
19 | class mail to that address. | ||||||
20 | (b) If no signed return receipt is received by the State's | ||||||
21 | Attorney within 28 days of mailing or no communication from the | ||||||
22 | owner or interest holder is received by the State's Attorney | ||||||
23 | documenting actual notice by the parties, the State's Attorney | ||||||
24 | shall, within a reasonable period of time, mail a second copy | ||||||
25 | of the notice by certified mail, return receipt requested, and |
| |||||||
| |||||||
1 | first class mail to that address. If no signed return receipt | ||||||
2 | is received by the State's Attorney within 28 days of the | ||||||
3 | second mailing, or no communication from the owner or interest | ||||||
4 | holder is received by the State's Attorney documenting actual | ||||||
5 | notice by the parties, the State's Attorney shall have 60 days | ||||||
6 | to attempt to serve the notice by personal service, including | ||||||
7 | substitute service by leaving a copy at the usual place of | ||||||
8 | abode with some person of the family or a person residing | ||||||
9 | there, of the age of 13 years or upwards. If, after 3 attempts | ||||||
10 | at service in this manner, no service of the notice is | ||||||
11 | accomplished, the notice shall be posted in a conspicuous | ||||||
12 | manner at the address and service shall be made by the posting. | ||||||
13 | The attempts at service and the posting if required, shall be | ||||||
14 | documented by the person attempting service which shall be made | ||||||
15 | part of a return of service returned to the State's Attorney. | ||||||
16 | The State's Attorney may utilize any Sheriff or Deputy Sheriff, | ||||||
17 | a peace officer, a private process server or investigator, or | ||||||
18 | an employee, agent, or investigator of the State's Attorney's | ||||||
19 | Office to attempt service without seeking leave of court. | ||||||
20 | (c) After the procedures listed are followed, service shall | ||||||
21 | be effective on the owner or interest holder on the date of | ||||||
22 | receipt by the State's Attorney of a return receipt, or on the | ||||||
23 | date of receipt of a communication from an owner or interest | ||||||
24 | holder documenting actual notice, whichever is first in time, | ||||||
25 | or on the date of the last act performed by the State's | ||||||
26 | Attorney in attempting personal service. For purposes of notice |
| |||||||
| |||||||
1 | under this Section, if a person has been arrested for the | ||||||
2 | conduct giving rise to the forfeiture, the address provided to | ||||||
3 | the arresting agency at the time of arrest shall be deemed to | ||||||
4 | be that person's known address. Provided, however, if an owner | ||||||
5 | or interest holder's address changes prior to the effective | ||||||
6 | date of the notice of pending forfeiture, the owner or interest | ||||||
7 | holder shall promptly notify the seizing agency of the change | ||||||
8 | in address or, if the owner or interest holder's address | ||||||
9 | changes subsequent to the effective date of the notice of | ||||||
10 | pending forfeiture, the owner or interest holder shall promptly | ||||||
11 | notify the State's Attorney of the change in address. If the | ||||||
12 | property seized is a conveyance, notice shall also be directed | ||||||
13 | to the address reflected in the office of the agency or | ||||||
14 | official in which title to or interest in the conveyance is | ||||||
15 | required by law to be recorded. | ||||||
16 | (d) If the owner's or interest holder's address is not | ||||||
17 | known, and is not on record as provided in this Section, | ||||||
18 | service by publication for 3 successive weeks in a newspaper of | ||||||
19 | general circulation in the county in which the seizure occurred | ||||||
20 | shall suffice for service requirements. | ||||||
21 | (e) Notice to any business entity, corporation, limited | ||||||
22 | liability company, limited liability partnership, or | ||||||
23 | partnership shall be completed by a single mailing of a copy of | ||||||
24 | the notice by certified mail, return receipt requested, and | ||||||
25 | first class mail to that address. This notice is complete | ||||||
26 | regardless of the return of a signed return receipt. |
| |||||||
| |||||||
1 | (f) Notice to a person whose address is not within the | ||||||
2 | State shall be completed by a single mailing of a copy of the | ||||||
3 | notice by certified mail, return receipt requested, and first | ||||||
4 | class
mail to that address. This notice is complete regardless | ||||||
5 | of the return of a signed return receipt. | ||||||
6 | (g) Notice to a person whose address is not within the | ||||||
7 | United States shall be completed by a single mailing of a copy | ||||||
8 | of the notice by certified mail, return receipt requested, and | ||||||
9 | first class mail to that address. This notice is complete | ||||||
10 | regardless of the return of a signed return receipt. If | ||||||
11 | certified mail is not available in the foreign country where | ||||||
12 | the person has an address, notice shall proceed by publication | ||||||
13 | requirements under subsection (d) of this Section. | ||||||
14 | (h) A person whom the State's Attorney reasonably should | ||||||
15 | know is incarcerated within this State, shall also include, | ||||||
16 | mailing a copy of the notice by certified mail, return receipt | ||||||
17 | requested, and first class mail to the address of the detention | ||||||
18 | facility with the inmate's name clearly marked on the envelope. | ||||||
19 | (i) After a claimant files a verified claim with the | ||||||
20 | State's Attorney and provides an address at which the claimant | ||||||
21 | will accept service, the complaint shall be served and notice | ||||||
22 | shall be complete upon the mailing of the complaint to the | ||||||
23 | claimant at the address the claimant provided via certified | ||||||
24 | mail, return receipt requested, and first class mail. No return | ||||||
25 | receipt need be received, or any other attempts at service need | ||||||
26 | be made to comply with service and notice requirements under |
| |||||||
| |||||||
1 | this Section. This certified mailing, return receipt | ||||||
2 | requested, shall be proof of service of the complaint on the | ||||||
3 | claimant. If notice is to be shown by actual notice from | ||||||
4 | communication with a claimant, then the State's Attorney shall | ||||||
5 | file an affidavit as proof of service, providing details of the | ||||||
6 | communication, which shall be accepted as proof of service by | ||||||
7 | the court. | ||||||
8 | (j) If the property seized is a conveyance, to the address | ||||||
9 | reflected in the office of the agency or official in which | ||||||
10 | title to or interest in the conveyance is required by law to be | ||||||
11 | recorded, then by mailing a copy of the notice by certified | ||||||
12 | mail, return receipt requested, to that address. | ||||||
13 | (k) Notice served under this Article is effective upon | ||||||
14 | personal service, the last date of publication, or the mailing | ||||||
15 | of written notice, whichever is earlier. | ||||||
16 | (720 ILCS 5/29B-11 new) | ||||||
17 | Sec. 29B-11. Replevin prohibited. Property taken or | ||||||
18 | detained under this Article shall not be subject to replevin, | ||||||
19 | but is deemed to be in the custody of the Director subject only | ||||||
20 | to the order and judgments of the circuit court having | ||||||
21 | jurisdiction over the forfeiture proceedings and the decisions | ||||||
22 | of the State's Attorney under this Article. | ||||||
23 | (720 ILCS 5/29B-12 new) | ||||||
24 | Sec. 29B-12. Non-judicial forfeiture. If non-real |
| |||||||
| |||||||
1 | property that exceeds $20,000 in value excluding the value of | ||||||
2 | any conveyance, or if real property is seized under the | ||||||
3 | provisions of this Article, the State's Attorney shall | ||||||
4 | institute judicial in rem forfeiture proceedings as described | ||||||
5 | in Section 29B-13 of this Article within 28 days from receipt | ||||||
6 | of notice of seizure from the seizing agency under Section | ||||||
7 | 29B-8 of this Article. However, if non-real property that does | ||||||
8 | not exceed $20,000 in value excluding the value of any | ||||||
9 | conveyance is seized, the following procedure shall be used: | ||||||
10 | (1) If, after review of the facts surrounding the seizure, | ||||||
11 | the State's Attorney is of the opinion that the seized property | ||||||
12 | is subject to forfeiture, then within 28 days after the receipt | ||||||
13 | of notice of seizure from the seizing agency, the State's | ||||||
14 | Attorney shall cause notice of pending forfeiture to be given | ||||||
15 | to the owner of the property and all known interest holders of | ||||||
16 | the property in accordance with Section 29B-10 of this Article. | ||||||
17 | (2) The notice of pending forfeiture shall include a | ||||||
18 | description of the property, the estimated value of the | ||||||
19 | property, the date and place of seizure, the conduct giving | ||||||
20 | rise to forfeiture or the violation of law alleged, and a | ||||||
21 | summary of procedures and procedural rights applicable to the | ||||||
22 | forfeiture action. | ||||||
23 | (3)(A) Any person claiming an interest in property that is | ||||||
24 | the subject of notice under paragraph (1) of this Section, | ||||||
25 | must, in order to preserve any rights or claims to the | ||||||
26 | property, within 45 days after the effective date of notice as |
| |||||||
| |||||||
1 | described in Section 29B-10 of this Article, file a verified | ||||||
2 | claim with the State's Attorney expressing his or her interest | ||||||
3 | in the property. The claim shall set forth: | ||||||
4 | (i) the caption of the proceedings as set forth on the | ||||||
5 | notice of pending forfeiture and the name of the claimant; | ||||||
6 | (ii) the address at which the claimant will accept | ||||||
7 | mail; | ||||||
8 | (iii) the nature and extent of the claimant's interest | ||||||
9 | in the property; | ||||||
10 | (iv) the date, identity of the transferor, and | ||||||
11 | circumstances of the claimant's acquisition of the | ||||||
12 | interest in the property; | ||||||
13 | (v) the names and addresses of all other persons known | ||||||
14 | to have an interest in the property; | ||||||
15 | (vi) the specific provision of law relied on in | ||||||
16 | asserting the property is not subject to forfeiture; | ||||||
17 | (vii) all essential facts supporting each assertion; | ||||||
18 | and | ||||||
19 | (viii) the relief sought. | ||||||
20 | (B) If a claimant files the claim, then the State's | ||||||
21 | Attorney shall institute judicial in rem forfeiture | ||||||
22 | proceedings with the clerk of the court as described in Section | ||||||
23 | 29B-13 of this Article within 28 days after receipt of the | ||||||
24 | claim. | ||||||
25 | (4) If no claim is filed within the 28-day period as | ||||||
26 | described in paragraph (3) of this Section, the State's |
| |||||||
| |||||||
1 | Attorney shall declare the property forfeited and shall | ||||||
2 | promptly notify the owner and all known interest holders of the | ||||||
3 | property and the Director of State Police of the declaration of | ||||||
4 | forfeiture and the Director shall dispose of the property in | ||||||
5 | accordance with law. | ||||||
6 | (720 ILCS 5/29B-13 new) | ||||||
7 | Sec. 29B-13. Judicial in rem procedures. If property seized | ||||||
8 | under this Article is non-real property that exceeds $20,000 in | ||||||
9 | value excluding the value of any conveyance, or is real | ||||||
10 | property, or a claimant has filed a claim under paragraph (3) | ||||||
11 | of Section 29B-12 of this Article, the following judicial in | ||||||
12 | rem procedures shall apply: | ||||||
13 | (1) If, after a review of the facts surrounding the | ||||||
14 | seizure, the State's Attorney is of the opinion that the seized | ||||||
15 | property is subject to forfeiture, then within 28 days of the | ||||||
16 | receipt of notice of seizure by the seizing agency or the | ||||||
17 | filing of the claim, whichever is later, the State's Attorney | ||||||
18 | shall institute judicial forfeiture proceedings by filing a | ||||||
19 | verified complaint for forfeiture. If authorized by law, a | ||||||
20 | forfeiture shall be ordered by a court on an action in rem | ||||||
21 | brought by a State's Attorney under a verified complaint for | ||||||
22 | forfeiture. | ||||||
23 | (2) A complaint of forfeiture shall include: | ||||||
24 | (A) a description of the property seized; | ||||||
25 | (B) the date and place of seizure of the property; |
| |||||||
| |||||||
1 | (C) the name and address of the law enforcement agency | ||||||
2 | making the seizure; and | ||||||
3 | (D) the specific statutory and factual grounds for the | ||||||
4 | seizure. | ||||||
5 | (3) The complaint shall be served upon the person from whom | ||||||
6 | the property was seized and all persons known or reasonably | ||||||
7 | believed by the State to claim an interest in the property, as | ||||||
8 | provided in Section 29B-10 of this Article. The complaint shall | ||||||
9 | be accompanied by the following written notice: | ||||||
10 | "This is a civil court proceeding subject to the Code of | ||||||
11 | Civil Procedure. You received this Complaint of Forfeiture | ||||||
12 | because the State's Attorney's office has brought a legal | ||||||
13 | action seeking forfeiture of your seized property. This | ||||||
14 | complaint starts the court process where the State seeks to | ||||||
15 | prove that your property should be forfeited and not returned | ||||||
16 | to you. This process is also your opportunity to try to prove | ||||||
17 | to a judge that you should get your property back. The | ||||||
18 | complaint lists the date, time, and location of your first | ||||||
19 | court date. You must appear in court on that day, or you may | ||||||
20 | lose the case automatically. You must also file an appearance | ||||||
21 | and answer. If you are unable to pay the appearance fee, you | ||||||
22 | may qualify to have the fee waived. If there is a criminal case | ||||||
23 | related to the seizure of your property, your case may be set | ||||||
24 | for trial after the criminal case has been resolved. Before | ||||||
25 | trial, the judge may allow discovery, where the State can ask | ||||||
26 | you to respond in writing to questions and give them certain |
| |||||||
| |||||||
1 | documents, and you can make similar requests of the State. The | ||||||
2 | trial is your opportunity to explain what happened when your | ||||||
3 | property was seized and why you should get the property back." | ||||||
4 | (4) Forfeiture proceedings under this Article shall be | ||||||
5 | subject to the Code of Civil Procedure and the rules of | ||||||
6 | evidence relating to civil actions shall apply to proceedings | ||||||
7 | under this Article with the following exception. The parties | ||||||
8 | shall be allowed to use, and the court shall receive and | ||||||
9 | consider, all relevant hearsay evidence that relates to | ||||||
10 | evidentiary foundation, chain of custody, business records, | ||||||
11 | recordings, laboratory analysis, laboratory reports, and | ||||||
12 | relevant hearsay related to the use of technology in the | ||||||
13 | investigation that resulted in the seizure of property that is | ||||||
14 | subject to the forfeiture action. | ||||||
15 | (5) Only an owner of or interest holder in the property may | ||||||
16 | file an answer asserting a claim against the property in the | ||||||
17 | action in rem. For purposes of this Section, the owner or | ||||||
18 | interest holder shall be referred to as claimant. Upon motion | ||||||
19 | of the State, the court shall first hold a hearing, in which a | ||||||
20 | claimant shall establish by a preponderance of the evidence, | ||||||
21 | that he or she has a lawful, legitimate ownership interest in | ||||||
22 | the property and that it was obtained through a lawful source. | ||||||
23 | (6) The answer must be signed by the owner or interest | ||||||
24 | holder under penalty of perjury and shall set forth: | ||||||
25 | (A) the caption of the proceedings as set forth on the | ||||||
26 | notice of pending forfeiture and the name of the claimant; |
| |||||||
| |||||||
1 | (B) the address at which the claimant will accept mail; | ||||||
2 | (C) the nature and extent of the claimant's interest in | ||||||
3 | the property; | ||||||
4 | (D) the date, identity of transferor, and | ||||||
5 | circumstances of the claimant's acquisition of the | ||||||
6 | interest in the property; | ||||||
7 | (E) the names and addresses of all other persons known | ||||||
8 | to have an interest in the property; | ||||||
9 | (F) all essential facts supporting each assertion; | ||||||
10 | (G) the precise relief sought; | ||||||
11 | (H) in a forfeiture action involving currency or its | ||||||
12 | equivalent, a claimant shall provide the State with notice | ||||||
13 | of his or her intent to allege that the currency or its | ||||||
14 | equivalent is not related to the alleged factual basis for | ||||||
15 | the forfeiture, and why; and | ||||||
16 | (I) the answer shall follow the rules under the Code of | ||||||
17 | Civil Procedure. | ||||||
18 | (7) The answer shall be filed with the court within 45 days | ||||||
19 | after service of the civil in rem complaint. | ||||||
20 | (8) The hearing shall be held within 60 days after filing | ||||||
21 | of the answer unless continued for good cause. | ||||||
22 | (9) At the judicial in rem proceeding, in the State's case | ||||||
23 | in chief, the State shall show by a preponderance of the | ||||||
24 | evidence that the property is subject to forfeiture. If the | ||||||
25 | State makes such a showing, the claimant shall have the burden | ||||||
26 | of production to set forth evidence that the property is not |
| |||||||
| |||||||
1 | related to the alleged factual basis of the forfeiture. After | ||||||
2 | this production of evidence, the State shall maintain the | ||||||
3 | burden of proof to overcome this assertion. A claimant shall | ||||||
4 | provide the State notice of its intent to allege that the | ||||||
5 | currency or its equivalent is not related to the alleged | ||||||
6 | factual basis of the forfeiture and why.
As to conveyances, at | ||||||
7 | the judicial in rem proceeding, in its case in chief, the State | ||||||
8 | shall show by a preponderance of the evidence, that (A) the | ||||||
9 | property is subject to forfeiture; and (B) at least one of the | ||||||
10 | following: | ||||||
11 | (i) that the claimant was legally accountable for the | ||||||
12 | conduct giving rise to the forfeiture; | ||||||
13 | (ii) that the claimant knew or reasonably should have | ||||||
14 | known of the conduct giving rise to the forfeiture; | ||||||
15 | (iii) that the claimant knew or reasonably should have | ||||||
16 | known that the conduct giving rise to the forfeiture was | ||||||
17 | likely to occur; | ||||||
18 | (iv) that the claimant held the property for the | ||||||
19 | benefit of, or as nominee for, any person whose conduct | ||||||
20 | gave rise to its forfeiture; | ||||||
21 | (v) that if the claimant acquired the interest through | ||||||
22 | any person engaging in any of the conduct described above | ||||||
23 | or conduct giving rise to the forfeiture: | ||||||
24 | (a) the claimant did not acquire it as a bona fide | ||||||
25 | purchaser for value; or | ||||||
26 | (b) the claimant acquired the interest under the |
| |||||||
| |||||||
1 | circumstances that the claimant reasonably should have | ||||||
2 | known the property was derived from, or used in, the | ||||||
3 | conduct giving rise to the forfeiture; or | ||||||
4 | (vi) that the claimant is not the true owner of the | ||||||
5 | property that is subject to forfeiture. | ||||||
6 | (10) If the State does not meet its burden to show that the | ||||||
7 | property is subject to forfeiture, the court shall order the | ||||||
8 | interest in the property returned or conveyed to the claimant | ||||||
9 | and shall order all other property forfeited to the State. If | ||||||
10 | the State does meet its burden to show that the property is | ||||||
11 | subject to forfeiture, the court shall order all property | ||||||
12 | forfeited to the State. | ||||||
13 | (11) A defendant convicted in any criminal proceeding is | ||||||
14 | precluded from later denying the essential allegations of the | ||||||
15 | criminal offense of which the defendant was convicted in any | ||||||
16 | proceeding under this Article regardless of the pendency of an | ||||||
17 | appeal from that conviction. However, evidence of the pendency | ||||||
18 | of an appeal is admissible. | ||||||
19 | (12) On a motion by the parties, the court may stay civil | ||||||
20 | forfeiture proceedings during the criminal trial for a related | ||||||
21 | criminal indictment or information alleging a money laundering | ||||||
22 | violation. Such a stay shall not be available pending an | ||||||
23 | appeal. Property subject to forfeiture under this Article shall | ||||||
24 | not be subject to return or release by a court exercising | ||||||
25 | jurisdiction over a criminal case involving the seizure of the | ||||||
26 | property unless the return or release is consented to by the |
| |||||||
| |||||||
1 | State's Attorney. | ||||||
2 | (720 ILCS 5/29B-14 new) | ||||||
3 | Sec. 29B-14. Innocent owner hearing. | ||||||
4 | (a) After a complaint for forfeiture has been filed and all | ||||||
5 | claimants have appeared and answered, a claimant may file a | ||||||
6 | motion with the court for an innocent owner hearing prior to | ||||||
7 | trial. This motion shall be made and supported by sworn | ||||||
8 | affidavit and shall assert the following along with specific | ||||||
9 | facts that support each assertion: | ||||||
10 | (1) that the claimant filing the motion is the true | ||||||
11 | owner of the conveyance as interpreted by case law; | ||||||
12 | (2) that the claimant was not legally accountable for | ||||||
13 | the conduct giving rise to the forfeiture or acquiesced in | ||||||
14 | the conduct; | ||||||
15 | (3) that the claimant did not solicit, conspire, or | ||||||
16 | attempt to commit the conduct giving rise to the | ||||||
17 | forfeiture; | ||||||
18 | (4) that the claimant did not know or did not have | ||||||
19 | reason to know that the conduct giving rise to the | ||||||
20 | forfeiture was likely to occur; and | ||||||
21 | (5) that the claimant did not hold the property for the | ||||||
22 | benefit of, or as nominee for any person whose conduct gave | ||||||
23 | rise to its forfeiture or if the owner or interest holder | ||||||
24 | acquired the interest through any person, the owner or | ||||||
25 | interest holder did not acquire it as a bona fide purchaser |
| |||||||
| |||||||
1 | for value or acquired the interest without knowledge of the | ||||||
2 | seizure of the property for forfeiture. | ||||||
3 | (b) The claimant's motion shall include specific facts | ||||||
4 | supporting these assertions. | ||||||
5 | (c) Upon this filing, a hearing may only be conducted after | ||||||
6 | the parties have been given the opportunity to conduct limited | ||||||
7 | discovery as to the ownership and control of the property, the | ||||||
8 | claimant's knowledge, or any matter relevant to the issues | ||||||
9 | raised or facts alleged in the claimant's motion. Discovery | ||||||
10 | shall be limited to the People's requests in these areas but | ||||||
11 | may proceed by any means allowed in the Code of Civil | ||||||
12 | Procedure. | ||||||
13 | (1) After discovery is complete and the court has | ||||||
14 | allowed for sufficient time to review and investigate the | ||||||
15 | discovery responses, the court shall conduct a hearing. At | ||||||
16 | the hearing, the fact that the conveyance is subject to | ||||||
17 | forfeiture shall not be at issue. The court shall only hear | ||||||
18 | evidence relating to the issue of innocent ownership. | ||||||
19 | (2) At the hearing on the motion, it shall be the | ||||||
20 | burden of the claimant to prove each of the assertions | ||||||
21 | listed in subsection (a) of this Section by a preponderance | ||||||
22 | of the evidence. | ||||||
23 | (3) If a claimant meets his or her burden of proof, the | ||||||
24 | court shall grant the motion and order the property | ||||||
25 | returned to the claimant. If the claimant fails to meet his | ||||||
26 | or her burden of proof, then the court shall deny the |
| |||||||
| |||||||
1 | motion and the forfeiture case shall proceed according to | ||||||
2 | the Code of Civil Procedure. | ||||||
3 | (720 ILCS 5/29B-15 new) | ||||||
4 | Sec. 29B-15. Burden and commencement of forfeiture action. | ||||||
5 | (a) Notwithstanding any other provision of this Article, | ||||||
6 | the State's burden of proof at the trial of the forfeiture | ||||||
7 | action shall be by clear and convincing evidence if: | ||||||
8 | (1) a finding of not guilty is entered as to all counts | ||||||
9 | and all defendants in a criminal proceeding relating to the | ||||||
10 | conduct giving rise to the forfeiture action; or | ||||||
11 | (2) the State receives an adverse finding at a | ||||||
12 | preliminary hearing and fails to secure an indictment in a | ||||||
13 | criminal proceeding relating to the factual allegations of | ||||||
14 | the forfeiture action. | ||||||
15 | (b) All property declared forfeited under this Article | ||||||
16 | vests in the State on the commission of the conduct giving rise | ||||||
17 | to forfeiture together with the proceeds of the property after | ||||||
18 | that time. Except as otherwise provided in this Article, title | ||||||
19 | to any property or proceeds subject to forfeiture subsequently | ||||||
20 | transferred to any person remain subject to forfeiture and | ||||||
21 | thereafter shall be ordered forfeited unless the person to whom | ||||||
22 | the property was transferred makes an appropriate claim and has | ||||||
23 | his or her claim adjudicated at the judicial in rem hearing. | ||||||
24 | (c) A civil action under this Article shall be commenced | ||||||
25 | within 5 years after the last conduct giving rise to forfeiture |
| |||||||
| |||||||
1 | became known or should have become known or 5 years after the | ||||||
2 | forfeitable property is discovered, whichever is later, | ||||||
3 | excluding any time during which either the property or claimant | ||||||
4 | is out of the State or in confinement or during which criminal | ||||||
5 | proceedings relating to the same conduct are in progress. | ||||||
6 | (720 ILCS 5/29B-16 new) | ||||||
7 | Sec. 29B-16. Joint tenancy or tenancy in common. If | ||||||
8 | property is ordered forfeited under this Section from a | ||||||
9 | claimant who held title to the property in joint tenancy or | ||||||
10 | tenancy in common with another claimant, the court shall | ||||||
11 | determine the amount of each owner's interest in the property | ||||||
12 | according to principles of property law. | ||||||
13 | (720 ILCS 5/29B-17 new) | ||||||
14 | Sec. 29B-17. Exception for bona fide purchasers. No | ||||||
15 | property shall be forfeited under this Article from a person | ||||||
16 | who, without actual or constructive notice that the property | ||||||
17 | was the subject of forfeiture proceedings, obtained possession | ||||||
18 | of the property as a bona fide purchaser for value. A person | ||||||
19 | who purports to affect transfer of property after receiving | ||||||
20 | actual or constructive notice that the property is subject to | ||||||
21 | seizure or forfeiture is guilty of contempt of court, and shall | ||||||
22 | be liable to the State for a penalty in the amount of the fair | ||||||
23 | market value of the property. |
| |||||||
| |||||||
1 | (720 ILCS 5/29B-18 new) | ||||||
2 | Sec. 29B-18. Proportionality. Property that is forfeited | ||||||
3 | shall be subject to an 8th Amendment to the United States | ||||||
4 | Constitution disproportionate penalties analysis and the | ||||||
5 | property forfeiture may be denied in whole or in part if the | ||||||
6 | court finds that the forfeiture would constitute an excessive | ||||||
7 | fine in violation of the 8th Amendment as interpreted by case | ||||||
8 | law. | ||||||
9 | (720 ILCS 5/29B-19 new) | ||||||
10 | Sec. 29B-19. Stay of time periods. If property is seized | ||||||
11 | for evidence and for forfeiture, the time periods for | ||||||
12 | instituting judicial and non-judicial forfeiture proceedings | ||||||
13 | shall not begin until the property is no longer necessary for | ||||||
14 | evidence. | ||||||
15 | (720 ILCS 5/29B-20 new) | ||||||
16 | Sec. 29B-20. Settlement of claims. Notwithstanding other | ||||||
17 | provisions of this Article, the State's Attorney and a claimant | ||||||
18 | of seized property may enter into an agreed-upon settlement | ||||||
19 | concerning the seized property in such an amount and upon such | ||||||
20 | terms as are set out in writing in a settlement agreement. All | ||||||
21 | proceeds from a settlement agreement shall be tendered to the | ||||||
22 | Department of State Police and distributed under Section 29B-26 | ||||||
23 | of this Article. |
| |||||||
| |||||||
1 | (720 ILCS 5/29B-21 new) | ||||||
2 | Sec. 29B-21. Attorney's fees. Nothing in this Article | ||||||
3 | applies to property that constitutes reasonable bona fide | ||||||
4 | attorney's fees paid to an attorney for services rendered or to | ||||||
5 | be rendered in the forfeiture proceeding or criminal proceeding | ||||||
6 | relating directly thereto if the property was paid before its | ||||||
7 | seizure, before the issuance of any seizure warrant or court | ||||||
8 | order prohibiting transfer of the property and if the attorney, | ||||||
9 | at the time he or she received the property did not know that | ||||||
10 | it was property subject to forfeiture under this Article. | ||||||
11 | (720 ILCS 5/29B-22 new) | ||||||
12 | Sec. 29B-22. Construction. | ||||||
13 | (a) It is the intent of the General Assembly that the | ||||||
14 | forfeiture provisions of this Article be liberally construed so | ||||||
15 | as to effect their remedial purpose. The forfeiture of property | ||||||
16 | and other remedies under this Article shall be considered to be | ||||||
17 | in addition to, and not exclusive of, any sentence or other | ||||||
18 | remedy provided by law. | ||||||
19 | (b) The changes made to this Article by Public Act 100-0512 | ||||||
20 | and this amendatory Act of the 100th General Assembly are | ||||||
21 | subject to Section 2 of the Statute on Statutes. | ||||||
22 | (720 ILCS 5/29B-23 new) | ||||||
23 | Sec. 29B-23. Judicial review. If property has been declared | ||||||
24 | forfeited under Section 29B-12 of this Article, any person who |
| |||||||
| |||||||
1 | has an interest in the property declared forfeited may, within | ||||||
2 | 30 days after the effective date of the notice of the | ||||||
3 | declaration of forfeiture, file a claim as described in | ||||||
4 | paragraph (3) of Section 29B-12 of this Article. If a claim is | ||||||
5 | filed under this Section, then the procedures described in | ||||||
6 | Section of 29B-13 of this Article apply. | ||||||
7 | (720 ILCS 5/29B-24 new) | ||||||
8 | Sec. 29B-24. Review of administrative decisions. All | ||||||
9 | administrative findings, rulings, final determinations, | ||||||
10 | findings, and conclusions of the State's Attorney's Office | ||||||
11 | under this Article are final and conclusive decisions of the | ||||||
12 | matters involved. Any person aggrieved by the decision may | ||||||
13 | obtain review of the decision under the provisions of the | ||||||
14 | Administrative Review Law and the rules adopted under that Law. | ||||||
15 | Pending final decision on such review, the administrative acts, | ||||||
16 | orders, and rulings of the State's Attorney's Office remain in | ||||||
17 | full force and effect unless modified or suspended by order of | ||||||
18 | court pending final judicial decision. Pending final decision | ||||||
19 | on such review, the acts, orders, and rulings of the State's | ||||||
20 | Attorney's Office remain in full force and effect, unless | ||||||
21 | stayed by order of court. However, no stay of any decision of | ||||||
22 | the administrative agency shall issue unless the person | ||||||
23 | aggrieved by the decision establishes by a preponderance of the | ||||||
24 | evidence that good cause exists for the stay. In determining | ||||||
25 | good cause, the court shall find that the aggrieved party has |
| |||||||
| |||||||
1 | established a substantial likelihood of prevailing on the | ||||||
2 | merits and that granting the stay will not have an injurious | ||||||
3 | effect on the general public. | ||||||
4 | (720 ILCS 5/29B-25 new) | ||||||
5 | Sec. 29B-25. Return of property, damages, and costs. | ||||||
6 | (a) The law enforcement agency that holds custody of | ||||||
7 | property seized for forfeiture shall deliver property ordered | ||||||
8 | by the court to be returned or conveyed to the claimant within | ||||||
9 | a reasonable time not to exceed 7 days, unless the order is | ||||||
10 | stayed by the trial court or a reviewing court pending an | ||||||
11 | appeal, motion to reconsider, or other reason. | ||||||
12 | (b) The law enforcement agency that holds custody of | ||||||
13 | property is responsible for any damages, storage fees, and | ||||||
14 | related costs applicable to property returned. The claimant | ||||||
15 | shall not be subject to any charges by the State for storage of | ||||||
16 | the property or expenses incurred in the preservation of the | ||||||
17 | property. Charges for the towing of a conveyance shall be borne | ||||||
18 | by the claimant unless the conveyance was towed for the sole | ||||||
19 | reason of seizure for forfeiture. This Section does not | ||||||
20 | prohibit the imposition of any fees or costs by a home rule | ||||||
21 | unit of local government related to the impoundment of a | ||||||
22 | conveyance under an ordinance enacted by the unit of | ||||||
23 | government. | ||||||
24 | (c) A law enforcement agency shall not retain forfeited | ||||||
25 | property for its own use or transfer the property to any person |
| |||||||
| |||||||
1 | or entity, except as provided under this Section. A law | ||||||
2 | enforcement agency may apply in writing to the Director of | ||||||
3 | State Police to request that forfeited property be awarded to | ||||||
4 | the agency for a specifically articulated official law | ||||||
5 | enforcement use in an investigation. The Director shall provide | ||||||
6 | a written justification in each instance detailing the reasons | ||||||
7 | why the forfeited property was placed into official use and the | ||||||
8 | justification shall be retained for a period of not less than 3 | ||||||
9 | years. | ||||||
10 | (d) A claimant or a party interested in personal property | ||||||
11 | contained within a seized conveyance may file a request with | ||||||
12 | the State's Attorney in a non-judicial forfeiture action, or a | ||||||
13 | motion with the court in a judicial forfeiture action for the | ||||||
14 | return of any personal property contained within a conveyance | ||||||
15 | that is seized under this Article. The return of personal | ||||||
16 | property shall not be unreasonably withheld if the personal | ||||||
17 | property is not mechanically or electrically coupled to the | ||||||
18 | conveyance, needed for evidentiary purposes, or otherwise | ||||||
19 | contraband. Any law enforcement agency that returns property | ||||||
20 | under a court order under this Section shall not be liable to | ||||||
21 | any person who claims ownership to the property if it is | ||||||
22 | returned to an improper party. | ||||||
23 | (720 ILCS 5/29B-26 new) | ||||||
24 | Sec. 29B-26. Distribution of proceeds. | ||||||
25 | All monies and the sale proceeds of all other property |
| |||||||
| |||||||
1 | forfeited and seized under this Article shall be distributed as | ||||||
2 | follows: | ||||||
3 | (1) 65% shall be distributed to the metropolitan | ||||||
4 | enforcement group, local, municipal, county, or State law | ||||||
5 | enforcement agency or agencies that conducted or | ||||||
6 | participated in the investigation resulting in the | ||||||
7 | forfeiture. The distribution shall bear a reasonable | ||||||
8 | relationship to the degree of direct participation of the | ||||||
9 | law enforcement agency in the effort resulting in the | ||||||
10 | forfeiture, taking into account the total value of the | ||||||
11 | property forfeited and the total law enforcement effort | ||||||
12 | with respect to the violation of the law upon which the | ||||||
13 | forfeiture is based. Amounts distributed to the agency or | ||||||
14 | agencies shall be used for the enforcement of laws. | ||||||
15 | (2)(i) 12.5% shall be distributed to the Office of the | ||||||
16 | State's Attorney of the county in which the prosecution | ||||||
17 | resulting in the forfeiture was instituted, deposited in a | ||||||
18 | special fund in the county treasury and appropriated to the | ||||||
19 | State's Attorney for use in the enforcement of laws. In | ||||||
20 | counties over 3,000,000 population, 25% shall be | ||||||
21 | distributed to the Office of the State's Attorney for use | ||||||
22 | in the enforcement of laws. If the prosecution is | ||||||
23 | undertaken solely by the Attorney General, the portion | ||||||
24 | provided under this subparagraph (i) shall be distributed | ||||||
25 | to the Attorney General for use in the enforcement of laws. | ||||||
26 | (ii) 12.5% shall be distributed to the Office of the |
| |||||||
| |||||||
1 | State's Attorneys Appellate Prosecutor and deposited in | ||||||
2 | the Narcotics Profit Forfeiture Fund of that office to be | ||||||
3 | used for additional expenses incurred in the | ||||||
4 | investigation, prosecution, and appeal of cases arising | ||||||
5 | under laws. The Office of the State's Attorneys Appellate | ||||||
6 | Prosecutor shall not receive distribution from cases | ||||||
7 | brought in counties with over 3,000,000 population. | ||||||
8 | (3) 10% shall be retained by the Department of State Police | ||||||
9 | for expenses related to the administration and sale of seized | ||||||
10 | and forfeited property. | ||||||
11 | Moneys and the sale proceeds distributed to the Department | ||||||
12 | of State Police under this Article shall be deposited in the | ||||||
13 | Money Laundering Asset Recovery Fund created in the State | ||||||
14 | treasury and shall be used by the Department of State Police | ||||||
15 | for State law enforcement purposes. All moneys and sale | ||||||
16 | proceeds of property forfeited and seized under this Article | ||||||
17 | and distributed according to this Section may also be used to | ||||||
18 | purchase opioid antagonists as defined in Section 5-23 of the | ||||||
19 | Alcoholism and Other Drug Abuse and Dependency Act. | ||||||
20 | (720 ILCS 5/29B-27 new) | ||||||
21 | Sec. 29B-27. Applicability; savings clause. | ||||||
22 | (a) The changes made to this Article by Public Act 100-0512 | ||||||
23 | and this amendatory Act of the 100th General Assembly only | ||||||
24 | apply to property seized on and after July 1, 2018. | ||||||
25 | (b) The changes made to this Article by this amendatory Act |
| |||||||
| |||||||
1 | of the 100th General Assembly are subject to Section 4 of the | ||||||
2 | Statute on Statutes. | ||||||
3 | (720 ILCS 5/33G-6) | ||||||
4 | (Text of Section before amendment by P.A. 100-512 ) | ||||||
5 | (Section scheduled to be repealed on June 11, 2022) | ||||||
6 | Sec. 33G-6. Remedial proceedings, procedures, and | ||||||
7 | forfeiture. Under this Article: | ||||||
8 | (a) The circuit court shall have jurisdiction to prevent | ||||||
9 | and restrain violations of this Article by issuing appropriate | ||||||
10 | orders, including: | ||||||
11 | (1) ordering any person to disgorge illicit proceeds | ||||||
12 | obtained by a violation of this Article or divest himself | ||||||
13 | or herself of any interest, direct or indirect, in any | ||||||
14 | enterprise or real or personal property of any character, | ||||||
15 | including money, obtained, directly or indirectly, by a | ||||||
16 | violation of this Article; | ||||||
17 | (2) imposing reasonable restrictions on the future | ||||||
18 | activities or investments of any person or enterprise, | ||||||
19 | including prohibiting any person or enterprise from | ||||||
20 | engaging in the same type of endeavor as the person or | ||||||
21 | enterprise engaged in, that violated this Article; or | ||||||
22 | (3) ordering dissolution or reorganization of any | ||||||
23 | enterprise, making due provision for the rights of innocent | ||||||
24 | persons. | ||||||
25 | (b) Any violation of this Article is subject to the |
| |||||||
| |||||||
1 | remedies, procedures, and forfeiture as set forth in | ||||||
2 | subsections (f) through (s) of Section 29B-1 of this Code.
| ||||||
3 | (Source: P.A. 97-686, eff. 6-11-12 .) | ||||||
4 | (Text of Section after amendment by P.A. 100-512 ) | ||||||
5 | (Section scheduled to be repealed on June 11, 2022) | ||||||
6 | Sec. 33G-6. Remedial proceedings, procedures, and | ||||||
7 | forfeiture. Under this Article: | ||||||
8 | (a) The circuit court shall have jurisdiction to prevent | ||||||
9 | and restrain violations of this Article by issuing appropriate | ||||||
10 | orders, including: | ||||||
11 | (1) ordering any person to disgorge illicit proceeds | ||||||
12 | obtained by a violation of this Article or divest himself | ||||||
13 | or herself of any interest, direct or indirect, in any | ||||||
14 | enterprise or real or personal property of any character, | ||||||
15 | including money, obtained, directly or indirectly, by a | ||||||
16 | violation of this Article; | ||||||
17 | (2) imposing reasonable restrictions on the future | ||||||
18 | activities or investments of any person or enterprise, | ||||||
19 | including prohibiting any person or enterprise from | ||||||
20 | engaging in the same type of endeavor as the person or | ||||||
21 | enterprise engaged in, that violated this Article; or | ||||||
22 | (3) ordering dissolution or reorganization of any | ||||||
23 | enterprise, making due provision for the rights of innocent | ||||||
24 | persons. | ||||||
25 | (b) Any violation of this Article is subject to the |
| |||||||
| |||||||
1 | remedies, procedures, and forfeiture as set forth in Article | ||||||
2 | 29B subsections (f) through (s) of Section 29B-1 of this Code. | ||||||
3 | (c) Property seized or forfeited under this Article is | ||||||
4 | subject to reporting under the Seizure and Forfeiture Reporting | ||||||
5 | Act.
| ||||||
6 | (Source: P.A. 100-512, eff. 7-1-18.) | ||||||
7 | (720 ILCS 5/36-1.1) | ||||||
8 | (This Section may contain text from a Public Act with a | ||||||
9 | delayed effective date ) | ||||||
10 | Sec. 36-1.1. Seizure. | ||||||
11 | (a) Any property subject to forfeiture under this Article | ||||||
12 | may be seized and impounded by the Director of State Police or | ||||||
13 | any peace officer upon process or seizure warrant issued by any | ||||||
14 | court having jurisdiction over the property. | ||||||
15 | (b) Any property subject to forfeiture under this Article | ||||||
16 | may be seized and impounded by the Director of State Police or | ||||||
17 | any peace officer without process if there is probable cause to | ||||||
18 | believe that the property is subject to forfeiture under | ||||||
19 | Section 36-1 of this Article and the property is seized under | ||||||
20 | circumstances in which a warrantless seizure or arrest would be | ||||||
21 | reasonable. | ||||||
22 | (c) If the seized property is a conveyance, an | ||||||
23 | investigation shall be made by the law enforcement agency as to | ||||||
24 | any person whose right, title, interest, or lien is of record | ||||||
25 | in the office of the agency or official in which title to or |
| |||||||
| |||||||
1 | interest in to the conveyance is required by law to be | ||||||
2 | recorded. | ||||||
3 | (d) After seizure under this Section, notice shall be given | ||||||
4 | to all known interest holders that forfeiture proceedings, | ||||||
5 | including a preliminary review, may be instituted and the | ||||||
6 | proceedings may be instituted under this Article.
