NOS. 4-99-0761, 4-99-0762 cons.

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

		Plaintiff,				)	Circuit Court of

		v.   (No. 4-99-0761)		)	Vermilion County

TRUMAN L. KEYS and CAROLYN E. KEYS,	)	No. 97CF460

		Defendants-Appellees,		)

		and						)

LARRY S. MILLS, State's Attorney of	)

Vermilion County, Illinois,			)

		Contemnor-Appellant.		)

________________________________________)

								)

THE PEOPLE OF THE STATE OF ILLINOIS,	)

		Plaintiff,				)

		v. 	(No. 4-99-0762)		)

TRUMAN L. KEYS and CAROLYN E. KEYS,	)	

		Defendants-Appellees,		)

		and						)	Honorable

DAN REED,							)	John P. O'Rourke,

		Contemnor-Appellant.		)	Judge Presiding.

_________________________________________________________________

		JUSTICE COOK delivered the opinion of the court:

		Contemnor Larry Mills is the State's Attorney of

Vermilion County.  Contemnor Dan Reed is the director of the

Vermilion County Metropolitan Enforcement Group (V-MEG), a police

agency consisting of several cooperating Vermilion County police

departments.  Contemnors appeal from an August 20, 1999, order

finding them to be in indirect civil contempt for their willful

refusal to comply with a June 18, 1999, order directing them to

return property that had been seized from defendants Truman and

Carolyn Keys.  The August 20, 1999, order fined each contemnor

$100, but the fine was stayed pending appellate review.  Contem nors appeal, arguing that the June 18, 1999, order was void, as

the circuit court lacked jurisdiction to enter it.  We affirm.

	I.  BACKGROUND

		On August 23, 1997, the circuit court issued a search

warrant to V-MEG for the search of defendants' Danville residence

in connection with drug charges.  On August 25, 1997, the circuit

court issued a seizure warrant for defendants' bank accounts,

certificates of deposit, and vehicles.  The seizure warrant was

issued in response to the affidavit of an Illinois State Police

inspector stating that the items were subject to forfeiture to

the State of Illinois pursuant to section 505 of the Illinois

Controlled Substances Act (Substances Act) (720 ILCS 570/505

(West 1996)) and the Drug Asset Forfeiture Procedure Act (Forfei

ture Act) (725 ILCS 150/1 through 14 (West 1996)).  

		Inventories subsequently filed with the circuit court

indicate that V-MEG seized approximately $9,450 and a computer

from defendants' residence and approximately $30,800 from defen

dants' bank accounts.  

		On November 24, 1997, pursuant to a motion for turnover

filed by Mike Clary, then State's Attorney of Vermilion County,

the circuit court entered an order that United States currency in

the amounts of $27,245.65, $3,649.45, and $10,006, and a Hewlett

Packard Computer, serial No. US7006213, seized on or about August

23, 1997, by V-MEG, be turned over to the Federal Bureau of

Investigation (FBI), Springfield, for the purpose of federal

forfeiture.  The order was not given a number, is not in the

seizure warrant file, and was not filed with the Vermilion County

clerk's office.  Defendants' names do not appear on the motion or the order.  Defendants had been arrested on August 23, 1997, and

charged with various drug offenses, but neither they nor their

attorney was given any notice of the order or its entry.  

		On December 5, 1997, defendants filed a motion for

return of noncontraband property, arguing that the State's

deadline for initiation of forfeiture proceedings had passed. 

725 ILCS 150/9(A) (West 1996) ("within 45 days of the receipt of

notice of seizure by the seizing agency ***, the State's Attorney

shall institute judicial forfeiture proceedings").  Forty-five

days after August 25 is October 9.

		On December 23, 1997, the FBI sent defendant Truman

Keys seven letters, certified return receipt, advising that the

V-MEG seizure was adopted by the FBI on November 19, 1997, for

forfeiture under federal law.  To contest the seizure or forfei

ture, defendant was required to file claims of ownership and

bonds in the amount of $250 with the FBI by February 9, 1998. 

The FBI sent another letter, certified return receipt, dated

December 30, 1997.  

		A hearing was held January 8, 1998, on defendants'

motion for return of noncontraband property.  At the hearing,

Clary stated he had been told, that day, by defense counsel that

there might be some federal involvement, but he did not have any

idea whether that was going on or not.  He also said that his

office did not usually handle these matters, that they were

handled by the appellate prosecutor's office, and that his office

did not "necessarily" have a file.  The trial court reserved ruling, stating that it would like more information from both

sides as to where the property was, what the history of the

transfer was, and if there was something being handled by the

appellate prosecutor.  

		On April 10, 1998, the property management officer of

the FBI, Washington, issued a declaration that the various assets

had been administratively forfeited.  

		Clary testified at a hearing on June 26, 1998, that he

became aware, during the week following August 23, 1997, that

defendants' accounts had been seized and that those monies were

being held by V-MEG.  Clary obtained the turnover order on

November 24 because either Steve Furman or contemnor Reed desired

to have the property turned over to the FBI so that the FBI could

pursue a forfeiture.  Clary made a conscious decision not to

provide notice of the turnover order to defendants or their

attorney, even when defendants' attorney specifically asked about

the status of the property.  Clary stated that he did not recall

having obtained the November 24 order when he discussed the

matter with the court on January 8 and that is why he did not

tell the court about it.  He admitted that he did not make any

inquiry of the appellate prosecutor's office after the January 8

hearing, but that he just contacted V-MEG.  

