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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;
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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
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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.