| ||||||
7 | (Source: P.A. 100-512, eff. 7-1-18.) | ||||||
8 | (720 ILCS 5/36-1.3) | ||||||
9 | (This Section may contain text from a Public Act with a | ||||||
10 | delayed effective date ) | ||||||
11 | Sec. 36-1.3. Safekeeping of seized property pending | ||||||
12 | disposition. | ||||||
13 | (a) Property seized under this Article is deemed to be in | ||||||
14 | the custody of the Director of State Police , subject only to | ||||||
15 | the order and judgments of the circuit court having | ||||||
16 | jurisdiction over the forfeiture proceedings and the decisions | ||||||
17 | of the State's Attorney under this Article. | ||||||
18 | (b) If property is seized under this Article, the seizing | ||||||
19 | agency shall promptly conduct an inventory of the seized | ||||||
20 | property and estimate the property's value, and shall forward a | ||||||
21 | copy of the inventory of seized property and the estimate of | ||||||
22 | the property's value to the Director of State Police. Upon | ||||||
23 | receiving notice of seizure, the Director of State Police may: | ||||||
24 | (1) place the property under seal; | ||||||
25 | (2) remove the property to a place designated by the |
| |||||||
| |||||||
1 | Director of State Police; | ||||||
2 | (3) keep the property in the possession of the seizing | ||||||
3 | agency; | ||||||
4 | (4) remove the property to a storage area for | ||||||
5 | safekeeping; or | ||||||
6 | (5) place the property under constructive seizure by | ||||||
7 | posting notice of pending forfeiture on it, by giving | ||||||
8 | notice of pending forfeiture to its owners and interest | ||||||
9 | holders, or by filing notice of pending forfeiture in any | ||||||
10 | appropriate public record relating to the property; or | ||||||
11 | (6) provide for another agency or custodian, including | ||||||
12 | an owner, secured party, or lienholder, to take custody of | ||||||
13 | the property upon the terms and conditions set by the | ||||||
14 | seizing agency. | ||||||
15 | (c) The seizing agency shall exercise ordinary care to | ||||||
16 | protect the subject of the forfeiture from negligent loss, | ||||||
17 | damage, or destruction. | ||||||
18 | (d) Property seized or forfeited under this Article is | ||||||
19 | subject to reporting under the Seizure and Forfeiture Reporting | ||||||
20 | Act.
| ||||||
21 | (Source: P.A. 100-512, eff. 7-1-18.) | ||||||
22 | (720 ILCS 5/36-1.4) | ||||||
23 | (This Section may contain text from a Public Act with a | ||||||
24 | delayed effective date ) | ||||||
25 | Sec. 36-1.4. Notice to State's Attorney. The law |
| |||||||
| |||||||
1 | enforcement agency seizing property for forfeiture under this | ||||||
2 | Article shall, as soon as practicable but not later than 28 | ||||||
3 | days after the seizure, notify the State's Attorney for the | ||||||
4 | county in which an act or omission giving rise to the seizure | ||||||
5 | occurred or in which the property was seized and the facts and | ||||||
6 | circumstances giving rise to the seizure, and shall provide the | ||||||
7 | State's Attorney with the inventory of the property and its | ||||||
8 | estimated value. The notice shall be by the delivery of | ||||||
9 | Illinois State Police Notice/Inventory of Seized Property | ||||||
10 | (Form 4-64) the form 4-64 . If the property seized for | ||||||
11 | forfeiture is a vehicle, the law enforcement agency seizing the | ||||||
12 | property shall immediately notify the Secretary of State that | ||||||
13 | forfeiture proceedings are pending regarding the vehicle.
| ||||||
14 | (Source: P.A. 100-512, eff. 7-1-18.) | ||||||
15 | (720 ILCS 5/36-1.5) | ||||||
16 | (Text of Section before amendment by P.A. 100-512 ) | ||||||
17 | Sec. 36-1.5. Preliminary review. | ||||||
18 | (a) Within 14 days of the seizure, the State's Attorney in | ||||||
19 | the county in which the seizure occurred shall seek a | ||||||
20 | preliminary determination from the circuit court as to whether | ||||||
21 | there is probable cause that the property may be subject to | ||||||
22 | forfeiture. | ||||||
23 | (b) The rules of evidence shall not apply to any proceeding | ||||||
24 | conducted under this Section. | ||||||
25 | (c) The court may conduct the review under subsection (a) |
| |||||||
| |||||||
1 | simultaneously with a proceeding pursuant to Section 109-1 of | ||||||
2 | the Code of Criminal Procedure of 1963 for a related criminal | ||||||
3 | offense if a prosecution is commenced by information or | ||||||
4 | complaint. | ||||||
5 | (d) The court may accept a finding of probable cause at a | ||||||
6 | preliminary hearing following the filing of an information or | ||||||
7 | complaint charging a related criminal offense or following the | ||||||
8 | return of indictment by a grand jury charging the related | ||||||
9 | offense as sufficient evidence of probable cause as required | ||||||
10 | under subsection (a). | ||||||
11 | (e) Upon making a finding of probable cause as required | ||||||
12 | under this Section, the circuit court shall order the property | ||||||
13 | subject to the provisions of the applicable forfeiture Act held | ||||||
14 | until the conclusion of any forfeiture proceeding. | ||||||
15 | For seizures of conveyances, within 7 days of a finding of | ||||||
16 | probable cause under subsection (a), the registered owner or | ||||||
17 | other claimant may file a motion in writing supported by sworn | ||||||
18 | affidavits claiming that denial of the use of the conveyance | ||||||
19 | during the pendency of the forfeiture proceedings creates a | ||||||
20 | substantial hardship. The court shall consider the following | ||||||
21 | factors in determining whether a substantial hardship has been | ||||||
22 | proven: | ||||||
23 | (1) the nature of the claimed hardship; | ||||||
24 | (2) the availability of public transportation or other | ||||||
25 | available means of transportation; and | ||||||
26 | (3) any available alternatives to alleviate the |
| |||||||
| |||||||
1 | hardship other than the return of the seized conveyance. | ||||||
2 | If the court determines that a substantial hardship has | ||||||
3 | been proven, the court shall then balance the nature of the | ||||||
4 | hardship against the State's interest in safeguarding the | ||||||
5 | conveyance. If the court determines that the hardship outweighs | ||||||
6 | the State's interest in safeguarding the conveyance, the court | ||||||
7 | may temporarily release the conveyance to the registered owner | ||||||
8 | or the registered owner's authorized designee, or both, until | ||||||
9 | the conclusion of the forfeiture proceedings or for such | ||||||
10 | shorter period as ordered by the court provided that the person | ||||||
11 | to whom the conveyance is released provides proof of insurance | ||||||
12 | and a valid driver's license and all State and local | ||||||
13 | registrations for operation of the conveyance are current. The | ||||||
14 | court shall place conditions on the conveyance limiting its use | ||||||
15 | to the stated hardship and restricting the conveyance's use to | ||||||
16 | only those individuals authorized to use the conveyance by the | ||||||
17 | registered owner. The court shall revoke the order releasing | ||||||
18 | the conveyance and order that the conveyance be reseized by law | ||||||
19 | enforcement if the conditions of release are violated or if the | ||||||
20 | conveyance is used in the commission of any offense identified | ||||||
21 | in subsection (a) of Section 6-205 of the Illinois Vehicle | ||||||
22 | Code. | ||||||
23 | If the court orders the release of the conveyance during | ||||||
24 | the pendency of the forfeiture proceedings, the registered | ||||||
25 | owner or his or her authorized designee shall post a cash | ||||||
26 | security with the Clerk of the Court as ordered by the court. |
| |||||||
| |||||||
1 | The court shall consider the following factors in determining | ||||||
2 | the amount of the cash security: | ||||||
3 | (A) the full market value of the conveyance; | ||||||
4 | (B) the nature of the hardship; | ||||||
5 | (C) the extent and length of the usage of the | ||||||
6 | conveyance; and | ||||||
7 | (D) such other conditions as the court deems necessary | ||||||
8 | to safeguard the conveyance. | ||||||
9 | If the conveyance is released, the court shall order that | ||||||
10 | the registered owner or his or her designee safeguard the | ||||||
11 | conveyance, not remove the conveyance from the jurisdiction, | ||||||
12 | not conceal, destroy, or otherwise dispose of the conveyance, | ||||||
13 | not encumber the conveyance, and not diminish the value of the | ||||||
14 | conveyance in any way. The court shall also make a | ||||||
15 | determination of the full market value of the conveyance prior | ||||||
16 | to it being released based on a source or sources defined in 50 | ||||||
17 | Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). | ||||||
18 | If the conveyance subject to forfeiture is released under | ||||||
19 | this Section and is subsequently forfeited, the person to whom | ||||||
20 | the conveyance was released shall return the conveyance to the | ||||||
21 | law enforcement agency that seized the conveyance within 7 days | ||||||
22 | from the date of the declaration of forfeiture or order of | ||||||
23 | forfeiture. If the conveyance is not returned within 7 days, | ||||||
24 | the cash security shall be forfeited in the same manner as the | ||||||
25 | conveyance subject to forfeiture. If the cash security was less | ||||||
26 | than the full market value, a judgment shall be entered against |
| |||||||
| |||||||
1 | the parties to whom the conveyance was released and the | ||||||
2 | registered owner, jointly and severally, for the difference | ||||||
3 | between the full market value and the amount of the cash | ||||||
4 | security. If the conveyance is returned in a condition other | ||||||
5 | than the condition in which it was released, the cash security | ||||||
6 | shall be returned to the surety who posted the security minus | ||||||
7 | the amount of the diminished value, and that amount shall be | ||||||
8 | forfeited in the same manner as the conveyance subject to | ||||||
9 | forfeiture. Additionally, the court may enter an order allowing | ||||||
10 | any law enforcement agency in the State of Illinois to seize | ||||||
11 | the conveyance wherever it may be found in the State to satisfy | ||||||
12 | the judgment if the cash security was less than the full market | ||||||
13 | value of the conveyance.
| ||||||
14 | (Source: P.A. 97-544, eff. 1-1-12; 97-680, eff. 3-16-12; | ||||||
15 | 98-1020, eff. 8-22-14.) | ||||||
16 | (Text of Section after amendment by P.A. 100-512 ) | ||||||
17 | Sec. 36-1.5. Preliminary review. | ||||||
18 | (a) Within 14 days of the seizure, the State's Attorney of | ||||||
19 | in the county in which the seizure occurred shall seek a | ||||||
20 | preliminary determination from the circuit court as to whether | ||||||
21 | there is probable cause that the property may be subject to | ||||||
22 | forfeiture. | ||||||
23 | (b) The rules of evidence shall not apply to any proceeding | ||||||
24 | conducted under this Section. | ||||||
25 | (c) The court may conduct the review under subsection (a) |
| |||||||
| |||||||
1 | of this Section simultaneously with a proceeding under pursuant | ||||||
2 | to Section 109-1 of the Code of Criminal Procedure of 1963 for | ||||||
3 | a related criminal offense if a prosecution is commenced by | ||||||
4 | information or complaint. | ||||||
5 | (d) The court may accept a finding of probable cause at a | ||||||
6 | preliminary hearing following the filing of an information or | ||||||
7 | complaint charging a related criminal offense or following the | ||||||
8 | return of indictment by a grand jury charging the related | ||||||
9 | offense as sufficient evidence of probable cause as required | ||||||
10 | under subsection (a) of ths Section . | ||||||
11 | (e) Upon making a finding of probable cause as required | ||||||
12 | under this Section, the circuit court shall order the property | ||||||
13 | subject to the provisions of the applicable forfeiture Act held | ||||||
14 | until the conclusion of any forfeiture proceeding. | ||||||
15 | For seizures of conveyances, within 28 days of a finding of | ||||||
16 | probable cause under subsection (a) of this Section , the | ||||||
17 | registered owner or other claimant may file a motion in writing | ||||||
18 | supported by sworn affidavits claiming that denial of the use | ||||||
19 | of the conveyance during the pendency of the forfeiture | ||||||
20 | proceedings creates a substantial hardship and alleges facts | ||||||
21 | showing that the hardship delay was not due to his or her | ||||||
22 | culpable negligence. The court shall consider the following | ||||||
23 | factors in determining whether a substantial hardship has been | ||||||
24 | proven: | ||||||
25 | (1) the nature of the claimed hardship; | ||||||
26 | (2) the availability of public transportation or other |
| |||||||
| |||||||
1 | available means of transportation; and | ||||||
2 | (3) any available alternatives to alleviate the | ||||||
3 | hardship other than the return of the seized conveyance. | ||||||
4 | If the court determines that a substantial hardship has | ||||||
5 | been proven, the court shall then balance the nature of the | ||||||
6 | hardship against the State's interest in safeguarding the | ||||||
7 | conveyance. If the court determines that the hardship outweighs | ||||||
8 | the State's interest in safeguarding the conveyance, the court | ||||||
9 | may temporarily release the conveyance to the registered owner | ||||||
10 | or the registered owner's authorized designee, or both, until | ||||||
11 | the conclusion of the forfeiture proceedings or for such | ||||||
12 | shorter period as ordered by the court provided that the person | ||||||
13 | to whom the conveyance is released provides proof of insurance | ||||||
14 | and a valid driver's license and all State and local | ||||||
15 | registrations for operation of the conveyance are current. The | ||||||
16 | court shall place conditions on the conveyance limiting its use | ||||||
17 | to the stated hardship and providing transportation for | ||||||
18 | employment, religious purposes, medical needs, child care, and | ||||||
19 | restricting the conveyance's use to only those individuals | ||||||
20 | authorized to use the conveyance by the registered owner. The | ||||||
21 | use of the vehicle shall be further restricted to exclude all | ||||||
22 | recreational and entertainment purposes. The court may order | ||||||
23 | additional restrictions it deems reasonable and just on its own | ||||||
24 | motion or on motion of the People. The court shall revoke the | ||||||
25 | order releasing the conveyance and order that the conveyance be | ||||||
26 | reseized by law enforcement if the conditions of release are |
| |||||||
| |||||||
1 | violated or if the conveyance is used in the commission of any | ||||||
2 | offense identified in subsection (a) of Section 6-205 of the | ||||||
3 | Illinois Vehicle Code. | ||||||
4 | If the court orders the release of the conveyance during | ||||||
5 | the pendency of the forfeiture proceedings, the court may order | ||||||
6 | the registered owner or his or her authorized designee to post | ||||||
7 | a cash security with the clerk Clerk of the court Court as | ||||||
8 | ordered by the court. If cash security is ordered, the court | ||||||
9 | shall consider the following factors in determining the amount | ||||||
10 | of the cash security: | ||||||
11 | (A) the full market value of the conveyance; | ||||||
12 | (B) the nature of the hardship; | ||||||
13 | (C) the extent and length of the usage of the | ||||||
14 | conveyance; | ||||||
15 | (D) the ability of the owner or designee to pay; and | ||||||
16 | (E) other conditions as the court deems necessary to | ||||||
17 | safeguard the conveyance. | ||||||
18 | If the conveyance is released, the court shall order that | ||||||
19 | the registered owner or his or her designee safeguard the | ||||||
20 | conveyance, not remove the conveyance from the jurisdiction, | ||||||
21 | not conceal, destroy, or otherwise dispose of the conveyance, | ||||||
22 | not encumber the conveyance, and not diminish the value of the | ||||||
23 | conveyance in any way. The court shall also make a | ||||||
24 | determination of the full market value of the conveyance prior | ||||||
25 | to it being released based on a source or sources defined in 50 | ||||||
26 | Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). |
| |||||||
| |||||||
1 | If the conveyance subject to forfeiture is released under | ||||||
2 | this Section and is subsequently forfeited, the person to whom | ||||||
3 | the conveyance was released shall return the conveyance to the | ||||||
4 | law enforcement agency that seized the conveyance within 7 days | ||||||
5 | from the date of the declaration of forfeiture or order of | ||||||
6 | forfeiture. If the conveyance is not returned within 7 days, | ||||||
7 | the cash security shall be forfeited in the same manner as the | ||||||
8 | conveyance subject to forfeiture. If the cash security was less | ||||||
9 | than the full market value, a judgment shall be entered against | ||||||
10 | the parties to whom the conveyance was released and the | ||||||
11 | registered owner, jointly and severally, for the difference | ||||||
12 | between the full market value and the amount of the cash | ||||||
13 | security. If the conveyance is returned in a condition other | ||||||
14 | than the condition in which it was released, the cash security | ||||||
15 | shall be returned to the surety who posted the security minus | ||||||
16 | the amount of the diminished value, and that amount shall be | ||||||
17 | forfeited in the same manner as the conveyance subject to | ||||||
18 | forfeiture. Additionally, the court may enter an order allowing | ||||||
19 | any law enforcement agency in the State of Illinois to seize | ||||||
20 | the conveyance wherever it may be found in the State to satisfy | ||||||
21 | the judgment if the cash security was less than the full market | ||||||
22 | value of the conveyance.
| ||||||
23 | (Source: P.A. 100-512, eff. 7-1-18.)
| ||||||
24 | (720 ILCS 5/36-2) (from Ch. 38, par. 36-2)
| ||||||
25 | (Text of Section before amendment by P.A. 100-512 )
|
| |||||||
| |||||||
1 | Sec. 36-2. Action for forfeiture. | ||||||
2 | (a) The State's Attorney in the county in which such | ||||||
3 | seizure occurs
if he or she finds that the forfeiture was | ||||||
4 | incurred without willful negligence
or without any intention on | ||||||
5 | the part of the owner of the vessel or watercraft, vehicle
or | ||||||
6 | aircraft or any person whose right, title or interest is of | ||||||
7 | record as
described in Section 36-1, to violate the law, or | ||||||
8 | finds the existence of
such mitigating circumstances as to | ||||||
9 | justify remission of the forfeiture,
may cause the law | ||||||
10 | enforcement agency to remit the same upon such terms and | ||||||
11 | conditions
as the State's Attorney deems reasonable and just. | ||||||
12 | The State's Attorney
shall exercise his or her discretion under | ||||||
13 | the foregoing provision of this
Section 36-2(a) prior to or | ||||||
14 | promptly after the preliminary review under Section 36-1.5. | ||||||
15 | (b) If the State's Attorney does not cause the forfeiture | ||||||
16 | to
be remitted he or she shall forthwith bring an action for | ||||||
17 | forfeiture in the
Circuit Court within whose jurisdiction the | ||||||
18 | seizure and confiscation has
taken place. The State's Attorney | ||||||
19 | shall give notice of seizure and the forfeiture proceeding to | ||||||
20 | each person according to the following method: upon each person | ||||||
21 | whose right, title, or interest is of record in the office of | ||||||
22 | the Secretary of State, the Secretary of Transportation, the | ||||||
23 | Administrator of the Federal Aviation Agency, or any other | ||||||
24 | department of this State, or any other state of the United | ||||||
25 | States if the vessel or watercraft, vehicle, or aircraft is | ||||||
26 | required to be so registered, as the case may be, by delivering |
| |||||||
| |||||||
1 | the notice and complaint in open court or by certified mail to | ||||||
2 | the address as given upon the records of the Secretary of | ||||||
3 | State, the Division of Aeronautics of the Department of | ||||||
4 | Transportation, the Capital Development Board, or any other | ||||||
5 | department of this State or the United States if the vessel or | ||||||
6 | watercraft, vehicle, or aircraft is required to be so | ||||||
7 | registered. | ||||||
8 | (c) The owner of the seized vessel or watercraft, vehicle, | ||||||
9 | or aircraft or any person
whose right, title, or interest is of | ||||||
10 | record as described in Section
36-1, may within 20 days after | ||||||
11 | delivery in open court or the mailing of such notice file a
| ||||||
12 | verified answer to the Complaint and may appear at the hearing | ||||||
13 | on the
action for forfeiture. | ||||||
14 | (d) The State shall show at such hearing by a
preponderance | ||||||
15 | of the evidence, that such vessel or watercraft, vehicle, or | ||||||
16 | aircraft was
used in the commission of an offense described in | ||||||
17 | Section 36-1. | ||||||
18 | (e) The
owner of such vessel or watercraft, vehicle, or | ||||||
19 | aircraft or any person whose right,
title, or interest is of | ||||||
20 | record as described in Section 36-1, may show
by a | ||||||
21 | preponderance of the evidence that he did not know, and did not
| ||||||
22 | have reason to know, that the vessel or watercraft, vehicle, or | ||||||
23 | aircraft was to be used
in the commission of such an offense or | ||||||
24 | that any of the exceptions set
forth in Section 36-3 are | ||||||
25 | applicable. | ||||||
26 | (f) Unless the State shall make such
showing, the Court |
| |||||||
| |||||||
1 | shall order such vessel or watercraft, vehicle, or aircraft | ||||||
2 | released
to the owner. Where the State has made such showing, | ||||||
3 | the Court may order
the vessel or watercraft, vehicle, or | ||||||
4 | aircraft destroyed or may order it forfeited to
any local, | ||||||
5 | municipal or county law enforcement agency, or the Department
| ||||||
6 | of State Police or the Department of Revenue of
the State of | ||||||
7 | Illinois.
| ||||||
8 | (g) A copy of the order shall be filed with the law | ||||||
9 | enforcement agency, and with each Federal or State office
or | ||||||
10 | agency with which such vessel or watercraft, vehicle, or | ||||||
11 | aircraft is required to be
registered. Such order, when filed, | ||||||
12 | constitutes authority for the
issuance of clear title to such | ||||||
13 | vessel or watercraft, vehicle, or aircraft, to the
department | ||||||
14 | or agency to whom it is delivered or any purchaser thereof.
The | ||||||
15 | law enforcement agency shall comply promptly with instructions | ||||||
16 | to remit received
from the State's Attorney or Attorney General | ||||||
17 | in accordance with
Sections 36-2(a) or 36-3.
| ||||||
18 | (h) The proceeds of any sale at public auction pursuant to | ||||||
19 | Section
36-2 of this Act, after payment of all liens and | ||||||
20 | deduction of the
reasonable charges and expenses incurred by | ||||||
21 | the State's Attorney's Office shall be paid to the law | ||||||
22 | enforcement agency having seized the vehicle for forfeiture.
| ||||||
23 | (Source: P.A. 98-699, eff. 1-1-15; 98-1020, eff. 8-22-14; | ||||||
24 | 99-78, eff. 7-20-15.)
| ||||||
25 | (Text of Section after amendment by P.A. 100-512 )
|
| |||||||
| |||||||
1 | Sec. 36-2. Complaint for forfeiture. | ||||||
2 | (a) If the State's Attorney of in the county in which such | ||||||
3 | seizure occurs
finds that the alleged violation of law giving | ||||||
4 | rise to the seizure was incurred without willful negligence
or | ||||||
5 | without any intention on the part of the owner of the vessel or | ||||||
6 | watercraft, vehicle
or aircraft or any person whose right, | ||||||
7 | title or interest is of record as
described in Section 36-1 of | ||||||
8 | this Article, to violate the law, or finds the existence of
| ||||||
9 | such mitigating circumstances as to justify remission of the | ||||||
10 | forfeiture, he or she
may cause the law enforcement agency | ||||||
11 | having custody of the property to return the property to the | ||||||
12 | owner within a reasonable time not to exceed 7 days. The | ||||||
13 | State's Attorney
shall exercise his or her discretion under | ||||||
14 | this subsection (a) prior to or promptly after the preliminary | ||||||
15 | review under Section 36-1.5. | ||||||
16 | (b) If, after review of the facts surrounding the seizure, | ||||||
17 | the State's Attorney is of the opinion that the seized property | ||||||
18 | is subject to forfeiture and the State's Attorney does not | ||||||
19 | cause the forfeiture to
be remitted under subsection (a) of | ||||||
20 | this Section, he or she shall forthwith bring an action for | ||||||
21 | forfeiture in the
circuit court Circuit Court within whose | ||||||
22 | jurisdiction the seizure and confiscation has
taken place by | ||||||
23 | filing a verified complaint for of forfeiture in the circuit | ||||||
24 | court within whose jurisdiction the seizure occurred, or within | ||||||
25 | whose jurisdiction an act or omission giving rise to the | ||||||
26 | seizure occurred, subject to Supreme Court Rule 187. The |
| |||||||
| |||||||
1 | complaint shall be filed as soon as practicable but not later | ||||||
2 | less than 28 days after the State's Attorney receives notice | ||||||
3 | from the seizing agency as provided a finding of probable cause | ||||||
4 | at a preliminary review under Section 36-1.4 36-1.5 of this | ||||||
5 | Article. A complaint of forfeiture shall include: | ||||||
6 | (1) a description of the property seized; | ||||||
7 | (2) the date and place of seizure of the property; | ||||||
8 | (3) the name and address of the law enforcement agency | ||||||
9 | making the seizure; and | ||||||
10 | (4) the specific statutory and factual grounds for the | ||||||
11 | seizure. | ||||||
12 | The complaint shall be served upon each person whose right, | ||||||
13 | title, or interest is of record in the office of the Secretary | ||||||
14 | of State, the Secretary of Transportation, the Administrator of | ||||||
15 | the Federal Aviation Agency, or any other department of this | ||||||
16 | State, or any other state of the United States if the vessel or | ||||||
17 | watercraft, vehicle, or aircraft is required to be so | ||||||
18 | registered, as the case may be, the person from whom the | ||||||
19 | property was seized, and all persons known or reasonably | ||||||
20 | believed by the State to claim an interest in the property, as | ||||||
21 | provided in this Article. The complaint shall be accompanied by | ||||||
22 | the following written notice: | ||||||
23 | "This is a civil court proceeding subject to the Code of | ||||||
24 | Civil Procedure. You received this Complaint of Forfeiture | ||||||
25 | because the State's Attorney's office has brought a legal | ||||||
26 | action seeking forfeiture of your seized property. This |
| |||||||
| |||||||
1 | complaint starts the court process where the State seeks to | ||||||
2 | prove that your property should be forfeited and not returned | ||||||
3 | to you. This process is also your opportunity to try to prove | ||||||
4 | to a judge that you should get your property back. The | ||||||
5 | complaint lists the date, time, and location of your first | ||||||
6 | court date. You must appear in court on that day, or you may | ||||||
7 | lose the case automatically. You must also file an appearance | ||||||
8 | and answer. If you are unable to pay the appearance fee, you | ||||||
9 | may qualify to have the fee waived. If there is a criminal case | ||||||
10 | related to the seizure of your property, your case may be set | ||||||
11 | for trial after the criminal case has been resolved. Before | ||||||
12 | trial, the judge may allow discovery, where the State can ask | ||||||
13 | you to respond in writing to questions and give them certain | ||||||
14 | documents, and you can make similar requests of the State. The | ||||||
15 | trial is your opportunity to explain what happened when your | ||||||
16 | property was seized and why you should get the property back." | ||||||
17 | (c) (Blank). | ||||||
18 | (d) (Blank). | ||||||
19 | (e) (Blank). | ||||||
20 | (f) (Blank).
| ||||||
21 | (g) (Blank).
| ||||||
22 | (h) (Blank).
| ||||||
23 | (Source: P.A. 99-78, eff. 7-20-15; 100-512, eff. 7-1-18.)
| ||||||
24 | (720 ILCS 5/36-2.1) | ||||||
25 | (This Section may contain text from a Public Act with a |
| |||||||
| |||||||
1 | delayed effective date ) | ||||||
2 | Sec. 36-2.1. Notice to owner or interest holder.
The first | ||||||
3 | attempted service of notice shall be commenced within 28 days | ||||||
4 | of the receipt of the notice from the seizing agency by Form | ||||||
5 | the form 4-64. If the property seized is a conveyance, notice | ||||||
6 | shall also be directed to the address reflected in the office | ||||||
7 | of the agency or official in which title to or interest in to | ||||||
8 | the conveyance is required by law to be recorded. A complaint | ||||||
9 | for forfeiture shall be served upon the property owner or | ||||||
10 | interest holder in the following manner: | ||||||
11 | (1) If the owner's or interest holder's name and | ||||||
12 | current address are known, then by either: | ||||||
13 | (A) personal service; or | ||||||
14 | (B) mailing a copy of the notice by certified mail, | ||||||
15 | return receipt requested , and first class mail , to that | ||||||
16 | address. | ||||||
17 | (i) If notice is sent by certified mail and no | ||||||
18 | signed return receipt is received by the State's | ||||||
19 | Attorney within 28 days of mailing, and no | ||||||
20 | communication from the owner or interest holder is | ||||||
21 | received by the State's Attorney documenting | ||||||
22 | actual notice by said parties, the State's | ||||||
23 | Attorney shall, within a reasonable period of | ||||||
24 | time, mail a second copy of the notice by certified | ||||||
25 | mail, return receipt requested , and first class | ||||||
26 | mail , to that address. |
| |||||||
| |||||||
1 | (ii) If no signed return receipt is received by | ||||||
2 | the State's Attorney within 28 days of the second | ||||||
3 | attempt at service by certified mail, and no | ||||||
4 | communication from the owner or interest holder is | ||||||
5 | received by the State's Attorney documenting | ||||||
6 | actual notice by said parties, the State's | ||||||
7 | Attorney shall have 60 days to attempt to serve the | ||||||
8 | notice by personal service, which also includes | ||||||
9 | substitute service by leaving a copy at the usual | ||||||
10 | place of abode, with some person of the family or a | ||||||
11 | person residing there, of the age of 13 years or | ||||||
12 | upwards. If , after 3 attempts at service in this | ||||||
13 | manner, no service of the notice is accomplished, | ||||||
14 | then the notice shall be posted in a conspicuous | ||||||
15 | manner at this address and service shall be made by | ||||||
16 | the posting. | ||||||
17 | The attempts at service and the posting if | ||||||
18 | required, shall be documented by the person attempting | ||||||
19 | service and said documentation shall be made part of a | ||||||
20 | return of service returned to the State's Attorney. | ||||||
21 | The State's Attorney may utilize a Sheriff or | ||||||
22 | Deputy Sheriff, any peace officer, a private process | ||||||
23 | server or investigator, or any employee, agent, or | ||||||
24 | investigator of the State's Attorney's office to | ||||||
25 | attempt service without seeking leave of court. | ||||||
26 | After the procedures are followed, service shall |
| |||||||
| |||||||
1 | be effective on an owner or interest holder on the date | ||||||
2 | of receipt by the State's Attorney of a returned return | ||||||
3 | receipt requested , or on the date of receipt of a | ||||||
4 | communication from an owner or interest holder | ||||||
5 | documenting actual notice, whichever is first in time, | ||||||
6 | or on the date of the last act performed by the State's | ||||||
7 | Attorney in attempting personal service under item | ||||||
8 | (ii) of this paragraph (1). If notice is to be shown by | ||||||
9 | actual notice from communication with a claimant, then | ||||||
10 | the State's Attorney shall file an affidavit providing | ||||||
11 | details of the communication, which shall be accepted | ||||||
12 | as sufficient proof of service by the court. | ||||||
13 | For purposes of notice under this Section, if a | ||||||
14 | person has been arrested for the conduct giving rise to | ||||||
15 | the forfeiture, the address provided to the arresting | ||||||
16 | agency at the time of arrest shall be deemed to be that | ||||||
17 | person's known address. Provided, however, if an owner | ||||||
18 | or interest holder's address changes prior to the | ||||||
19 | effective date of the complaint for forfeiture, the | ||||||
20 | owner or interest holder shall promptly notify the | ||||||
21 | seizing agency of the change in address or, if the | ||||||
22 | owner or interest holder's address changes subsequent | ||||||
23 | to the effective date of the notice of pending | ||||||
24 | forfeiture, the owner or interest holder shall | ||||||
25 | promptly notify the State's Attorney of the change in | ||||||
26 | address; or if the property seized is a conveyance, to |
| |||||||
| |||||||
1 | the address reflected in the office of the agency or | ||||||
2 | official in which title to or interest in to the | ||||||
3 | conveyance is required by law to be recorded. | ||||||
4 | (2) If the owner's or interest holder's address is not | ||||||
5 | known, and is not on record, then notice shall be served by | ||||||
6 | publication for 3 successive weeks in a newspaper of | ||||||
7 | general circulation in the county in which the seizure | ||||||
8 | occurred. | ||||||
9 | (3) Notice to any business entity, corporation, | ||||||
10 | limited liability company, limited liability partnership | ||||||
11 | LLC, LLP , or partnership shall be completed complete by a | ||||||
12 | single mailing of a copy of the notice by certified mail, | ||||||
13 | return receipt requested , and first class mail , to that | ||||||
14 | address. This notice is complete regardless of the return | ||||||
15 | of a signed " return receipt requested" . | ||||||
16 | (4) Notice to a person whose address is not within the | ||||||
17 | State shall be completed complete by a single mailing of a | ||||||
18 | copy of the notice by certified mail, return receipt | ||||||
19 | requested , and first class mail , to that address. This | ||||||
20 | notice is complete regardless of the return of a signed | ||||||
21 | " return receipt requested" . | ||||||
22 | (5) Notice to a person whose address is not within the | ||||||
23 | United States shall be completed complete by a single | ||||||
24 | mailing of a copy of the notice by certified mail, return | ||||||
25 | receipt requested , and first class mail , to that address. | ||||||
26 | This notice shall be complete regardless of the return of a |
| |||||||
| |||||||
1 | signed " return receipt requested" . If certified mail is not | ||||||
2 | available in the foreign country where the person has an | ||||||
3 | address, then notice shall proceed by publication under | ||||||
4 | paragraph (2) of this Section. | ||||||
5 | (6) Notice to any person whom the State's Attorney | ||||||
6 | reasonably should know is incarcerated within the State | ||||||
7 | shall also include the mailing a copy of the notice by | ||||||
8 | certified mail, return receipt requested , and first class | ||||||
9 | mail , to the address of the detention facility with the | ||||||
10 | inmate's name clearly marked on the envelope.
| ||||||
11 | (Source: P.A. 100-512, eff. 7-1-18.) | ||||||
12 | (720 ILCS 5/36-2.2) | ||||||
13 | (This Section may contain text from a Public Act with a | ||||||
14 | delayed effective date ) | ||||||
15 | Sec. 36-2.2. Replevin prohibited; return of personal | ||||||
16 | property inside seized conveyance. | ||||||
17 | (a) Property seized under this Article shall not be subject | ||||||
18 | to replevin, but is deemed to be in the custody of the Director | ||||||
19 | of State Police , subject only to the order and judgments of the | ||||||
20 | circuit court having jurisdiction over the forfeiture | ||||||
21 | proceedings and the decisions of the State's Attorney. | ||||||
22 | (b) A claimant or a party interested in personal property | ||||||
23 | contained within a seized conveyance may file a motion with the | ||||||
24 | court in a judicial forfeiture action for the return of any | ||||||
25 | personal property contained within a conveyance seized under |
| |||||||
| |||||||
1 | this Article. The return of personal property shall not be | ||||||
2 | unreasonably withheld if the personal property is not | ||||||
3 | mechanically or electrically coupled to the conveyance, needed | ||||||
4 | for evidentiary purposes, or otherwise contraband. A law | ||||||
5 | enforcement agency that returns property under a court order | ||||||
6 | under this Section shall not be liable to any person who claims | ||||||
7 | ownership to the property if the property is returned to an | ||||||
8 | improper party.
| ||||||
9 | (Source: P.A. 100-512, eff. 7-1-18.) | ||||||
10 | (720 ILCS 5/36-2.5) | ||||||
11 | (This Section may contain text from a Public Act with a | ||||||
12 | delayed effective date ) | ||||||
13 | Sec. 36-2.5. Judicial in rem procedures. | ||||||
14 | (a) The laws of evidence relating to civil actions shall | ||||||
15 | apply to judicial in rem proceedings under this Article. | ||||||
16 | (b) Only an owner of or interest holder in the property may | ||||||
17 | file an answer asserting a claim against the property in the | ||||||
18 | action in rem. For purposes of this Section, the owner or | ||||||
19 | interest holder shall be referred to as claimant. A person not | ||||||
20 | named in the forfeiture complaint who claims to have an | ||||||
21 | interest in the property may petition to intervene as a | ||||||
22 | claimant under Section 2-408 of the Code of Civil Procedure. | ||||||
23 | (c) The answer shall be filed with the court within 45 days | ||||||
24 | after service of the civil in rem complaint. | ||||||
25 | (d) The trial shall be held within 60 days after filing of |
| |||||||
| |||||||
1 | the answer unless continued for good cause. | ||||||
2 | (e) In its case in chief, the State shall show by a | ||||||
3 | preponderance of the evidence that: | ||||||
4 | (1) the property is subject to forfeiture; and | ||||||
5 | (2) at least one of the following: | ||||||
6 | (i) the claimant knew or should have known that the | ||||||
7 | conduct was likely to occur; or | ||||||
8 | (ii) the claimant is not the true owner of the | ||||||
9 | property that is subject to forfeiture. | ||||||
10 | In any forfeiture case under this Article, a claimant may | ||||||
11 | present evidence to overcome evidence presented by the State | ||||||
12 | that the property is subject to forfeiture. | ||||||
13 | (f) Notwithstanding any other provision of this Section, | ||||||
14 | the State's burden of proof at the trial of the forfeiture | ||||||
15 | action shall be by clear and convincing evidence if: | ||||||
16 | (1) a finding of not guilty is entered as to all counts | ||||||
17 | and all defendants in a criminal proceeding relating to the | ||||||
18 | conduct giving rise to the forfeiture action; or | ||||||
19 | (2) the State receives an adverse finding at a | ||||||
20 | preliminary hearing and fails to secure an indictment in a | ||||||
21 | criminal proceeding related to the factual allegations of | ||||||
22 | the forfeiture action. | ||||||
23 | (g) If the State does not meet its burden of proof, the | ||||||
24 | court shall order the interest in the property returned or | ||||||
25 | conveyed to the claimant and shall order all other property in | ||||||
26 | which the State does meet its burden of proof forfeited to the |
| |||||||
| |||||||
1 | State. If the State does meet its burden of proof, the court | ||||||
2 | shall order all property forfeited to the State. | ||||||
3 | (h) A defendant convicted in any criminal proceeding is | ||||||
4 | precluded from later denying the essential allegations of the | ||||||
5 | criminal offense of which the defendant was convicted in any | ||||||
6 | proceeding under this Article regardless of the pendency of an | ||||||
7 | appeal from that conviction. However, evidence of the pendency | ||||||
8 | of an appeal is admissible. | ||||||
9 | (i) An acquittal or dismissal in a criminal proceeding | ||||||
10 | shall not preclude civil proceedings under this Act; however, | ||||||
11 | for good cause shown, on a motion by either party, the court | ||||||
12 | may stay civil forfeiture proceedings during the criminal trial | ||||||
13 | for a related criminal indictment or information alleging a | ||||||
14 | violation of law authorizing forfeiture under Section 36-1 of | ||||||
15 | this Article. | ||||||
16 | (j) Title to all property declared forfeited under this Act | ||||||
17 | vests in this State on the commission of the conduct giving | ||||||
18 | rise to forfeiture together with the proceeds of the property | ||||||
19 | after that time. Except as otherwise provided in this Article, | ||||||
20 | any property or proceeds subsequently transferred to any person | ||||||
21 | remain subject to forfeiture unless a person to whom the | ||||||
22 | property was transferred makes an appropriate claim under or | ||||||
23 | has the their claim adjudicated at the judicial in rem hearing. | ||||||
24 | (k) No property shall be forfeited under this Article from | ||||||
25 | a person who, without actual or constructive notice that the | ||||||
26 | property was the subject of forfeiture proceedings, obtained |
| |||||||
| |||||||
1 | possession of the property as a bona fide purchaser for value. | ||||||
2 | A person who purports to transfer property after receiving | ||||||
3 | actual or constructive notice that the property is subject to | ||||||
4 | seizure or forfeiture is guilty of contempt of court, and shall | ||||||
5 | be liable to the State for a penalty in the amount of the fair | ||||||
6 | market value of the property. | ||||||
7 | (l) A civil action under this Article shall be commenced | ||||||
8 | within 5 years after the last conduct giving rise to forfeiture | ||||||
9 | became known or should have become known or 5 years after the | ||||||
10 | forfeitable property is discovered, whichever is later, | ||||||
11 | excluding any time during which either the property or claimant | ||||||
12 | is out of the State or in confinement or during which criminal | ||||||
13 | proceedings relating to the same conduct are in progress. | ||||||
14 | (m) If property is ordered forfeited under this Article | ||||||
15 | from a claimant who held title to the property in joint tenancy | ||||||
16 | or tenancy in common with another claimant, the court shall | ||||||
17 | determine the amount of each owner's interest in the property | ||||||
18 | according to principles of property law.
