State of Illinois
91st General Assembly
Legislation

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91_SB0484

 
                                               LRB9105591RCks

 1        AN ACT in relation to forfeiture of gang property.

 2        Be it enacted by the People of  the  State  of  Illinois,
 3    represented in the General Assembly:

 4        Section  1.   Short  title.  This Act may be cited as the
 5    Gang Property Forfeiture Act.

 6        Section 5.  Definitions.  For the purposes of  this  Act,
 7    "gang"  and "gang members" have the meanings ascribed to them
 8    in Section 10 of the Illinois  Streetgang  Terrorism  Omnibus
 9    Prevention Act.

10        Section 10.  Forfeiture of gang property.
11        (a)  The following are subject to forfeiture:
12             (1)  all  conveyances,  including aircraft, vehicles
13        or vessels, which are used, or intended for use,  in  the
14        commission of an offense by a gang member, but:
15                  (i)  no  conveyance  used  by  any  person as a
16             common carrier in the transaction of business  as  a
17             common  carrier  is subject to forfeiture under this
18             Section unless it appears that the  owner  or  other
19             person  in  charge of the conveyance is a consenting
20             party or privy to a criminal violation committed  by
21             a gang member;
22                  (ii)  no  conveyance  is  subject to forfeiture
23             under this Section by reason of any act or  omission
24             which  the  owner  proves  to have been committed or
25             omitted without his or her knowledge or consent;
26                  (iii)  a forfeiture of a conveyance  encumbered
27             by  a  bona fide security interest is subject to the
28             interest of the secured party if he or  she  neither
29             had  knowledge  of  nor  consented  to  the  act  or
30             omission;

 
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 1             (2)  all money, things of value, books, records, and
 2        research   products  and  materials  including  formulas,
 3        microfilm, tapes, and data which are used, or intended to
 4        be used in  the  commission  of  a  criminal  offense  in
 5        furtherance of the activities of a gang;
 6             (3)  everything  of  value furnished, or intended to
 7        be furnished, in exchange for anything of value  obtained
 8        by the commission of a criminal offense in furtherance of
 9        the  activities of a gang, all proceeds traceable to such
10        an exchange, and all moneys, negotiable instruments,  and
11        securities  used, or intended to be used, to commit or in
12        any manner to facilitate any  criminal  activities  of  a
13        gang;
14             (4)  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 intended
19        to be used, in any manner or part, to commit, or  in  any
20        manner  to  facilitate  the  commission  of, any criminal
21        activities of a gang.
22        (b)  Property subject to forfeiture under this Act may be
23    seized by any peace officer upon process or  seizure  warrant
24    issued  by  any  court having jurisdiction over the property.
25    Seizure by any peace officer without process may be made:
26             (1)  if the seizure is incident to inspection  under
27        an administrative inspection warrant;
28             (2)  if the property subject to seizure has been the
29        subject  of  a  prior judgment in favor of the State in a
30        criminal proceeding, or in an  injunction  or  forfeiture
31        proceeding based upon this Act;
32             (3)  if  there is probable cause to believe that the
33        property is directly or indirectly dangerous to health or
34        safety;
 
                            -3-                LRB9105591RCks
 1             (4)  if there is probable cause to believe that  the
 2        property  is subject to forfeiture under this Act and the
 3        property  is  seized  under  circumstances  in  which   a
 4        warrantless seizure or arrest would be reasonable; or
 5             (5)  in   accordance   with  the  Code  of  Criminal
 6        Procedure of 1963.
 7        (c)  In the event of seizure pursuant to subsection  (b),
 8    forfeiture proceedings shall be instituted in accordance with
 9    this Act.
10        (d)  Property  taken or detained under this Section shall
11    not be subject to replevin,  but  is  deemed  to  be  in  the
12    custody  of the State subject only to the order and judgments
13    of the circuit court having jurisdiction over the  forfeiture
14    proceedings  and  the decisions of the State's Attorney under
15    this Act.  When  property  is  seized  under  this  Act,  the
16    seizing  agency  shall  promptly  conduct an inventory of the
17    seized property and estimate the property's value, and  shall
18    forward  a  copy  of the inventory of seized property and the
19    estimate  of  the  property's  value  to  the  court.    Upon
20    receiving notice of seizure, the court may order that:
21             (1)  the property be placed under seal;
22             (2)  the  property  be removed to a place designated
23        by the court;
24             (3)  the property be kept in the possession  of  the
25        seizing agency;
26             (4)  the  property  be removed to a storage area for
27        safekeeping  or,  if  the  property   is   a   negotiable
28        instrument  or  money  and  is not needed for evidentiary
29        purposes, order  it  deposited  in  an  interest  bearing
30        account;
31             (5)  the   property  be  placed  under  constructive
32        seizure by posting notice of pending forfeiture on it, by
33        giving notice of pending forfeiture  to  its  owners  and
34        interest   holders,   or  by  filing  notice  of  pending
 