		On July 1, 1998, the circuit court entered an order

finding that the State furnished no notice prior to the presenta

tion of the November 24 turnover order, that the order was never

filed of record, that the defendants were entitled to notice, and that the order "is deemed to be void ab initio."  

		In a hearing on April 30, 1999, it was determined that

the computer which had been seized was being retained by V-MEG

and that 80% of the monies which had purportedly been transferred

to the federal government were actually being held by V-MEG, the

Danville police department, and the Vermilion County State's

Attorney's office.  On June 18, 1999, the circuit court entered

an order finding that the State failed to institute forfeiture

proceedings in accordance with the statute and that no lawful

authority existed for the continued retention of the property by

the State and further ordering contemnors to return the property. 

No appeal was taken from that order.  On August 20, 1999, the

circuit court entered the order appealed, finding contemnors in

indirect civil contempt for their failure to comply with the

order of June 18, 1999.  

	II.  ANALYSIS

		Contemnors argue that, when a contempt order results

from the violation of an interlocutory order, the validity of the

interlocutory order may be called into question in an appeal from

the order of contempt.  Busey Bank v. Salyards, 304 Ill. App. 3d 214, 218, 711 N.E.2d 10, 14-15 (1999).  The June 18, 1999, order

that directed contemnors to return the property was, however, a

final order.  The June 18 order determined the litigation on the

merits so that the only step remaining was proceeding with the

execution of the judgment.  Catlett v. Novak, 116 Ill. 2d 63, 68, 506 N.E.2d 586, 588-89 (1987).  When a contempt order results from the violation of an order that was final for purposes of

appeal but was not appealed, the validity of the underlying order

may not be called into question in an appeal from the order of

contempt.  Busey Bank, 304 Ill. App. 3d at 218, 711 N.E.2d at 14- 15.  The only question is whether the underlying order is void. 

Busey Bank, 304 Ill. App. 3d at 218, 711 N.E.2d at 14-15.

		The procedure employed here, where state authorities

turn over assets they have seized to federal authorities to seek

forfeiture, is apparently employed because there is a greater

chance of success under the more permissive federal forfeiture

statute.  United States v. One 1979 Chevrolet C-20 Van, 924 F.2d 120, 123 (7th Cir. 1991); see Scarabin v. Drug Enforcement Administration, 966 F.2d 989, 991 (5th Cir. 1992) ("shell game").  In the present case, there may have been another reason for the

turnover, i.e., to get around the expiration of the 45-day limitations period provided by state law.  725 ILCS 150/9(A)

(West 1996).  When state and federal courts each proceed against

the same res, the court first assuming jurisdiction over the property may maintain and exercise that jurisdiction to the

exclusion of the other.  One 1979 Chevrolet, 924 F.2d at 121.  A local police department may not take seized property and just

pass it on as it pleases to the FBI in flagrant disregard of

state laws mandating judicial authority for such turnovers.  One 1979 Chevrolet, 924 F.2d at 122.  

		A state forfeiture proceeding need not be pending for

the state court to have jurisdiction over the res.  United States v. One 1987 Mercedes Benz Roadster, 2 F.3d 241, 243 (7th Cir. 1993).  One 1979 Chevrolet did note the fact that "[a]t the time the complaint was filed in federal district court, the state

forfeiture action was pending."  One 1979 Chevrolet, 924 F.2d at 123.  It must be recognized, however, that One 1979 Chevrolet involved a warrantless search, and it was accordingly the forfei

ture action which first brought the res before the court.  These cases do not depend upon "who won the forfeiture 'foot race' in

the courts."  One 1987 Mercedes, 2 F.3d at 243, quoting One 1979 Chevrolet, 924 F.2d at 122.  A turnover order from the circuit court of the county in which the res was seized is the appropri ate method for seeking authority for a transfer from state

authorities to federal authorities.  One 1987 Mercedes, 2 F.3d at 243.  

		Contemnors argue that the statutes have been changed

since One 1979 Chevrolet and One 1987 Mercedes were decided.  They refer us to section 12(d) of the Cannabis Control Act:

			"(d) Property taken or detained under 

		this [s]ection shall not be subject to replevin, 

		but is deemed to be in the custody of the 

		Director [of the Department of State Police] 

		subject only to the order and judgments of 

		the circuit court having jurisdiction over 

		the forfeiture proceedings and the decisions 

		of the State's Attorney under the [Forfeiture

		Act (725 ILCS 150/1 through 14 (West 1996))]. 

		***  Upon receiving notice of seizure, the 

		Director may:

	* * *

			(6) provide for another agency or cus-

		todian, including an owner, secured party, or 	 		lienholder, to take custody of the property 

		upon the terms and conditions set by the 

		Director."  (Emphasis added.)  720 ILCS 

		550/12(d) (West 1996).