| ||||||
19 | (Source: P.A. 100-512, eff. 7-1-18.) | ||||||
20 | (720 ILCS 5/36-2.7) | ||||||
21 | (This Section may contain text from a Public Act with a | ||||||
22 | delayed effective date ) | ||||||
23 | Sec. 36-2.7. Innocent owner hearing. | ||||||
24 | (a) After a complaint for forfeiture has been filed and all | ||||||
25 | claimants have appeared and answered, a claimant may file a |
| |||||||
| |||||||
1 | motion with the court for an innocent owner hearing prior to | ||||||
2 | trial. This motion shall be made and supported by sworn | ||||||
3 | affidavit and shall assert the following along with specific | ||||||
4 | facts that which support each assertion: | ||||||
5 | (1) that the claimant filing the motion is the true | ||||||
6 | owner of the conveyance as interpreted by case law; and | ||||||
7 | (2) that the claimant did not know or did not have | ||||||
8 | reason to know the conduct giving rise to the forfeiture | ||||||
9 | was likely to occur. | ||||||
10 | (b) The claimant's motion claimant shall include specific | ||||||
11 | facts that which support these assertions in their motion . | ||||||
12 | (b) (c) Upon the filing, a hearing may only be conducted | ||||||
13 | after the parties have been given the opportunity to conduct | ||||||
14 | limited discovery as to the ownership and control of the | ||||||
15 | property, the claimant's knowledge, or any matter relevant to | ||||||
16 | the issues raised or facts alleged in the claimant's motion. | ||||||
17 | Discovery shall be limited to the People's requests in these | ||||||
18 | areas but may proceed by any means allowed in the Code of Civil | ||||||
19 | Procedure. | ||||||
20 | (c) (d) After discovery is complete and the court has | ||||||
21 | allowed for sufficient time to review and investigate the | ||||||
22 | discovery responses, the court shall conduct a hearing. At the | ||||||
23 | hearing, the fact that the conveyance is subject to forfeiture | ||||||
24 | shall not be at issue. The court shall only hear evidence | ||||||
25 | relating to the issue of innocent ownership. | ||||||
26 | (d) (e) At the hearing on the motion, the claimant shall |
| |||||||
| |||||||
1 | bear the burden of proving each of the assertions listed in | ||||||
2 | subsection (a) of this Section by a preponderance of the | ||||||
3 | evidence. (f) If a claimant meets the their burden of proof, | ||||||
4 | the court shall grant the motion and order the conveyance | ||||||
5 | returned to the claimant. If the claimant fails to meet the | ||||||
6 | their burden of proof, the court shall deny the motion and the | ||||||
7 | forfeiture case shall proceed according to the Code Rules of | ||||||
8 | Civil Procedure.
| ||||||
9 | (Source: P.A. 100-512, eff. 7-1-18.) | ||||||
10 | (720 ILCS 5/36-7) | ||||||
11 | (This Section may contain text from a Public Act with a | ||||||
12 | delayed effective date ) | ||||||
13 | Sec. 36-7. Distribution of proceeds; selling or retaining | ||||||
14 | seized property prohibited. | ||||||
15 | (a) Except as otherwise provided in this Section, the court | ||||||
16 | shall order that property forfeited under this Article be | ||||||
17 | delivered to the Department of State Police within 60 days. | ||||||
18 | (b) The Department of State Police or its designee shall | ||||||
19 | dispose of all property at public auction and shall distribute | ||||||
20 | the proceeds of the sale, together with any moneys forfeited or | ||||||
21 | seized, under subsection (c) of this Section. | ||||||
22 | (c) All moneys monies and the sale proceeds of all other | ||||||
23 | property forfeited and seized under this Act shall be | ||||||
24 | distributed as follows: | ||||||
25 | (1) 65% shall be distributed to the drug task force, |
| |||||||
| |||||||
1 | metropolitan enforcement group, local, municipal, county, | ||||||
2 | or State state law enforcement agency or agencies that | ||||||
3 | which conducted or participated in the investigation | ||||||
4 | resulting in the forfeiture. The distribution shall bear a | ||||||
5 | reasonable relationship to the degree of direct | ||||||
6 | participation of the law enforcement agency in the effort | ||||||
7 | resulting in the forfeiture, taking into account the total | ||||||
8 | value of the property forfeited and the total law | ||||||
9 | enforcement effort with respect to the violation of the law | ||||||
10 | upon which the forfeiture is based. Amounts distributed to | ||||||
11 | the agency or agencies shall be used, at the discretion of | ||||||
12 | the agency, for the enforcement of criminal laws; or for | ||||||
13 | public education in the community or schools in the | ||||||
14 | prevention or detection of the abuse of drugs or alcohol; | ||||||
15 | or for security cameras used for the prevention or | ||||||
16 | detection of violence, except that amounts distributed to | ||||||
17 | the Secretary of State shall be deposited into the | ||||||
18 | Secretary of State Evidence Fund to be used as provided in | ||||||
19 | Section 2-115 of the Illinois Vehicle Code. | ||||||
20 | Any local, municipal, or county law enforcement agency | ||||||
21 | entitled to receive a monetary distribution of forfeiture | ||||||
22 | proceeds may share those forfeiture proceeds pursuant to | ||||||
23 | the terms of an intergovernmental agreement with a | ||||||
24 | municipality that has a population in excess of 20,000 if: | ||||||
25 | (A) the receiving agency has entered into an | ||||||
26 | intergovernmental agreement with the municipality to |
| |||||||
| |||||||
1 | provide police services; | ||||||
2 | (B) the intergovernmental agreement for police | ||||||
3 | services provides for consideration in an amount of not | ||||||
4 | less than $1,000,000 per year; | ||||||
5 | (C) the seizure took place within the geographical | ||||||
6 | limits of the municipality; and | ||||||
7 | (D) the funds are used only for the enforcement of | ||||||
8 | criminal laws; for public education in the community or | ||||||
9 | schools in the prevention or detection of the abuse of | ||||||
10 | drugs or alcohol; or for security cameras used for the | ||||||
11 | prevention or detection of violence or the
| ||||||
12 | establishment of a municipal police force, including | ||||||
13 | the training of officers, construction of a police | ||||||
14 | station, the purchase of law enforcement equipment, or | ||||||
15 | vehicles. | ||||||
16 | (2) 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, at the discretion of the State's | ||||||
21 | Attorney, in the enforcement of criminal laws; or for | ||||||
22 | public education in the community or schools in the | ||||||
23 | prevention or detection of the abuse of drugs or alcohol; | ||||||
24 | or at the discretion of the State's Attorney, in addition | ||||||
25 | to other authorized purposes, to make grants to local | ||||||
26 | substance abuse treatment facilities and half-way houses. |
| |||||||
| |||||||
1 | In counties over 3,000,000 population, 25% will be | ||||||
2 | distributed to the Office of the State's Attorney for use, | ||||||
3 | at the discretion of the State's Attorney, in the | ||||||
4 | enforcement of criminal laws; or for public education in | ||||||
5 | the community or schools in the prevention or detection of | ||||||
6 | the abuse of drugs or alcohol; or at the discretion of the | ||||||
7 | State's Attorney, in addition to other authorized | ||||||
8 | purposes, to make grants to local substance abuse treatment | ||||||
9 | facilities and half-way houses. If the prosecution is | ||||||
10 | undertaken solely by the Attorney General, the portion | ||||||
11 | provided shall be distributed to the Attorney General for | ||||||
12 | use in the enforcement of criminal laws governing cannabis | ||||||
13 | and controlled substances or for public education in the | ||||||
14 | community or schools in the prevention or detection of the | ||||||
15 | abuse of drugs or alcohol. | ||||||
16 | 12.5% shall be distributed to the Office of the State's | ||||||
17 | Attorneys Appellate Prosecutor and shall be used at the | ||||||
18 | discretion of the State's Attorneys Appellate Prosecutor | ||||||
19 | for additional expenses incurred in the investigation, | ||||||
20 | prosecution and appeal of cases arising in the enforcement | ||||||
21 | of criminal laws; or for public education in the community | ||||||
22 | or schools in the prevention or detection of the abuse of | ||||||
23 | drugs or alcohol. The Office of the State's Attorneys | ||||||
24 | Appellate Prosecutor shall not receive distribution from | ||||||
25 | cases brought in counties with over 3,000,000 population. | ||||||
26 | (3) 10% shall be retained by the Department of State |
| |||||||
| |||||||
1 | Police for expenses related to the administration and sale | ||||||
2 | of seized and forfeited property. | ||||||
3 | (d) A law enforcement agency shall not retain forfeited | ||||||
4 | property for its own use or transfer the property to any person | ||||||
5 | or entity, except as provided under this Section. A law | ||||||
6 | enforcement agency may apply in writing to the Director of | ||||||
7 | State Police to request that a forfeited property be awarded to | ||||||
8 | the agency for a specifically articulated official law | ||||||
9 | enforcement use in an investigation. The Director of State | ||||||
10 | Police shall provide a written justification in each instance | ||||||
11 | detailing the reasons why the forfeited property was placed | ||||||
12 | into official use, and the justification shall be retained for | ||||||
13 | a period of not less than 3 years.
| ||||||
14 | (Source: P.A. 100-512, eff. 7-1-18.) | ||||||
15 | (720 ILCS 5/36-10 new) | ||||||
16 | Sec. 36-10. Applicability; savings clause. | ||||||
17 | (a) The changes made to this Article by Public Act 100-0512 | ||||||
18 | and this amendatory Act of the 100th General Assembly only | ||||||
19 | apply to property seized on and after July 1, 2018. | ||||||
20 | (b) The changes made to this Article by this amendatory Act | ||||||
21 | of the 100th General Assembly are subject to Section 4 of the | ||||||
22 | Statute on Statutes. | ||||||
23 | Section 25. The Cannabis Control Act is amended by changing | ||||||
24 | Section 12 as follows:
|
| |||||||
| |||||||
1 | (720 ILCS 550/12) (from Ch. 56 1/2, par. 712)
| ||||||
2 | (Text of Section before amendment by P.A. 100-512 )
| ||||||
3 | Sec. 12. (a) The following are subject to forfeiture:
| ||||||
4 | (1) all substances containing cannabis which have been | ||||||
5 | produced,
manufactured, delivered, or possessed in | ||||||
6 | violation of this Act;
| ||||||
7 | (2) all raw materials, products and equipment of any | ||||||
8 | kind which are
produced, delivered, or possessed in | ||||||
9 | connection with any substance
containing cannabis in | ||||||
10 | violation of this Act;
| ||||||
11 | (3) all conveyances, including aircraft, vehicles or | ||||||
12 | vessels, which
are used, or intended for use, to transport, | ||||||
13 | or in any manner to
facilitate the transportation, sale, | ||||||
14 | receipt, possession, or
concealment of property described | ||||||
15 | in paragraph (1) or (2) that constitutes
a felony violation | ||||||
16 | of the Act, but:
| ||||||
17 | (i) no conveyance used by any person as a common | ||||||
18 | carrier in the
transaction of business as a common | ||||||
19 | carrier is subject to forfeiture
under this Section | ||||||
20 | unless it appears that the owner or other person in
| ||||||
21 | charge of the conveyance is a consenting party or privy | ||||||
22 | to a violation
of this Act;
| ||||||
23 | (ii) no conveyance is subject to forfeiture under | ||||||
24 | this Section by
reason of any act or omission which the | ||||||
25 | owner proves to have been
committed or omitted without |
| |||||||
| |||||||
1 | his knowledge or consent;
| ||||||
2 | (iii) a forfeiture of a conveyance encumbered by a | ||||||
3 | bona fide
security interest is subject to the interest | ||||||
4 | of the secured party if he
neither had knowledge of nor | ||||||
5 | consented to the act or omission;
| ||||||
6 | (4) all money, things of value, books, records, and | ||||||
7 | research
products and materials including formulas, | ||||||
8 | microfilm, tapes, and data
which are used, or intended for | ||||||
9 | use in a felony violation of this Act;
| ||||||
10 | (5) everything of value furnished or intended to be | ||||||
11 | furnished by any
person in exchange for a substance in | ||||||
12 | violation of this Act, all proceeds
traceable to such an | ||||||
13 | exchange, and all moneys, negotiable instruments, and
| ||||||
14 | securities used, or intended to be used, to commit or in | ||||||
15 | any manner to
facilitate any felony violation of this Act;
| ||||||
16 | (6) all real property, including any right, title, and | ||||||
17 | interest including, but not limited to, any leasehold | ||||||
18 | interest or the beneficial interest to a land trust, in the | ||||||
19 | whole of any lot or tract of land and any appurtenances or | ||||||
20 | improvements, that is used or intended to be used to | ||||||
21 | facilitate the manufacture, distribution, sale, receipt, | ||||||
22 | or concealment of property described in paragraph (1) or | ||||||
23 | (2) of this subsection (a) that constitutes a felony | ||||||
24 | violation of more than 2,000 grams of a substance | ||||||
25 | containing cannabis or that is the proceeds of any felony | ||||||
26 | violation of this Act. |
| |||||||
| |||||||
1 | (b) Property subject to forfeiture under this Act may be | ||||||
2 | seized by
the Director or any peace officer upon process or | ||||||
3 | seizure warrant issued by
any court having jurisdiction over | ||||||
4 | the property. Seizure by the Director
or any peace officer | ||||||
5 | without process may be made:
| ||||||
6 | (1) if the property subject to seizure has been the | ||||||
7 | subject of a
prior judgment in favor of the State in a | ||||||
8 | criminal proceeding or
in an injunction or forfeiture | ||||||
9 | proceeding based upon this Act or the Drug
Asset Forfeiture | ||||||
10 | Procedure Act;
| ||||||
11 | (2) if there is probable cause to believe that the | ||||||
12 | property is
directly or indirectly dangerous to health or | ||||||
13 | safety;
| ||||||
14 | (3) if there is probable cause to believe that the | ||||||
15 | property is subject
to forfeiture under this Act and the | ||||||
16 | property is seized under
circumstances in which a | ||||||
17 | warrantless seizure or arrest would be reasonable; or
| ||||||
18 | (4) in accordance with the Code of Criminal Procedure | ||||||
19 | of 1963.
| ||||||
20 | (c) In the event of seizure pursuant to subsection (b), | ||||||
21 | notice shall be given forthwith to all known interest holders | ||||||
22 | that forfeiture
proceedings, including a preliminary review, | ||||||
23 | shall be instituted in accordance with the
Drug Asset | ||||||
24 | Forfeiture Procedure Act and such proceedings shall thereafter | ||||||
25 | be instituted in accordance with that Act. Upon a showing of | ||||||
26 | good cause, the notice required for a preliminary review under |
| |||||||
| |||||||
1 | this Section may be postponed.
| ||||||
2 | (c-1) In the event the State's Attorney is of the opinion | ||||||
3 | that real property is subject to forfeiture under this Act, | ||||||
4 | forfeiture proceedings shall be instituted in accordance with | ||||||
5 | the Drug Asset Forfeiture Procedure Act. The exemptions from | ||||||
6 | forfeiture provisions of Section 8 of the Drug Asset Forfeiture | ||||||
7 | Procedure Act are applicable. | ||||||
8 | (d) Property taken or detained under this Section shall not | ||||||
9 | be
subject to replevin, but is deemed to be in the custody of | ||||||
10 | the Director
subject only to the order and judgments of the | ||||||
11 | circuit court having
jurisdiction over the forfeiture | ||||||
12 | proceedings and the decisions of the
State's Attorney under the | ||||||
13 | Drug Asset Forfeiture Procedure Act. When
property is seized | ||||||
14 | under this Act, the seizing agency shall promptly
conduct an | ||||||
15 | inventory of the seized property, estimate the property's | ||||||
16 | value,
and shall forward a copy of the inventory of seized | ||||||
17 | property and the
estimate of the property's value to the | ||||||
18 | Director. Upon receiving notice of
seizure, the Director may:
| ||||||
19 | (1) place the property under seal;
| ||||||
20 | (2) remove the property to a place designated by him;
| ||||||
21 | (3) keep the property in the possession of the seizing | ||||||
22 | agency;
| ||||||
23 | (4) remove the property to a storage area for | ||||||
24 | safekeeping or, if the
property is a negotiable instrument | ||||||
25 | or money and is not needed for
evidentiary purposes, | ||||||
26 | deposit it in an interest bearing account;
|
| |||||||
| |||||||
1 | (5) place the property under constructive seizure by | ||||||
2 | posting notice of
pending forfeiture on it, by giving | ||||||
3 | notice of pending forfeiture to its
owners and interest | ||||||
4 | holders, or by filing notice of pending forfeiture in
any | ||||||
5 | appropriate public record relating to the property; or
| ||||||
6 | (6) provide for another agency or custodian, including | ||||||
7 | an owner, secured
party, or lienholder, to take custody of | ||||||
8 | the property upon the terms and
conditions set by the | ||||||
9 | Director.
| ||||||
10 | (e) No disposition may be made of property under seal until | ||||||
11 | the time
for taking an appeal has elapsed or until all appeals | ||||||
12 | have been
concluded unless a court, upon application therefor, | ||||||
13 | orders the sale of
perishable substances and the deposit of the | ||||||
14 | proceeds of the sale with
the court.
| ||||||
15 | (f) When property is forfeited under this Act the Director | ||||||
16 | shall
sell all such property unless such property is required | ||||||
17 | by law to be
destroyed or is harmful to the public, and shall | ||||||
18 | distribute the proceeds of
the sale, together with any moneys | ||||||
19 | forfeited or seized, in accordance
with subsection (g). | ||||||
20 | However, upon the application of the seizing agency or
| ||||||
21 | prosecutor who was responsible for the investigation, arrest or | ||||||
22 | arrests and
prosecution which lead to the forfeiture, the | ||||||
23 | Director may return any item
of forfeited property to the | ||||||
24 | seizing agency or prosecutor for official use
in the | ||||||
25 | enforcement of laws relating to cannabis or controlled | ||||||
26 | substances,
if the agency or prosecutor can demonstrate that |
| |||||||
| |||||||
1 | the item requested would
be useful to the agency or prosecutor | ||||||
2 | in their enforcement efforts. When any forfeited conveyance, | ||||||
3 | including an aircraft, vehicle, or vessel, is returned to the | ||||||
4 | seizing agency or prosecutor, the conveyance may be used | ||||||
5 | immediately in the enforcement of the criminal laws of this | ||||||
6 | State. Upon disposal, all proceeds from the sale of the | ||||||
7 | conveyance must be used for drug enforcement purposes. When
any | ||||||
8 | real property returned to the seizing agency is sold by the | ||||||
9 | agency or
its unit of government, the proceeds of the sale | ||||||
10 | shall be delivered to the
Director and distributed in | ||||||
11 | accordance with subsection (g).
| ||||||
12 | (g) All monies and the sale proceeds of all other property | ||||||
13 | forfeited and
seized under this Act shall be distributed as | ||||||
14 | follows:
| ||||||
15 | (1)(i) 65% shall be distributed to the metropolitan | ||||||
16 | enforcement group,
local, municipal, county, or state law | ||||||
17 | enforcement agency or agencies which
conducted or | ||||||
18 | participated in the investigation resulting in the | ||||||
19 | forfeiture.
The distribution shall bear a reasonable | ||||||
20 | relationship to the degree of
direct participation of the | ||||||
21 | law enforcement agency in the effort resulting
in the | ||||||
22 | forfeiture, taking into account the total value of the | ||||||
23 | property
forfeited and the total law enforcement effort | ||||||
24 | with respect to the
violation of the law upon which the | ||||||
25 | forfeiture is based.
Amounts distributed to the agency or | ||||||
26 | agencies shall be used for the
enforcement of laws |
| |||||||
| |||||||
1 | governing cannabis and controlled substances; for public | ||||||
2 | education in the community or schools in the
prevention or | ||||||
3 | detection of the abuse of drugs or
alcohol; or for security | ||||||
4 | cameras used for the prevention or detection of violence, | ||||||
5 | except
that amounts distributed to the Secretary of State | ||||||
6 | shall be deposited into
the Secretary of State Evidence | ||||||
7 | Fund to be used as provided in Section
2-115 of the | ||||||
8 | Illinois Vehicle Code.
| ||||||
9 | (ii) Any local, municipal, or county law enforcement | ||||||
10 | agency entitled to receive a monetary distribution of | ||||||
11 | forfeiture proceeds may share those forfeiture proceeds | ||||||
12 | pursuant to the terms of an intergovernmental agreement | ||||||
13 | with a municipality that has a population in excess of | ||||||
14 | 20,000 if: | ||||||
15 | (I) the receiving agency has entered into an | ||||||
16 | intergovernmental agreement with the municipality to | ||||||
17 | provide police services; | ||||||
18 | (II) the intergovernmental agreement for police | ||||||
19 | services provides for consideration in an amount of not | ||||||
20 | less than $1,000,000 per year; | ||||||
21 | (III) the seizure took place within the | ||||||
22 | geographical limits of the municipality; and | ||||||
23 | (IV) the funds are used only for the enforcement
of | ||||||
24 | laws governing cannabis and controlled substances; for | ||||||
25 | public education in the community or schools in the
| ||||||
26 | prevention or detection of the abuse of drugs or
|
| |||||||
| |||||||
1 | alcohol; or
for security cameras used for the | ||||||
2 | prevention or detection
of violence or the | ||||||
3 | establishment of a municipal police
force, including | ||||||
4 | the training of officers, construction of
a police | ||||||
5 | station, the purchase of law enforcement
equipment, or | ||||||
6 | vehicles. | ||||||
7 | (2)(i) 12.5% shall be distributed to the Office of the | ||||||
8 | State's
Attorney of the county in which the prosecution | ||||||
9 | resulting in the forfeiture
was instituted, deposited in a | ||||||
10 | special fund in the county treasury and
appropriated to the | ||||||
11 | State's Attorney for use in the enforcement of laws
| ||||||
12 | governing cannabis and controlled substances; for public | ||||||
13 | education in the community or schools in the
prevention or | ||||||
14 | detection of the abuse of drugs or
alcohol; or at the | ||||||
15 | discretion of the State's Attorney, in addition to other | ||||||
16 | authorized purposes, to make grants to local substance | ||||||
17 | abuse treatment facilities and half-way houses. In | ||||||
18 | counties over 3,000,000
population, 25% will be | ||||||
19 | distributed to the Office of the State's Attorney for use | ||||||
20 | in the
enforcement of laws governing cannabis and | ||||||
21 | controlled substances; for public education in the | ||||||
22 | community or schools in the
prevention or detection of the | ||||||
23 | abuse of drugs or
alcohol; or at the discretion of the | ||||||
24 | State's Attorney, in addition to other authorized | ||||||
25 | purposes, to make grants to local substance abuse treatment | ||||||
26 | facilities and half-way houses. If the
prosecution is |
| |||||||
| |||||||
1 | undertaken solely by the Attorney General, the portion
| ||||||
2 | provided hereunder shall be distributed to the Attorney | ||||||
3 | General for use in
the enforcement of laws governing | ||||||
4 | cannabis 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
cannabis and controlled substances or | ||||||
11 | for public education in the community or schools in the
| ||||||
12 | prevention or detection of the abuse of drugs or
alcohol. | ||||||
13 | The Office of the State's Attorneys
Appellate Prosecutor | ||||||
14 | shall not receive distribution from cases brought in
| ||||||
15 | counties with over 3,000,000 population.
| ||||||
16 | (3) 10% shall be retained by the Department of State | ||||||
17 | Police for expenses
related to the administration and sale | ||||||
18 | of seized and forfeited property.
| ||||||
19 | (Source: P.A. 99-686, eff. 7-29-16.)
| ||||||
20 | (Text of Section after amendment by P.A. 100-512 )
| ||||||
21 | Sec. 12. (a) The following are subject to forfeiture:
| ||||||
22 | (1) (blank);
| ||||||
23 | (2) all raw materials, products , and equipment of any | ||||||
24 | kind which are
produced, delivered, or possessed in | ||||||
25 | connection with any substance
containing cannabis in a |
| |||||||
| |||||||
1 | felony violation of this Act;
| ||||||
2 | (3) all conveyances, including aircraft, vehicles , or | ||||||
3 | vessels, which
are used, or intended for use, to transport, | ||||||
4 | or in any manner to
facilitate the transportation, sale, | ||||||
5 | receipt, possession, or
concealment of any substance | ||||||
6 | containing cannabis or property described in paragraph (2) | ||||||
7 | of this subsection (a) 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 the violation;
| ||||||
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;
|
| |||||||
| |||||||
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 in to a land trust, in | ||||||
10 | the whole of any lot or tract of land and any appurtenances | ||||||
11 | or improvements, that is used or intended to be used to | ||||||
12 | facilitate the manufacture, distribution, sale, receipt, | ||||||
13 | or concealment of a substance containing cannabis or | ||||||
14 | property described in paragraph (2) of this subsection (a) | ||||||
15 | that constitutes a felony violation of this Act involving | ||||||
16 | more than 2,000 grams of a substance containing cannabis or | ||||||
17 | that is the proceeds of any felony violation of this Act. | ||||||
18 | (b) Property subject to forfeiture under this Act may be | ||||||
19 | seized under the Drug Asset Forfeiture Procedure Act. In the | ||||||
20 | event of seizure, forfeiture proceedings shall be instituted | ||||||
21 | under the Drug Asset Forfeiture Procedure Act.
| ||||||
22 | (c) Forfeiture under this Act is subject to subject to an | ||||||
23 | 8th Amendment amendment to the United States Constitution | ||||||
24 | disproportionate penalties analysis as provided under Section | ||||||
25 | 9.5 of the Drug Asset Forfeiture Procedure Act.
| ||||||
26 | (c-1) With regard to possession of cannabis offenses only, |
| |||||||
| |||||||
1 | a sum of currency with a value of less than $500 shall not be | ||||||
2 | subject to forfeiture under this Act. For all other offenses | ||||||
3 | under this Act, a sum of currency with a value of less than | ||||||
4 | $100 shall not be subject to forfeiture under this Act. In | ||||||
5 | seizures of currency in excess of these amounts, this Section | ||||||
6 | shall not create an exemption for these amounts. | ||||||
7 | (d) (Blank).
| ||||||
8 | (e) (Blank).
| ||||||
9 | (f) (Blank).
| ||||||
10 | (g) (Blank).
| ||||||
11 | (h) Contraband, including cannabis possessed without | ||||||
12 | authorization under State or federal law, is not subject to | ||||||
13 | forfeiture. No property right exists in contraband. Contraband | ||||||
14 | is subject to seizure and shall be disposed of according to | ||||||
15 | State law. | ||||||
16 | (i) The changes made to this Section by Public Act 100-0512 | ||||||
17 | and this amendatory Act of the 100th General Assembly only | ||||||
18 | apply to property seized on and after July 1, 2018. | ||||||
19 | (j) The changes made to this Section by this amendatory Act | ||||||
20 | of the 100th General Assembly are subject to Section 4 of the | ||||||
21 | Statute on Statutes. | ||||||
22 | (Source: P.A. 99-686, eff. 7-29-16; 100-512, eff. 7-1-18.)
| ||||||
23 | Section 30. The Illinois Controlled Substances Act is | ||||||
24 | amended by changing Section 505 as follows:
|
| |||||||
| |||||||
1 | (720 ILCS 570/505) (from Ch. 56 1/2, par. 1505)
| ||||||
2 | (Text of Section before amendment by P.A. 100-512 )
| ||||||
3 | Sec. 505. (a) The following are subject to forfeiture:
| ||||||
4 | (1) all substances which have been manufactured, | ||||||
5 | distributed,
dispensed, or possessed in violation of this | ||||||
6 | Act;
| ||||||
7 | (2) all raw materials, products and equipment of any | ||||||
8 | kind which are
used, or intended for use in manufacturing, | ||||||
9 | distributing, dispensing,
administering or possessing any | ||||||
10 | substance in violation of this Act;
| ||||||
11 | (3) all conveyances, including aircraft, vehicles or | ||||||
12 | vessels, which are
used, or intended for use, to transport, | ||||||
13 | or in any manner to facilitate
the transportation, sale, | ||||||
14 | receipt, possession, or concealment of property
described | ||||||
15 | in paragraphs (1) and (2), but:
| ||||||
16 | (i) no conveyance used by any person as a common | ||||||
17 | carrier in the
transaction of business as a common | ||||||
18 | carrier is subject to forfeiture under
this Section | ||||||
19 | unless it appears that the owner or other person in | ||||||
20 | charge of
the conveyance is a consenting party or privy | ||||||
21 | to a violation of this Act;
| ||||||
22 | (ii) no conveyance is subject to forfeiture under | ||||||
23 | this Section by reason
of any act or omission which the | ||||||
24 | owner proves to have been committed or
omitted without | ||||||
25 | his or her knowledge or consent;
| ||||||
26 | (iii) a forfeiture of a conveyance encumbered by a |
| |||||||
| |||||||
1 | bona fide security
interest is subject to the interest | ||||||
2 | of the secured party if he or she neither had
knowledge | ||||||
3 | of nor consented to the act or omission;
| ||||||
4 | (4) all money, things of value, books, records, and | ||||||
5 | research
products and materials including formulas, | ||||||
6 | microfilm, tapes, and data which
are used, or intended to | ||||||
7 | be used in violation of this Act;
| ||||||
8 | (5) everything of value furnished, or intended to be | ||||||
9 | furnished, in
exchange for a substance in violation of this | ||||||
10 | Act, all proceeds traceable
to such an exchange, and all | ||||||
11 | moneys, negotiable instruments, and securities
used, or | ||||||
12 | intended to be used, to commit or in any manner to | ||||||
13 | facilitate
any violation of this Act;
| ||||||
14 | (6) all real property, including any right, title, and | ||||||
15 | interest
(including, but not limited to, any leasehold | ||||||
16 | interest or the beneficial
interest in a land trust) in the | ||||||
17 | whole of any lot or tract of land and any
appurtenances or | ||||||
18 | improvements, which is used or intended to be used, in any
| ||||||
19 | manner or part, to commit, or in any manner to facilitate | ||||||
20 | the commission
of, any violation or act that constitutes a | ||||||
21 | violation of Section 401 or 405
of this Act or that is the | ||||||
22 | proceeds of any violation or act that
constitutes a | ||||||
23 | violation of Section 401 or 405 of this Act.
| ||||||
24 | (b) Property subject to forfeiture under this Act may be | ||||||
25 | seized by the
Director or any peace officer upon process or | ||||||
26 | seizure warrant issued by
any court having jurisdiction over |
| |||||||
| |||||||
1 | the property. Seizure by the Director
or any peace officer | ||||||
2 | without process may be made:
| ||||||
3 | (1) if the seizure is incident to inspection under an | ||||||
4 | administrative
inspection warrant;
| ||||||
5 | (2) if the property subject to seizure has been the | ||||||
6 | subject of a prior
judgment in favor of the State in a | ||||||
7 | criminal proceeding, or in an injunction
or forfeiture | ||||||
8 | proceeding based upon this Act or the Drug Asset Forfeiture
| ||||||
9 | Procedure Act;
| ||||||
10 | (3) if there is probable cause to believe that the | ||||||
11 | property is directly
or indirectly dangerous to health or | ||||||
12 | safety;
| ||||||
13 | (4) if there is probable cause to believe that the | ||||||
14 | property is subject
to forfeiture under this Act and the | ||||||
15 | property is seized under
circumstances in which a | ||||||
16 | warrantless seizure or arrest would be reasonable; or
| ||||||
17 | (5) in accordance with the Code of Criminal Procedure | ||||||
18 | of 1963.
| ||||||
19 | (c) In the event of seizure pursuant to subsection (b), | ||||||
20 | notice shall be given forthwith to all known interest holders | ||||||
21 | that forfeiture
proceedings, including a preliminary review, | ||||||
22 | shall be instituted in accordance with the Drug
Asset | ||||||
23 | Forfeiture Procedure Act and such proceedings shall thereafter | ||||||
24 | be instituted in accordance with that Act. Upon a showing of | ||||||
25 | good cause, the notice required for a preliminary review under | ||||||
26 | this Section may be postponed.
|
| |||||||
| |||||||
1 | (d) Property taken or detained under this Section shall not | ||||||
2 | be subject
to replevin, but is deemed to be in the custody of | ||||||
3 | the Director subject
only to the order and judgments of the | ||||||
4 | circuit court having jurisdiction over
the forfeiture | ||||||
5 | proceedings and the decisions of the State's Attorney
under the | ||||||
6 | Drug Asset Forfeiture Procedure Act. When property is seized
| ||||||
7 | under this Act, the seizing agency shall promptly conduct an | ||||||
8 | inventory of
the seized property and estimate the property's | ||||||
9 | value, and shall forward a
copy of the inventory of seized | ||||||
10 | property and the estimate of the property's
value to the | ||||||
11 | Director. Upon receiving notice of seizure, the Director may:
| ||||||
12 | (1) place the property under seal;
| ||||||
13 | (2) remove the property to a place designated by the | ||||||
14 | Director;
| ||||||
15 | (3) keep the property in the possession of the seizing | ||||||
16 | agency;
| ||||||
17 | (4) remove the property to a storage area for | ||||||
18 | safekeeping or, if the
property is a negotiable instrument | ||||||
19 | or money and is not needed for
evidentiary purposes, | ||||||
20 | deposit it in an interest bearing account;
| ||||||
21 | (5) place the property under constructive seizure by | ||||||
22 | posting notice of
pending forfeiture on it, by giving | ||||||
23 | notice of pending forfeiture to its
owners and interest | ||||||
24 | holders, or by filing notice of pending forfeiture in
any | ||||||
25 | appropriate public record relating to the property; or
| ||||||
26 | (6) provide for another agency or custodian, including |
| |||||||
| |||||||
1 | an owner, secured
party, or lienholder, to take custody of | ||||||
2 | the property upon the terms and
conditions set by the | ||||||
3 | Director.
| ||||||
4 | (e) If the Department of Financial and Professional | ||||||
5 | Regulation suspends or revokes
a registration, all controlled | ||||||
6 | substances owned or possessed by the
registrant at the time of | ||||||
7 | suspension or the effective date of the
revocation order may be | ||||||
8 | placed under seal by the Director. No disposition may be made | ||||||
9 | of
substances under seal until the time for taking an appeal | ||||||
10 | has elapsed or
until all appeals have been concluded unless a | ||||||
11 | court, upon application
therefor, orders the sale of perishable | ||||||
12 | substances and the deposit of the
proceeds of the sale with the | ||||||
13 | court. Upon a suspension or revocation order becoming final,
| ||||||
14 | all substances may be forfeited to the Illinois State Police.
| ||||||
15 | (f) When property is forfeited under this Act the Director | ||||||
16 | shall
sell all such property unless such property is required | ||||||
17 | by law to be
destroyed or is harmful to the public, and shall | ||||||
18 | distribute the proceeds of
the sale, together with any moneys | ||||||
19 | forfeited or seized, in accordance
with subsection (g). | ||||||
20 | However, upon the application of the seizing agency or
| ||||||
21 | prosecutor who was responsible for the investigation, arrest or | ||||||
22 | arrests and
prosecution which lead to the forfeiture, the | ||||||
23 | Director may return any item
of forfeited property to the | ||||||
24 | seizing agency or prosecutor for official use
in the | ||||||
25 | enforcement of laws relating to cannabis or controlled | ||||||
26 | substances,
if the agency or prosecutor can demonstrate that |
| |||||||
| |||||||
1 | the item requested would
be useful to the agency or prosecutor | ||||||
2 | in their enforcement efforts. When any forfeited conveyance, | ||||||
3 | including an aircraft, vehicle, or vessel, is returned to the | ||||||
4 | seizing agency or prosecutor, the conveyance may be used | ||||||
5 | immediately in the enforcement of the criminal laws of this | ||||||
6 | State. Upon disposal, all proceeds from the sale of the | ||||||
7 | conveyance must be used for drug enforcement purposes. When
any | ||||||
8 | real property returned to the seizing agency is sold by the | ||||||
9 | agency or
its unit of government, the proceeds of the sale | ||||||
10 | shall be delivered to the
Director and distributed in | ||||||
11 | accordance with subsection (g).
| ||||||
12 | (g) All monies and the sale proceeds of all other property | ||||||
13 | forfeited and
seized under this Act shall be distributed as | ||||||
14 | follows:
| ||||||
15 | (1)(i) 65% shall be distributed to the metropolitan | ||||||
16 | enforcement group,
local, municipal, county, or state law | ||||||
17 | enforcement agency or agencies which
conducted or | ||||||
18 | participated in the investigation resulting in the | ||||||
19 | forfeiture.
The distribution shall bear a reasonable | ||||||
20 | relationship to the degree of
direct participation of the | ||||||
21 | law enforcement agency in the effort resulting
in the | ||||||
22 | forfeiture, taking into account the total value of the | ||||||
23 | property
forfeited and the total law enforcement effort | ||||||
24 | with respect to the
violation of the law upon which the | ||||||
25 | forfeiture is based.