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 1        forfeiture in any appropriate public record  relating  to
 2        the property; or
 3             (6)  another   agency  or  custodian,  including  an
 4        owner, secured party, or lienholder, to take  custody  of
 5        the  property  upon  the  terms and conditions set by the
 6        court.
 7        (e)  When property is forfeited under this Act the  court
 8    shall  order  the  sale  of  all  such  property  unless such
 9    property is required by law to be destroyed or is harmful  to
10    the  public,  and  shall distribute the proceeds of the sale,
11    together with any moneys forfeited or seized,  in  accordance
12    with  subsection  (f).   However, upon the application of the
13    seizing agency or prosecutor  who  was  responsible  for  the
14    investigation,  arrest  or arrests and prosecution which lead
15    to the forfeiture, the court may order the return of any item
16    of forfeited property to the seizing agency or prosecutor for
17    official use in the enforcement  of  laws  relating  to  gang
18    activities,  if the agency or prosecutor can demonstrate that
19    the  item  requested  would  be  useful  to  the  agency   or
20    prosecutor  in  their  enforcement  efforts.   When  any real
21    property returned to the seizing agency is sold by the agency
22    or its unit of government, the proceeds of the sale shall  be
23    delivered and distributed in accordance with subsection (f).
24        (f)  All  monies  and  the  sale  proceeds  of  all other
25    property  forfeited  and  seized  under  this  Act  shall  be
26    distributed as follows:
27             (1)  65% shall be distributed  to  the  metropolitan
28        enforcement group, local, municipal, county, or state law
29        enforcement   agency   or  agencies  which  conducted  or
30        participated  in  the  investigation  resulting  in   the
31        forfeiture.    The  distribution  shall bear a reasonable
32        relationship to the degree of direct participation of the
33        law enforcement agency in the  effort  resulting  in  the
34        forfeiture,  taking  into  account the total value of the
 
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 1        property forfeited and the total law  enforcement  effort
 2        with  respect  to the violation of the law upon which the
 3        forfeiture is based. Amounts distributed to the agency or
 4        agencies shall  be  used  for  the  enforcement  of  laws
 5        governing    gang   activities,   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             (2)(i)  12.5% shall be distributed to the Office  of
10        the   State's   Attorney  of  the  county  in  which  the
11        prosecution resulting in the forfeiture  was  instituted,
12        deposited  in  a  special fund in the county treasury and
13        appropriated to the  State's  Attorney  for  use  in  the
14        enforcement   of  laws  governing  gang  activities.   In
15        counties  over  3,000,000   population,   25%   will   be
16        distributed to the Office of the State's Attorney for use
17        in the enforcement of laws governing gang activities.  If
18        the  prosecution  is  undertaken  solely  by the Attorney
19        General,  the  portion  provided   hereunder   shall   be
20        distributed  to  the  Attorney  General  for  use  in the
21        enforcement of laws governing gang activities.
22             (ii)  12.5% shall be deposited  in  the  Gang  Crime
23        Witness   Protection  Fund  to  be  used  for  additional
24        expenses incurred in the investigation,  prosecution  and
25        appeal   of  cases  arising  under  laws  governing  gang
26        activities.
27             (3)  10% shall be retained by the court for expenses
28        related to the administration  and  sale  of  seized  and
29        forfeited property.

30        Section 15.  Action for forfeiture.  The Attorney General
31    or  State's  Attorney  may  institute  forfeiture proceedings
32    under this Act.  An action for forfeiture may be filed in the
33    circuit court of the county in  which  the  gang  member  was
 
                            -6-                LRB9105591RCks
 1    convicted  of an offense for which he or she derived property
 2    to facilitate the criminal activities of a gang.

 3        Section 20.  Notice of action and  hearing;  proceeds  of
 4    sale.   The Attorney General or State's Attorney bringing the
 5    forfeiture action under this Act shall  give  notice  of  the
 6    forfeiture  proceeding  by mailing a copy of the complaint in
 7    the forfeiture proceeding to the gang member  whose  property
 8    is the subject of the forfeiture proceeding.  The gang member
 9    whose  property  is  the subject of the forfeiture proceeding
10    may within 20 days after the mailing of  the  notice  file  a
11    verified  answer  to  the  complaint  and  may  appear at the
12    hearing on the action for forfeiture.  The State  shall  show
13    at  the  hearing by a preponderance of the evidence, that the
14    property is subject to forfeiture under this Act.  Unless the
15    State makes that showing, the court shall order the  property
16    returned  to  the  gang  member.   When  the State makes such
17    showing, the court may order  the  property  sold  at  public
18    auction.   The  proceeds  of any sale at public auction under
19    the Act shall be paid into the State Treasury and distributed
20    in accordance with Section 10 of this Act.

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