Amounts distributed to the agency or | ||||||
26 | agencies shall be used for the
enforcement of laws |
| |||||||
| |||||||
1 | governing cannabis and controlled substances; for public | ||||||
2 | education in the community or schools in the
prevention or | ||||||
3 | detection of the abuse of drugs or
alcohol; or for security | ||||||
4 | cameras used for the prevention or detection of violence, | ||||||
5 | except that
amounts distributed to the Secretary of State | ||||||
6 | shall be deposited into the
Secretary of State Evidence | ||||||
7 | Fund to be used as provided in Section 2-115 of the
| ||||||
8 | Illinois Vehicle Code.
| ||||||
9 | (ii) Any local, municipal, or county law enforcement | ||||||
10 | agency entitled to receive a monetary distribution of | ||||||
11 | forfeiture proceeds may share those forfeiture proceeds | ||||||
12 | pursuant to the terms of an intergovernmental agreement | ||||||
13 | with a municipality that has a population in excess of | ||||||
14 | 20,000 if: | ||||||
15 | (I) the receiving agency has entered into an | ||||||
16 | intergovernmental agreement with the municipality to | ||||||
17 | provide police services; | ||||||
18 | (II) the intergovernmental agreement for police | ||||||
19 | services provides for consideration in an amount of not | ||||||
20 | less than $1,000,000 per year; | ||||||
21 | (III) the seizure took place within the | ||||||
22 | geographical limits of the municipality; and | ||||||
23 | (IV) the funds are used only for the enforcement
of | ||||||
24 | laws governing cannabis and controlled substances; for | ||||||
25 | public education in the community or schools in the
| ||||||
26 | prevention or detection of the abuse of drugs or
|
| |||||||
| |||||||
1 | alcohol; or
for security cameras used for the | ||||||
2 | prevention or detection
of violence or the | ||||||
3 | establishment of a municipal police
force, including | ||||||
4 | the training of officers, construction of
a police | ||||||
5 | station, the purchase of law enforcement
equipment, or | ||||||
6 | vehicles. | ||||||
7 | (2)(i) 12.5% shall be distributed to the Office of the | ||||||
8 | State's
Attorney of the county in which the prosecution | ||||||
9 | resulting in the forfeiture
was instituted, deposited in a | ||||||
10 | special fund in the county treasury and
appropriated to the | ||||||
11 | State's Attorney for use in the enforcement of laws
| ||||||
12 | governing cannabis and controlled substances; for public | ||||||
13 | education in the community or schools in the
prevention or | ||||||
14 | detection of the abuse of drugs or
alcohol; or at the | ||||||
15 | discretion of the State's Attorney, in addition to other | ||||||
16 | authorized purposes, to make grants to local substance | ||||||
17 | abuse treatment facilities and half-way houses. In | ||||||
18 | counties over 3,000,000
population, 25% will be | ||||||
19 | distributed to the Office of the State's Attorney for
use | ||||||
20 | in the
enforcement of laws governing cannabis and | ||||||
21 | controlled substances; for public education in the | ||||||
22 | community or schools in the
prevention or detection of the | ||||||
23 | abuse of drugs or
alcohol; or at the discretion of the | ||||||
24 | State's Attorney, in addition to other authorized | ||||||
25 | purposes, to make grants to local substance abuse treatment | ||||||
26 | facilities and half-way houses. If the
prosecution is |
| |||||||
| |||||||
1 | undertaken solely by the Attorney General, the portion
| ||||||
2 | provided hereunder shall be distributed to the Attorney | ||||||
3 | General for use in
the enforcement of laws governing | ||||||
4 | cannabis and controlled substances or
for public education | ||||||
5 | in the community or schools in the
prevention or detection | ||||||
6 | of the abuse of drugs or
alcohol.
| ||||||
7 | (ii) 12.5% shall be distributed to the Office of the | ||||||
8 | State's Attorneys
Appellate Prosecutor and deposited in | ||||||
9 | the Narcotics Profit Forfeiture Fund
of that office to be | ||||||
10 | used for additional expenses incurred in the
| ||||||
11 | investigation, prosecution and appeal of cases arising | ||||||
12 | under laws governing
cannabis and controlled substances or
| ||||||
13 | for public education in the community or schools in the
| ||||||
14 | prevention or detection of the abuse of drugs or
alcohol. | ||||||
15 | The Office of the State's Attorneys
Appellate Prosecutor | ||||||
16 | shall not receive distribution from cases brought in
| ||||||
17 | counties with over 3,000,000 population.
| ||||||
18 | (3) 10% shall be retained by the Department of State | ||||||
19 | Police for expenses
related to the administration and sale | ||||||
20 | of seized and forfeited property.
| ||||||
21 | (h) Species of plants from which controlled substances in | ||||||
22 | Schedules I
and II may be derived which have been planted or | ||||||
23 | cultivated in violation of
this Act, or of which the owners or | ||||||
24 | cultivators are unknown, or which are
wild growths, may be | ||||||
25 | seized and summarily forfeited to the State. The
failure, upon | ||||||
26 | demand by the Director or any peace officer, of the person in
|
| |||||||
| |||||||
1 | occupancy or in control of land or premises upon which the | ||||||
2 | species of
plants are growing or being stored, to produce | ||||||
3 | registration, or proof that
he or she is the holder thereof, | ||||||
4 | constitutes authority for the seizure and
forfeiture of the | ||||||
5 | plants.
| ||||||
6 | (Source: P.A. 99-686, eff. 7-29-16.)
| ||||||
7 | (Text of Section after amendment by P.A. 100-512 )
| ||||||
8 | Sec. 505. (a) The following are subject to forfeiture:
| ||||||
9 | (1) (blank);
| ||||||
10 | (2) all raw materials, products , and equipment of any | ||||||
11 | kind which are
used, or intended for use in manufacturing, | ||||||
12 | distributing, dispensing,
administering or possessing any | ||||||
13 | substance in violation of this Act;
| ||||||
14 | (3) all conveyances, including aircraft, vehicles , or | ||||||
15 | vessels, which are
used, or intended for use, to transport, | ||||||
16 | or in any manner to facilitate
the transportation, sale, | ||||||
17 | receipt, possession, or concealment of substances | ||||||
18 | manufactured, distributed, dispensed, or possessed in | ||||||
19 | violation of this Act, or property
described in paragraph | ||||||
20 | paragraphs (2) of this subsection (a), but:
| ||||||
21 | (i) no conveyance used by any person as a common | ||||||
22 | carrier in the
transaction of business as a common | ||||||
23 | carrier is subject to forfeiture under
this Section | ||||||
24 | unless it appears that the owner or other person in | ||||||
25 | charge of
the conveyance is a consenting party or privy |
| |||||||
| |||||||
1 | to a violation of this Act;
| ||||||
2 | (ii) no conveyance is subject to forfeiture under | ||||||
3 | this Section by reason
of any act or omission which the | ||||||
4 | owner proves to have been committed or
omitted without | ||||||
5 | his or her knowledge or consent;
| ||||||
6 | (iii) a forfeiture of a conveyance encumbered by a | ||||||
7 | bona fide security
interest is subject to the interest | ||||||
8 | of the secured party if he or she neither had
knowledge | ||||||
9 | of nor consented to the act or omission;
| ||||||
10 | (4) all money, things of value, books, records, and | ||||||
11 | research
products and materials including formulas, | ||||||
12 | microfilm, tapes, and data which
are used, or intended to | ||||||
13 | be used in violation of this Act;
| ||||||
14 | (5) everything of value furnished, or intended to be | ||||||
15 | furnished, in
exchange for a substance in violation of this | ||||||
16 | Act, all proceeds traceable
to such an exchange, and all | ||||||
17 | moneys, negotiable instruments, and securities
used, or | ||||||
18 | intended to be used, to commit or in any manner to | ||||||
19 | facilitate
any violation of this Act;
| ||||||
20 | (6) all real property, including any right, title, and | ||||||
21 | interest
(including, but not limited to, any leasehold | ||||||
22 | interest or the beneficial
interest in a land trust) in the | ||||||
23 | whole of any lot or tract of land and any
appurtenances or | ||||||
24 | improvements, which is used or intended to be used, in any
| ||||||
25 | manner or part, to commit, or in any manner to facilitate | ||||||
26 | the commission
of, any violation or act that constitutes a |
| |||||||
| |||||||
1 | violation of Section 401 or 405
of this Act or that is the | ||||||
2 | proceeds of any violation or act that
constitutes a | ||||||
3 | violation of Section 401 or 405 of this Act.
| ||||||
4 | (b) Property subject to forfeiture under this Act may be | ||||||
5 | seized under the Drug Asset Forfeiture Procedure Act. In the | ||||||
6 | event of seizure, forfeiture proceedings shall be instituted | ||||||
7 | under the Drug Asset Forfeiture Procedure Act.
| ||||||
8 | (c) Forfeiture under this Act is subject to subject to an | ||||||
9 | 8th Amendment amendment to the United States Constitution | ||||||
10 | disproportionate penalties analysis as provided under Section | ||||||
11 | 9.5 of the Drug Asset Forfeiture Procedure Act.
| ||||||
12 | (d) With regard to possession of controlled substances | ||||||
13 | offenses only, a sum of currency with a value of less than $500 | ||||||
14 | shall not be subject to forfeiture under this Act. For all | ||||||
15 | other offenses under this Act, a sum of currency with a value | ||||||
16 | of less than currency with a value of under $100 shall not be | ||||||
17 | subject to forfeiture under this Act. In seizures of currency | ||||||
18 | in excess of these amounts, this Section shall not create an | ||||||
19 | exemption for these amounts.
| ||||||
20 | (d-5) For felony offenses involving possession of | ||||||
21 | controlled substances only, no property shall be subject to | ||||||
22 | forfeiture under this Act because of the possession of less | ||||||
23 | than 2 single unit doses of a controlled substance. This | ||||||
24 | exemption shall not apply in instances when the possessor, or | ||||||
25 | another person at the direction of the possessor, engaged in | ||||||
26 | the destruction of any amount of a controlled substance. The |
| |||||||
| |||||||
1 | amount of a single unit dose shall be the State's burden to | ||||||
2 | prove in its their case in chief. | ||||||
3 | (e) If the Department of Financial and Professional | ||||||
4 | Regulation suspends or revokes
a registration, all controlled | ||||||
5 | substances owned or possessed by the
registrant at the time of | ||||||
6 | suspension or the effective date of the
revocation order may be | ||||||
7 | placed under seal by the Director. No disposition may be made | ||||||
8 | of
substances under seal until the time for taking an appeal | ||||||
9 | has elapsed or
until all appeals have been concluded unless a | ||||||
10 | court, upon application
therefor, orders the sale of perishable | ||||||
11 | substances and the deposit of the
proceeds of the sale with the | ||||||
12 | court. Upon a suspension or revocation order becoming final,
| ||||||
13 | all substances are subject to seizure and forfeiture under the | ||||||
14 | Drug Asset Forfeiture Procedure Act.
| ||||||
15 | (f) (Blank).
| ||||||
16 | (g) (Blank).
| ||||||
17 | (h) (Blank).
| ||||||
18 | (i) Contraband, including controlled substances possessed | ||||||
19 | without authorization under State or federal law, is not | ||||||
20 | subject to forfeiture. No property right exists in contraband. | ||||||
21 | Contraband is subject to seizure and shall be disposed of | ||||||
22 | according to State law. | ||||||
23 | (j) The changes made to this Section by Public Act 100-0512 | ||||||
24 | and this amendatory Act of the 100th General Assembly only | ||||||
25 | apply to property seized on and after July 1, 2018. | ||||||
26 | (k) The changes made to this Section by this amendatory Act |
| |||||||
| |||||||
1 | of the 100th General Assembly are subject to Section 4 of the | ||||||
2 | Statute on Statutes. | ||||||
3 | (Source: P.A. 99-686, eff. 7-29-16; 100-512, eff. 7-1-18.)
| ||||||
4 | Section 35. The Methamphetamine Control and Community | ||||||
5 | Protection Act is amended by changing Section 85 as follows: | ||||||
6 | (720 ILCS 646/85) | ||||||
7 | (Text of Section before amendment by P.A. 100-512 )
| ||||||
8 | Sec. 85. Forfeiture. | ||||||
9 | (a) The following are subject to forfeiture:
| ||||||
10 | (1) all substances containing methamphetamine which | ||||||
11 | have
been produced, manufactured, delivered, or possessed | ||||||
12 | in violation of this Act;
| ||||||
13 | (2) all methamphetamine manufacturing materials which | ||||||
14 | have
been produced, delivered, or possessed in connection | ||||||
15 | with any substance containing methamphetamine in violation | ||||||
16 | of this Act;
| ||||||
17 | (3) all conveyances, including aircraft, vehicles or
| ||||||
18 | vessels, which are used, or intended for use, to transport, | ||||||
19 | or in any manner to facilitate the transportation, sale, | ||||||
20 | receipt, possession, or concealment of property described | ||||||
21 | in paragraph (1) or (2) that constitutes a felony violation | ||||||
22 | of the Act, but:
| ||||||
23 | (i) no conveyance used by any person as a common
| ||||||
24 | carrier in the transaction of business as a common |
| |||||||
| |||||||
1 | carrier is subject to forfeiture under this Section | ||||||
2 | unless it appears that the owner or other person in | ||||||
3 | charge of the conveyance is a consenting party or privy | ||||||
4 | to a violation of this Act;
| ||||||
5 | (ii) no conveyance is subject to forfeiture
under | ||||||
6 | this Section by reason of any act or omission which the | ||||||
7 | owner proves to have been committed or omitted without | ||||||
8 | his or her knowledge or consent;
| ||||||
9 | (iii) a forfeiture of a conveyance encumbered by
a | ||||||
10 | bona fide security interest is subject to the interest | ||||||
11 | of the secured party if he or she neither had knowledge | ||||||
12 | of nor consented to the act or omission;
| ||||||
13 | (4) all money, things of value, books, records, and
| ||||||
14 | research products and materials including formulas, | ||||||
15 | microfilm, tapes, and data which are used, or intended for | ||||||
16 | use in a felony violation of this Act;
| ||||||
17 | (5) everything of value furnished or intended to be
| ||||||
18 | furnished by any person in exchange for a substance in | ||||||
19 | violation of this Act, all proceeds traceable to such an | ||||||
20 | exchange, and all moneys, negotiable instruments, and | ||||||
21 | securities used, or intended to be used, to commit or in | ||||||
22 | any manner to facilitate any felony violation of this Act.
| ||||||
23 | (6) all real property, including any right, title, and | ||||||
24 | interest (including, but not limited to, any leasehold | ||||||
25 | interest or the beneficial interest in a land trust) in the | ||||||
26 | whole of any lot or tract of land and any appurtenances or |
| |||||||
| |||||||
1 | improvements, which is used, or intended to be used, in any | ||||||
2 | manner or part, to commit, or in any manner to facilitate | ||||||
3 | the commission of, any violation or act that constitutes a | ||||||
4 | violation of this Act or that is the proceeds of any | ||||||
5 | violation or act that constitutes a violation of this Act.
| ||||||
6 | (b) Property subject to forfeiture under this Act may be | ||||||
7 | seized by the Director or any peace officer upon process or | ||||||
8 | seizure warrant issued by any court having jurisdiction over | ||||||
9 | the property. Seizure by the Director or any peace officer | ||||||
10 | without process may be made:
| ||||||
11 | (1) if the property subject to seizure has been the
| ||||||
12 | subject of a prior judgment in favor of the State in a | ||||||
13 | criminal proceeding or in an injunction or forfeiture | ||||||
14 | proceeding based upon this Act or the Drug Asset Forfeiture | ||||||
15 | Procedure Act;
| ||||||
16 | (2) if there is probable cause to believe that the
| ||||||
17 | property is directly or indirectly dangerous to health or | ||||||
18 | safety;
| ||||||
19 | (3) if there is probable cause to believe that the
| ||||||
20 | property is subject to forfeiture under this Act and the | ||||||
21 | property is seized under circumstances in which a | ||||||
22 | warrantless seizure or arrest would be reasonable; or
| ||||||
23 | (4) in accordance with the Code of Criminal
Procedure | ||||||
24 | of 1963.
| ||||||
25 | (c) In the event of seizure pursuant to subsection (b), | ||||||
26 | notice shall be given forthwith to all known interest holders |
| |||||||
| |||||||
1 | that forfeiture proceedings, including a preliminary review, | ||||||
2 | shall be instituted in accordance with the Drug Asset | ||||||
3 | Forfeiture Procedure Act and such proceedings shall thereafter | ||||||
4 | be instituted in accordance with that Act. Upon a showing of | ||||||
5 | good cause, the notice required for a preliminary review under | ||||||
6 | this Section may be postponed.
| ||||||
7 | (d) Property taken or detained under this Section is not | ||||||
8 | subject to replevin, but is deemed to be in the custody of the | ||||||
9 | Director subject only to the order and judgments of the circuit | ||||||
10 | court having jurisdiction over the forfeiture proceedings and | ||||||
11 | the decisions of the State's Attorney under the Drug Asset | ||||||
12 | Forfeiture Procedure Act. When property is seized under this | ||||||
13 | Act, the seizing agency shall promptly conduct an inventory of | ||||||
14 | the seized property, estimate the property's value, and forward | ||||||
15 | a copy of the inventory of seized property and the estimate of | ||||||
16 | the property's value to the Director. Upon receiving notice of | ||||||
17 | seizure, the Director may:
| ||||||
18 | (1) place the property under seal;
| ||||||
19 | (2) remove the property to a place designated by him or | ||||||
20 | her;
| ||||||
21 | (3) keep the property in the possession of the
seizing | ||||||
22 | agency;
| ||||||
23 | (4) remove the property to a storage area for
| ||||||
24 | safekeeping or, if the property is a negotiable instrument | ||||||
25 | or money and is not needed for evidentiary purposes, | ||||||
26 | deposit it in an interest bearing account;
|
| |||||||
| |||||||
1 | (5) place the property under constructive seizure by
| ||||||
2 | posting notice of pending forfeiture on it, by giving | ||||||
3 | notice of pending forfeiture to its owners and interest | ||||||
4 | holders, or by filing notice of pending forfeiture in any | ||||||
5 | appropriate public record relating to the property; or
| ||||||
6 | (6) provide for another agency or custodian,
including | ||||||
7 | an owner, secured party, or lienholder, to take custody of | ||||||
8 | the property upon the terms and conditions set by the | ||||||
9 | Director.
| ||||||
10 | (e) No disposition may be made of property under seal until | ||||||
11 | the time for taking an appeal has elapsed or until all appeals | ||||||
12 | have been concluded unless a court, upon application therefor, | ||||||
13 | orders the sale of perishable substances and the deposit of the | ||||||
14 | proceeds of the sale with the court.
| ||||||
15 | (f) When property is forfeited under this Act, the Director | ||||||
16 | shall sell the property unless the property is required by law | ||||||
17 | to be destroyed or is harmful to the public, and shall | ||||||
18 | distribute the proceeds of the sale, together with any moneys | ||||||
19 | forfeited or seized, in accordance with subsection (g). | ||||||
20 | However, upon the application of the seizing agency or | ||||||
21 | prosecutor who was responsible for the investigation, arrest or | ||||||
22 | arrests and prosecution which lead to the forfeiture, the | ||||||
23 | Director may return any item of forfeited property to the | ||||||
24 | seizing agency or prosecutor for official use in the | ||||||
25 | enforcement of laws relating to methamphetamine, cannabis, or | ||||||
26 | controlled substances, if the agency or prosecutor |
| |||||||
| |||||||
1 | demonstrates that the item requested would be useful to the | ||||||
2 | agency or prosecutor in their enforcement efforts. When any | ||||||
3 | forfeited conveyance, including an aircraft, vehicle, or | ||||||
4 | vessel, is returned to the seizing agency or prosecutor, the | ||||||
5 | conveyance may be used immediately in the enforcement of the | ||||||
6 | criminal laws of this State. Upon disposal, all proceeds from | ||||||
7 | the sale of the conveyance must be used for drug enforcement | ||||||
8 | purposes. When any real property returned to the seizing agency | ||||||
9 | is sold by the agency or its unit of government, the proceeds | ||||||
10 | of the sale shall be delivered to the Director and distributed | ||||||
11 | in accordance with subsection (g).
| ||||||
12 | (g) All moneys and the sale proceeds of all other property | ||||||
13 | forfeited and seized under this Act shall be distributed as | ||||||
14 | follows:
| ||||||
15 | (1)(i) 65% shall be distributed to the metropolitan
| ||||||
16 | enforcement group, local, municipal, county, or State law | ||||||
17 | enforcement agency or agencies which conducted or | ||||||
18 | participated in the investigation resulting in the | ||||||
19 | forfeiture. The distribution shall bear a reasonable | ||||||
20 | relationship to the degree of direct participation of the | ||||||
21 | law enforcement agency in the effort resulting in the | ||||||
22 | forfeiture, taking into account the total value of the | ||||||
23 | property forfeited and the total law enforcement effort | ||||||
24 | with respect to the violation of the law upon which the | ||||||
25 | forfeiture is based. Amounts distributed to the agency or | ||||||
26 | agencies shall be used for the enforcement of laws |
| |||||||
| |||||||
1 | governing methamphetamine, cannabis, and controlled | ||||||
2 | substances; for public education in the community or | ||||||
3 | schools in the
prevention or detection of the abuse of | ||||||
4 | drugs or
alcohol; or for security cameras used for the | ||||||
5 | prevention or detection of violence, except that amounts | ||||||
6 | distributed to the Secretary of State shall be deposited | ||||||
7 | into the Secretary of State Evidence Fund to be used as | ||||||
8 | provided in Section 2-115 of the Illinois Vehicle Code.
| ||||||
9 | (ii) Any local, municipal, or county law enforcement | ||||||
10 | agency entitled to receive a monetary distribution of | ||||||
11 | forfeiture proceeds may share those forfeiture proceeds | ||||||
12 | pursuant to the terms of an intergovernmental agreement | ||||||
13 | with a municipality that has a population in excess of | ||||||
14 | 20,000 if: | ||||||
15 | (I) the receiving agency has entered into an | ||||||
16 | intergovernmental agreement with the municipality to | ||||||
17 | provide police services; | ||||||
18 | (II) the intergovernmental agreement for police | ||||||
19 | services provides for consideration in an amount of not | ||||||
20 | less than $1,000,000 per year; | ||||||
21 | (III) the seizure took place within the | ||||||
22 | geographical limits of the municipality; and | ||||||
23 | (IV) the funds are used only for the enforcement
of | ||||||
24 | laws governing cannabis and controlled substances; for | ||||||
25 | public education in the community or schools in the
| ||||||
26 | prevention or detection of the abuse of drugs or
|
| |||||||
| |||||||
1 | alcohol; or
for security cameras used for the | ||||||
2 | prevention or detection
of violence or the | ||||||
3 | establishment of a municipal police
force, including | ||||||
4 | the training of officers, construction of
a police | ||||||
5 | station, the purchase of law enforcement
equipment, or | ||||||
6 | vehicles. | ||||||
7 | (2)(i) 12.5% shall be distributed to the Office of
the | ||||||
8 | State's Attorney of the county in which the prosecution | ||||||
9 | resulting in the forfeiture was instituted, deposited in a | ||||||
10 | special fund in the county treasury and appropriated to the | ||||||
11 | State's Attorney for use in the enforcement of laws | ||||||
12 | governing methamphetamine, cannabis, and controlled | ||||||
13 | substances; for public education in the community or | ||||||
14 | schools in the
prevention or detection of the abuse of | ||||||
15 | drugs or
alcohol; or at the discretion of the State's | ||||||
16 | Attorney, in addition to other authorized purposes, to make | ||||||
17 | grants to local substance abuse treatment facilities and | ||||||
18 | half-way houses. In counties with a population over | ||||||
19 | 3,000,000, 25% shall be distributed to the Office of the | ||||||
20 | State's Attorney for use in the enforcement of laws | ||||||
21 | governing methamphetamine, cannabis, and controlled | ||||||
22 | substances; for public education in the community or | ||||||
23 | schools in the
prevention or detection of the abuse of | ||||||
24 | drugs or
alcohol; or at the discretion of the State's | ||||||
25 | Attorney, in addition to other authorized purposes, to make | ||||||
26 | grants to local substance abuse treatment facilities and |
| |||||||
| |||||||
1 | half-way houses. If the prosecution is undertaken solely by | ||||||
2 | the Attorney General, the portion provided hereunder shall | ||||||
3 | be distributed to the Attorney General for use in the | ||||||
4 | enforcement of laws governing methamphetamine, cannabis, | ||||||
5 | and controlled substances or for public education in the | ||||||
6 | community or schools in the
prevention or detection of the | ||||||
7 | abuse of drugs or
alcohol.
| ||||||
8 | (ii) 12.5% shall be distributed to the Office of
the | ||||||
9 | State's Attorneys Appellate Prosecutor and deposited in | ||||||
10 | the Narcotics Profit Forfeiture Fund of that Office to be | ||||||
11 | used for additional expenses incurred in the | ||||||
12 | investigation, prosecution and appeal of cases arising | ||||||
13 | under laws governing methamphetamine, cannabis, and | ||||||
14 | controlled substances or for public education in the | ||||||
15 | community or schools in the
prevention or detection of the | ||||||
16 | abuse of drugs or
alcohol. The Office of the State's | ||||||
17 | Attorneys Appellate Prosecutor shall not receive | ||||||
18 | distribution from cases brought in counties with a | ||||||
19 | population over 3,000,000.
| ||||||
20 | (3) 10% shall be retained by the Department of State
| ||||||
21 | Police for expenses related to the administration and sale | ||||||
22 | of seized and forfeited property.
| ||||||
23 | (Source: P.A. 99-686, eff. 7-29-16.) | ||||||
24 | (Text of Section after amendment by P.A. 100-512 ) | ||||||
25 | Sec. 85. Forfeiture. |
| |||||||
| |||||||
1 | (a) The following are subject to forfeiture:
| ||||||
2 | (1) (blank);
| ||||||
3 | (2) all methamphetamine manufacturing materials which | ||||||
4 | have
been produced, delivered, or possessed in connection | ||||||
5 | with any substance containing methamphetamine in violation | ||||||
6 | of this Act;
| ||||||
7 | (3) all conveyances, including aircraft, vehicles , or
| ||||||
8 | vessels, which are used, or intended for use, to transport, | ||||||
9 | or in any manner to facilitate the transportation, sale, | ||||||
10 | receipt, possession, or concealment of any substance | ||||||
11 | containing methamphetamine or property described in | ||||||
12 | paragraph (2) of this subsection (a) that constitutes a | ||||||
13 | felony violation of the Act, but:
| ||||||
14 | (i) no conveyance used by any person as a common
| ||||||
15 | carrier in the transaction of business as a common | ||||||
16 | carrier is subject to forfeiture under this Section | ||||||
17 | unless it appears that the owner or other person in | ||||||
18 | charge of the conveyance is a consenting party or privy | ||||||
19 | to the violation;
| ||||||
20 | (ii) no conveyance is subject to forfeiture
under | ||||||
21 | this Section by reason of any act or omission which the | ||||||
22 | owner proves to have been committed or omitted without | ||||||
23 | his or her knowledge or consent;
| ||||||
24 | (iii) a forfeiture of a conveyance encumbered by
a | ||||||
25 | bona fide security interest is subject to the interest | ||||||
26 | of the secured party if he or she neither had knowledge |
| |||||||
| |||||||
1 | of nor consented to the act or omission;
| ||||||
2 | (4) all money, things of value, books, records, and
| ||||||
3 | research products and materials including formulas, | ||||||
4 | microfilm, tapes, and data which are used, or intended for | ||||||
5 | use in a felony violation of this Act;
| ||||||
6 | (5) everything of value furnished or intended to be
| ||||||
7 | furnished by any person in exchange for a substance in | ||||||
8 | violation of this Act, all proceeds traceable to such an | ||||||
9 | exchange, and all moneys, negotiable instruments, and | ||||||
10 | securities used, or intended to be used, to commit or in | ||||||
11 | any manner to facilitate any felony violation of this Act ; | ||||||
12 | .
| ||||||
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 this Act or that is the proceeds of any | ||||||
21 | violation or act that constitutes a violation of this Act.
| ||||||
22 | (b) Property subject to forfeiture under this Act may be | ||||||
23 | seized under the Drug Asset Forfeiture Procedure Act. In the | ||||||
24 | event of seizure, forfeiture proceedings shall be instituted | ||||||
25 | under the Drug Asset Forfeiture Procedure Act.
| ||||||
26 | (c) Forfeiture under this Act is subject to subject to an |
| |||||||
| |||||||
1 | 8th Amendment amendment to the United States Constitution | ||||||
2 | disproportionate penalties analysis as provided under Section | ||||||
3 | 9.5 of the Drug Asset Forfeiture Procedure Act.
| ||||||
4 | (d) With regard to possession of methamphetamine offenses | ||||||
5 | only, a sum of currency with a value of less than $500 shall | ||||||
6 | not be subject to forfeiture under this Act. For all other | ||||||
7 | offenses under this Act, a sum of currency with a value of less | ||||||
8 | than under $100 shall not be subject to forfeiture under this | ||||||
9 | Act.
In seizures of currency in excess of these amounts, this | ||||||
10 | Section shall not create an exemption for these amounts. | ||||||
11 | (e) For felony offenses involving possession of a substance | ||||||
12 | containing methamphetamine only, no property shall be subject | ||||||
13 | to forfeiture under this Act because of the possession of less | ||||||
14 | than 2 single unit doses of a substance. This exemption shall | ||||||
15 | not apply in instances when the possessor, or another person at | ||||||
16 | the direction of the possessor, is engaged in the destruction | ||||||
17 | of any amount of a substance containing methamphetamine. The | ||||||
18 | amount of a single unit dose shall be the State's burden to | ||||||
19 | prove in its their case in chief.
| ||||||
20 | (f) (Blank).
| ||||||
21 | (g) (Blank).
| ||||||
22 | (h) Contraband, including methamphetamine or any | ||||||
23 | controlled substance possessed without authorization under | ||||||
24 | State or federal law, is not subject to forfeiture. No property | ||||||
25 | right exists in contraband. Contraband is subject to seizure | ||||||
26 | and shall be disposed of according to State law. |
| |||||||
| |||||||
1 | (i) The changes made to this Section by Public Act 100-0512 | ||||||
2 | and this amendatory Act of the 100th General Assembly only | ||||||
3 | apply to property seized on and after July 1, 2018. | ||||||
4 | (j) The changes made to this Section by this amendatory Act | ||||||
5 | of the 100th General Assembly are subject to Section 4 of the | ||||||
6 | Statute on Statutes. | ||||||
7 | (Source: P.A. 99-686, eff. 7-29-16; 100-512, eff. 7-1-18.) | ||||||
8 | Section 40. The Drug Asset Forfeiture Procedure Act is | ||||||
9 | amended by changing Sections 3.1, 3.3, 3.5, 4, 5, 5.1, 6, 7, 8, | ||||||
10 | 9, 9.1, and 11, by adding Section 13.4, renumbering and | ||||||
11 | changing Sections 15 and 17, and renumbering Section 20 as | ||||||
12 | follows: | ||||||
13 | (725 ILCS 150/3.1) | ||||||
14 | (This Section may contain text from a Public Act with a | ||||||
15 | delayed effective date ) | ||||||
16 | Sec. 3.1. Seizure. | ||||||
17 | (a) Actual physical seizure of real property subject to | ||||||
18 | forfeiture under this Act requires the issuance of a seizure | ||||||
19 | warrant. Nothing in this Section prohibits the constructive | ||||||
20 | seizure of real property through the filing of a complaint for | ||||||
21 | forfeiture in circuit court and the recording of a lis pendens | ||||||
22 | against the real property without a hearing, warrant | ||||||
23 | application, or judicial approval. | ||||||
24 | (b) Personal property subject to forfeiture under the |
| |||||||
| |||||||
1 | Illinois Controlled Substances Act, the Cannabis Control Act, | ||||||
2 | the Illinois Food, Drug and Cosmetic Act, or the | ||||||
3 | Methamphetamine Control and Community Protection Act may be | ||||||
4 | seized by the Director of State Police or any peace officer | ||||||
5 | upon process or seizure warrant issued by any court having | ||||||
6 | jurisdiction over the property. | ||||||
7 | (c) Personal property subject to forfeiture under the | ||||||
8 | Illinois Controlled Substances Act, the Cannabis Control Act, | ||||||
9 | the Illinois Food, Drug and Cosmetic Act, or the | ||||||
10 | Methamphetamine Control and Community Protection Act may be | ||||||
11 | seized by the Director of State Police or any peace officer | ||||||
12 | without process: | ||||||
13 | (1) if the seizure is incident to inspection under an | ||||||
14 | administrative inspection warrant; | ||||||
15 | (2) if the property subject to seizure has been the | ||||||
16 | subject of a prior judgment in favor of the State in a | ||||||
17 | criminal proceeding or in an injunction or forfeiture | ||||||
18 | proceeding based upon this Act; | ||||||
19 | (3) if there is probable cause to believe that the | ||||||
20 | property is directly or indirectly dangerous to health or | ||||||
21 | safety; | ||||||
22 | (4) if there is probable cause to believe that the | ||||||
23 | property is subject to forfeiture under the Illinois | ||||||
24 | Controlled Substances Act, the Cannabis Control Act, the | ||||||
25 | Illinois Food, Drug and Cosmetic Act, or the | ||||||
26 | Methamphetamine Control and Community Protection Act, and |
| |||||||
| |||||||
1 | the property is seized under circumstances in which a | ||||||
2 | warrantless seizure or arrest would be reasonable; or | ||||||
3 | (5) under the Code of Criminal Procedure of 1963. | ||||||
4 | (d) If a conveyance is seized under this Act, an | ||||||
5 | investigation shall be made by the law enforcement agency as to | ||||||
6 | any person whose right, title, interest, or lien is of record | ||||||
7 | in the office of the agency or official in which title to or | ||||||
8 | interest in to the conveyance is required by law to be | ||||||
9 | recorded. | ||||||
10 | (e) After seizure under this Section, notice shall be given | ||||||
11 | to all known interest holders that forfeiture proceedings, | ||||||
12 | including a preliminary review, may be instituted and the | ||||||
13 | proceedings may be instituted under this Act. Upon a showing of | ||||||
14 | good cause related to an ongoing investigation, the notice | ||||||
15 | required for a preliminary review under this Section may be | ||||||
16 | postponed.
| ||||||
17 | (Source: P.A. 100-512, eff. 7-1-18.) | ||||||
18 | (725 ILCS 150/3.3) | ||||||
19 | (This Section may contain text from a Public Act with a | ||||||
20 | delayed effective date ) | ||||||
21 | Sec. 3.3. Safekeeping of seized property pending | ||||||
22 | disposition. | ||||||
23 | (a) Property seized under this Act is deemed to be in the | ||||||
24 | custody of the Director of State Police , subject only to the | ||||||
25 | order and judgments of the circuit court having jurisdiction |
| |||||||
| |||||||
1 | over the forfeiture proceedings and the decisions of the | ||||||
2 | State's Attorney under this Act. | ||||||
3 | (b) If property is seized under this Act, the seizing | ||||||
4 | agency shall promptly conduct an inventory of the seized | ||||||
5 | property and estimate the property's value, and shall forward a | ||||||
6 | copy of the inventory of seized property and the estimate of | ||||||
7 | the property's value to the Director of State Police. Upon | ||||||
8 | receiving notice of seizure, the Director of State Police may: | ||||||
9 | (1) place the property under seal; | ||||||
10 | (2) remove the property to a place designated by the | ||||||
11 | seizing agency; | ||||||
12 | (3) keep the property in the possession of the Director | ||||||
13 | of State Police; | ||||||
14 | (4) remove the property to a storage area for | ||||||
15 | safekeeping; or | ||||||
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 | seizing agency. | ||||||
25 | (c) The seizing agency is required to exercise ordinary | ||||||
26 | care to protect the seized property from negligent loss, |
| |||||||
| |||||||
1 | damage, or destruction.
| ||||||
2 | (Source: P.A. 100-512, eff. 7-1-18.) | ||||||
3 | (725 ILCS 150/3.5) | ||||||
4 | (Text of Section before amendment by P.A. 100-512 ) | ||||||
5 | Sec. 3.5. Preliminary review. | ||||||
6 | (a) Within 14 days of the seizure, the State shall seek a | ||||||
7 | preliminary determination from the circuit court as to whether | ||||||
8 | there is probable cause that the property may be subject to | ||||||
9 | forfeiture. | ||||||
10 | (b) The rules of evidence shall not apply to any proceeding | ||||||
11 | conducted under this Section. | ||||||
12 | (c) The court may conduct the review under subsection (a) | ||||||
13 | simultaneously with a proceeding pursuant to Section 109-1 of | ||||||
14 | the Code of Criminal Procedure of 1963 for a related criminal | ||||||
15 | offense if a prosecution is commenced by information or | ||||||
16 | complaint. | ||||||
17 | (d) The court may accept a finding of probable cause at a | ||||||
18 | preliminary hearing following the filing of an information or | ||||||
19 | complaint charging a related criminal offense or following the | ||||||
20 | return of indictment by a grand jury charging the related | ||||||
21 | offense as sufficient evidence of probable cause as required | ||||||
22 | under subsection (a). | ||||||
23 | (e) Upon making a finding of probable cause as required | ||||||
24 | under this Section, the circuit court shall order the property | ||||||
25 | subject to the provisions of the applicable forfeiture Act held |
| |||||||
| |||||||
1 | until the conclusion of any forfeiture proceeding. | ||||||
2 | For seizures of conveyances, within 7 days of a finding of | ||||||
3 | probable cause under subsection (a), the registered owner or | ||||||
4 | other claimant may file a motion in writing supported by sworn | ||||||
5 | affidavits claiming that denial of the use of the conveyance | ||||||
6 | during the pendency of the forfeiture proceedings creates a | ||||||
7 | substantial hardship. The court shall consider the following | ||||||
8 | factors in determining whether a substantial hardship has been | ||||||
9 | proven: | ||||||
10 | (1) the nature of the claimed hardship; | ||||||
11 | (2) the availability of public transportation or other | ||||||
12 | available means of transportation; and | ||||||
13 | (3) any available alternatives to alleviate the | ||||||
14 | hardship other than the return of the seized conveyance. | ||||||
15 | If the court determines that a substantial hardship has | ||||||
16 | been proven, the court shall then balance the nature of the | ||||||
17 | hardship against the State's interest in safeguarding the | ||||||
18 | conveyance. If the court determines that the hardship outweighs | ||||||
19 | the State's interest in safeguarding the conveyance, the court | ||||||
20 | may temporarily release the conveyance to the registered owner | ||||||
21 | or the registered owner's authorized designee, or both, until | ||||||
22 | the conclusion of the forfeiture proceedings or for such | ||||||
23 | shorter period as ordered by the court provided that the person | ||||||
24 | to whom the conveyance is released provides proof of insurance | ||||||
25 | and a valid driver's license and all State and local | ||||||
26 | registrations for operation of the conveyance are current. The |
| |||||||
| |||||||
1 | court shall place conditions on the conveyance limiting its use | ||||||
2 | to the stated hardship and restricting the conveyance's use to | ||||||
3 | only those individuals authorized to use the conveyance by the | ||||||
4 | registered owner. The court shall revoke the order releasing | ||||||
5 | the conveyance and order that the conveyance be reseized by law | ||||||
6 | enforcement if the conditions of release are violated or if the | ||||||
7 | conveyance is used in the commission of any offense identified | ||||||
8 | in subsection (a) of Section 6-205 of the Illinois Vehicle | ||||||
9 | Code. | ||||||
10 | If the court orders the release of the conveyance during | ||||||
11 | the pendency of the forfeiture proceedings, the registered | ||||||
12 | owner or his or her authorized designee shall post a cash | ||||||
13 | security with the Clerk of the Court as ordered by the court. | ||||||
14 | The court shall consider the following factors in determining | ||||||
15 | the amount of the cash security: | ||||||
16 | (A) the full market value of the conveyance; | ||||||
17 | (B) the nature of the hardship; | ||||||
18 | (C) the extent and length of the usage of the | ||||||
19 | conveyance; and | ||||||
20 | (D) such other conditions as the court deems necessary | ||||||
21 | to safeguard the conveyance. | ||||||
22 | If the conveyance is released, the court shall order that | ||||||
23 | the registered owner or his or her designee safeguard the | ||||||
24 | conveyance, not remove the conveyance from the jurisdiction, | ||||||
25 | not conceal, destroy, or otherwise dispose of the conveyance, | ||||||
26 | not encumber the conveyance, and not diminish the value of the |
| |||||||
| |||||||
1 | conveyance in any way. The court shall also make a | ||||||
2 | determination of the full market value of the conveyance prior | ||||||
3 | to it being released based on a source or sources defined in 50 | ||||||
4 | Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). | ||||||
5 | If the conveyance subject to forfeiture is released under | ||||||
6 | this Section and is subsequently forfeited, the person to whom | ||||||
7 | the conveyance was released shall return the conveyance to the | ||||||
8 | law enforcement agency that seized the conveyance within 7 days | ||||||
9 | from the date of the declaration of forfeiture or order of | ||||||
10 | forfeiture. If the conveyance is not returned within 7 days, | ||||||
11 | the cash security shall be forfeited in the same manner as the | ||||||
12 | conveyance subject to forfeiture. If the cash security was less | ||||||
13 | than the full market value, a judgment shall be entered against | ||||||
14 | the parties to whom the conveyance was released and the | ||||||
15 | registered owner, jointly and severally, for the difference | ||||||
16 | between the full market value and the amount of the cash | ||||||
17 | security. If the conveyance is returned in a condition other | ||||||
18 | than the condition in which it was released, the cash security | ||||||
19 | shall be returned to the surety who posted the security minus | ||||||
20 | the amount of the diminished value, and that amount shall be | ||||||
21 | forfeited in the same manner as the conveyance subject to | ||||||
22 | forfeiture. Additionally, the court may enter an order allowing | ||||||
23 | any law enforcement agency in the State of Illinois to seize | ||||||
24 | the conveyance wherever it may be found in the State to satisfy | ||||||
25 | the judgment if the cash security was less than the full market | ||||||
26 | value of the conveyance.
|
| |||||||
| |||||||
1 | (Source: P.A. 97-544, eff. 1-1-12; 97-680, eff. 3-16-12.) | ||||||
2 | (Text of Section after amendment by P.A. 100-512 ) | ||||||
3 | Sec. 3.5. Preliminary review. | ||||||
4 | (a) Within 14 days of the seizure, the State shall seek a | ||||||
5 | preliminary determination from the circuit court as to whether | ||||||
6 | there is probable cause that the property may be subject to | ||||||
7 | forfeiture. | ||||||
8 | (b) The rules of evidence shall not apply to any proceeding | ||||||
9 | conducted under this Section. | ||||||
10 | (c) The court may conduct the review under subsection (a) | ||||||
11 | of this Section simultaneously with a proceeding under pursuant | ||||||
12 | to Section 109-1 of the Code of Criminal Procedure of 1963 for | ||||||
13 | a related criminal offense if a prosecution is commenced by | ||||||
14 | information or complaint. | ||||||
15 | (d) The court may accept a finding of probable cause at a | ||||||
16 | preliminary hearing following the filing of an information or | ||||||
17 | complaint charging a related criminal offense or following the | ||||||
18 | return of indictment by a grand jury charging the related | ||||||
19 | offense as sufficient evidence of probable cause as required | ||||||
20 | under subsection (a) of this Section . | ||||||
21 | (e) Upon making a finding of probable cause as required | ||||||
22 | under this Section, the circuit court shall order the property | ||||||
23 | subject to the provisions of the applicable forfeiture Act held | ||||||
24 | until the conclusion of any forfeiture proceeding. | ||||||
25 | For seizures of conveyances, within 28 days after a finding |
| |||||||
| |||||||
1 | of probable cause under subsection (a) of this Section , the | ||||||
2 | registered owner or other claimant may file a motion in writing | ||||||
3 | supported by sworn affidavits claiming that denial of the use | ||||||
4 | of the conveyance during the pendency of the forfeiture | ||||||
5 | proceedings creates a substantial hardship and alleges facts | ||||||
6 | showing that the hardship delay was not due to his or her | ||||||
7 | culpable negligence. The court shall consider the following | ||||||
8 | factors in determining whether a substantial hardship has been | ||||||
9 | proven: | ||||||
10 | (1) the nature of the claimed hardship; | ||||||
11 | (2) the availability of public transportation or other | ||||||
12 | available means of transportation; and | ||||||
13 | (3) any available alternatives to alleviate the | ||||||
14 | hardship other than the return of the seized conveyance. | ||||||
15 | If the court determines that a substantial hardship has | ||||||
16 | been proven, the court shall then balance the nature of the | ||||||
17 | hardship against the State's interest in safeguarding the | ||||||
18 | conveyance. If the court determines that the hardship outweighs | ||||||
19 | the State's interest in safeguarding the conveyance, the court | ||||||
20 | may temporarily release the conveyance to the registered owner | ||||||
21 | or the registered owner's authorized designee, or both, until | ||||||
22 | the conclusion of the forfeiture proceedings or for such | ||||||
23 | shorter period as ordered by the court provided that the person | ||||||
24 | to whom the conveyance is released provides proof of insurance | ||||||
25 | and a valid driver's license and all State and local | ||||||
26 | registrations for operation of the conveyance are current. The |
| |||||||
| |||||||
1 | court shall place conditions on the conveyance limiting its use | ||||||
2 | to the stated hardship and providing transportation for | ||||||
3 | employment, religious purposes, medical needs, child care, and | ||||||
4 | obtaining food, and restricting the conveyance's use to only | ||||||
5 | those individuals authorized to use the conveyance by the | ||||||
6 | registered owner. The use of the vehicle shall be further | ||||||
7 | restricted to exclude all recreational and entertainment | ||||||
8 | purposes. The court may order any additional restrictions it | ||||||
9 | deems reasonable and just on its own motion or on motion of the | ||||||
10 | People. The court shall revoke the order releasing the | ||||||
11 | conveyance and order that the conveyance be reseized by law | ||||||
12 | enforcement if the conditions of release are violated or if the | ||||||
13 | conveyance is used in the commission of any offense identified | ||||||
14 | in subsection (a) of Section 6-205 of the Illinois Vehicle | ||||||
15 | Code. | ||||||
16 | If the court orders the release of the conveyance during | ||||||
17 | the pendency of the forfeiture proceedings, the court may order | ||||||
18 | the registered owner or his or her authorized designee to post | ||||||
19 | a cash security with the clerk Clerk of the court Court as | ||||||
20 | ordered by the court. If cash security is ordered, the court | ||||||
21 | shall consider the following factors in determining the amount | ||||||
22 | of the cash security: | ||||||
23 | (A) the full market value of the conveyance; | ||||||
24 | (B) the nature of the hardship; | ||||||
25 | (C) the extent and length of the usage of the | ||||||
26 | conveyance; |
| |||||||
| |||||||
1 | (D) the ability of the owner or designee to pay; and | ||||||
2 | (E) other conditions as the court deems necessary to | ||||||
3 | safeguard the conveyance. | ||||||
4 | If the conveyance is released, the court shall order that | ||||||
5 | the registered owner or his or her designee safeguard the | ||||||
6 | conveyance, not remove the conveyance from the jurisdiction, | ||||||
7 | not conceal, destroy, or otherwise dispose of the conveyance, | ||||||
8 | not encumber the conveyance, and not diminish the value of the | ||||||
9 | conveyance in any way. The court shall also make a | ||||||
10 | determination of the full market value of the conveyance prior | ||||||
11 | to it being released based on a source or sources defined in 50 | ||||||
12 | Ill. Adm. Code 919.80(c)(2)(A) or 919.80(c)(2)(B). | ||||||
13 | If the conveyance subject to forfeiture is released under | ||||||
14 | this Section and is subsequently forfeited, the person to whom | ||||||
15 | the conveyance was released shall return the conveyance to the | ||||||
16 | law enforcement agency that seized the conveyance within 7 days | ||||||
17 | from the date of the declaration of forfeiture or order of | ||||||
18 | forfeiture. If the conveyance is not returned within 7 days, | ||||||
19 | the cash security shall be forfeited in the same manner as the | ||||||
20 | conveyance subject to forfeiture. If the cash security was less | ||||||
21 | than the full market value, a judgment shall be entered against | ||||||
22 | the parties to whom the conveyance was released and the | ||||||
23 | registered owner, jointly and severally, for the difference | ||||||
24 | between the full market value and the amount of the cash | ||||||
25 | security. If the conveyance is returned in a condition other | ||||||
26 | than the condition in which it was released, the cash security |
| |||||||
| |||||||
1 | shall be returned to the surety who posted the security minus | ||||||
2 | the amount of the diminished value, and that amount shall be | ||||||
3 | forfeited in the same manner as the conveyance subject to | ||||||
4 | forfeiture. Additionally, the court may enter an order allowing | ||||||
5 | any law enforcement agency in the State of Illinois to seize | ||||||
6 | the conveyance wherever it may be found in the State to satisfy | ||||||
7 | the judgment if the cash security was less than the full market | ||||||
8 | value of the conveyance.
| ||||||
9 | (Source: P.A. 100-512, eff. 7-1-18.)
| ||||||
10 | (725 ILCS 150/4) (from Ch. 56 1/2, par. 1674)
| ||||||
11 | (Text of Section before amendment by P.A. 100-512 )
| ||||||
12 | Sec. 4. Notice to owner or interest holder.
| ||||||
13 | (A) Whenever notice of pending forfeiture or service of an | ||||||
14 | in rem
complaint is required under the provisions of this Act, | ||||||
15 | such notice or
service shall be given as follows:
| ||||||
16 | (1) If the owner's or interest holder's name and | ||||||
17 | current address are
known, then by either personal service | ||||||
18 | or mailing a copy of the notice by
certified mail, return | ||||||
19 | receipt requested, to that address. For purposes of
notice | ||||||
20 | under this Section, if a person has been arrested for the | ||||||
21 | conduct
giving rise to the forfeiture, then the address | ||||||
22 | provided to the arresting
agency at the time of arrest | ||||||
23 | shall be deemed to be that person's known
address. | ||||||
24 | Provided, however, if an owner or interest holder's address
| ||||||
25 | changes prior to the effective date of the notice of |
| |||||||
| |||||||
1 | pending forfeiture,
the owner or interest holder shall | ||||||
2 | promptly notify the seizing agency of
the change in address | ||||||
3 | or, if the owner or interest holder's address changes
| ||||||
4 | subsequent to the effective date of the notice of pending | ||||||
5 | forfeiture, the
owner or interest holder shall promptly | ||||||
6 | notify the State's Attorney of the
change in address; or
| ||||||
7 | (2) If the property seized is a conveyance, to the | ||||||
8 | address reflected in
the office of the agency or official | ||||||
9 | in which title or interest to the
conveyance is required by | ||||||
10 | law to be recorded, then by mailing a copy of the
notice by | ||||||
11 | certified mail, return receipt requested, to that address; | ||||||
12 | or
| ||||||
13 | (3) If the owner's or interest holder's address is not | ||||||
14 | known, and is not
on record as provided in paragraph (2), | ||||||
15 | then by publication for 3
successive weeks in a newspaper | ||||||
16 | of general circulation in the county in
which the seizure | ||||||
17 | occurred.
| ||||||
18 | (B) Notice served under this Act is effective upon personal | ||||||
19 | service,
the last date of publication, or the mailing of | ||||||
20 | written notice, whichever
is earlier.
| ||||||
21 | (Source: P.A. 86-1382; 87-614.)
| ||||||
22 | (Text of Section after amendment by P.A. 100-512 )
| ||||||
23 | Sec. 4. Notice to owner or interest holder. The first | ||||||
24 | attempted service of notice shall be commenced within 28 days | ||||||
25 | of the filing of the verified claim or the receipt of the |
| |||||||
| |||||||
1 | notice from the seizing agency by Illinois State Police | ||||||
2 | Notice/Inventory of Seized Property (Form 4-64) the form 4-64 , | ||||||
3 | whichever occurs sooner. A complaint for forfeiture or a notice | ||||||
4 | of pending forfeiture shall be served upon the property owner | ||||||
5 | or interest holder in the following manner: | ||||||
6 | (1) If the owner's or interest holder's name and | ||||||
7 | current address are known, then by either: | ||||||
8 | (A) personal service; or | ||||||
9 | (B) mailing a copy of the notice by certified mail, | ||||||
10 | return receipt requested , and first class mail , to that | ||||||
11 | address. | ||||||
12 | (i) If notice is sent by certified mail and no | ||||||
13 | signed return receipt is received by the State's | ||||||
14 | Attorney within 28 days of mailing, and no | ||||||
15 | communication from the owner or interest holder is | ||||||
16 | received by the State's Attorney documenting | ||||||
17 | actual notice by said parties, then the State's | ||||||
18 | Attorney shall, within a reasonable period of | ||||||
19 | time, mail a second copy of the notice by certified | ||||||
20 | mail, return receipt requested , and first class | ||||||
21 | mail , to that address. | ||||||
22 | (ii) If no signed return receipt is received by | ||||||
23 | the State's Attorney within 28 days of the second | ||||||
24 | attempt at service by certified mail, and no | ||||||
25 | communication from the owner or interest holder is | ||||||
26 | received by the State's Attorney documenting |
| |||||||
| |||||||
1 | actual notice by said parties, then the State's | ||||||
2 | Attorney shall have 60 days to attempt to serve the | ||||||
3 | notice by personal service, which also includes | ||||||
4 | substitute service by leaving a copy at the usual | ||||||
5 | place of abode, with some person of the family or a | ||||||
6 | person residing there, of the age of 13 years or | ||||||
7 | upwards. If , after 3 attempts at service in this | ||||||
8 | manner, no service of the notice is accomplished, | ||||||
9 | then the notice shall be posted in a conspicuous | ||||||
10 | manner at this address and service shall be made by | ||||||
11 | posting. | ||||||
12 | The attempts at service and the posting if | ||||||
13 | required, shall be documented by the person | ||||||
14 | attempting service and said documentation shall be | ||||||
15 | made part of a return of service returned to the | ||||||
16 | State's Attorney. | ||||||
17 | The State's Attorney may utilize any Sheriff | ||||||
18 | or Deputy Sheriff , any peace officer, a private | ||||||
19 | process server or investigator, or any employee, | ||||||
20 | agent, or investigator of the State's Attorney's | ||||||
21 | Office to attempt service without seeking leave of | ||||||
22 | court. | ||||||
23 | After the procedures set forth are followed, | ||||||
24 | service shall be effective on an owner or interest | ||||||
25 | holder on the date of receipt by the State's | ||||||
26 | Attorney of a returned return receipt requested , |
| |||||||
| |||||||
1 | or on the date of receipt of a communication from | ||||||
2 | an owner or interest holder documenting actual | ||||||
3 | notice, whichever is first in time, or on the date | ||||||
4 | of the last act performed by the State's Attorney | ||||||
5 | in attempting personal service under subparagraph | ||||||
6 | (ii) above. If notice is to be shown by actual | ||||||
7 | notice from communication with a claimant, then | ||||||
8 | the State's Attorney shall file an affidavit | ||||||
9 | providing details of the communication, which may | ||||||
10 | be accepted as sufficient proof of service by the | ||||||
11 | court. | ||||||
12 | After a claimant files a verified claim with | ||||||
13 | the State's Attorney and provides provide an | ||||||
14 | address at which the claimant they will accept | ||||||
15 | service, the complaint shall be served and notice | ||||||
16 | shall be perfected upon mailing of the complaint to | ||||||
17 | the claimant at the address the claimant provided | ||||||
18 | via certified mail, return receipt requested , and | ||||||
19 | first class mail. No return receipt card need be | ||||||
20 | received, or any other attempts at service need be | ||||||
21 | made to comply with service and notice | ||||||
22 | requirements under this Act. This certified | ||||||
23 | mailing, return receipt requested , shall be proof | ||||||
24 | of service of the complaint on the claimant. | ||||||
25 | For purposes of notice under this Section, if a | ||||||
26 | person has been arrested for the conduct giving |
| |||||||
| |||||||
1 | rise to the forfeiture, then the address provided | ||||||
2 | to the arresting agency at the time of arrest shall | ||||||
3 | be deemed to be that person's known address. | ||||||
4 | Provided, however, if an owner or interest | ||||||
5 | holder's address changes prior to the effective | ||||||
6 | date of the notice of pending forfeiture, the owner | ||||||
7 | or interest holder shall promptly notify the | ||||||
8 | seizing agency of the change in address or, if the | ||||||
9 | owner or interest holder's address changes | ||||||
10 | subsequent to the effective date of the notice of | ||||||
11 | pending forfeiture, the owner or interest holder | ||||||
12 | shall promptly notify the State's Attorney of the | ||||||
13 | change in address; or if the property seized is a | ||||||
14 | conveyance, to the address reflected in the office | ||||||
15 | of the agency or official in which title to or | ||||||
16 | interest in to the conveyance is required by law to | ||||||
17 | be recorded. | ||||||
18 | (2) If the owner's or interest holder's address is not | ||||||
19 | known, and is not on record, then notice shall be served by | ||||||
20 | publication for 3 successive weeks in a newspaper of | ||||||
21 | general circulation in the county in which the seizure | ||||||
22 | occurred. | ||||||
23 | (3) After a claimant files a verified claim with the | ||||||
24 | State's Attorney and provides an address at which the | ||||||
25 | claimant they will accept service, the complaint shall be | ||||||
26 | served and notice shall be perfected upon mailing of the |
| |||||||
| |||||||
1 | complaint to the claimant at the address the claimant | ||||||
2 | provided via certified mail, return receipt requested , and | ||||||
3 | first class mail. No return receipt card need be received | ||||||
4 | or any other attempts at service need be made to comply | ||||||
5 | with service and notice requirements under this Act. This | ||||||
6 | certified mailing, return receipt requested , shall be | ||||||
7 | proof of service of the complaint on the claimant. | ||||||
8 | (4) Notice to any business entity, corporation, | ||||||
9 | limited liability company, limited liability partnership | ||||||
10 | LLC, LLP , or partnership shall be completed complete by a | ||||||
11 | single mailing of a copy of the notice by certified mail, | ||||||
12 | return receipt requested , and first class mail , to that | ||||||
13 | address. This notice is complete regardless of the return | ||||||
14 | of a signed " return receipt requested" . | ||||||
15 | (5) Notice to a person whose address is not within the | ||||||
16 | State shall be completed complete by a single mailing of a | ||||||
17 | copy of the notice by certified mail, return receipt | ||||||
18 | requested , and first class mail , to that address. This | ||||||
19 | notice is complete regardless of the return of a signed | ||||||
20 | " return receipt requested" . | ||||||
21 | (6) Notice to a person whose address is not within the | ||||||
22 | United States shall be completed complete by a single | ||||||
23 | mailing of a copy of the notice by certified mail, return | ||||||
24 | receipt requested , and first class mail , to that address. | ||||||
25 | This notice shall be complete regardless of the return of a | ||||||
26 | signed " return receipt requested" . If certified mail is not |
| |||||||
| |||||||
1 | available in the foreign country where the person has an | ||||||
2 | address, then notice shall proceed by publication under | ||||||
3 | paragraph (2) of this Section. | ||||||
4 | (7) Notice to any person whom the State's Attorney | ||||||
5 | reasonably should know is incarcerated within the State | ||||||
6 | shall also include the mailing a copy of the notice by | ||||||
7 | certified mail, return receipt requested , and first class | ||||||
8 | mail , to the address of the detention facility with the | ||||||
9 | inmate's name clearly marked on the envelope.
| ||||||
10 | (A) (Blank).
| ||||||
11 | (B) (Blank).
| ||||||
12 | (Source: P.A. 100-512, eff. 7-1-18.)
| ||||||
13 | (725 ILCS 150/5) (from Ch. 56 1/2, par. 1675)
| ||||||
14 | (Text of Section before amendment by P.A. 100-512 )
| ||||||
15 | Sec. 5. Notice to State's Attorney. The law enforcement | ||||||
16 | agency
seizing property for forfeiture under the Illinois | ||||||
17 | Controlled
Substances Act, the Cannabis Control Act, or the | ||||||
18 | Methamphetamine Control and Community Protection Act shall,
| ||||||
19 | within 52 days of seizure, notify the State's Attorney for the | ||||||
20 | county in
which an act or omission giving rise to the | ||||||
21 | forfeiture occurred or in which
the property was seized of the | ||||||
22 | seizure of the property and the facts and
circumstances giving | ||||||
23 | rise to the seizure and shall provide the State's
Attorney with | ||||||
24 | the inventory of the property and its estimated value. When
the | ||||||
25 | property seized for forfeiture is a vehicle, the law |
| |||||||
| |||||||
1 | enforcement agency
seizing the property shall immediately | ||||||
2 | notify the Secretary of State that
forfeiture proceedings are | ||||||
3 | pending regarding such vehicle.
| ||||||
4 | (Source: P.A. 94-556, eff. 9-11-05.)
| ||||||
5 | (Text of Section after amendment by P.A. 100-512 )
| ||||||
6 | Sec. 5. Notice to State's Attorney. The law enforcement | ||||||
7 | agency
seizing property for forfeiture under the Illinois | ||||||
8 | Controlled
Substances Act, the Cannabis Control Act, or the | ||||||
9 | Methamphetamine Control and Community Protection Act, or the | ||||||
10 | Illinois Food, Drug, and Cosmetic Act shall, as soon as | ||||||
11 | practicable but not later than 28 days after the seizure, | ||||||
12 | notify the State's Attorney for the county in
which an act or | ||||||
13 | omission giving rise to the seizure occurred or in which
the | ||||||
14 | property was seized of the seizure of the property and the | ||||||
15 | facts and
circumstances giving rise to the seizure and shall | ||||||
16 | provide the State's
Attorney with the inventory of the property | ||||||
17 | and its estimated value. Said notice shall be by the delivery | ||||||
18 | of Form the form 4-64. When
the property seized for forfeiture | ||||||
19 | is a vehicle, the law enforcement agency
seizing the property | ||||||
20 | shall immediately notify the Secretary of State that
forfeiture | ||||||
21 | proceedings are pending regarding such vehicle.
| ||||||
22 | (Source: P.A. 100-512, eff. 7-1-18.)
| ||||||
23 | (725 ILCS 150/5.1) | ||||||
24 | (This Section may contain text from a Public Act with a |
| |||||||
| |||||||
1 | delayed effective date ) | ||||||
2 | Sec. 5.1. Replevin prohibited; return of personal property | ||||||
3 | inside seized conveyance. | ||||||
4 | (a) Property seized under this Act shall not be subject to | ||||||
5 | replevin, but is deemed to be in the custody of the Director of | ||||||
6 | State Police , subject only to the order and judgments of the | ||||||
7 | circuit court having jurisdiction over the forfeiture | ||||||
8 | proceedings and the decisions of the State's Attorney. | ||||||
9 | (b) A claimant or a party interested in personal property | ||||||
10 | contained within a seized conveyance may file a request with | ||||||
11 | the State's Attorney in an administrative forfeiture action, or | ||||||
12 | a motion with the court in a judicial forfeiture action, for | ||||||
13 | the return of any personal property contained within a | ||||||
14 | conveyance seized under this Act. The return of personal | ||||||
15 | property shall not be unreasonably withheld if the personal | ||||||
16 | property is not mechanically or electrically coupled to the | ||||||
17 | conveyance, needed for evidentiary purposes, or otherwise | ||||||
18 | contraband. A law enforcement agency that returns property | ||||||
19 | under a court order under this Section shall not be liable to | ||||||
20 | any person who claims ownership to the property if the property | ||||||
21 | is returned to an improper party.
| ||||||
22 | (Source: P.A. 100-512, eff. 7-1-18.)
| ||||||
23 | (725 ILCS 150/6) (from Ch. 56 1/2, par. 1676)
| ||||||
24 | (Text of Section before amendment by P.A. 100-512 )
| ||||||
25 | Sec. 6. Non-judicial forfeiture. If non-real property that |
| |||||||
| |||||||
1 | exceeds $150,000
in value excluding the value of any | ||||||
2 | conveyance, or if real property
is seized under the provisions | ||||||
3 | of the Illinois Controlled Substances Act,
the Cannabis Control | ||||||
4 | Act, or the Methamphetamine Control and Community Protection | ||||||
5 | Act, the State's Attorney shall institute judicial in
rem | ||||||
6 | forfeiture proceedings as described in Section 9 of this Act | ||||||
7 | within 45
days from receipt of notice of seizure from the | ||||||
8 | seizing agency under
Section 5 of this Act. However, if | ||||||
9 | non-real property that does not exceed
$150,000 in value | ||||||
10 | excluding the value of any conveyance is seized, the
following | ||||||
11 | procedure shall be used:
| ||||||
12 | (A) If, after review of the facts surrounding the | ||||||
13 | seizure, the State's
Attorney is of the opinion that the | ||||||
14 | seized property is subject to
forfeiture, then within 45 | ||||||
15 | days of the receipt of notice of seizure from the
seizing | ||||||
16 | agency, the State's Attorney shall cause notice of pending
| ||||||
17 | forfeiture to be given to the owner of the property and all | ||||||
18 | known interest
holders of the property in accordance with | ||||||
19 | Section 4 of this Act.
| ||||||
20 | (B) The notice of pending forfeiture must include a | ||||||
21 | description of the
property, the estimated value of the | ||||||
22 | property, the date and place of
seizure, the conduct giving | ||||||
23 | rise to forfeiture or the violation of law
alleged, and a | ||||||
24 | summary of procedures and procedural rights applicable to
| ||||||
25 | the forfeiture action.
| ||||||
26 |
(C)(1) Any person claiming an interest in property |
| |||||||
| |||||||
1 | which is the
subject of notice under subsection (A) of | ||||||
2 | Section 6 of this Act, may,
within 45 days after the | ||||||
3 | effective date of notice as described in Section 4
of this | ||||||
4 | Act, file a verified claim with the State's Attorney | ||||||
5 | expressing his
or her interest in the property. The claim | ||||||
6 | must set forth:
| ||||||
7 | (i) the caption of the proceedings as set forth on | ||||||
8 | the notice of
pending forfeiture and the name of the | ||||||
9 | claimant;
| ||||||
10 | (ii) the address at which the claimant will accept | ||||||
11 | mail;
| ||||||
12 | (iii) the nature and extent of the claimant's | ||||||
13 | interest in the property;
| ||||||
14 | (iv) the date, identity of the transferor, and | ||||||
15 | circumstances of the
claimant's acquisition of the | ||||||
16 | interest in the property;
| ||||||
17 | (v) the name and address of all other persons known | ||||||
18 | to have an
interest in the property;
| ||||||
19 | (vi) the specific provision of law relied on in | ||||||
20 | asserting the property
is not subject to forfeiture;
| ||||||
21 | (vii) all essential facts supporting each | ||||||
22 | assertion; and
| ||||||
23 | (viii) the relief sought.
| ||||||
24 |
(2) If a claimant files the claim and deposits with | ||||||
25 | the State's Attorney
a cost bond, in the form of a | ||||||
26 | cashier's check payable to the clerk of the
court, in the |
| |||||||
| |||||||
1 | sum of 10 percent of the reasonable value of the property | ||||||
2 | as
alleged by the State's Attorney or the sum of $100, | ||||||
3 | whichever is greater,
upon condition that, in the case of | ||||||
4 | forfeiture, the claimant must pay all
costs and expenses of | ||||||
5 | forfeiture proceedings, then the State's Attorney
shall | ||||||
6 | institute judicial in rem forfeiture proceedings and | ||||||
7 | deposit the cost
bond with the clerk of the court as | ||||||
8 | described in Section 9 of this Act
within 45 days after | ||||||
9 | receipt of the claim and cost bond. In lieu of a cost
bond, | ||||||
10 | a person claiming interest in the seized property may file, | ||||||
11 | under
penalty of perjury, an indigency affidavit.
| ||||||
12 |
(3) If none of the seized property is forfeited in the | ||||||
13 | judicial in rem
proceeding, the clerk of the court shall | ||||||
14 | return to the claimant, unless the
court orders otherwise, | ||||||
15 | 90% of the sum which has been deposited and shall
retain as | ||||||
16 | costs 10% of the money deposited. If any of the seized | ||||||
17 | property
is forfeited under the judicial forfeiture | ||||||
18 | proceeding, the clerk of
the court shall transfer 90% of | ||||||
19 | the sum which has been deposited to the
State's Attorney | ||||||
20 | prosecuting the civil forfeiture to be applied to the
costs | ||||||
21 | of prosecution and the clerk shall retain as costs 10% of | ||||||
22 | the sum
deposited.
| ||||||
23 | (D) If no claim is filed or bond given within the 45 | ||||||
24 | day period as
described in subsection (C) of Section 6 of | ||||||
25 | this Act, the State's Attorney
shall declare the property | ||||||
26 | forfeited and shall promptly notify the
owner and all known |
| |||||||
| |||||||
1 | interest holders of the property and the Director of the
| ||||||
2 | Illinois Department of State Police of the declaration of | ||||||
3 | forfeiture and
the Director shall dispose of the property | ||||||
4 | in accordance with law.
| ||||||
5 | (Source: P.A. 97-544, eff. 1-1-12.)
| ||||||
6 | (Text of Section after amendment by P.A. 100-512 )
| ||||||
7 | Sec. 6. Non-judicial forfeiture. If non-real property that | ||||||
8 | exceeds $150,000
in value excluding the value of any | ||||||
9 | conveyance, or if real property
is seized under the provisions | ||||||
10 | of the Illinois Controlled Substances Act,
the Cannabis Control | ||||||
11 | Act, or the Methamphetamine Control and Community Protection | ||||||
12 | Act, the State's Attorney shall institute judicial in
rem | ||||||
13 | forfeiture proceedings as described in Section 9 of this Act | ||||||
14 | within 28 45
days from receipt of notice of seizure from the | ||||||
15 | seizing agency under
Section 5 of this Act. However, if | ||||||
16 | non-real property that does not exceed
$150,000 in value | ||||||
17 | excluding the value of any conveyance is seized, the
following | ||||||
18 | procedure shall be used:
| ||||||
19 | (A) If, after review of the facts surrounding the | ||||||
20 | seizure, the State's
Attorney is of the opinion that the | ||||||
21 | seized property is subject to
forfeiture, then within 28 45 | ||||||
22 | days of the receipt of notice of seizure from the
seizing | ||||||
23 | agency, the State's Attorney shall cause notice of pending
| ||||||
24 | forfeiture to be given to the owner of the property and all | ||||||
25 | known interest
holders of the property in accordance with |
| |||||||
| |||||||
1 | Section 4 of this Act.
| ||||||
2 | (B) The notice of pending forfeiture must include a | ||||||
3 | description of the
property, the estimated value of the | ||||||
4 | property, the date and place of
seizure, the conduct giving | ||||||
5 | rise to forfeiture or the violation of law
alleged, and a | ||||||
6 | summary of procedures and procedural rights applicable to
| ||||||
7 | the forfeiture action.
| ||||||
8 |
(C)(1) Any person claiming an interest in property | ||||||
9 | which is the
subject of notice under subsection (A) of this | ||||||
10 | Section 6 of this Act, may,
within 45 days after the | ||||||
11 | effective date of notice as described in Section 4
of this | ||||||
12 | Act, file a verified claim with the State's Attorney | ||||||
13 | expressing his
or her interest in the property. The claim | ||||||
14 | must set forth:
| ||||||
15 | (i) the caption of the proceedings as set forth on | ||||||
16 | the notice of
pending forfeiture and the name of the | ||||||
17 | claimant;
| ||||||
18 | (ii) the address at which the claimant will accept | ||||||
19 | mail;
| ||||||
20 | (iii) the nature and extent of the claimant's | ||||||
21 | interest in the property;
| ||||||
22 | (iv) the date, identity of the transferor, and | ||||||
23 | circumstances of the
claimant's acquisition of the | ||||||
24 | interest in the property;
| ||||||
25 | (v) the names and addresses name and address of all | ||||||
26 | other persons known to have an
interest in the |
| |||||||
| |||||||
1 | property;
| ||||||
2 | (vi) the specific provision of law relied on in | ||||||
3 | asserting the property
is not subject to forfeiture;
| ||||||
4 | (vii) all essential facts supporting each | ||||||
5 | assertion; and
| ||||||
6 | (viii) the relief sought.
| ||||||
7 |
(2) If a claimant files the claim then the State's | ||||||
8 | Attorney
shall institute judicial in rem forfeiture | ||||||
9 | proceedings
within 28 30 days after receipt of the claim. .
| ||||||
10 | (D) If no claim is filed within the 45 day period as
| ||||||
11 | described in subsection (C) of this Section 6 of this Act , | ||||||
12 | the State's Attorney
shall declare the property forfeited | ||||||
13 | and shall promptly notify the
owner and all known interest | ||||||
14 | holders of the property and the Director of the
Illinois | ||||||
15 | Department of State Police of the declaration of forfeiture | ||||||
16 | and
the Director shall dispose of the property in | ||||||
17 | accordance with law.
| ||||||
18 | (Source: P.A. 100-512, eff. 7-1-18.)
| ||||||
19 | (725 ILCS 150/7) (from Ch. 56 1/2, par. 1677)
| ||||||
20 | (Text of Section before amendment by P.A. 100-512 )
| ||||||
21 | Sec. 7. Presumptions. The following situations shall give | ||||||
22 | rise to a
presumption that the property described therein was | ||||||
23 | furnished or intended
to be furnished in exchange for a | ||||||
24 | substance in violation of the Illinois
Controlled Substances | ||||||
25 | Act, the Cannabis Control Act, or the Methamphetamine Control |
| |||||||
| |||||||
1 | and Community Protection Act, or is the proceeds
of such an | ||||||
2 | exchange, and therefore forfeitable under this Act, such
| ||||||
3 | presumptions being rebuttable by a preponderance of the | ||||||
4 | evidence:
| ||||||
5 | (1) All moneys, coin, or currency found in close proximity | ||||||
6 | to
forfeitable substances, to forfeitable drug manufacturing | ||||||
7 | or distributing
paraphernalia, or to forfeitable records of the | ||||||
8 | importation, manufacture or
distribution of substances;
| ||||||
9 | (2) All property acquired or caused to be acquired by a | ||||||
10 | person either
between the dates of occurrence of two or more | ||||||
11 | acts in felony violation of
the Illinois Controlled Substances | ||||||
12 | Act, the Cannabis Control Act, or the Methamphetamine Control | ||||||
13 | and Community Protection Act,
or an act committed in another | ||||||
14 | state, territory or
country which would be punishable as a | ||||||
15 | felony under the Illinois
Controlled Substances Act, the | ||||||
16 | Cannabis Control Act, or the Methamphetamine Control and | ||||||
17 | Community Protection Act, committed by that
person within 5 | ||||||
18 | years of each other, or all property acquired by such
person | ||||||
19 | within a reasonable amount of time after the commission of such | ||||||
20 | acts if:
| ||||||
21 | (a) At least one of the above acts was committed after | ||||||
22 | the effective
date of this Act; and
| ||||||
23 | (b) At least one of the acts is or was punishable as a | ||||||
24 | Class X, Class 1,
or Class 2 felony; and
| ||||||
25 | (c) There was no likely source for such property other | ||||||
26 | than a violation
of the above Acts.
|
| |||||||
| |||||||
1 | (Source: P.A. 94-556, eff. 9-11-05.)
| ||||||
2 | (Text of Section after amendment by P.A. 100-512 )
| ||||||
3 | Sec. 7. Presumptions and inferences. | ||||||
4 | (1) The following situation shall give rise to a
| ||||||
5 | presumption that the property described therein was furnished | ||||||
6 | or intended
to be furnished in exchange for a substance in | ||||||
7 | violation of the Illinois
Controlled Substances Act, the | ||||||
8 | Cannabis Control Act, or the Methamphetamine Control and | ||||||
9 | Community Protection Act, or is the proceeds
of such an | ||||||
10 | exchange, and therefore forfeitable under this Act, such
| ||||||
11 | presumptions being rebuttable by a preponderance of the | ||||||
12 | evidence:
| ||||||
13 | All moneys, coin, or currency found in close proximity to
| ||||||
14 | any forfeitable substances manufactured, distributed, | ||||||
15 | dispensed, or possessed in violation of the Illinois
Controlled | ||||||
16 | Substances Act, the Cannabis Control Act, or the | ||||||
17 | Methamphetamine Control and Community Protection Act , to | ||||||
18 | forfeitable drug manufacturing or distributing
paraphernalia, | ||||||
19 | or to forfeitable records of the importation, manufacture or
| ||||||
20 | distribution of substances.
| ||||||
21 | (2) In the following situation, the trier of fact may infer | ||||||
22 | that the property described therein was furnished or intended | ||||||
23 | to be furnished in exchange for a substance in violation of the | ||||||
24 | Illinois Controlled Substances Act, the Cannabis Control Act, | ||||||
25 | or the Methamphetamine Control and Community Protection Act, or |
| |||||||
| |||||||
1 | is the proceeds of such an exchange, and therefore forfeitable | ||||||
2 | under this Act: | ||||||
3 | All property acquired or caused to be acquired by a person | ||||||
4 | either
between the dates of occurrence of two or more acts in | ||||||
5 | felony violation of
the Illinois Controlled Substances Act, the | ||||||
6 | Cannabis Control Act, or the Methamphetamine Control and | ||||||
7 | Community Protection Act,
or an act committed in another state, | ||||||
8 | territory or
country which would be punishable as a felony | ||||||
9 | under the Illinois
Controlled Substances Act, the Cannabis | ||||||
10 | Control Act, or the Methamphetamine Control and Community | ||||||
11 | Protection Act, committed by that
person within 5 years of each | ||||||
12 | other, or all property acquired by such
person within a | ||||||
13 | reasonable amount of time after the commission of such acts if:
| ||||||
14 | (a) at At least one of the above acts was committed | ||||||
15 | after the effective
date of this Act; and
| ||||||
16 | (b) both Both of the acts are or were punishable as a | ||||||
17 | Class X, Class 1,
or Class 2 felony; and
| ||||||
18 | (c) there There was no likely source for such property | ||||||
19 | other than a violation
of the above Acts.
| ||||||
20 | (3) Presumptions and permissive inferences set forth in | ||||||
21 | this Section shall apply to all portions of all phases of all | ||||||
22 | the judicial in rem forfeiture proceedings under this Act. | ||||||
23 | (Source: P.A. 100-512, eff. 7-1-18.)
| ||||||
24 | (725 ILCS 150/8) (from Ch. 56 1/2, par. 1678)
| ||||||
25 | (Text of Section before amendment by P.A. 100-512 )
|
| |||||||
| |||||||
1 | Sec. 8. Exemptions from forfeiture. A property interest is | ||||||
2 | exempt
from forfeiture under this Section if its owner or | ||||||
3 | interest holder
establishes by a preponderance of evidence that | ||||||
4 | the owner or interest holder:
| ||||||
5 | (A)(i) in the case of personal property, is not legally | ||||||
6 | accountable
for the conduct giving rise to the forfeiture, did | ||||||
7 | not acquiesce in it, and
did not know and could not reasonably | ||||||
8 | have known of the conduct or that
the conduct was likely to | ||||||
9 | occur, or
| ||||||
10 | (ii) in the case of real property, is not legally | ||||||
11 | accountable for
the conduct giving rise to the forfeiture, or | ||||||
12 | did not solicit, conspire, or
attempt to commit the conduct | ||||||
13 | giving rise to the forfeiture; and
| ||||||
14 | (B) had not acquired and did not stand to acquire | ||||||
15 | substantial proceeds
from the conduct giving rise to its | ||||||
16 | forfeiture other than as an interest
holder in an arms length | ||||||
17 | commercial transaction; and
| ||||||
18 | (C) with respect to conveyances, did not hold the property | ||||||
19 | jointly or in
common with a person whose conduct gave rise to | ||||||
20 | the forfeiture; and
| ||||||
21 | (D) does not hold the property for the benefit of or as | ||||||
22 | nominee for any
person whose conduct gave rise to its | ||||||
23 | forfeiture, and, if the owner or
interest holder acquired the | ||||||
24 | interest through any such person, the owner or
interest holder | ||||||
25 | acquired it as a bona fide purchaser for value without
| ||||||
26 | knowingly taking part in the conduct giving rise to the |
| |||||||
| |||||||
1 | forfeiture; and
| ||||||
2 | (E) that the owner or interest holder acquired the | ||||||
3 | interest:
| ||||||
4 | (i) before the commencement of the conduct giving rise to | ||||||
5 | its forfeiture
and the person whose conduct gave rise to its | ||||||
6 | forfeiture did not have the
authority to convey the interest to | ||||||
7 | a bona fide purchaser for value at the
time of the conduct; or
| ||||||
8 | (ii) after the commencement of the conduct giving rise to | ||||||
9 | its forfeiture,
and the owner or interest holder acquired the | ||||||
10 | interest as a mortgagee,
secured creditor, lienholder, or bona | ||||||
11 | fide purchaser for value without
knowledge of the conduct which | ||||||
12 | gave rise to the forfeiture; and
| ||||||
13 | (a) in the case of personal property, without knowledge of | ||||||
14 | the seizure
of the property for forfeiture; or
| ||||||
15 | (b) in the case of real estate, before the filing in the | ||||||
16 | office of the
Recorder of Deeds of the county in which the real | ||||||
17 | estate is located of a
notice of seizure for forfeiture or a | ||||||
18 | lis pendens notice.
| ||||||
19 | (Source: P.A. 86-1382.)
| ||||||
20 | (Text of Section after amendment by P.A. 100-512 )
| ||||||
21 | Sec. 8. Exemptions from forfeiture. | ||||||
22 | (a) No vessel or watercraft, vehicle, or aircraft used by | ||||||
23 | any person as a common carrier in the transaction of business | ||||||
24 | as a common carrier may be forfeited under this Act unless the | ||||||
25 | State proves by a preponderance of the evidence that: |
| |||||||
| |||||||
1 | (1) in the case of a railway car or engine, the owner, | ||||||
2 | or | ||||||
3 | (2) in the case of any other such vessel or watercraft, | ||||||
4 | vehicle or aircraft, the owner or the master of such vessel | ||||||
5 | or watercraft or the owner or conductor, driver, pilot, or | ||||||
6 | other person in charge of that vehicle or aircraft was at | ||||||
7 | the time of the alleged illegal act a consenting party or | ||||||
8 | privy to that knowledge. | ||||||
9 | (b) No vessel or watercraft, vehicle, or aircraft shall be | ||||||
10 | forfeited under this Act by reason of any act or omission | ||||||
11 | committed or omitted by any person other than such owner while | ||||||
12 | a vessel or watercraft, vehicle, or aircraft was unlawfully in | ||||||
13 | the possession of a person who acquired possession in violation | ||||||
14 | of the criminal laws of the United States , or of any state.
| ||||||
15 | (A) (blank); and
| ||||||
16 | (B) (blank); and
| ||||||
17 | (C) (blank); and
| ||||||
18 | (D) (blank); and
| ||||||
19 | (E) (blank); and
| ||||||
20 | (Source: P.A. 100-512, eff. 7-1-18.)
| ||||||
21 | (725 ILCS 150/9) (from Ch. 56 1/2, par. 1679)
| ||||||
22 | (Text of Section before amendment by P.A. 100-512 )
| ||||||
23 | Sec. 9. Judicial in rem procedures. If property seized | ||||||
24 | under the
provisions of the Illinois Controlled Substances Act, | ||||||
25 | the Cannabis Control
Act, or the Methamphetamine Control and |
| |||||||
| |||||||
1 | Community Protection Act is non-real property that exceeds | ||||||
2 | $20,000 in value excluding the value
of any conveyance, or is | ||||||
3 | real property, or a claimant has filed a claim and
a cost bond | ||||||
4 | under subsection (C) of Section 6 of this Act, the following
| ||||||
5 | judicial in rem procedures shall apply:
| ||||||
6 | (A) If, after a review of the facts surrounding the | ||||||
7 | seizure, the State's
Attorney is of the opinion that the seized | ||||||
8 | property is subject to
forfeiture, then within 45 days of the | ||||||
9 | receipt of notice of seizure by the
seizing agency or the | ||||||
10 | filing of the claim and cost bond, whichever is
later, the | ||||||
11 | State's Attorney shall institute judicial forfeiture | ||||||
12 | proceedings
by filing a verified complaint for forfeiture and, | ||||||
13 | if the claimant has
filed a claim and cost bond, by depositing | ||||||
14 | the cost bond with the clerk of
the court. When authorized by | ||||||
15 | law, a forfeiture must be ordered by a court
on an action in | ||||||
16 | rem brought by a State's Attorney under a verified
complaint | ||||||
17 | for forfeiture.
| ||||||
18 | (B) During the probable cause portion of the judicial in | ||||||
19 | rem
proceeding wherein the State presents its case-in-chief, | ||||||
20 | the court must
receive and consider, among other things, all | ||||||
21 | relevant hearsay evidence and
information. The laws of evidence | ||||||
22 | relating to civil actions shall apply to
all other portions of | ||||||
23 | the judicial in rem proceeding.
| ||||||
24 | (C) Only an owner of or interest holder in the property may | ||||||
25 | file an
answer asserting a claim against the property in the | ||||||
26 | action in rem. For
purposes of this Section, the owner or |
| |||||||
| |||||||
1 | interest holder shall be referred
to as claimant.
| ||||||
2 | (D) The answer must be signed by the owner or interest | ||||||
3 | holder under
penalty of perjury and must set forth:
| ||||||
4 | (i) the caption of the proceedings as set forth on the | ||||||
5 | notice of pending
forfeiture and the name of the claimant;
| ||||||
6 | (ii) the address at which the claimant will accept | ||||||
7 | mail;
| ||||||
8 | (iii) the nature and extent of the claimant's interest | ||||||
9 | in the property;
| ||||||
10 | (iv) the date, identity of transferor, and | ||||||
11 | circumstances of the
claimant's acquisition of the | ||||||
12 | interest in the property;
| ||||||
13 | (v) the name and address of all other persons known to | ||||||
14 | have an interest
in the property;
| ||||||
15 | (vi) the specific provisions of Section 8 of this Act
| ||||||
16 | relied on in asserting it
is not subject to forfeiture;
| ||||||
17 | (vii) all essential facts supporting each assertion; | ||||||
18 | and
| ||||||
19 | (viii) the precise relief sought.
| ||||||
20 | (E) The answer must be filed with the court within 45 days | ||||||
21 | after service
of the civil in rem complaint.
| ||||||
22 | (F) The hearing must be held within 60 days after filing of | ||||||
23 | the answer
unless continued for good cause.
| ||||||
24 | (G) The State shall show the existence of probable cause | ||||||
25 | for forfeiture
of the property. If the State shows probable | ||||||
26 | cause, the claimant has the
burden of showing by a |
| |||||||
| |||||||
1 | preponderance of the evidence that the claimant's
interest in | ||||||
2 | the property is not subject to forfeiture.
| ||||||
3 | (H) If the State does not show existence of probable cause | ||||||
4 | or a claimant
has established by a preponderance of evidence | ||||||
5 | that the claimant has an
interest that is exempt under Section | ||||||
6 | 8 of this Act, the court shall order
the interest in the | ||||||
7 | property returned or conveyed to the claimant and shall
order | ||||||
8 | all other property forfeited to the State. If the State does | ||||||
9 | show
existence of probable cause and the claimant does not | ||||||
10 | establish by a
preponderance of evidence that the claimant has | ||||||
11 | an interest that is exempt
under Section 8 of this Act, the | ||||||
12 | court shall order all property forfeited
to the State.
| ||||||
13 | (I) A defendant convicted in any criminal proceeding is | ||||||
14 | precluded from
later denying the essential allegations of the | ||||||
15 | criminal offense of which
the defendant was convicted in any | ||||||
16 | proceeding under this Act
regardless of the pendency of an | ||||||
17 | appeal from that conviction. However,
evidence of the pendency | ||||||
18 | of an appeal is admissible.
| ||||||
19 | (J) An acquittal or dismissal in a criminal proceeding | ||||||
20 | shall not
preclude civil proceedings under this Act; however, | ||||||
21 | for good cause shown,
on a motion by the State's Attorney, the | ||||||
22 | court may stay civil forfeiture
proceedings during the criminal | ||||||
23 | trial for a related criminal indictment or
information alleging | ||||||
24 | a violation of the Illinois Controlled Substances Act,
the | ||||||
25 | Cannabis Control Act, or the Methamphetamine Control and | ||||||
26 | Community Protection Act. Such a stay shall not be available |
| |||||||
| |||||||
1 | pending an
appeal. Property subject to forfeiture under the | ||||||
2 | Illinois Controlled
Substances Act, the Cannabis Control Act, | ||||||
3 | or the Methamphetamine Control and Community Protection Act | ||||||
4 | shall not be subject to return
or release by a court exercising | ||||||
5 | jurisdiction over a criminal case
involving the seizure of such | ||||||
6 | property unless such return or release is
consented to by the | ||||||
7 | State's Attorney.
| ||||||
8 | (K) All property declared forfeited under this Act vests in | ||||||
9 | this State
on the commission of the conduct giving rise to | ||||||
10 | forfeiture together with
the proceeds of the property after | ||||||
11 | that time. Any such property or
proceeds subsequently | ||||||
12 | transferred to any person remain subject to
forfeiture and | ||||||
13 | thereafter shall be ordered forfeited unless the transferee
| ||||||
14 | claims and establishes in a hearing under the provisions of | ||||||
15 | this Act that
the transferee's interest is exempt under Section | ||||||
16 | 8 of this Act.
| ||||||
17 | (L) A civil action under this Act must be commenced within | ||||||
18 | 5 years
after the last conduct giving rise to forfeiture became | ||||||
19 | known or should
have become known or 5 years after the | ||||||
20 | forfeitable property is
discovered, whichever is later, | ||||||
21 | excluding any time during which either the
property or claimant | ||||||
22 | is out of the State or in confinement or during which
criminal | ||||||
23 | proceedings relating to the same conduct are in progress.
| ||||||
24 | (Source: P.A. 94-556, eff. 9-11-05.)
| ||||||
25 | (Text of Section after amendment by P.A. 100-512 )
|
| |||||||
| |||||||
1 | Sec. 9. Judicial in rem procedures. If property seized | ||||||
2 | under the
provisions of the Illinois Controlled Substances Act, | ||||||
3 | the Cannabis Control
Act, or the Methamphetamine Control and | ||||||
4 | Community Protection Act is non-real property that exceeds | ||||||
5 | $150,000 in value excluding the value
of any conveyance, or is | ||||||
6 | real property, or a claimant has filed a claim and
a cost bond | ||||||
7 | under subsection (C) of Section 6 of this Act, the following
| ||||||
8 | judicial in rem procedures shall apply:
| ||||||
9 | (A) If, after a review of the facts surrounding the | ||||||
10 | seizure, the State's
Attorney is of the opinion that the seized | ||||||
11 | property is subject to
forfeiture, the State's Attorney shall | ||||||
12 | institute judicial forfeiture proceedings
by filing a verified | ||||||
13 | complaint for forfeiture in the circuit court within whose | ||||||
14 | jurisdiction the seizure occurred, or within whose | ||||||
15 | jurisdiction an act or omission giving rise to the seizure | ||||||
16 | occurred, subject to Supreme Court Rule 187. The complaint for | ||||||
17 | of forfeiture shall be filed as soon as practicable, but not | ||||||
18 | later than 28 days after the filing of a verified claim by a | ||||||
19 | claimant if the property was acted upon under a non-judicial | ||||||
20 | forfeiture action, or 28 days after the State's Attorney | ||||||
21 | receives notice from the seizing agency as provided under | ||||||
22 | Section 5 of this Act, whichever occurs later. When authorized | ||||||
23 | by law, a forfeiture must be ordered by a court
on an action in | ||||||
24 | rem brought by a State's Attorney under a verified
complaint | ||||||
25 | for forfeiture.
| ||||||
26 | (A-5) If the State's Attorney finds that the alleged |
| |||||||
| |||||||
1 | violation of law giving rise to the seizure was incurred | ||||||
2 | without willful negligence or without any intention on the part | ||||||
3 | of the owner of the property to violate the law or finds the | ||||||
4 | existence of those mitigating circumstances to justify | ||||||
5 | remission of the forfeiture, may cause the law enforcement | ||||||
6 | agency having custody of the property to return the property to | ||||||
7 | the owner within a reasonable time not to exceed 7 days. The | ||||||
8 | State's Attorney shall exercise his or her discretion prior to | ||||||
9 | or promptly after the preliminary review under Section 3.5 of | ||||||
10 | this Act. Judicial in rem forfeiture proceedings under this Act | ||||||
11 | shall be subject to the Code of Civil Procedure and the rules | ||||||
12 | of evidence relating to civil actions. | ||||||
13 | (A-10) A complaint of forfeiture shall include: | ||||||
14 | (1) a description of the property seized; | ||||||
15 | (2) the date and place of seizure of the property; | ||||||
16 | (3) the name and address of the law enforcement agency | ||||||
17 | making the seizure; and | ||||||
18 | (4) the specific statutory and factual grounds for the | ||||||
19 | seizure. | ||||||
20 | The complaint shall be served upon the person from whom the | ||||||
21 | property was seized and all persons known or reasonably | ||||||
22 | believed by the State to claim an interest in the property, as | ||||||
23 | provided in Section 4 of this Act. The complaint shall be | ||||||
24 | accompanied by the following written notice: | ||||||
25 | "This is a civil court proceeding subject to the Code of | ||||||
26 | Civil Procedure. You received this Complaint of Forfeiture |
| |||||||
| |||||||
1 | because the State's Attorney's office has brought a legal | ||||||
2 | action seeking forfeiture of your seized property. This | ||||||
3 | complaint starts the court process where the state seeks to | ||||||
4 | prove that your property should be forfeited and not | ||||||
5 | returned to you. This process is also your opportunity to | ||||||
6 | try to prove to a judge that you should get your property | ||||||
7 | back. The complaint lists the date, time, and location of | ||||||
8 | your first court date. You must appear in court on that | ||||||
9 | day, or you may lose the case automatically. You must also | ||||||
10 | file an appearance and answer. If you are unable to pay the | ||||||
11 | appearance fee, you may qualify to have the fee waived. If | ||||||
12 | there is a criminal case related to the seizure of your | ||||||
13 | property, your case may be set for trial after the criminal | ||||||
14 | case has been resolved. Before trial, the judge may allow | ||||||
15 | discovery, where the State can ask you to respond in | ||||||
16 | writing to questions and give them certain documents, and | ||||||
17 | you can make similar requests of the State. The trial is | ||||||
18 | your opportunity to explain what happened when your | ||||||
19 | property was seized and why you should get the property | ||||||
20 | back." . | ||||||
21 | (B) The laws of evidence relating to civil actions shall | ||||||
22 | apply to
all other proceedings under this Act except that the | ||||||
23 | parties shall be allowed to use, and the court must receive and | ||||||
24 | consider, all relevant hearsay evidence that which relates to | ||||||
25 | evidentiary foundation, chain of custody, business records, | ||||||
26 | recordings, laboratory analysis, laboratory reports, and the |
| |||||||
| |||||||
1 | use of technology in the investigation that resulted in the | ||||||
2 | seizure of the property that which is subject to the this | ||||||
3 | forfeiture action.
| ||||||
4 | (C) Only an owner of or interest holder in the property may | ||||||
5 | file an
answer asserting a claim against the property in the | ||||||
6 | action in rem. For
purposes of this Section, the owner or | ||||||
7 | interest holder shall be referred
to as claimant. A person not | ||||||
8 | named in the forfeiture complaint who claims to have an | ||||||
9 | interest in the property may petition to intervene as a | ||||||
10 | claimant under Section 2-408 of the Code of Civil Procedure.
| ||||||
11 | (D) The answer must be signed by the owner or interest | ||||||
12 | holder under
penalty of perjury and must set forth:
| ||||||
13 | (i) the caption of the proceedings as set forth on the | ||||||
14 | notice of pending
forfeiture and the name of the claimant;
| ||||||
15 | (ii) the address at which the claimant will accept | ||||||
16 | mail;
| ||||||
17 | (iii) the nature and extent of the claimant's interest | ||||||
18 | in the property;
| ||||||
19 | (iv) the date, identity of transferor, and | ||||||
20 | circumstances of the
claimant's acquisition of the | ||||||
21 | interest in the property;
| ||||||
22 | (v) the names and addresses name and address of all | ||||||
23 | other persons known to have an interest
in the property;
| ||||||
24 | (vi) the specific provisions of Section 8 of this Act
| ||||||
25 | relied on in asserting it
is exempt from forfeiture, if | ||||||
26 | applicable;
|
| |||||||
| |||||||
1 | (vii) all essential facts supporting each assertion;
| ||||||
2 | (viii) the precise relief sought; and | ||||||
3 | (ix) in a forfeiture action involving currency or its | ||||||
4 | equivalent, a claimant shall provide the State with notice | ||||||
5 | of the claimant's their intent to allege that the currency | ||||||
6 | or its equivalent is not related to the alleged factual | ||||||
7 | basis for the forfeiture, and why.
| ||||||
8 | (E) The answer must be filed with the court within 45 days | ||||||
9 | after service
of the civil in rem complaint.
| ||||||
10 | (F) The trial shall be held within 60 days after filing of | ||||||
11 | the answer
unless continued for good cause.
| ||||||
12 | (G) The State, in its case in chief , shall show by a | ||||||
13 | preponderance of the evidence the property is subject to | ||||||
14 | forfeiture; and at least one of the following:
| ||||||
15 | (i) In the case of personal property, including | ||||||
16 | conveyances: | ||||||
17 | (a) that the claimant was legally accountable for | ||||||
18 | the conduct giving rise to the forfeiture; | ||||||
19 | (b) that the claimant knew or reasonably should | ||||||
20 | have known of the conduct giving rise to the | ||||||
21 | forfeiture; | ||||||
22 | (c) that the claimant knew or reasonably should | ||||||
23 | have known that the conduct giving rise to the | ||||||
24 | forfeiture was likely to occur; | ||||||
25 | (d) that the claimant held the property for the | ||||||
26 | benefit of, or as nominee for, any person whose conduct |
| |||||||
| |||||||
1 | gave rise to its forfeiture; | ||||||
2 | (e) that if the claimant acquired the their | ||||||
3 | interest through any person engaging in any of the | ||||||
4 | conduct described above or conduct giving rise to the | ||||||
5 | forfeiture: | ||||||
6 | (1) the claimant did not acquire it as a bona | ||||||
7 | fide purchaser for value, or | ||||||
8 | (2) the claimant acquired the interest under | ||||||
9 | such circumstances that the claimant they | ||||||
10 | reasonably should have known the property was | ||||||
11 | derived from, or used in, the conduct giving rise | ||||||
12 | to the forfeiture; or | ||||||
13 | (f) that the claimant is not the true owner of the | ||||||
14 | property; | ||||||
15 | (g) that the claimant acquired the interest: | ||||||
16 | (1) before the commencement of the conduct | ||||||
17 | giving rise to the forfeiture and the person whose | ||||||
18 | conduct gave rise to the forfeiture did not have | ||||||
19 | authority to convey the interest to a bona fide | ||||||
20 | purchaser for value at the time of the conduct; or | ||||||
21 | (2) after the commencement of the conduct | ||||||
22 | giving rise to the forfeiture and the owner or | ||||||
23 | interest holder acquired the interest as a | ||||||
24 | mortgagee, secured creditor, lienholder, or bona | ||||||
25 | fide purchaser for value without knowledge of the | ||||||
26 | conduct that which gave rise to the forfeiture, and |
| |||||||
| |||||||
1 | without the knowledge of the seizure of the | ||||||
2 | property for forfeiture. | ||||||
3 | (ii) In the case of real property: | ||||||
4 | (a) that the claimant was legally accountable for | ||||||
5 | the conduct giving rise to the forfeiture; | ||||||
6 | (b) that the claimant solicited, conspired, or | ||||||
7 | attempted to commit the conduct giving rise to the | ||||||
8 | forfeiture; or | ||||||
9 | (c) that the claimant had acquired or stood to | ||||||
10 | acquire substantial proceeds from the conduct giving | ||||||
11 | rise to its forfeiture other than as an interest holder | ||||||
12 | in an arm's length transaction; | ||||||
13 | (d) that the claimant is not the true owner of the | ||||||
14 | property; | ||||||
15 | (e) that the claimant acquired the interest: | ||||||
16 | (1) before the commencement of the conduct | ||||||
17 | giving rise to the forfeiture and the person whose | ||||||
18 | conduct gave rise to the forfeiture did not have | ||||||
19 | authority to convey the interest to a bona fide | ||||||
20 | purchaser for value at the time of the conduct; or | ||||||
21 | (2) after the commencement of the conduct | ||||||
22 | giving rise to the forfeiture and the owner or | ||||||
23 | interest holder acquired the interest as a | ||||||
24 | mortgagee, secured creditor, lienholder, or bona | ||||||
25 | fide purchaser for value without knowledge of the | ||||||
26 | conduct that which gave rise to the forfeiture, and |
| |||||||
| |||||||
1 | before the filing in the office of the recorder of | ||||||
2 | deeds of the county in which the real estate is | ||||||
3 | located a notice of seizure for forfeiture or a lis | ||||||
4 | pendens notice. | ||||||
5 | (G-5) If the property that is the subject of the forfeiture | ||||||
6 | proceeding is currency or its equivalent, the State, in its | ||||||
7 | case in chief, shall show by a preponderance of the evidence | ||||||
8 | that the property is subject to forfeiture. If the State makes | ||||||
9 | that showing, the claimant shall have the burden of production | ||||||
10 | to set forth evidence that the currency or its equivalent is | ||||||
11 | not related to the alleged factual basis of the forfeiture. | ||||||
12 | After the production of evidence, the State shall maintain the | ||||||
13 | burden of proof to overcome this assertion. | ||||||
14 | (G-10) Notwithstanding any other provision of this | ||||||
15 | Section, the State's burden of proof at the trial of the | ||||||
16 | forfeiture action shall be by clear and convincing evidence if: | ||||||
17 | (1) a finding of not guilty is entered as to all counts | ||||||
18 | and all defendants in a criminal proceeding relating to the | ||||||
19 | conduct giving rise to the forfeiture action; or | ||||||
20 | (2) the State receives an adverse finding at a | ||||||
21 | preliminary hearing and fails to secure an indictment in a | ||||||
22 | criminal proceeding related to the factual allegations of | ||||||
23 | the forfeiture action. | ||||||
24 | (H) If the State does not meet its burden of proof, the | ||||||
25 | court shall order
the interest in the property returned or | ||||||
26 | conveyed to the claimant and shall
order all other property as |
| |||||||
| |||||||
1 | to which the State does meet its burden of proof forfeited to | ||||||
2 | the State. If the State does meet its burden of proof , the | ||||||
3 | court shall order all property forfeited
to the State.
| ||||||
4 | (I) A defendant convicted in any criminal proceeding is | ||||||
5 | precluded from
later denying the essential allegations of the | ||||||
6 | criminal offense of which
the defendant was convicted in any | ||||||
7 | proceeding under this Act
regardless of the pendency of an | ||||||
8 | appeal from that conviction. However,
evidence of the pendency | ||||||
9 | of an appeal is admissible.
| ||||||
10 | (J) An acquittal or dismissal in a criminal proceeding | ||||||
11 | shall not
preclude civil proceedings under this Act; however, | ||||||
12 | for good cause shown,
on a motion by the State's Attorney, the | ||||||
13 | court may stay civil forfeiture
proceedings during the criminal | ||||||
14 | trial for a related criminal indictment or
information alleging | ||||||
15 | a violation of the Illinois Controlled Substances Act,
the | ||||||
16 | Cannabis Control Act, or the Methamphetamine Control and | ||||||
17 | Community Protection Act. Such a stay shall not be available | ||||||
18 | pending an
appeal. Property subject to forfeiture under the | ||||||
19 | Illinois Controlled
Substances Act, the Cannabis Control Act, | ||||||
20 | or the Methamphetamine Control and Community Protection Act | ||||||
21 | shall not be subject to return
or release by a court exercising | ||||||
22 | jurisdiction over a criminal case
involving the seizure of such | ||||||
23 | property unless such return or release is
consented to by the | ||||||
24 | State's Attorney.
| ||||||
25 | (K) Title to all property declared forfeited under this Act | ||||||
26 | vests in the this State
on the commission of the conduct giving |
| |||||||
| |||||||
1 | rise to forfeiture together with
the proceeds of the property | ||||||
2 | after that time. Except as otherwise provided in this Act, any | ||||||
3 | such property or
proceeds subsequently transferred to any | ||||||
4 | person remain subject to
forfeiture unless a person to whom the | ||||||
5 | property was transferred makes an appropriate claim under this | ||||||
6 | Act and has the their claim adjudicated in the judicial in rem | ||||||
7 | proceeding.
| ||||||
8 | (L) A civil action under this Act must be commenced within | ||||||
9 | 5 years
after the last conduct giving rise to forfeiture became | ||||||
10 | known or should
have become known or 5 years after the | ||||||
11 | forfeitable property is
discovered, whichever is later, | ||||||
12 | excluding any time during which either the
property or claimant | ||||||
13 | is out of the State or in confinement or during which
criminal | ||||||
14 | proceedings relating to the same conduct are in progress. | ||||||
15 | (M) No property shall be forfeited under this Act from a | ||||||
16 | person who, without actual or constructive notice that the | ||||||
17 | property was the subject of forfeiture proceedings, obtained | ||||||
18 | possession of the property as a bona fide purchaser for value. | ||||||
19 | A person who purports to transfer property after receiving | ||||||
20 | actual or constructive notice that the property is subject to | ||||||
21 | seizure or forfeiture is guilty of contempt of court and shall | ||||||
22 | be liable to the State for a penalty in the amount of the fair | ||||||
23 | market value of the property. | ||||||
24 | (N) If property is ordered forfeited under this Act from a | ||||||
25 | claimant who held title to the property in joint tenancy or | ||||||
26 | tenancy in common with another claimant, the court shall |
| |||||||
| |||||||
1 | determine the amount of each owner's interest in the property | ||||||
2 | according to principles of property law.
| ||||||
3 | (Source: P.A. 100-512, eff. 7-1-18.)
| ||||||
4 | (725 ILCS 150/9.1) | ||||||
5 | (This Section may contain text from a Public Act with a | ||||||
6 | delayed effective date ) | ||||||
7 | Sec. 9.1. Innocent owner hearing. | ||||||
8 | (a) After a complaint for forfeiture is filed and all | ||||||
9 | claimants have appeared and answered, a claimant may file a | ||||||
10 | motion with the court for an innocent owner hearing prior to | ||||||
11 | trial. This motion shall be made and supported by sworn | ||||||
12 | affidavit and shall assert the following along with specific | ||||||
13 | facts that which support each assertion: | ||||||
14 | (1) that the claimant filing the motion is the true | ||||||
15 | owner of the conveyance as interpreted by case law; | ||||||
16 | (2) that the claimant was not legally accountable for | ||||||
17 | the conduct giving rise to the forfeiture or acquiesced in | ||||||
18 | the conduct; | ||||||
19 | (3) that the claimant did not solicit, conspire, or | ||||||
20 | attempt to commit the conduct giving rise to the | ||||||
21 | forfeiture; | ||||||
22 | (4) that the claimant did not know or did not they have | ||||||
23 | reason to know that the conduct giving rise to the | ||||||
24 | forfeiture was likely to occur; and | ||||||
25 | (5) that the claimant did not hold the property for the |
| |||||||
| |||||||
1 | benefit of, or as nominee for any person whose conduct gave | ||||||
2 | rise to its forfeiture, or if the owner or interest holder | ||||||
3 | acquired the interest through any such person, the owner or | ||||||
4 | interest holder did not acquire it as a bona fide purchaser | ||||||
5 | for value, or acquired the interest without knowledge of | ||||||
6 | the seizure of the property for forfeiture. | ||||||
7 | (b) The claimant's motion shall include specific facts | ||||||
8 | supporting these assertions. | ||||||
9 | (b) (c) Upon this filing, a hearing may only be held after | ||||||
10 | the parties have been given the opportunity to conduct limited | ||||||
11 | discovery as to the ownership and control of the property, the | ||||||
12 | claimant's knowledge, or any matter relevant to the issues | ||||||
13 | raised or facts alleged in the claimant's motion. Discovery | ||||||
14 | shall be limited to the People's requests in these areas but | ||||||
15 | may proceed by any means allowed in the Code of Civil | ||||||
16 | Procedure. | ||||||
17 | (c) (d) After discovery is complete and the court has | ||||||
18 | allowed for sufficient time to review and investigate the | ||||||
19 | discovery responses, the court shall conduct a hearing. At the | ||||||
20 | hearing, the fact that the property is subject to forfeiture | ||||||
21 | shall not be at issue. The court shall only hear evidence | ||||||
22 | relating to the issue of innocent ownership. | ||||||
23 | (d) (e) At the hearing on the motion, the claimant shall | ||||||
24 | bear the burden of proving by a preponderance of the evidence | ||||||
25 | each of the assertions set forth in subsection (a) of this | ||||||
26 | Section. (f) If a claimant meets the their burden of proof, the |
| |||||||
| |||||||
1 | court shall grant the motion and order the property returned to | ||||||
2 | the claimant. If the claimant fails to meet the their burden of | ||||||
3 | proof, then the court shall deny the motion and the forfeiture | ||||||
4 | case shall proceed according to the Code Rules of Civil | ||||||
5 | Procedure.
| ||||||
6 | (Source: P.A. 100-512, eff. 7-1-18.)
| ||||||
7 | (725 ILCS 150/11) (from Ch. 56 1/2, par. 1681)
| ||||||
8 | (Text of Section before amendment by P.A. 100-512 )
| ||||||
9 | Sec. 11. Settlement of claims. Notwithstanding other | ||||||
10 | provisions of
this Act, the State's Attorney and a claimant of | ||||||
11 | seized property may enter
into an agreed-upon settlement | ||||||
12 | concerning the seized property in such an
amount and upon such | ||||||
13 | terms as are set out in writing in a settlement agreement.
| ||||||
14 | (Source: P.A. 86-1382.)
| ||||||
15 | (Text of Section after amendment by P.A. 100-512 )
| ||||||
16 | Sec. 11. Settlement of claims. Notwithstanding other | ||||||
17 | provisions of
this Act, the State's Attorney and a claimant of | ||||||
18 | seized property may enter
into an agreed-upon settlement | ||||||
19 | concerning the seized property in such an
amount and upon such | ||||||
20 | terms as are set out in writing in a settlement agreement. All | ||||||
21 | proceeds from a settlement agreement shall be tendered to the | ||||||
22 | Department of State Police and distributed in accordance with | ||||||
23 | the provisions of Section 13.2 17 of this Act.
| ||||||
24 | (Source: P.A. 100-512, eff. 7-1-18.)
|
| |||||||
| |||||||
1 | (725 ILCS 150/13.1) | ||||||
2 | (This Section may contain text from a Public Act with a | ||||||
3 | delayed effective date ) | ||||||
4 | Sec. 13.1 15 . Return of property, damages, and costs. | ||||||
5 | (a) The law enforcement agency that holds custody of | ||||||
6 | property seized for forfeiture shall deliver property ordered | ||||||
7 | by the court to be returned or conveyed to the claimant within | ||||||
8 | a reasonable time not to exceed 7 days, unless the order is | ||||||
9 | stayed by the trial court or a reviewing court pending an | ||||||
10 | appeal, motion to reconsider, or other reason. | ||||||
11 | (b) The law enforcement agency that holds custody of | ||||||
12 | property described in subsection (a) of this Section is | ||||||
13 | responsible for any damages, storage fees, and related costs | ||||||
14 | applicable to property returned. The claimant shall not be | ||||||
15 | subject to any charges by the State for storage of the property | ||||||
16 | or expenses incurred in the preservation of the property. | ||||||
17 | Charges for the towing of a conveyance shall be borne by the | ||||||
18 | claimant unless the conveyance was towed for the sole reason of | ||||||
19 | seizure for forfeiture. This Section does not prohibit the | ||||||
20 | imposition of any fees or costs by a home rule unit of local | ||||||
21 | government related to the impoundment of a conveyance pursuant | ||||||
22 | to an ordinance enacted by the unit of government. | ||||||
23 | (c) A law enforcement agency shall not retain forfeited | ||||||
24 | property for its own use or transfer the property to any person | ||||||
25 | or entity, except as provided under this Section. A law |
| |||||||
| |||||||
1 | enforcement agency may apply in writing to the Director of | ||||||
2 | State Police to request that a forfeited property be awarded to | ||||||
3 | the agency for a specifically articulated official law | ||||||
4 | enforcement use in an investigation. The Director of State | ||||||
5 | Police shall provide a written justification in each instance | ||||||
6 | detailing the reasons why the forfeited property was placed | ||||||
7 | into official use and the justification shall be retained for a | ||||||
8 | period of not less than 3 years.
| ||||||
9 | (Source: P.A. 100-512, eff. 7-1-18.) | ||||||
10 | (725 ILCS 150/13.2) | ||||||
11 | (This Section may contain text from a Public Act with a | ||||||
12 | delayed effective date ) | ||||||
13 | Sec. 13.2 17 . Distribution of proceeds; selling or | ||||||
14 | retaining seized property prohibited. | ||||||
15 | (a) Except as otherwise provided in this Section, the court | ||||||
16 | shall order that property forfeited under this Act be delivered | ||||||
17 | to the Department of State Police within 60 days. | ||||||
18 | (b) All moneys monies and the sale proceeds of all other | ||||||
19 | property forfeited and seized under this Act shall be | ||||||
20 | distributed as follows: | ||||||
21 | (1)(i) 65% shall be distributed to the metropolitan | ||||||
22 | enforcement group, local, municipal, county, or State | ||||||
23 | state law enforcement agency or agencies that which | ||||||
24 | conducted or participated in the investigation resulting | ||||||
25 | in the forfeiture. The distribution shall bear a reasonable |
| |||||||
| |||||||
1 | relationship to the degree of direct participation of the | ||||||
2 | law enforcement agency in the effort resulting in the | ||||||
3 | forfeiture, taking into account the total value of the | ||||||
4 | property forfeited and the total law enforcement effort | ||||||
5 | with respect to the violation of the law upon which the | ||||||
6 | forfeiture is based. Amounts distributed to the agency or | ||||||
7 | agencies shall be used for the enforcement of laws | ||||||
8 | governing cannabis and controlled substances; for public | ||||||
9 | education in the community or schools in the prevention or | ||||||
10 | detection of the abuse of drugs or alcohol; or for security | ||||||
11 | cameras used for the prevention or detection of violence, | ||||||
12 | except that amounts distributed to the Secretary of State | ||||||
13 | shall be deposited into the Secretary of State Evidence | ||||||
14 | Fund to be used as provided in Section 2-115 of the | ||||||
15 | Illinois Vehicle Code. | ||||||
16 | (ii) Any local, municipal, or county law enforcement | ||||||
17 | agency entitled to receive a monetary distribution of | ||||||
18 | forfeiture proceeds may share those forfeiture proceeds | ||||||
19 | pursuant to the terms of an intergovernmental agreement | ||||||
20 | with a municipality that has a population in excess of | ||||||
21 | 20,000 if: | ||||||
22 | (A) the receiving agency has entered into an | ||||||
23 | intergovernmental agreement with the municipality to | ||||||
24 | provide police services; | ||||||
25 | (B) the intergovernmental agreement for police | ||||||
26 | services provides for consideration in an amount of not |
| |||||||
| |||||||
1 | less than $1,000,000 per year; | ||||||
2 | (C) the seizure took place within the geographical | ||||||
3 | limits of the municipality; and | ||||||
4 | (D) the funds are used only for the enforcement of | ||||||
5 | laws governing cannabis and controlled substances; for | ||||||
6 | public education in the community or schools in the | ||||||
7 | prevention or detection of the abuse of drugs or | ||||||
8 | alcohol; or for security cameras used for the | ||||||
9 | prevention or detection of violence or the | ||||||
10 | establishment of a municipal police force, including | ||||||
11 | the training of officers, construction of a police | ||||||
12 | station, or the purchase of law enforcement equipment | ||||||
13 | or vehicles. | ||||||
14 | (2)(i) 12.5% shall be distributed to the Office of the | ||||||
15 | State's Attorney of the county in which the prosecution | ||||||
16 | resulting in the forfeiture was instituted, deposited in a | ||||||
17 | special fund in the county treasury and appropriated to the | ||||||
18 | State's Attorney for use in the enforcement of laws | ||||||
19 | governing cannabis and controlled substances; for public | ||||||
20 | education in the community or schools in the prevention or | ||||||
21 | detection of the abuse of drugs or alcohol; or , at the | ||||||
22 | discretion of the State's Attorney, in addition to other | ||||||
23 | authorized purposes, to make grants to local substance | ||||||
24 | abuse treatment facilities and half-way houses. In | ||||||
25 | counties over 3,000,000 population, 25% shall be | ||||||
26 | distributed to the Office of the State's Attorney for use |
| |||||||
| |||||||
1 | in the enforcement of laws governing cannabis and | ||||||
2 | controlled substances; for public education in the | ||||||
3 | community or schools in the prevention or detection of the | ||||||
4 | abuse of drugs or alcohol; or at the discretion of the | ||||||
5 | State's Attorney, in addition to other authorized | ||||||
6 | purposes, to make grants to local substance abuse treatment | ||||||
7 | facilities and half-way houses. If the prosecution is | ||||||
8 | undertaken solely by the Attorney General, the portion | ||||||
9 | provided shall be distributed to the Attorney General for | ||||||
10 | use in the enforcement of laws governing cannabis and | ||||||
11 | controlled substances or for public education in the | ||||||
12 | community or schools in the prevention or detection of the | ||||||
13 | abuse of drugs or alcohol. | ||||||
14 | (ii) 12.5% shall be distributed to the Office of the | ||||||
15 | State's Attorneys Appellate Prosecutor and deposited in | ||||||
16 | the Narcotics Profit Forfeiture Fund of that office to be | ||||||
17 | used for additional expenses incurred in the | ||||||
18 | investigation, prosecution and appeal of cases arising | ||||||
19 | under laws governing cannabis and controlled substances or | ||||||
20 | for public education in the community or schools in the | ||||||
21 | prevention or detection of the abuse of drugs or alcohol. | ||||||
22 | The Office of the State's Attorneys Appellate Prosecutor | ||||||
23 | shall not receive distribution from cases brought in | ||||||
24 | counties with over 3,000,000 population. | ||||||
25 | (3) 10% shall be retained by the Department of State | ||||||
26 | Police for expenses related to the administration and sale |
| |||||||
| |||||||
1 | of seized and forfeited property.
| ||||||
2 | (Source: P.A. 100-512, eff. 7-1-18.) | ||||||
3 | (725 ILCS 150/13.3) | ||||||
4 | (This Section may contain text from a Public Act with a | ||||||
5 | delayed effective date ) | ||||||
6 | Sec. 13.3 20 . Reporting. Property seized or forfeited under | ||||||
7 | this Act is subject to reporting under the Seizure and | ||||||
8 | Forfeiture Reporting Act.
| ||||||
9 | (Source: P.A. 100-512, eff. 7-1-18.) | ||||||
10 | (725 ILCS 150/13.4 new) | ||||||
11 | Sec. 13.4. Applicability; savings clause. | ||||||
12 | (a) The changes made to this Act by Public Act 100-0512 and | ||||||
13 | this amendatory Act of the 100th General Assembly only apply to | ||||||
14 | property seized on and after July 1, 2018. | ||||||
15 | (b) The changes made to this Act by this amendatory Act of | ||||||
16 | the 100th General Assembly are subject to Section 4 of the | ||||||
17 | Statute on Statutes. | ||||||
18 | Section 42. The Illinois Streetgang Terrorism Omnibus | ||||||
19 | Prevention Act is amended by changing Section 40 as follows:
| ||||||
20 | (740 ILCS 147/40)
| ||||||
21 | (Text of Section before amendment by P.A. 100-512 )
| ||||||
22 | Sec. 40. Contraband.
|
| |||||||
| |||||||
1 | (a) The following are declared to be contraband and no | ||||||
2 | person shall
have a property interest in them:
| ||||||
3 | (1) any property that is directly or indirectly used or | ||||||
4 | intended
for use in any manner to facilitate streetgang | ||||||
5 | related activity;
and
| ||||||
6 | (2) any property constituting or derived from gross | ||||||
7 | profits or other
proceeds obtained from streetgang related | ||||||
8 | activity.
| ||||||
9 | (b) Within 60 days of the date of the seizure of contraband | ||||||
10 | under this
Section, the State's Attorney shall initiate | ||||||
11 | forfeiture proceedings as
provided
in Article 36 of the | ||||||
12 | Criminal Code of 2012. An owner or person who has a lien
on the | ||||||
13 | property may
establish as a defense to the forfeiture of | ||||||
14 | property
that is subject to forfeiture under this Section that | ||||||
15 | the owner or lienholder
had no knowledge that the property was | ||||||
16 | acquired through a pattern of
streetgang related activity. | ||||||
17 | Property that is forfeited under this Section
shall be disposed | ||||||
18 | of as provided in Article 36 of the Criminal Code of 2012
for | ||||||
19 | the forfeiture of vehicles, vessels, and aircraft. The
proceeds | ||||||
20 | of the disposition shall be paid to the Gang Violence Victims
| ||||||
21 | and Witnesses Fund to be used to assist in the prosecution of | ||||||
22 | gang crimes.
| ||||||
23 | (Source: P.A. 97-1150, eff. 1-25-13.)
| ||||||
24 | (Text of Section after amendment by P.A. 100-512 )
| ||||||
25 | Sec. 40. Forfeiture.
|
| |||||||
| |||||||
1 | (a) The following are subject to seizure and forfeiture:
| ||||||
2 | (1) any property that is directly or indirectly used or | ||||||
3 | intended
for use in any manner to facilitate streetgang | ||||||
4 | related activity;
and
| ||||||
5 | (2) any property constituting or derived from gross | ||||||
6 | profits or other
proceeds obtained from streetgang related | ||||||
7 | activity.
| ||||||
8 | (b) Property subject to forfeiture under this Section may | ||||||
9 | be seized under the procedures set forth under Section 36-2.1 | ||||||
10 | of the Criminal Code of 2012, except that actual physical | ||||||
11 | seizure of real property subject to forfeiture under this Act | ||||||
12 | requires the issuance of a seizure warrant. Nothing in this | ||||||
13 | Section prohibits the constructive seizure of real property | ||||||
14 | through the filing of a complaint for forfeiture in circuit | ||||||
15 | court and the recording of a lis pendens against the real | ||||||
16 | property without a hearing, warrant application, or judicial | ||||||
17 | approval. | ||||||
18 | (c) The State's Attorney may initiate forfeiture | ||||||
19 | proceedings under the procedures in Article 36 of the Criminal | ||||||
20 | Code of 2012. The State shall bear the burden of proving by a | ||||||
21 | preponderance of the evidence that the property was acquired | ||||||
22 | through a pattern of streetgang related activity. | ||||||
23 | (d) Property forfeited under this Section shall be disposed | ||||||
24 | of in accordance with Section 36-7 of Article 36 of the | ||||||
25 | Criminal Code of 2012 for the forfeiture of vehicles, vessels, | ||||||
26 | and aircraft. |
| |||||||
| |||||||
1 | (e) Within 60 days of the date of the seizure of contraband | ||||||
2 | under this
Section, the State's Attorney shall initiate | ||||||
3 | forfeiture proceedings as
provided
in Article 36 of the | ||||||
4 | Criminal Code of 2012. An owner or person who has a lien
on the | ||||||
5 | property may
establish as a defense to the forfeiture of | ||||||
6 | property
that is subject to forfeiture under this Section that | ||||||
7 | the owner or lienholder
had no knowledge that the property was | ||||||
8 | acquired through a pattern of
streetgang related activity. | ||||||
9 | Property that is forfeited under this Section
shall be disposed | ||||||
10 | of as provided in Article 36 of the Criminal Code of 2012
for | ||||||
11 | the forfeiture of vehicles, vessels, and aircraft. The
proceeds | ||||||
12 | of the disposition shall be paid to the Gang Violence Victims
| ||||||
13 | and Witnesses Fund to be used to assist in the prosecution of | ||||||
14 | gang crimes. | ||||||
15 | (f) Property seized or forfeited under this Section is | ||||||
16 | subject to reporting under the Seizure and Forfeiture Reporting | ||||||
17 | Act.
| ||||||
18 | (g) The changes made to this Section by Public Act 100-0512 | ||||||
19 | only apply to property seized on and after July 1, 2018. | ||||||
20 | (Source: P.A. 100-512, eff. 7-1-18.)
| ||||||
21 | Section 45. The Illinois Securities Law of 1953 is amended | ||||||
22 | by changing Section 11 as follows:
| ||||||
23 | (815 ILCS 5/11) (from Ch. 121 1/2, par. 137.11)
| ||||||
24 | (Text of Section before amendment by P.A. 100-512 )
|
| |||||||
| |||||||
1 | Sec. 11. Duties and powers of the Secretary of State.
| ||||||
2 | A. (1) The administration of this Act is vested in the | ||||||
3 | Secretary of State,
who may from time to time make, amend and | ||||||
4 | rescind such rules and
regulations as may be necessary to carry | ||||||
5 | out this Act, including rules and
regulations governing | ||||||
6 | procedures of registration, statements, applications and
| ||||||
7 | reports for various classes of securities, persons and matters | ||||||
8 | within his or
her jurisdiction and defining any terms, whether | ||||||
9 | or not used in this Act,
insofar as the definitions are not | ||||||
10 | inconsistent with this Act. The rules and
regulations adopted | ||||||
11 | by the Secretary of State under this Act shall be effective
in | ||||||
12 | the manner provided for in the Illinois Administrative | ||||||
13 | Procedure Act.
| ||||||
14 | (2) Among other things, the Secretary of State shall have | ||||||
15 | authority, for
the purposes of this Act, to prescribe the form | ||||||
16 | or forms in which required
information shall be set forth, | ||||||
17 | accounting practices, the items or
details to be shown in | ||||||
18 | balance sheets and earning statements, and the
methods to be | ||||||
19 | followed in the preparation of accounts, in the appraisal
or | ||||||
20 | valuation of assets and liabilities, in the determination of
| ||||||
21 | depreciation and depletion, in the differentiation of | ||||||
22 | recurring and
non-recurring income, in the differentiation of | ||||||
23 | investment and operating
income, and in the preparation of | ||||||
24 | consolidated balance sheets or income
accounts of any person, | ||||||
25 | directly or indirectly, controlling or
controlled by the | ||||||
26 | issuer, or any person under direct or indirect common
control |
| |||||||
| |||||||
1 | with the issuer.
| ||||||
2 | (3) No provision of this Act imposing any liability shall | ||||||
3 | apply to any act
done or omitted in good faith in conformity | ||||||
4 | with any rule or regulation of the
Secretary of State under | ||||||
5 | this Act, notwithstanding that the rule
or regulation may, | ||||||
6 | after the act or omission, be amended or
rescinded or be | ||||||
7 | determined by judicial or other authority to be invalid for any
| ||||||
8 | reason.
| ||||||
9 | (4) The Securities Department of the Office of the | ||||||
10 | Secretary of State shall
be deemed a criminal justice agency | ||||||
11 | for purposes of all federal and state laws
and regulations and, | ||||||
12 | in that capacity, shall be entitled to access to any
| ||||||
13 | information available to criminal justice agencies
and has the | ||||||
14 | power to
appoint special agents to conduct all investigations, | ||||||
15 | searches, seizures,
arrests, and other duties imposed under the | ||||||
16 | provisions of any law
administered by the Department. The | ||||||
17 | special agents have and may
exercise all the powers of peace | ||||||
18 | officers solely for the purpose of
enforcing provisions of this | ||||||
19 | Act.
| ||||||
20 | The Director must authorize to each special agent employed | ||||||
21 | under
this Section a distinct badge that, on its face, (i) | ||||||
22 | clearly states that
the badge is authorized by the Department | ||||||
23 | and (ii) contains a
unique and identifying number.
| ||||||
24 | Special agents shall comply with all training requirements
| ||||||
25 | established for law enforcement officers by provisions of the
| ||||||
26 | Illinois Police Training Act.
|
| |||||||
| |||||||
1 | (5) The Secretary of State, by rule, may conditionally or | ||||||
2 | unconditionally
exempt any person, security, or transaction, | ||||||
3 | or any class or classes of
persons, securities,
or transactions | ||||||
4 | from any provision of Section 5, 6, 7, 8, 8a, or 9 of this
Act | ||||||
5 | or of any rule promulgated under these Sections, to the extent | ||||||
6 | that
such
exemption is
necessary or appropriate in the public | ||||||
7 | interest, and is consistent with the
protection of investors.
| ||||||
8 | B. The Secretary of State may, anything in this Act to the | ||||||
9 | contrary
notwithstanding, require financial statements and | ||||||
10 | reports of the issuer,
dealer, Internet portal, salesperson, | ||||||
11 | investment adviser, or investment adviser
representative as | ||||||
12 | often as circumstances may
warrant. In addition, the Secretary | ||||||
13 | of
State may secure information or books and records from or | ||||||
14 | through others
and may make or cause to be made investigations | ||||||
15 | respecting the business,
affairs, and property of the issuer of | ||||||
16 | securities, any person involved in the
sale or offer for sale, | ||||||
17 | purchase or offer to purchase of any mineral investment
| ||||||
18 | contract, mineral deferred delivery contract, or security and | ||||||
19 | of dealers, Internet portals,
salespersons, investment | ||||||
20 | advisers, and investment adviser
representatives that are | ||||||
21 | registered or are the
subject of an application for | ||||||
22 | registration under this Act. The
costs of an investigation | ||||||
23 | shall be borne by the registrant or
the applicant, provided | ||||||
24 | that the registrant or applicant shall not
be obligated to pay | ||||||
25 | the costs without his, her or its consent in
advance.
| ||||||
26 | C. Whenever it shall appear to the Secretary of State, |
| |||||||
| |||||||
1 | either upon
complaint or otherwise, that this Act, or any rule | ||||||
2 | or regulation
prescribed under authority thereof, has been or | ||||||
3 | is about to be violated,
he or she may, in his or her | ||||||
4 | discretion, do one or more of the
following:
| ||||||
5 | (1) require or permit the person to file with the | ||||||
6 | Secretary
of State a statement in writing under oath, or | ||||||
7 | otherwise, as to all the facts
and circumstances concerning | ||||||
8 | the subject matter which the Secretary of State
believes to | ||||||
9 | be in the public interest to investigate, audit, examine, | ||||||
10 | or
inspect;
| ||||||
11 | (2) conduct an investigation, audit, examination, or | ||||||
12 | inspection as
necessary or advisable for the protection of | ||||||
13 | the interests of the
public; and
| ||||||
14 | (3) appoint investigators to conduct all | ||||||
15 | investigations, searches,
seizures,
arrests, and other | ||||||
16 | duties imposed under the provisions of any law
administered | ||||||
17 | by the Department. The Director must authorize to each
| ||||||
18 | investigator employed under this Section a distinct badge
| ||||||
19 | that,
on its face,
(i) clearly states that the badge is | ||||||
20 | authorized by the Department and
(ii) contains a unique and | ||||||
21 | identifying number.
| ||||||
22 | D. (1) For the purpose of all investigations, audits, | ||||||
23 | examinations, or
inspections which in the opinion
of the | ||||||
24 | Secretary of State are necessary and proper for the enforcement
| ||||||
25 | of this Act, the Secretary of State or a person designated by | ||||||
26 | him or
her is empowered to administer oaths and affirmations, |
| |||||||
| |||||||
1 | subpoena witnesses,
take evidence, and require, by subpoena or | ||||||
2 | other lawful means provided by
this Act or the rules adopted by | ||||||
3 | the Secretary of State,
the production of any books and | ||||||
4 | records, papers,
or other
documents which the Secretary of | ||||||
5 | State or a person designated by him
or her deems relevant or | ||||||
6 | material to the inquiry.
| ||||||
7 | (2) The Secretary of
State or a person designated by him or | ||||||
8 | her is further empowered to
administer oaths and affirmations, | ||||||
9 | subpoena witnesses, take evidence, and
require the production | ||||||
10 | of any books and records, papers, or other documents
in this
| ||||||
11 | State at the request of a securities agency of another state, | ||||||
12 | if the
activities constituting the alleged violation for which | ||||||
13 | the information is
sought would be in violation of Section 12 | ||||||
14 | of this Act if the activities
had occurred in this State.
| ||||||
15 | (3) The Circuit Court of any County of this State, upon | ||||||
16 | application of the
Secretary of State or a person designated by | ||||||
17 | him or her may order the
attendance of witnesses, the | ||||||
18 | production of books and records, papers, accounts
and documents | ||||||
19 | and the giving of testimony before the Secretary of State or a
| ||||||
20 | person designated by him or her; and any failure to obey the | ||||||
21 | order
may be punished by the Circuit Court as a contempt | ||||||
22 | thereof.
| ||||||
23 | (4) The fees of subpoenaed witnesses under this Act for
| ||||||
24 | attendance and travel shall be the same as fees of witnesses | ||||||
25 | before the
Circuit Courts of this State, to be paid when the | ||||||
26 | witness
is excused from further attendance, provided, the |
| |||||||
| |||||||
1 | witness is
subpoenaed at the instance of the Secretary of | ||||||
2 | State; and payment of the fees shall be made and audited in the | ||||||
3 | same manner as other expenses of
the Secretary of State.
| ||||||
4 | (5) Whenever a subpoena is issued at the request of a | ||||||
5 | complainant or
respondent as the case may be, the Secretary of | ||||||
6 | State may require that the cost
of service and the fee of the | ||||||
7 | witness shall be borne by the party at whose
instance the | ||||||
8 | witness is summoned.
| ||||||
9 | (6) The Secretary of State shall have power at his or her | ||||||
10 | discretion, to
require a deposit to cover the cost of the | ||||||
11 | service and
witness fees and the payment of the legal witness | ||||||
12 | fee and mileage to the
witness served with subpoena.
| ||||||
13 | (7) A subpoena issued under this Act shall be served in the | ||||||
14 | same manner
as a subpoena issued out of a circuit court.
| ||||||
15 | (8) The Secretary of State may in any investigation, | ||||||
16 | audits, examinations,
or inspections cause the taking of | ||||||
17 | depositions of persons residing within or
without this State in | ||||||
18 | the manner provided in civil actions under the laws of
this | ||||||
19 | State.
| ||||||
20 | E. Anything in this Act to the contrary notwithstanding:
| ||||||
21 | (1) If the Secretary of State shall find that the offer | ||||||
22 | or sale or
proposed offer or sale or method of offer or | ||||||
23 | sale of any securities by any
person, whether exempt or | ||||||
24 | not, in this State, is fraudulent, or would
work or tend to | ||||||
25 | work a fraud or deceit, or is being offered or sold in
| ||||||
26 | violation of Section 12,
or there has been a failure or |
| |||||||
| |||||||
1 | refusal to submit any notification filing or
fee required | ||||||
2 | under this Act,
the Secretary of State may by written order | ||||||
3 | prohibit
or suspend the offer or sale of securities by that | ||||||
4 | person or deny or revoke the
registration of the securities | ||||||
5 | or the exemption from registration
for the securities.
| ||||||
6 | (2) If the Secretary of State shall find that any | ||||||
7 | person has violated
subsection C, D, E, F, G, H, I, J, or K | ||||||
8 | of Section 12 of
this Act, the Secretary of State may by | ||||||
9 | written order temporarily or
permanently prohibit or | ||||||
10 | suspend the person from offering or
selling any securities, | ||||||
11 | any mineral
investment contract, or any mineral deferred | ||||||
12 | delivery contract in this
State, provided that any person | ||||||
13 | who is the subject of an order of
permanent prohibition may | ||||||
14 | petition the Secretary of State for a hearing to
present | ||||||
15 | evidence of rehabilitation or change in circumstances | ||||||
16 | justifying
the amendment or termination of the order of | ||||||
17 | permanent prohibition.
| ||||||
18 | (3) If the Secretary of State shall find that any | ||||||
19 | person is engaging or
has engaged in the business of | ||||||
20 | selling or offering for sale securities as a
dealer, | ||||||
21 | Internet portal, or salesperson or is acting or has acted | ||||||
22 | as an investment adviser,
investment adviser | ||||||
23 | representative, or
federal covered investment adviser,
| ||||||
24 | without prior thereto and at the time thereof having | ||||||
25 | complied with the
registration or notice filing | ||||||
26 | requirements of this Act, the Secretary of
State may by
|
| |||||||
| |||||||
1 | written order prohibit or suspend the person from engaging | ||||||
2 | in the
business of selling or offering for sale securities, | ||||||
3 | or acting as an investment
adviser, investment adviser | ||||||
4 | representative, or federal covered investment
adviser, in | ||||||
5 | this State.
| ||||||
6 | (4) In addition to any other sanction or remedy | ||||||
7 | contained in this
subsection E, the Secretary of State, | ||||||
8 | after finding that any provision of
this Act has been | ||||||
9 | violated, may impose a fine as provided by rule,
regulation | ||||||
10 | or order not to exceed $10,000 for each
violation of this | ||||||
11 | Act, may
issue an order of public censure against the | ||||||
12 | violator, and may charge as
costs of investigation all | ||||||
13 | reasonable expenses, including attorney's fees and
witness | ||||||
14 | fees.
| ||||||
15 | F. (1) The Secretary of State shall not deny, suspend or | ||||||
16 | revoke the
registration of securities, suspend or revoke the | ||||||
17 | registration of a
dealer, Internet portal, salesperson, | ||||||
18 | investment adviser, or investment adviser
representative, | ||||||
19 | prohibit or suspend the
offer or sale of any securities, | ||||||
20 | prohibit or suspend any person from
offering or selling any | ||||||
21 | securities in this State, prohibit or
suspend a dealer or | ||||||
22 | salesperson from engaging in the business of selling or
| ||||||
23 | offering for sale securities, prohibit or suspend a person from | ||||||
24 | acting as
an investment adviser or federal covered investment | ||||||
25 | adviser, or investment
adviser representative, impose any
fine | ||||||
26 | for violation of this Act, issue an
order of public censure, or |
| |||||||
| |||||||
1 | enter into an agreed settlement except after an
opportunity for | ||||||
2 | hearing upon not less than 10 days notice given by personal
| ||||||
3 | service or registered mail or certified mail, return receipt | ||||||
4 | requested, to
the person or persons concerned. Such notice | ||||||
5 | shall state the date and time
and place of the hearing and | ||||||
6 | shall contain a brief statement of
the proposed action of the | ||||||
7 | Secretary of State and the grounds for
the proposed action. A | ||||||
8 | failure to appear at the hearing or
otherwise respond to the | ||||||
9 | allegations set forth in the notice of
hearing shall constitute | ||||||
10 | an admission of any facts alleged therein and shall
constitute | ||||||
11 | sufficient basis to enter an order.
| ||||||
12 | (2) Anything herein contained to the contrary | ||||||
13 | notwithstanding, the Secretary
of State may temporarily | ||||||
14 | prohibit or suspend, for a maximum period of 90 days,
by an | ||||||
15 | order effective immediately, the offer or sale or registration | ||||||
16 | of
securities, the registration of a dealer, Internet portal, | ||||||
17 | salesperson, investment
adviser, or investment adviser | ||||||
18 | representative, or
the offer or sale of securities by any | ||||||
19 | person, or the business of rendering
investment advice, without | ||||||
20 | the notice and prior hearing in this subsection
prescribed, if | ||||||
21 | the Secretary of State shall in his or her opinion, based on
| ||||||
22 | credible evidence, deem it necessary to prevent an imminent | ||||||
23 | violation of this
Act or to prevent losses to investors which | ||||||
24 | the Secretary of State reasonably
believes will occur as a | ||||||
25 | result of a prior violation of this Act. Immediately
after | ||||||
26 | taking action without such notice and hearing, the Secretary
of |
| |||||||
| |||||||
1 | State shall deliver a copy of the
temporary order to the | ||||||
2 | respondent named therein by personal service or
registered mail | ||||||
3 | or certified mail, return receipt requested. The temporary
| ||||||
4 | order shall set forth the grounds for the action and shall | ||||||
5 | advise that the
respondent may request a hearing, that
the | ||||||
6 | request for a hearing will not stop the effectiveness of the | ||||||
7 | temporary
order and that respondent's failure to request a | ||||||
8 | hearing within 30 days
after the date of the entry of the | ||||||
9 | temporary order shall constitute an
admission of any facts | ||||||
10 | alleged therein and shall constitute sufficient
basis to make | ||||||
11 | the temporary order final. Any provision of this paragraph
(2) | ||||||
12 | to the contrary notwithstanding, the Secretary of State may not
| ||||||
13 | pursuant to the provisions of this paragraph (2) suspend the | ||||||
14 | registration
of a dealer, limited Canadian dealer, | ||||||
15 | salesperson, investment
adviser, or investment adviser | ||||||
16 | representative based upon sub-paragraph (n)
of paragraph (l) of | ||||||
17 | subsection E of Section 8 of this Act or revoke
the | ||||||
18 | registration of securities or revoke the registration of any
| ||||||
19 | dealer, salesperson, investment adviser representative, or | ||||||
20 | investment
adviser.
| ||||||
21 | (3) The Secretary of State may issue a temporary order | ||||||
22 | suspending or
delaying the effectiveness of any registration of | ||||||
23 | securities under
subsection A or B of Section 5, 6 or 7 of this | ||||||
24 | Act subsequent to and upon
the basis of the issuance of any | ||||||
25 | stop, suspension or similar order by the
Securities and | ||||||
26 | Exchange Commission with respect to the securities which are
|
| |||||||
| |||||||
1 | the subject of the registration under subsection A or B of | ||||||
2 | Section 5, 6 or
7 of this Act, and the order shall become | ||||||
3 | effective as of the date
and time of effectiveness of the | ||||||
4 | Securities and Exchange Commission order and
shall be vacated | ||||||
5 | automatically at such time as the order of the
Securities and | ||||||
6 | Exchange Commission is no longer in effect.
| ||||||
7 | (4) When the Secretary of State finds that an application | ||||||
8 | for registration
as a dealer, Internet portal, salesperson, | ||||||
9 | investment adviser, or investment
adviser representative | ||||||
10 | should be denied, the Secretary
of State may enter an order | ||||||
11 | denying the registration. Immediately
after taking such | ||||||
12 | action, the Secretary of State shall deliver a
copy of the | ||||||
13 | order to the respondent named therein by personal service or
| ||||||
14 | registered mail or certified mail, return receipt requested. | ||||||
15 | The order shall
state the grounds for the action and that the | ||||||
16 | matter will be set
for hearing upon written request filed with | ||||||
17 | the Secretary of State within 30
days after the receipt of the | ||||||
18 | request by the respondent. The
respondent's failure to request | ||||||
19 | a hearing within 30 days after receipt of
the order shall | ||||||
20 | constitute an admission of any facts alleged
therein and shall | ||||||
21 | make the order final. If a hearing is held, the
Secretary of | ||||||
22 | State shall affirm, vacate, or modify the order.
| ||||||
23 | (5) The findings and decision of the Secretary of State | ||||||
24 | upon the
conclusion of each final hearing held pursuant to this | ||||||
25 | subsection shall
be set forth in a written order signed on | ||||||
26 | behalf of the Secretary of
State by his or her designee and |
| |||||||
| |||||||
1 | shall be filed as a public record. All
hearings shall be held | ||||||
2 | before a person designated by the Secretary of State,
and | ||||||
3 | appropriate records thereof shall be kept.
| ||||||
4 | (6) Notwithstanding the foregoing, the Secretary of State, | ||||||
5 | after
notice and opportunity for hearing, may at his or her | ||||||
6 | discretion enter into
an agreed settlement, stipulation or | ||||||
7 | consent order with a respondent in
accordance with the | ||||||
8 | provisions of the Illinois Administrative
Procedure Act. The | ||||||
9 | provisions of the agreed settlement, stipulation or
consent | ||||||
10 | order shall have the full force and effect of an order issued | ||||||
11 | by the
Secretary of State.
| ||||||
12 | (7) Anything in this Act to the contrary notwithstanding, | ||||||
13 | whenever
the Secretary of State finds that a person is | ||||||
14 | currently expelled from, refused
membership in or association | ||||||
15 | with, or limited in any material capacity by a
self-regulatory | ||||||
16 | organization registered under the Federal 1934 Act or the
| ||||||
17 | Federal 1974 Act because of a fraudulent or deceptive act or a | ||||||
18 | practice in
violation of a rule, regulation, or standard duly | ||||||
19 | promulgated by the
self-regulatory organization, the Secretary | ||||||
20 | of State may, at his or her
discretion, enter a Summary Order | ||||||
21 | of Prohibition, which shall prohibit the
offer
or sale of any | ||||||
22 | securities, mineral investment contract, or mineral deferred
| ||||||
23 | delivery contract by the person in this State. The order shall | ||||||
24 | take effect
immediately upon its entry. Immediately after | ||||||
25 | taking the action the Secretary
of State shall deliver a copy | ||||||
26 | of the order to the named Respondent by
personal service or |
| |||||||
| |||||||
1 | registered mail or certified mail, return receipt
requested. A | ||||||
2 | person who is the subject of an Order of Prohibition may
| ||||||
3 | petition the Secretary of State for a hearing to present | ||||||
4 | evidence of
rehabilitation or change in circumstances | ||||||
5 | justifying the
amendment or termination of the Order of | ||||||
6 | Prohibition.
| ||||||
7 | G. No administrative action shall be brought by the | ||||||
8 | Secretary of State
for relief under this Act or upon or because | ||||||
9 | of any of the matters for
which relief is granted by this Act | ||||||
10 | after the earlier to occur of (i) 3
years from the date upon | ||||||
11 | which the Secretary of State had notice of facts
which in the | ||||||
12 | exercise of reasonable diligence would lead to actual
knowledge | ||||||
13 | of the alleged violation of the Act, or (ii) 5 years from the
| ||||||
14 | date on which the alleged violation occurred.
| ||||||
15 | H. The action of the Secretary of State in denying, | ||||||
16 | suspending, or revoking
the registration of a dealer, Internet | ||||||
17 | portal, limited Canadian dealer, salesperson, investment | ||||||
18 | adviser, or investment adviser representative, in
prohibiting
| ||||||
19 | any person from engaging in the business of offering or selling | ||||||
20 | securities as a
dealer, limited Canadian dealer, or | ||||||
21 | salesperson, in prohibiting or
suspending the offer or sale of
| ||||||
22 | securities by any person, in prohibiting a person from acting | ||||||
23 | as an investment
adviser, federal covered investment adviser, | ||||||
24 | or investment adviser
representative, in denying, suspending, | ||||||
25 | or
revoking the registration of securities, in
prohibiting or | ||||||
26 | suspending the offer or sale or proposed offer or sale of
|
| |||||||
| |||||||
1 | securities, in imposing any fine for violation of this Act, or | ||||||
2 | in issuing any
order shall be subject to judicial review in the | ||||||
3 | Circuit Courts
of
Cook or Sangamon Counties in this State. The
| ||||||
4 | Administrative Review
Law shall apply to and
govern every | ||||||
5 | action for the judicial review of final actions or decisions
of | ||||||
6 | the Secretary of State under this Act.
| ||||||
7 | I. Notwithstanding any other provisions of this Act to the | ||||||
8 | contrary,
whenever it shall appear to the Secretary of State | ||||||
9 | that any
person is engaged or about to engage in any acts or | ||||||
10 | practices which
constitute or will constitute a violation of | ||||||
11 | this Act or of any rule or
regulation prescribed under | ||||||
12 | authority of this Act, the Secretary of State
may at his or her | ||||||
13 | discretion, through the Attorney General take any of the
| ||||||
14 | following actions:
| ||||||
15 | (1) File a complaint and apply for a temporary | ||||||
16 | restraining order without
notice, and upon a proper showing | ||||||
17 | the court may enter a temporary
restraining order without | ||||||
18 | bond, to enforce this Act.
| ||||||
19 | (2) File a complaint and apply for a preliminary or | ||||||
20 | permanent
injunction, and, after notice and a hearing and | ||||||
21 | upon a proper showing,
the court may grant a preliminary or | ||||||
22 | permanent injunction and may order the
defendant to make an | ||||||
23 | offer of rescission with respect to any sales or
purchases | ||||||
24 | of securities, mineral investment contracts, or mineral
| ||||||
25 | deferred delivery contracts determined by the court to be | ||||||
26 | unlawful under
this Act.
|
| |||||||
| |||||||
1 | (3) Seek the seizure of assets when probable cause | ||||||
2 | exists that the
assets
were
obtained by a defendant through | ||||||
3 | conduct in violation of Section 12,
paragraph F, G, I, J, | ||||||
4 | K, or L of this Act, and thereby subject to a judicial
| ||||||
5 | forfeiture hearing as required under this Act.
| ||||||
6 | (a) In the event that such probable cause exists | ||||||
7 | that the subject of an
investigation who is alleged to | ||||||
8 | have committed one of the relevant
violations of this | ||||||
9 | Act has in his possession assets obtained as a
result | ||||||
10 | of the conduct giving rise to the violation, the | ||||||
11 | Secretary of
State may seek a seizure warrant in any | ||||||
12 | circuit court in Illinois.
| ||||||
13 | (b) In seeking a seizure warrant, the Secretary of | ||||||
14 | State, or his
or her designee, shall submit to the | ||||||
15 | court a sworn affidavit detailing the
probable cause | ||||||
16 | evidence for the seizure, the location of the assets
to | ||||||
17 | be seized, the relevant violation under Section 12 of | ||||||
18 | this Act, and
a statement detailing any known owners or | ||||||
19 | interest holders in the
assets.
| ||||||
20 | (c) Seizure of the assets shall be made by any | ||||||
21 | peace officer upon
process of the seizure warrant | ||||||
22 | issued by the court. Following the
seizure of assets | ||||||
23 | under this Act and pursuant to a seizure warrant,
| ||||||
24 | notice of seizure, including a description of the | ||||||
25 | seized assets, shall
immediately be returned to the | ||||||
26 | issuing court. Seized assets shall be
maintained |
| |||||||
| |||||||
1 | pending a judicial forfeiture hearing in accordance | ||||||
2 | with
the instructions of the court.
| ||||||
3 | (d) In the event that management of seized assets | ||||||
4 | becomes necessary
to prevent the devaluation, | ||||||
5 | dissipation, or otherwise to preserve the
property, | ||||||
6 | the court shall have jurisdiction to appoint a | ||||||
7 | receiver,
conservator, ancillary receiver, or | ||||||
8 | ancillary conservator for that
purpose, as provided in | ||||||
9 | item (2) of this subsection.
| ||||||
10 | (4) Seek the forfeiture of assets obtained through | ||||||
11 | conduct in violation of
Section 12, paragraph F, G, H, I, | ||||||
12 | J, K, or L when authorized by law. A
forfeiture must be | ||||||
13 | ordered by a circuit court or an action brought by the
| ||||||
14 | Secretary of State as provided for in this Act, under a | ||||||
15 | verified complaint
for forfeiture.
| ||||||
16 | (a) In the event assets have been seized pursuant | ||||||
17 | to this Act,
forfeiture
proceedings shall be | ||||||
18 | instituted by the Attorney General within 45
days of | ||||||
19 | seizure.
| ||||||
20 | (b) Service of the complaint filed under the | ||||||
21 | provisions of this Act
shall
be made in the manner as | ||||||
22 | provided in civil actions in this State.
| ||||||
23 | (c) Only an owner of or interest holder in the | ||||||
24 | property may file an
answer asserting a claim against | ||||||
25 | the property. For purposes of this Section,
the owner | ||||||
26 | or interest holder shall be
referred to as claimant.
|
| |||||||
| |||||||
1 | (d) The answer must be signed by the owner or | ||||||
2 | interest holder under
penalty of perjury and must set | ||||||
3 | forth:
| ||||||
4 | (i) the caption of the proceedings as set forth | ||||||
5 | on the notice of
pending forfeiture and the name of | ||||||
6 | the claimant;
| ||||||
7 | (ii) the address at which the claimant will | ||||||
8 | accept mail;
| ||||||
9 | (iii) the nature and extent of the claimant's | ||||||
10 | interest in the
property;
| ||||||
11 | (iv) the date, identity of the transferor, and | ||||||
12 | circumstances of the
claimant's acquisition of the | ||||||
13 | interest in the property;
| ||||||
14 | (v) the name and address of all other persons | ||||||
15 | known to have an
interest in the property;
| ||||||
16 | (vi) the specific provisions of this Act | ||||||
17 | relied on in asserting that
the
property is not | ||||||
18 | subject to forfeiture;
| ||||||
19 | (vii) all essential facts supporting each | ||||||
20 | assertion; and
| ||||||
21 | (viii) the precise relief sought.
| ||||||
22 | (e) The answer must be filed with the court within | ||||||
23 | 45 days after service
of the complaint.
| ||||||
24 | (f) A property interest is exempt from forfeiture | ||||||
25 | under this Act if its
owner or interest holder | ||||||
26 | establishes by a preponderance of
evidence that the |
| |||||||
| |||||||
1 | owner or interest holder:
| ||||||
2 | (i) is not legally accountable for the conduct | ||||||
3 | giving rise to
the forfeiture, did not acquiesce in | ||||||
4 | it, and did not know
and could not reasonably have | ||||||
5 | known of the conduct or
that the conduct was likely | ||||||
6 | to occur;
| ||||||
7 | (ii) with respect to conveyances, did not hold | ||||||
8 | the property
jointly or in common with a person | ||||||
9 | whose conduct gave
rise to the forfeiture;
| ||||||
10 | (iii) does not hold the property for the | ||||||
11 | benefit of or as a
nominee for any person whose | ||||||
12 | conduct gave rise to its
forfeiture and the owner | ||||||
13 | or interest holder acquires it
as a bona fide | ||||||
14 | purchaser for value without knowingly
taking part | ||||||
15 | in the conduct giving rise to the forfeiture; or
| ||||||
16 | (iv) acquired the interest after the
| ||||||
17 | commencement of the conduct giving rise to its | ||||||
18 | forfeiture
and the owner or interest holder | ||||||
19 | acquired the interest as a
mortgagee, secured | ||||||
20 | creditor, lienholder, or bona fide
purchaser for | ||||||
21 | value without knowledge of the conduct
that gave | ||||||
22 | rise to the forfeiture.
| ||||||
23 | (g) The hearing must be held within 60 days after | ||||||
24 | the answer is filed
unless continued for good cause.
| ||||||
25 | (h) During the probable cause portion of the | ||||||
26 | judicial in rem proceeding
wherein the Secretary of |
| |||||||
| |||||||
1 | State presents its case-in-chief, the court
must | ||||||
2 | receive and consider, among other things, any relevant
| ||||||
3 | hearsay evidence and information. The laws of evidence | ||||||
4 | relating
to civil actions shall apply to all other | ||||||
5 | portions of the judicial in
rem proceeding.
| ||||||
6 | (i) The Secretary of State shall show the existence | ||||||
7 | of probable cause
for forfeiture of the property. If | ||||||
8 | the Secretary of State shows
probable cause, the | ||||||
9 | claimant has the burden of showing by a
preponderance | ||||||
10 | of the evidence that the claimant's interest in the
| ||||||
11 | property is not subject to forfeiture.
| ||||||
12 | (j) If the Secretary of State does not show the | ||||||
13 | existence of probable
cause or a claimant has an | ||||||
14 | interest that is exempt under
subdivision I (4)(d) of | ||||||
15 | this Section, the court shall order the interest in the
| ||||||
16 | property returned
or conveyed to the claimant and shall | ||||||
17 | order all other property
forfeited to the Secretary of | ||||||
18 | State pursuant to all provisions of this Act. If
the | ||||||
19 | Secretary of State does show the existence of probable
| ||||||
20 | cause and the claimant does not establish by a | ||||||
21 | preponderance of
the evidence that the claimant has an | ||||||
22 | interest that is exempt under
subsection D herein, the | ||||||
23 | court shall order all the property forfeited
to the | ||||||
24 | Secretary of State pursuant to the provisions of the | ||||||
25 | Section.
| ||||||
26 | (k) A defendant convicted in any criminal |
| |||||||
| |||||||
1 | proceeding is precluded
from later denying the | ||||||
2 | essential allegations of the criminal offense
of which | ||||||
3 | the defendant was convicted in any proceeding for
| ||||||
4 | violations of the Act giving rise to forfeiture of | ||||||
5 | property herein
regardless of the pendency of an appeal | ||||||
6 | from that conviction.
However, evidence of the | ||||||
7 | pendency of an appeal is admissible.
| ||||||
8 | (l) An acquittal or dismissal in a criminal | ||||||
9 | proceeding for violations of
the Act giving rise to the | ||||||
10 | forfeiture of property herein shall not
preclude civil | ||||||
11 | proceedings under this provision; however, for good
| ||||||
12 | cause shown, on a motion by the Secretary of State, the | ||||||
13 | court may
stay civil forfeiture proceedings during the | ||||||
14 | criminal trial for a
related criminal indictment or | ||||||
15 | information alleging violation of the
provisions of | ||||||
16 | Section 12 of the Illinois Securities Law of 1953.
| ||||||
17 | Property subject to forfeiture under this Section | ||||||
18 | shall not be subject
to return or release by a court | ||||||
19 | exercising jurisdiction over a
criminal case involving | ||||||
20 | the seizure of the property unless the return
or | ||||||
21 | release is consented to by the Secretary of State.
| ||||||
22 | (m) All property declared forfeited under this Act | ||||||
23 | vests in the State on
the commission of the conduct | ||||||
24 | giving rise to forfeiture together
with the proceeds of | ||||||
25 | the property after that time. Any such
property or | ||||||
26 | proceeds subsequently transferred to any person remain
|
| |||||||
| |||||||
1 | subject to forfeiture and thereafter shall be ordered | ||||||
2 | forfeited unless
the transferee claims and establishes | ||||||
3 | in a hearing under the
provisions of this Act that the | ||||||
4 | transferee's interest is exempt under
the Act. Any | ||||||
5 | assets forfeited to the State shall be disposed of in
| ||||||
6 | following manner:
| ||||||
7 | (i) all forfeited property and assets shall be | ||||||
8 | liquidated by the
Secretary of State in accordance | ||||||
9 | with all laws and
rules governing the disposition | ||||||
10 | of such property;
| ||||||
11 | (ii) the Secretary of State shall provide the | ||||||
12 | court at the time the
property and assets are | ||||||
13 | declared forfeited a verified
statement of | ||||||
14 | investors subject to the conduct giving rise to the
| ||||||
15 | forfeiture;
| ||||||
16 | (iii) after payment of any costs of sale, | ||||||
17 | receivership, storage, or
expenses for | ||||||
18 | preservation of the property seized, other costs
| ||||||
19 | to the State, and payment to claimants for any | ||||||
20 | amount
deemed exempt from forfeiture, the proceeds | ||||||
21 | from
liquidation shall be distributed pro rata to | ||||||
22 | investors subject to the
conduct giving rise to the | ||||||
23 | forfeiture; and
| ||||||
24 | (iv) any proceeds remaining after all verified | ||||||
25 | investors have
been made whole shall be | ||||||
26 | distributed 25% to the
Securities Investors |
| |||||||
| |||||||
1 | Education Fund, 25%
to the Securities Audit and
| ||||||
2 | Enforcement Fund, 25% to the Attorney General or | ||||||
3 | any
State's Attorney bringing criminal charges for | ||||||
4 | the conduct
giving rise to the forfeiture, and 25% | ||||||
5 | to other law
enforcement agencies participating in | ||||||
6 | the investigation of
the criminal charges for the | ||||||
7 | conduct giving rise to the
forfeiture. In the event | ||||||
8 | that no other law enforcement
agencies are | ||||||
9 | involved in the investigation of the conduct
| ||||||
10 | giving rise to the forfeiture, then the portion to | ||||||
11 | other law
enforcement agencies shall be | ||||||
12 | distributed to the
Securities Investors Education | ||||||
13 | Fund.
| ||||||
14 | (n) The Secretary of State shall notify by | ||||||
15 | certified mail, return
receipt
requested, all known | ||||||
16 | investors in the matter giving rise to the forfeiture
| ||||||
17 | of the forfeiture proceeding and sale of assets | ||||||
18 | forfeited arising from the
violations of this Act, and | ||||||
19 | shall further publish notice in a paper of
general | ||||||
20 | circulation in the district in which the violations | ||||||
21 | were prosecuted.
The notice to investors shall | ||||||
22 | identify the name, address, and other
identifying | ||||||
23 | information about any defendant prosecuted for | ||||||
24 | violations
of this Act that resulted in forfeiture and | ||||||
25 | sale of property, the offense
for which the defendant | ||||||
26 | was convicted, and that the court has ordered
|
| |||||||
| |||||||
1 | forfeiture and sale of property for claims of investors | ||||||
2 | who incurred losses
or damages as a result of the | ||||||
3 | violations. Investors may then file a claim
in a form | ||||||
4 | prescribed by the Secretary of State in order to share | ||||||
5 | in
disbursement of the proceeds from sale of the | ||||||
6 | forfeited property.
Investor claims must be filed with | ||||||
7 | the Secretary of State within 30 days
after receipt of | ||||||
8 | the certified mail return receipt, or within 30 days | ||||||
9 | after the
last
date of publication of the general | ||||||
10 | notice in a paper of general circulation
in the | ||||||
11 | district in which the violations were prosecuted, | ||||||
12 | whichever occurs
last.
| ||||||
13 | (o) A civil action under this subsection must be | ||||||
14 | commenced within 5
years
after
the last conduct giving | ||||||
15 | rise to the forfeiture became known or should
have | ||||||
16 | become known or 5 years after the forfeitable property | ||||||
17 | is
discovered, whichever is later, excluding time | ||||||
18 | during which either the
property or claimant is out of | ||||||
19 | this State or in confinement or during which
criminal | ||||||
20 | proceedings relating to the same conduct are in | ||||||
21 | progress.
| ||||||
22 | (p) If property is seized for evidence and for | ||||||
23 | forfeiture, the time
periods
for
instituting judicial | ||||||
24 | forfeiture proceedings shall not begin until the
| ||||||
25 | property is no longer necessary for evidence.
| ||||||
26 | (q) Notwithstanding other provisions of this Act, |
| |||||||
| |||||||
1 | the Secretary of State
and
a
claimant of forfeitable | ||||||
2 | property may enter into an agreed-upon settlement
| ||||||
3 | concerning the forfeitable property in such an amount | ||||||
4 | and upon such
terms as are set out in writing in a | ||||||
5 | settlement agreement.
| ||||||
6 | (r) Nothing in this Act shall apply to property | ||||||
7 | that constitutes
reasonable
bona
fide attorney's fees | ||||||
8 | paid to an attorney for services rendered or to be
| ||||||
9 | rendered in the forfeiture proceeding or criminal | ||||||
10 | proceeding relating
directly thereto when the property | ||||||
11 | was paid before its seizure and before
the issuance of | ||||||
12 | any seizure warrant or court order prohibiting | ||||||
13 | transfer of
the property and when the attorney, at the | ||||||
14 | time he or she received the
property, did not know that | ||||||
15 | it was property subject to forfeiture under
this Act.
| ||||||
16 | The court shall further have jurisdiction and authority, in | ||||||
17 | addition to the
penalties and other remedies in this Act | ||||||
18 | provided, to enter an order for
the appointment of the court or | ||||||
19 | a person as a receiver, conservator,
ancillary receiver or | ||||||
20 | ancillary conservator for the defendant or the
defendant's | ||||||
21 | assets located in this State, or to require restitution,
| ||||||
22 | damages or disgorgement of profits on behalf of the person or | ||||||
23 | persons
injured by the act or practice constituting the subject | ||||||
24 | matter of the
action, and may assess costs against the | ||||||
25 | defendant for the use of the
State; provided, however, that the | ||||||
26 | civil remedies of rescission and
appointment of a receiver, |
| |||||||
| |||||||
1 | conservator, ancillary receiver
or ancillary conservator shall | ||||||
2 | not be available against any person by
reason of the failure to | ||||||
3 | file with the Secretary of State, or on account of
the contents | ||||||
4 | of, any report of sale provided for in subsection G or P of
| ||||||
5 | Section 4, paragraph (2) of subsection D of Sections 5 and 6, | ||||||
6 | or paragraph
(2) of subsection F of Section 7 of this Act. | ||||||
7 | Appeals may be
taken as in other civil cases.
| ||||||
8 | J. In no case shall the Secretary of State, or any of his | ||||||
9 | or her
employees or agents, in the administration of this Act, | ||||||
10 | incur any official or
personal liability by instituting an | ||||||
11 | injunction or other proceeding or
by denying, suspending or | ||||||
12 | revoking the registration of a dealer or
salesperson, or by | ||||||
13 | denying, suspending or revoking the registration of
securities | ||||||
14 | or prohibiting the offer or sale of securities, or by | ||||||
15 | suspending or
prohibiting any person from acting as a dealer, | ||||||
16 | limited Canadian dealer,
salesperson, investment adviser, or | ||||||
17 | investment adviser
representative or from offering or selling | ||||||
18 | securities.
| ||||||
19 | K. No provision of this Act shall be construed to require | ||||||
20 | or to
authorize the Secretary of State to require any | ||||||
21 | investment adviser
or federal covered investment adviser | ||||||
22 | engaged in rendering investment
supervisory services to | ||||||
23 | disclose the
identity, investments, or affairs of any client of | ||||||
24 | the investment
adviser or federal covered investment adviser, | ||||||
25 | except insofar as the
disclosure may be necessary or
| ||||||
26 | appropriate in a particular proceeding or investigation having |
| |||||||
| |||||||
1 | as its
object the enforcement of this Act.
| ||||||
2 | L. Whenever, after an examination, investigation or
| ||||||
3 | hearing, the Secretary of State deems it of public interest or | ||||||
4 | advantage,
he or she may certify a record to the State's | ||||||
5 | Attorney of the county in
which the act complained of, examined | ||||||
6 | or investigated occurred. The
State's Attorney of that county | ||||||
7 | within 90 days after receipt of the record
shall file a written | ||||||
8 | statement at the Office of the Secretary of State,
which | ||||||
9 | statement shall set forth the action taken upon the record, or | ||||||
10 | if no
action has been taken upon the record that fact, together | ||||||
11 | with the reasons
therefor, shall be stated.
| ||||||
12 | M. The Secretary of State may initiate, take, pursue, or | ||||||
13 | prosecute any
action authorized or permitted under Section 6d | ||||||
14 | of the Federal 1974 Act.
| ||||||
15 | N. (1) Notwithstanding any provision of this Act to the | ||||||
16 | contrary, to
encourage uniform interpretation, administration, | ||||||
17 | and enforcement of the
provisions of this Act, the Secretary of | ||||||
18 | State may cooperate with the
securities agencies or | ||||||
19 | administrators of one or more states, Canadian provinces
or | ||||||
20 | territories, or another country, the Securities and Exchange | ||||||
21 | Commission, the
Commodity Futures Trading Commission, the | ||||||
22 | Securities Investor Protection
Corporation, any | ||||||
23 | self-regulatory organization, and any governmental law
| ||||||
24 | enforcement or regulatory agency.
| ||||||
25 | (2) The cooperation authorized by paragraph (1) of this | ||||||
26 | subsection includes,
but is not limited to, the following:
|
| |||||||
| |||||||
1 | (a) establishing or participating in a central | ||||||
2 | depository or depositories
for registration under this Act | ||||||
3 | and for documents or records required under
this Act;
| ||||||
4 | (b) making a joint audit, inspection, examination, or | ||||||
5 | investigation;
| ||||||
6 | (c) holding a joint administrative hearing;
| ||||||
7 | (d) filing and prosecuting a joint civil or criminal | ||||||
8 | proceeding;
| ||||||
9 | (e) sharing and exchanging personnel;
| ||||||
10 | (f) sharing and exchanging information and documents; | ||||||
11 | or
| ||||||
12 | (g) issuing any joint statement or policy.
| ||||||
13 | (Source: P.A. 99-182, eff. 1-1-16 .)
| ||||||
14 | (Text of Section after amendment by P.A. 100-512 )
| ||||||
15 | Sec. 11. Duties and powers of the Secretary of State.
| ||||||
16 | A. (1) The administration of this Act is vested in the | ||||||
17 | Secretary of State,
who may from time to time make, amend and | ||||||
18 | rescind such rules and
regulations as may be necessary to carry | ||||||
19 | out this Act, including rules and
regulations governing | ||||||
20 | procedures of registration, statements, applications and
| ||||||
21 | reports for various classes of securities, persons and matters | ||||||
22 | within his or
her jurisdiction and defining any terms, whether | ||||||
23 | or not used in this Act,
insofar as the definitions are not | ||||||
24 | inconsistent with this Act. The rules and
regulations adopted | ||||||
25 | by the Secretary of State under this Act shall be effective
in |
| |||||||
| |||||||
1 | the manner provided for in the Illinois Administrative | ||||||
2 | Procedure Act.
| ||||||
3 | (2) Among other things, the Secretary of State shall have | ||||||
4 | authority, for
the purposes of this Act, to prescribe the form | ||||||
5 | or forms in which required
information shall be set forth, | ||||||
6 | accounting practices, the items or
details to be shown in | ||||||
7 | balance sheets and earning statements, and the
methods to be | ||||||
8 | followed in the preparation of accounts, in the appraisal
or | ||||||
9 | valuation of assets and liabilities, in the determination of
| ||||||
10 | depreciation and depletion, in the differentiation of | ||||||
11 | recurring and
non-recurring income, in the differentiation of | ||||||
12 | investment and operating
income, and in the preparation of | ||||||
13 | consolidated balance sheets or income
accounts of any person, | ||||||
14 | directly or indirectly, controlling or
controlled by the | ||||||
15 | issuer, or any person under direct or indirect common
control | ||||||
16 | with the issuer.
| ||||||
17 | (3) No provision of this Act imposing any liability shall | ||||||
18 | apply to any act
done or omitted in good faith in conformity | ||||||
19 | with any rule or regulation of the
Secretary of State under | ||||||
20 | this Act, notwithstanding that the rule
or regulation may, | ||||||
21 | after the act or omission, be amended or
rescinded or be | ||||||
22 | determined by judicial or other authority to be invalid for any
| ||||||
23 | reason.
| ||||||
24 | (4) The Securities Department of the Office of the | ||||||
25 | Secretary of State shall
be deemed a criminal justice agency | ||||||
26 | for purposes of all federal and state laws
and regulations and, |
| |||||||
| |||||||
1 | in that capacity, shall be entitled to access to any
| ||||||
2 | information available to criminal justice agencies
and has the | ||||||
3 | power to
appoint special agents to conduct all investigations, | ||||||
4 | searches, seizures,
arrests, and other duties imposed under the | ||||||
5 | provisions of any law
administered by the Department. The | ||||||
6 | special agents have and may
exercise all the powers of peace | ||||||
7 | officers solely for the purpose of
enforcing provisions of this | ||||||
8 | Act.
| ||||||
9 | The Director must authorize to each special agent employed | ||||||
10 | under
this Section a distinct badge that, on its face, (i) | ||||||
11 | clearly states that
the badge is authorized by the Department | ||||||
12 | and (ii) contains a
unique and identifying number.
| ||||||
13 | Special agents shall comply with all training requirements
| ||||||
14 | established for law enforcement officers by provisions of the
| ||||||
15 | Illinois Police Training Act.
| ||||||
16 | (5) The Secretary of State, by rule, may conditionally or | ||||||
17 | unconditionally
exempt any person, security, or transaction, | ||||||
18 | or any class or classes of
persons, securities,
or transactions | ||||||
19 | from any provision of Section 5, 6, 7, 8, 8a, or 9 of this
Act | ||||||
20 | or of any rule promulgated under these Sections, to the extent | ||||||
21 | that
such
exemption is
necessary or appropriate in the public | ||||||
22 | interest, and is consistent with the
protection of investors.
| ||||||
23 | B. The Secretary of State may, anything in this Act to the | ||||||
24 | contrary
notwithstanding, require financial statements and | ||||||
25 | reports of the issuer,
dealer, Internet portal, salesperson, | ||||||
26 | investment adviser, or investment adviser
representative as |
| |||||||
| |||||||
1 | often as circumstances may
warrant. In addition, the Secretary | ||||||
2 | of
State may secure information or books and records from or | ||||||
3 | through others
and may make or cause to be made investigations | ||||||
4 | respecting the business,
affairs, and property of the issuer of | ||||||
5 | securities, any person involved in the
sale or offer for sale, | ||||||
6 | purchase or offer to purchase of any mineral investment
| ||||||
7 | contract, mineral deferred delivery contract, or security and | ||||||
8 | of dealers, Internet portals,
salespersons, investment | ||||||
9 | advisers, and investment adviser
representatives that are | ||||||
10 | registered or are the
subject of an application for | ||||||
11 | registration under this Act. The
costs of an investigation | ||||||
12 | shall be borne by the registrant or
the applicant, provided | ||||||
13 | that the registrant or applicant shall not
be obligated to pay | ||||||
14 | the costs without his, her or its consent in
advance.
| ||||||
15 | C. Whenever it shall appear to the Secretary of State, | ||||||
16 | either upon
complaint or otherwise, that this Act, or any rule | ||||||
17 | or regulation
prescribed under authority thereof, has been or | ||||||
18 | is about to be violated,
he or she may, in his or her | ||||||
19 | discretion, do one or more of the
following:
| ||||||
20 | (1) require or permit the person to file with the | ||||||
21 | Secretary
of State a statement in writing under oath, or | ||||||
22 | otherwise, as to all the facts
and circumstances concerning | ||||||
23 | the subject matter which the Secretary of State
believes to | ||||||
24 | be in the public interest to investigate, audit, examine, | ||||||
25 | or
inspect;
| ||||||
26 | (2) conduct an investigation, audit, examination, or |
| |||||||
| |||||||
1 | inspection as
necessary or advisable for the protection of | ||||||
2 | the interests of the
public; and
| ||||||
3 | (3) appoint investigators to conduct all | ||||||
4 | investigations, searches,
seizures,
arrests, and other | ||||||
5 | duties imposed under the provisions of any law
administered | ||||||
6 | by the Department. The Director must authorize to each
| ||||||
7 | investigator employed under this Section a distinct badge
| ||||||
8 | that,
on its face,
(i) clearly states that the badge is | ||||||
9 | authorized by the Department and
(ii) contains a unique and | ||||||
10 | identifying number.
| ||||||
11 | D. (1) For the purpose of all investigations, audits, | ||||||
12 | examinations, or
inspections which in the opinion
of the | ||||||
13 | Secretary of State are necessary and proper for the enforcement
| ||||||
14 | of this Act, the Secretary of State or a person designated by | ||||||
15 | him or
her is empowered to administer oaths and affirmations, | ||||||
16 | subpoena witnesses,
take evidence, and require, by subpoena or | ||||||
17 | other lawful means provided by
this Act or the rules adopted by | ||||||
18 | the Secretary of State,
the production of any books and | ||||||
19 | records, papers,
or other
documents which the Secretary of | ||||||
20 | State or a person designated by him
or her deems relevant or | ||||||
21 | material to the inquiry.
| ||||||
22 | (2) The Secretary of
State or a person designated by him or | ||||||
23 | her is further empowered to
administer oaths and affirmations, | ||||||
24 | subpoena witnesses, take evidence, and
require the production | ||||||
25 | of any books and records, papers, or other documents
in this
| ||||||
26 | State at the request of a securities agency of another state, |
| |||||||
| |||||||
1 | if the
activities constituting the alleged violation for which | ||||||
2 | the information is
sought would be in violation of Section 12 | ||||||
3 | of this Act if the activities
had occurred in this State.
| ||||||
4 | (3) The Circuit Court of any County of this State, upon | ||||||
5 | application of the
Secretary of State or a person designated by | ||||||
6 | him or her may order the
attendance of witnesses, the | ||||||
7 | production of books and records, papers, accounts
and documents | ||||||
8 | and the giving of testimony before the Secretary of State or a
| ||||||
9 | person designated by him or her; and any failure to obey the | ||||||
10 | order
may be punished by the Circuit Court as a contempt | ||||||
11 | thereof.
| ||||||
12 | (4) The fees of subpoenaed witnesses under this Act for
| ||||||
13 | attendance and travel shall be the same as fees of witnesses | ||||||
14 | before the
Circuit Courts of this State, to be paid when the | ||||||
15 | witness
is excused from further attendance, provided, the | ||||||
16 | witness is
subpoenaed at the instance of the Secretary of | ||||||
17 | State; and payment of the fees shall be made and audited in the | ||||||
18 | same manner as other expenses of
the Secretary of State.
| ||||||
19 | (5) Whenever a subpoena is issued at the request of a | ||||||
20 | complainant or
respondent as the case may be, the Secretary of | ||||||
21 | State may require that the cost
of service and the fee of the | ||||||
22 | witness shall be borne by the party at whose
instance the | ||||||
23 | witness is summoned.
| ||||||
24 | (6) The Secretary of State shall have power at his or her | ||||||
25 | discretion, to
require a deposit to cover the cost of the | ||||||
26 | service and
witness fees and the payment of the legal witness |
| |||||||
| |||||||
1 | fee and mileage to the
witness served with subpoena.
| ||||||
2 | (7) A subpoena issued under this Act shall be served in the | ||||||
3 | same manner
as a subpoena issued out of a circuit court.
| ||||||
4 | (8) The Secretary of State may in any investigation, | ||||||
5 | audits, examinations,
or inspections cause the taking of | ||||||
6 | depositions of persons residing within or
without this State in | ||||||
7 | the manner provided in civil actions under the laws of
this | ||||||
8 | State.
| ||||||
9 | E. Anything in this Act to the contrary notwithstanding:
| ||||||
10 | (1) If the Secretary of State shall find that the offer | ||||||
11 | or sale or
proposed offer or sale or method of offer or | ||||||
12 | sale of any securities by any
person, whether exempt or | ||||||
13 | not, in this State, is fraudulent, or would
work or tend to | ||||||
14 | work a fraud or deceit, or is being offered or sold in
| ||||||
15 | violation of Section 12,
or there has been a failure or | ||||||
16 | refusal to submit any notification filing or
fee required | ||||||
17 | under this Act,
the Secretary of State may by written order | ||||||
18 | prohibit
or suspend the offer or sale of securities by that | ||||||
19 | person or deny or revoke the
registration of the securities | ||||||
20 | or the exemption from registration
for the securities.
| ||||||
21 | (2) If the Secretary of State shall find that any | ||||||
22 | person has violated
subsection C, D, E, F, G, H, I, J, or K | ||||||
23 | of Section 12 of
this Act, the Secretary of State may by | ||||||
24 | written order temporarily or
permanently prohibit or | ||||||
25 | suspend the person from offering or
selling any securities, | ||||||
26 | any mineral
investment contract, or any mineral deferred |
| |||||||
| |||||||
1 | delivery contract in this
State, provided that any person | ||||||
2 | who is the subject of an order of
permanent prohibition may | ||||||
3 | petition the Secretary of State for a hearing to
present | ||||||
4 | evidence of rehabilitation or change in circumstances | ||||||
5 | justifying
the amendment or termination of the order of | ||||||
6 | permanent prohibition.
| ||||||
7 | (3) If the Secretary of State shall find that any | ||||||
8 | person is engaging or
has engaged in the business of | ||||||
9 | selling or offering for sale securities as a
dealer, | ||||||
10 | Internet portal, or salesperson or is acting or has acted | ||||||
11 | as an investment adviser,
investment adviser | ||||||
12 | representative, or
federal covered investment adviser,
| ||||||
13 | without prior thereto and at the time thereof having | ||||||
14 | complied with the
registration or notice filing | ||||||
15 | requirements of this Act, the Secretary of
State may by
| ||||||
16 | written order prohibit or suspend the person from engaging | ||||||
17 | in the
business of selling or offering for sale securities, | ||||||
18 | or acting as an investment
adviser, investment adviser | ||||||
19 | representative, or federal covered investment
adviser, in | ||||||
20 | this State.
| ||||||
21 | (4) In addition to any other sanction or remedy | ||||||
22 | contained in this
subsection E, the Secretary of State, | ||||||
23 | after finding that any provision of
this Act has been | ||||||
24 | violated, may impose a fine as provided by rule,
regulation | ||||||
25 | or order not to exceed $10,000 for each
violation of this | ||||||
26 | Act, may
issue an order of public censure against the |
| |||||||
| |||||||
1 | violator, and may charge as
costs of investigation all | ||||||
2 | reasonable expenses, including attorney's fees and
witness | ||||||
3 | fees.
| ||||||
4 | F. (1) The Secretary of State shall not deny, suspend or | ||||||
5 | revoke the
registration of securities, suspend or revoke the | ||||||
6 | registration of a
dealer, Internet portal, salesperson, | ||||||
7 | investment adviser, or investment adviser
representative, | ||||||
8 | prohibit or suspend the
offer or sale of any securities, | ||||||
9 | prohibit or suspend any person from
offering or selling any | ||||||
10 | securities in this State, prohibit or
suspend a dealer or | ||||||
11 | salesperson from engaging in the business of selling or
| ||||||
12 | offering for sale securities, prohibit or suspend a person from | ||||||
13 | acting as
an investment adviser or federal covered investment | ||||||
14 | adviser, or investment
adviser representative, impose any
fine | ||||||
15 | for violation of this Act, issue an
order of public censure, or | ||||||
16 | enter into an agreed settlement except after an
opportunity for | ||||||
17 | hearing upon not less than 10 days notice given by personal
| ||||||
18 | service or registered mail or certified mail, return receipt | ||||||
19 | requested, to
the person or persons concerned. Such notice | ||||||
20 | shall state the date and time
and place of the hearing and | ||||||
21 | shall contain a brief statement of
the proposed action of the | ||||||
22 | Secretary of State and the grounds for
the proposed action. A | ||||||
23 | failure to appear at the hearing or
otherwise respond to the | ||||||
24 | allegations set forth in the notice of
hearing shall constitute | ||||||
25 | an admission of any facts alleged therein and shall
constitute | ||||||
26 | sufficient basis to enter an order.
|
| |||||||
| |||||||
1 | (2) Anything herein contained to the contrary | ||||||
2 | notwithstanding, the Secretary
of State may temporarily | ||||||
3 | prohibit or suspend, for a maximum period of 90 days,
by an | ||||||
4 | order effective immediately, the offer or sale or registration | ||||||
5 | of
securities, the registration of a dealer, Internet portal, | ||||||
6 | salesperson, investment
adviser, or investment adviser | ||||||
7 | representative, or
the offer or sale of securities by any | ||||||
8 | person, or the business of rendering
investment advice, without | ||||||
9 | the notice and prior hearing in this subsection
prescribed, if | ||||||
10 | the Secretary of State shall in his or her opinion, based on
| ||||||
11 | credible evidence, deem it necessary to prevent an imminent | ||||||
12 | violation of this
Act or to prevent losses to investors which | ||||||
13 | the Secretary of State reasonably
believes will occur as a | ||||||
14 | result of a prior violation of this Act. Immediately
after | ||||||
15 | taking action without such notice and hearing, the Secretary
of | ||||||
16 | State shall deliver a copy of the
temporary order to the | ||||||
17 | respondent named therein by personal service or
registered mail | ||||||
18 | or certified mail, return receipt requested. The temporary
| ||||||
19 | order shall set forth the grounds for the action and shall | ||||||
20 | advise that the
respondent may request a hearing, that
the | ||||||
21 | request for a hearing will not stop the effectiveness of the | ||||||
22 | temporary
order and that respondent's failure to request a | ||||||
23 | hearing within 30 days
after the date of the entry of the | ||||||
24 | temporary order shall constitute an
admission of any facts | ||||||
25 | alleged therein and shall constitute sufficient
basis to make | ||||||
26 | the temporary order final. Any provision of this paragraph
(2) |
| |||||||
| |||||||
1 | to the contrary notwithstanding, the Secretary of State may not
| ||||||
2 | pursuant to the provisions of this paragraph (2) suspend the | ||||||
3 | registration
of a dealer, limited Canadian dealer, | ||||||
4 | salesperson, investment
adviser, or investment adviser | ||||||
5 | representative based upon sub-paragraph (n)
of paragraph (l) of | ||||||
6 | subsection E of Section 8 of this Act or revoke
the | ||||||
7 | registration of securities or revoke the registration of any
| ||||||
8 | dealer, salesperson, investment adviser representative, or | ||||||
9 | investment
adviser.
| ||||||
10 | (3) The Secretary of State may issue a temporary order | ||||||
11 | suspending or
delaying the effectiveness of any registration of | ||||||
12 | securities under
subsection A or B of Section 5, 6 or 7 of this | ||||||
13 | Act subsequent to and upon
the basis of the issuance of any | ||||||
14 | stop, suspension or similar order by the
Securities and | ||||||
15 | Exchange Commission with respect to the securities which are
| ||||||
16 | the subject of the registration under subsection A or B of | ||||||
17 | Section 5, 6 or
7 of this Act, and the order shall become | ||||||
18 | effective as of the date
and time of effectiveness of the | ||||||
19 | Securities and Exchange Commission order and
shall be vacated | ||||||
20 | automatically at such time as the order of the
Securities and | ||||||
21 | Exchange Commission is no longer in effect.
| ||||||
22 | (4) When the Secretary of State finds that an application | ||||||
23 | for registration
as a dealer, Internet portal, salesperson, | ||||||
24 | investment adviser, or investment
adviser representative | ||||||
25 | should be denied, the Secretary
of State may enter an order | ||||||
26 | denying the registration. Immediately
after taking such |
| |||||||
| |||||||
1 | action, the Secretary of State shall deliver a
copy of the | ||||||
2 | order to the respondent named therein by personal service or
| ||||||
3 | registered mail or certified mail, return receipt requested. | ||||||
4 | The order shall
state the grounds for the action and that the | ||||||
5 | matter will be set
for hearing upon written request filed with | ||||||
6 | the Secretary of State within 30
days after the receipt of the | ||||||
7 | request by the respondent. The
respondent's failure to request | ||||||
8 | a hearing within 30 days after receipt of
the order shall | ||||||
9 | constitute an admission of any facts alleged
therein and shall | ||||||
10 | make the order final. If a hearing is held, the
Secretary of | ||||||
11 | State shall affirm, vacate, or modify the order.
| ||||||
12 | (5) The findings and decision of the Secretary of State | ||||||
13 | upon the
conclusion of each final hearing held pursuant to this | ||||||
14 | subsection shall
be set forth in a written order signed on | ||||||
15 | behalf of the Secretary of
State by his or her designee and | ||||||
16 | shall be filed as a public record. All
hearings shall be held | ||||||
17 | before a person designated by the Secretary of State,
and | ||||||
18 | appropriate records thereof shall be kept.
| ||||||
19 | (6) Notwithstanding the foregoing, the Secretary of State, | ||||||
20 | after
notice and opportunity for hearing, may at his or her | ||||||
21 | discretion enter into
an agreed settlement, stipulation or | ||||||
22 | consent order with a respondent in
accordance with the | ||||||
23 | provisions of the Illinois Administrative
Procedure Act. The | ||||||
24 | provisions of the agreed settlement, stipulation or
consent | ||||||
25 | order shall have the full force and effect of an order issued | ||||||
26 | by the
Secretary of State.
|
| |||||||
| |||||||
1 | (7) Anything in this Act to the contrary notwithstanding, | ||||||
2 | whenever
the Secretary of State finds that a person is | ||||||
3 | currently expelled from, refused
membership in or association | ||||||
4 | with, or limited in any material capacity by a
self-regulatory | ||||||
5 | organization registered under the Federal 1934 Act or the
| ||||||
6 | Federal 1974 Act because of a fraudulent or deceptive act or a | ||||||
7 | practice in
violation of a rule, regulation, or standard duly | ||||||
8 | promulgated by the
self-regulatory organization, the Secretary | ||||||
9 | of State may, at his or her
discretion, enter a Summary Order | ||||||
10 | of Prohibition, which shall prohibit the
offer
or sale of any | ||||||
11 | securities, mineral investment contract, or mineral deferred
| ||||||
12 | delivery contract by the person in this State. The order shall | ||||||
13 | take effect
immediately upon its entry. Immediately after | ||||||
14 | taking the action the Secretary
of State shall deliver a copy | ||||||
15 | of the order to the named Respondent by
personal service or | ||||||
16 | registered mail or certified mail, return receipt
requested. A | ||||||
17 | person who is the subject of an Order of Prohibition may
| ||||||
18 | petition the Secretary of State for a hearing to present | ||||||
19 | evidence of
rehabilitation or change in circumstances | ||||||
20 | justifying the
amendment or termination of the Order of | ||||||
21 | Prohibition.
| ||||||
22 | G. No administrative action shall be brought by the | ||||||
23 | Secretary of State
for relief under this Act or upon or because | ||||||
24 | of any of the matters for
which relief is granted by this Act | ||||||
25 | after the earlier to occur of (i) 3
years from the date upon | ||||||
26 | which the Secretary of State had notice of facts
which in the |
| |||||||
| |||||||
1 | exercise of reasonable diligence would lead to actual
knowledge | ||||||
2 | of the alleged violation of the Act, or (ii) 5 years from the
| ||||||
3 | date on which the alleged violation occurred.
| ||||||
4 | H. The action of the Secretary of State in denying, | ||||||
5 | suspending, or revoking
the registration of a dealer, Internet | ||||||
6 | portal, limited Canadian dealer, salesperson, investment | ||||||
7 | adviser, or investment adviser representative, in
prohibiting
| ||||||
8 | any person from engaging in the business of offering or selling | ||||||
9 | securities as a
dealer, limited Canadian dealer, or | ||||||
10 | salesperson, in prohibiting or
suspending the offer or sale of
| ||||||
11 | securities by any person, in prohibiting a person from acting | ||||||
12 | as an investment
adviser, federal covered investment adviser, | ||||||
13 | or investment adviser
representative, in denying, suspending, | ||||||
14 | or
revoking the registration of securities, in
prohibiting or | ||||||
15 | suspending the offer or sale or proposed offer or sale of
| ||||||
16 | securities, in imposing any fine for violation of this Act, or | ||||||
17 | in issuing any
order shall be subject to judicial review in the | ||||||
18 | Circuit Courts
of
Cook or Sangamon Counties in this State. The
| ||||||
19 | Administrative Review
Law shall apply to and
govern every | ||||||
20 | action for the judicial review of final actions or decisions
of | ||||||
21 | the Secretary of State under this Act.
| ||||||
22 | I. Notwithstanding any other provisions of this Act to the | ||||||
23 | contrary,
whenever it shall appear to the Secretary of State | ||||||
24 | that any
person is engaged or about to engage in any acts or | ||||||
25 | practices which
constitute or will constitute a violation of | ||||||
26 | this Act or of any rule or
regulation prescribed under |
| |||||||
| |||||||
1 | authority of this Act, the Secretary of State
may at his or her | ||||||
2 | discretion, through the Attorney General take any of the
| ||||||
3 | following actions:
| ||||||
4 | (1) File a complaint and apply for a temporary | ||||||
5 | restraining order without
notice, and upon a proper showing | ||||||
6 | the court may enter a temporary
restraining order without | ||||||
7 | bond, to enforce this Act.
| ||||||
8 | (2) File a complaint and apply for a preliminary or | ||||||
9 | permanent
injunction, and, after notice and a hearing and | ||||||
10 | upon a proper showing,
the court may grant a preliminary or | ||||||
11 | permanent injunction and may order the
defendant to make an | ||||||
12 | offer of rescission with respect to any sales or
purchases | ||||||
13 | of securities, mineral investment contracts, or mineral
| ||||||
14 | deferred delivery contracts determined by the court to be | ||||||
15 | unlawful under
this Act.
| ||||||
16 | (3) Seek the seizure of assets when probable cause | ||||||
17 | exists that the
assets
were
obtained by a defendant through | ||||||
18 | conduct in violation of Section 12,
paragraph F, G, I, J, | ||||||
19 | K, or L of this Act, and thereby subject to a judicial
| ||||||
20 | forfeiture hearing as required under this Act.
| ||||||
21 | (a) In the event that such probable cause exists | ||||||
22 | that the subject of an
investigation who is alleged to | ||||||
23 | have committed one of the relevant
violations of this | ||||||
24 | Act has in his possession assets obtained as a
result | ||||||
25 | of the conduct giving rise to the violation, the | ||||||
26 | Secretary of
State may seek a seizure warrant in any |
| |||||||
| |||||||
1 | circuit court in Illinois.
| ||||||
2 | (b) In seeking a seizure warrant, the Secretary of | ||||||
3 | State, or his
or her designee, shall submit to the | ||||||
4 | court a sworn affidavit detailing the
probable cause | ||||||
5 | evidence for the seizure, the location of the assets
to | ||||||
6 | be seized, the relevant violation under Section 12 of | ||||||
7 | this Act, and
a statement detailing any known owners or | ||||||
8 | interest holders in the
assets.
| ||||||
9 | (c) Seizure of the assets shall be made by any | ||||||
10 | peace officer upon
process of the seizure warrant | ||||||
11 | issued by the court. Following the
seizure of assets | ||||||
12 | under this Act and pursuant to a seizure warrant,
| ||||||
13 | notice of seizure, including a description of the | ||||||
14 | seized assets, shall
immediately be returned to the | ||||||
15 | issuing court. Seized assets shall be
maintained | ||||||
16 | pending a judicial forfeiture hearing in accordance | ||||||
17 | with
the instructions of the court.
| ||||||
18 | (d) In the event that management of seized assets | ||||||
19 | becomes necessary
to prevent the devaluation, | ||||||
20 | dissipation, or otherwise to preserve the
property, | ||||||
21 | the court shall have jurisdiction to appoint a | ||||||
22 | receiver,
conservator, ancillary receiver, or | ||||||
23 | ancillary conservator for that
purpose, as provided in | ||||||
24 | item (2) of this subsection.
| ||||||
25 | (4) Seek the forfeiture of assets obtained through | ||||||
26 | conduct in violation of
Section 12, paragraph F, G, H, I, |
| |||||||
| |||||||
1 | J, K, or L when authorized by law. A
forfeiture must be | ||||||
2 | ordered by a circuit court or an action brought by the
| ||||||
3 | Secretary of State as provided for in this Act, under a | ||||||
4 | verified complaint
for forfeiture.
| ||||||
5 | (a) In the event assets have been seized pursuant | ||||||
6 | to this Act,
forfeiture
proceedings shall be | ||||||
7 | instituted by the Attorney General within 45
days of | ||||||
8 | seizure.
| ||||||
9 | (b) Service of the complaint filed under the | ||||||
10 | provisions of this Act
shall
be made in the manner as | ||||||
11 | provided in civil actions in this State.
| ||||||
12 | (c) Only an owner of or interest holder in the | ||||||
13 | property may file an
answer asserting a claim against | ||||||
14 | the property. For purposes of this Section,
the owner | ||||||
15 | or interest holder shall be
referred to as claimant.
| ||||||
16 | (d) The answer must be signed by the owner or | ||||||
17 | interest holder under
penalty of perjury and must set | ||||||
18 | forth:
| ||||||
19 | (i) the caption of the proceedings as set forth | ||||||
20 | on the notice of
pending forfeiture and the name of | ||||||
21 | the claimant;
| ||||||
22 | (ii) the address at which the claimant will | ||||||
23 | accept mail;
| ||||||
24 | (iii) the nature and extent of the claimant's | ||||||
25 | interest in the
property;
| ||||||
26 | (iv) the date, identity of the transferor, and |
| |||||||
| |||||||
1 | circumstances of the
claimant's acquisition of the | ||||||
2 | interest in the property;
| ||||||
3 | (v) the names and addresses name and address of | ||||||
4 | all other persons known to have an
interest in the | ||||||
5 | property;
| ||||||
6 | (vi) the specific provisions of this Act | ||||||
7 | relied on in asserting that
the
property is not | ||||||
8 | subject to forfeiture;
| ||||||
9 | (vii) all essential facts supporting each | ||||||
10 | assertion; and
| ||||||
11 | (viii) the precise relief sought.
| ||||||
12 | (e) The answer must be filed with the court within | ||||||
13 | 45 days after service
of the complaint.
| ||||||
14 | (f) A property interest is exempt from forfeiture | ||||||
15 | under this Act if its
owner or interest holder | ||||||
16 | establishes by a preponderance of
evidence that the | ||||||
17 | owner or interest holder:
| ||||||
18 | (i) is not legally accountable for the conduct | ||||||
19 | giving rise to
the forfeiture, did not acquiesce in | ||||||
20 | it, and did not know
and could not reasonably have | ||||||
21 | known of the conduct or
that the conduct was likely | ||||||
22 | to occur;
| ||||||
23 | (ii) with respect to conveyances, did not hold | ||||||
24 | the property
jointly or in common with a person | ||||||
25 | whose conduct gave
rise to the forfeiture;
| ||||||
26 | (iii) does not hold the property for the |
| |||||||
| |||||||
1 | benefit of or as a
nominee for any person whose | ||||||
2 | conduct gave rise to its
forfeiture and the owner | ||||||
3 | or interest holder acquires it
as a bona fide | ||||||
4 | purchaser for value without knowingly
taking part | ||||||
5 | in the conduct giving rise to the forfeiture; or
| ||||||
6 | (iv) acquired the interest after the
| ||||||
7 | commencement of the conduct giving rise to its | ||||||
8 | forfeiture
and the owner or interest holder | ||||||
9 | acquired the interest as a
mortgagee, secured | ||||||
10 | creditor, lienholder, or bona fide
purchaser for | ||||||
11 | value without knowledge of the conduct
that gave | ||||||
12 | rise to the forfeiture.
| ||||||
13 | (g) The hearing must be held within 60 days after | ||||||
14 | the answer is filed
unless continued for good cause.
| ||||||
15 | (h) During the probable cause portion of the | ||||||
16 | judicial in rem proceeding
wherein the Secretary of | ||||||
17 | State presents its case-in-chief, the court
must | ||||||
18 | receive and consider, among other things, any relevant
| ||||||
19 | hearsay evidence and information. The laws of evidence | ||||||
20 | relating
to civil actions shall apply to all other | ||||||
21 | portions of the judicial in
rem proceeding.
| ||||||
22 | (i) The Secretary of State shall show the existence | ||||||
23 | of probable cause
for forfeiture of the property. If | ||||||
24 | the Secretary of State shows
probable cause, the | ||||||
25 | claimant has the burden of showing by a
preponderance | ||||||
26 | of the evidence that the claimant's interest in the
|
| |||||||
| |||||||
1 | property is not subject to forfeiture.
| ||||||
2 | (j) If the Secretary of State does not show the | ||||||
3 | existence of probable
cause or a claimant has an | ||||||
4 | interest that is exempt under
subdivision I (4)(d) of | ||||||
5 | this Section, the court shall order the interest in the
| ||||||
6 | property returned
or conveyed to the claimant and shall | ||||||
7 | order all other property
forfeited to the Secretary of | ||||||
8 | State pursuant to all provisions of this Act. If
the | ||||||
9 | Secretary of State does show the existence of probable
| ||||||
10 | cause and the claimant does not establish by a | ||||||
11 | preponderance of
the evidence that the claimant has an | ||||||
12 | interest that is exempt under
subsection D herein, the | ||||||
13 | court shall order all the property forfeited
to the | ||||||
14 | Secretary of State pursuant to the provisions of the | ||||||
15 | Section.
| ||||||
16 | (k) A defendant convicted in any criminal | ||||||
17 | proceeding is precluded
from later denying the | ||||||
18 | essential allegations of the criminal offense
of which | ||||||
19 | the defendant was convicted in any proceeding for
| ||||||
20 | violations of the Act giving rise to forfeiture of | ||||||
21 | property herein
regardless of the pendency of an appeal | ||||||
22 | from that conviction.
However, evidence of the | ||||||
23 | pendency of an appeal is admissible.
| ||||||
24 | (l) An acquittal or dismissal in a criminal | ||||||
25 | proceeding for violations of
the Act giving rise to the | ||||||
26 | forfeiture of property herein shall not
preclude civil |
| |||||||
| |||||||
1 | proceedings under this provision; however, for good
| ||||||
2 | cause shown, on a motion by the Secretary of State, the | ||||||
3 | court may
stay civil forfeiture proceedings during the | ||||||
4 | criminal trial for a
related criminal indictment or | ||||||
5 | information alleging violation of the
provisions of | ||||||
6 | Section 12 of the Illinois Securities Law of 1953.
| ||||||
7 | Property subject to forfeiture under this Section | ||||||
8 | shall not be subject
to return or release by a court | ||||||
9 | exercising jurisdiction over a
criminal case involving | ||||||
10 | the seizure of the property unless the return
or | ||||||
11 | release is consented to by the Secretary of State.
| ||||||
12 | (m) All property declared forfeited under this Act | ||||||
13 | vests in the State on
the commission of the conduct | ||||||
14 | giving rise to forfeiture together
with the proceeds of | ||||||
15 | the property after that time. Any such
property or | ||||||
16 | proceeds subsequently transferred to any person remain
| ||||||
17 | subject to forfeiture and thereafter shall be ordered | ||||||
18 | forfeited unless
the transferee claims and establishes | ||||||
19 | in a hearing under the
provisions of this Act that the | ||||||
20 | transferee's interest is exempt under
the Act. Any | ||||||
21 | assets forfeited to the State shall be disposed of in
| ||||||
22 | following manner:
| ||||||
23 | (i) all forfeited property and assets shall be | ||||||
24 | liquidated by the
Secretary of State in accordance | ||||||
25 | with all laws and
rules governing the disposition | ||||||
26 | of such property;
|
| |||||||
| |||||||
1 | (ii) the Secretary of State shall provide the | ||||||
2 | court at the time the
property and assets are | ||||||
3 | declared forfeited a verified
statement of | ||||||
4 | investors subject to the conduct giving rise to the
| ||||||
5 | forfeiture;
| ||||||
6 | (iii) after payment of any costs of sale, | ||||||
7 | receivership, storage, or
expenses for | ||||||
8 | preservation of the property seized, other costs
| ||||||
9 | to the State, and payment to claimants for any | ||||||
10 | amount
deemed exempt from forfeiture, the proceeds | ||||||
11 | from
liquidation shall be distributed pro rata to | ||||||
12 | investors subject to the
conduct giving rise to the | ||||||
13 | forfeiture; and
| ||||||
14 | (iv) any proceeds remaining after all verified | ||||||
15 | investors have
been made whole shall be | ||||||
16 | distributed 25% to the
Securities Investors | ||||||
17 | Education Fund, 25%
to the Securities Audit and
| ||||||
18 | Enforcement Fund, 25% to the Attorney General or | ||||||
19 | any
State's Attorney bringing criminal charges for | ||||||
20 | the conduct
giving rise to the forfeiture, and 25% | ||||||
21 | to other law
enforcement agencies participating in | ||||||
22 | the investigation of
the criminal charges for the | ||||||
23 | conduct giving rise to the
forfeiture. In the event | ||||||
24 | that no other law enforcement
agencies are | ||||||
25 | involved in the investigation of the conduct
| ||||||
26 | giving rise to the forfeiture, then the portion to |
| |||||||
| |||||||
1 | other law
enforcement agencies shall be | ||||||
2 | distributed to the
Securities Investors Education | ||||||
3 | Fund.
| ||||||
4 | (n) The Secretary of State shall notify by | ||||||
5 | certified mail, return
receipt
requested, all known | ||||||
6 | investors in the matter giving rise to the forfeiture
| ||||||
7 | of the forfeiture proceeding and sale of assets | ||||||
8 | forfeited arising from the
violations of this Act, and | ||||||
9 | shall further publish notice in a paper of
general | ||||||
10 | circulation in the district in which the violations | ||||||
11 | were prosecuted.
The notice to investors shall | ||||||
12 | identify the name, address, and other
identifying | ||||||
13 | information about any defendant prosecuted for | ||||||
14 | violations
of this Act that resulted in forfeiture and | ||||||
15 | sale of property, the offense
for which the defendant | ||||||
16 | was convicted, and that the court has ordered
| ||||||
17 | forfeiture and sale of property for claims of investors | ||||||
18 | who incurred losses
or damages as a result of the | ||||||
19 | violations. Investors may then file a claim
in a form | ||||||
20 | prescribed by the Secretary of State in order to share | ||||||
21 | in
disbursement of the proceeds from sale of the | ||||||
22 | forfeited property.
Investor claims must be filed with | ||||||
23 | the Secretary of State within 30 days
after receipt of | ||||||
24 | the certified mail return receipt, or within 30 days | ||||||
25 | after the
last
date of publication of the general | ||||||
26 | notice in a paper of general circulation
in the |
| |||||||
| |||||||
1 | district in which the violations were prosecuted, | ||||||
2 | whichever occurs
last.
| ||||||
3 | (o) A civil action under this subsection must be | ||||||
4 | commenced within 5
years
after
the last conduct giving | ||||||
5 | rise to the forfeiture became known or should
have | ||||||
6 | become known or 5 years after the forfeitable property | ||||||
7 | is
discovered, whichever is later, excluding time | ||||||
8 | during which either the
property or claimant is out of | ||||||
9 | this State or in confinement or during which
criminal | ||||||
10 | proceedings relating to the same conduct are in | ||||||
11 | progress.
| ||||||
12 | (p) If property is seized for evidence and for | ||||||
13 | forfeiture, the time
periods
for
instituting judicial | ||||||
14 | forfeiture proceedings shall not begin until the
| ||||||
15 | property is no longer necessary for evidence.
| ||||||
16 | (q) Notwithstanding other provisions of this Act, | ||||||
17 | the Secretary of State
and
a
claimant of forfeitable | ||||||
18 | property may enter into an agreed-upon settlement
| ||||||
19 | concerning the forfeitable property in such an amount | ||||||
20 | and upon such
terms as are set out in writing in a | ||||||
21 | settlement agreement.
| ||||||
22 | (r) Nothing in this Act shall apply to property | ||||||
23 | that constitutes
reasonable
bona
fide attorney's fees | ||||||
24 | paid to an attorney for services rendered or to be
| ||||||
25 | rendered in the forfeiture proceeding or criminal | ||||||
26 | proceeding relating
directly thereto when the property |
| |||||||
| |||||||
1 | was paid before its seizure and before
the issuance of | ||||||
2 | any seizure warrant or court order prohibiting | ||||||
3 | transfer of
the property and when the attorney, at the | ||||||
4 | time he or she received the
property, did not know that | ||||||
5 | it was property subject to forfeiture under
this Act.
| ||||||
6 | The court shall further have jurisdiction and authority, in | ||||||
7 | addition to the
penalties and other remedies in this Act | ||||||
8 | provided, to enter an order for
the appointment of the court or | ||||||
9 | a person as a receiver, conservator,
ancillary receiver or | ||||||
10 | ancillary conservator for the defendant or the
defendant's | ||||||
11 | assets located in this State, or to require restitution,
| ||||||
12 | damages or disgorgement of profits on behalf of the person or | ||||||
13 | persons
injured by the act or practice constituting the subject | ||||||
14 | matter of the
action, and may assess costs against the | ||||||
15 | defendant for the use of the
State; provided, however, that the | ||||||
16 | civil remedies of rescission and
appointment of a receiver, | ||||||
17 | conservator, ancillary receiver
or ancillary conservator shall | ||||||
18 | not be available against any person by
reason of the failure to | ||||||
19 | file with the Secretary of State, or on account of
the contents | ||||||
20 | of, any report of sale provided for in subsection G or P of
| ||||||
21 | Section 4, paragraph (2) of subsection D of Sections 5 and 6, | ||||||
22 | or paragraph
(2) of subsection F of Section 7 of this Act. | ||||||
23 | Appeals may be
taken as in other civil cases.
| ||||||
24 | I-5. Property forfeited under this Section is subject to | ||||||
25 | reporting under the Seizure and Forfeiture Reporting Act. | ||||||
26 | J. In no case shall the Secretary of State, or any of his |
| |||||||
| |||||||
1 | or her
employees or agents, in the administration of this Act, | ||||||
2 | incur any official or
personal liability by instituting an | ||||||
3 | injunction or other proceeding or
by denying, suspending or | ||||||
4 | revoking the registration of a dealer or
salesperson, or by | ||||||
5 | denying, suspending or revoking the registration of
securities | ||||||
6 | or prohibiting the offer or sale of securities, or by | ||||||
7 | suspending or
prohibiting any person from acting as a dealer, | ||||||
8 | limited Canadian dealer,
salesperson, investment adviser, or | ||||||
9 | investment adviser
representative or from offering or selling | ||||||
10 | securities.
| ||||||
11 | K. No provision of this Act shall be construed to require | ||||||
12 | or to
authorize the Secretary of State to require any | ||||||
13 | investment adviser
or federal covered investment adviser | ||||||
14 | engaged in rendering investment
supervisory services to | ||||||
15 | disclose the
identity, investments, or affairs of any client of | ||||||
16 | the investment
adviser or federal covered investment adviser, | ||||||
17 | except insofar as the
disclosure may be necessary or
| ||||||
18 | appropriate in a particular proceeding or investigation having | ||||||
19 | as its
object the enforcement of this Act.
| ||||||
20 | L. Whenever, after an examination, investigation or
| ||||||
21 | hearing, the Secretary of State deems it of public interest or | ||||||
22 | advantage,
he or she may certify a record to the State's | ||||||
23 | Attorney of the county in
which the act complained of, examined | ||||||
24 | or investigated occurred. The
State's Attorney of that county | ||||||
25 | within 90 days after receipt of the record
shall file a written | ||||||
26 | statement at the Office of the Secretary of State,
which |
| |||||||
| |||||||
1 | statement shall set forth the action taken upon the record, or | ||||||
2 | if no
action has been taken upon the record that fact, together | ||||||
3 | with the reasons
therefor, shall be stated.
| ||||||
4 | M. The Secretary of State may initiate, take, pursue, or | ||||||
5 | prosecute any
action authorized or permitted under Section 6d | ||||||
6 | of the Federal 1974 Act.
| ||||||
7 | N. (1) Notwithstanding any provision of this Act to the | ||||||
8 | contrary, to
encourage uniform interpretation, administration, | ||||||
9 | and enforcement of the
provisions of this Act, the Secretary of | ||||||
10 | State may cooperate with the
securities agencies or | ||||||
11 | administrators of one or more states, Canadian provinces
or | ||||||
12 | territories, or another country, the Securities and Exchange | ||||||
13 | Commission, the
Commodity Futures Trading Commission, the | ||||||
14 | Securities Investor Protection
Corporation, any | ||||||
15 | self-regulatory organization, and any governmental law
| ||||||
16 | enforcement or regulatory agency.
| ||||||
17 | (2) The cooperation authorized by paragraph (1) of this | ||||||
18 | subsection includes,
but is not limited to, the following:
| ||||||
19 | (a) establishing or participating in a central | ||||||
20 | depository or depositories
for registration under this Act | ||||||
21 | and for documents or records required under
this Act;
| ||||||
22 | (b) making a joint audit, inspection, examination, or | ||||||
23 | investigation;
| ||||||
24 | (c) holding a joint administrative hearing;
| ||||||
25 | (d) filing and prosecuting a joint civil or criminal | ||||||
26 | proceeding;
|
| |||||||
| |||||||
1 | (e) sharing and exchanging personnel;
| ||||||
2 | (f) sharing and exchanging information and documents; | ||||||
3 | or
| ||||||
4 | (g) issuing any joint statement or policy.
| ||||||
5 | (Source: P.A. 99-182, eff. 1-1-16; 100-512, eff. 7-1-18.)
| ||||||
6 | Section 50. "AN ACT concerning criminal law", approved | ||||||
7 | September 19, 2017, (Public Act 100-0512) is amended by adding | ||||||
8 | Section 997 as follows: | ||||||
9 | Section 997. Savings clause. The provisions of this Act are | ||||||
10 | subject to Section 4 of the Statute on Statutes. | ||||||
11 | Section 95. No acceleration or delay. Where this Act makes | ||||||
12 | changes in a statute that is represented in this Act by text | ||||||
13 | that is not yet or no longer in effect (for example, a Section | ||||||
14 | represented by multiple versions), the use of that text does | ||||||
15 | not accelerate or delay the taking effect of (i) the changes | ||||||
16 | made by this Act or (ii) provisions derived from any other | ||||||
17 | Public Act.
| ||||||
18 | Section 99. Effective date. This Act takes effect July 1, | ||||||
19 | 2018.
|