The emphasized language was added since the Seventh Circuit's

decision in One 1979 Chevrolet. 

		Contemnors argue that it makes no difference whether

the November 24 turnover order was valid, because the State's

Attorney and the police may transfer the property to the FBI

without any court order.  We need not decide whether the empha

sized language applies only to nonjudicial forfeitures (725 ILCS

150/6 (West 1996)) or to seizures such as warrantless seizures

obtained without any court involvement.  In any event, the

emphasized language clearly does not oust the circuit court of

its power to deal with assets that have come within its jurisdic

tion.  The language remains that the property shall be deemed to

be in the custody of the Director "subject only to the order and

judgments of the circuit court having jurisdiction over the

forfeiture proceedings."  720 ILCS 550/12(d) (West 1996).  

		Contemnors argue their position is supported by the

decision of the United States District Court in United States v. Sixty-Two Thousand Six Hundred Dollars, 899 F. Supp. 378 (N.D. Ill. 1995) ($62,600).  In $62,600, the court concluded that a release of the res that came from the executive branch (State's Attorney), rather than the judicial branch, was authorized by the

emphasized changes in Illinois law. The real issue here, accord ing to One 1979 Chevrolet, is the circumventing of the authority of the state court that has been dealing with the res.  One 1979 Chevrolet, 924 F.2d at 122.  Courts are rightfully jealous of their jurisdiction, and once they have assumed it they should not

be considered to have surrendered it until they have expressly

done so.  One 1987 Mercedes, 2 F.3d at 243 (a turnover order from the circuit court of the county in which the res was seized is the appropriate method).  The State's Attorney does not have the

power to oust the circuit court of jurisdiction once that juris

diction has been assumed.  

		We also disagree with contemnors' arguments that, as a

result of the statutory changes, "Illinois courts no longer have

exclusive jurisdiction over seized property" and "the courts have

only concurrent jurisdiction with [S]tate's [A]ttorneys."  The

courts have their jurisdiction by virtue of the constitution

(Ill. Const. 1970, art. VI, §§1, 9).  The legislature could not

limit the jurisdiction of the courts by these statutory changes,

and a reading of the changes indicates no intention to do so. 

The district court read the statutory changes "to give State's

Attorneys the power (concurrently with the state circuit courts)

to dispose of contraband."  $62,600, 899 F. Supp. at 379.  The district court was saying only that State's Aattorneys may deal

with property that has not come within the jurisdiction of the

court.

		In any event, $62,600 is not much like our case.  In $62,600, the State's Attorney released the res to the United States; in our case, it was the circuit court which issued a

turnover order.  In $62,600, there is no indication of any state court involvement; in our case, a motion for return of non-

contraband property was filed in state court on December 5, 1997,

and it was not until long after that that the State's Attorney

disclosed to the court that there was any federal involvement. 

In $62,600, the federal court assumed jurisdiction; in our case, the federal court did not assume jurisdiction--there was only an

administrative forfeiture.  Finally, neither the State's Attorney

nor the FBI took any action in this case until after the 45-day

limitations period expired on October 9, 1997.  Clary did not

seek a turnover order until November 24.  The FBI's certified

letters state that the V-MEG seizure was adopted by the FBI on

November 19.  Contrary to contemnors' arguments, State law time

limits do have some effect upon a federal forfeiture action. 

$62,600 recognized that the 45-day limit might be viewed as setting the outside date for some sort of action to be taken by

the State's Attorney.  $62,600, 899 F. Supp. at 379 n.2.  That seems appropriate.  The 45-day limit would be meaningless if the

State's Attorney could do nothing for months, then avoid the

limit by turning the res over to the FBI.  In $62,600, the statute's time limitation was "met by the turnover to the United

States on June 23--two days short of the 45-day limit."  $62,600, 899 F. Supp. at 379 n.2.    

		Contemnors argue that the trial court did not "assume

sole jurisdiction over the property by virtue of its seizure." 

That statement recognizes that the trial court had some jurisdic

tion over the property by virtue of its seizure.  Again, it is

not necessary that state forfeiture proceedings actually be instituted before there will be a "circuit court having jurisdic

tion over forfeiture proceedings."  One 1987 Mercedes, 2 F.3d at 243 (the holding of One 1979 Chevrolet "does not depend on the existence of a competing state forfeiture proceeding").  The

assets in this case came within the power of the circuit court

when the court issued a warrant for their seizure and when they

were inventoried in the court.  The State's Attorney recognized

the circuit court's power over these assets when he applied to

the circuit court for a turnover order.  The State's Attorney did

not have the right to accept the jurisdiction of the circuit

court while he agreed with its rulings, but then ignore that

jurisdiction when the court began asking questions.

		Contemnors argue that even if the property was within

the jurisdiction of the circuit court, and even if the November

24, 1997, turnover order was void ab initio, the fact of the matter is that there has now been a federal administrative

forfeiture.  Contemnors argue that the federal administrative

forfeiture may not be collaterally attacked in state court.  Contemnors are mistaken that we may ignore what occurred before

the federal administrative forfeiture was declared.  Just as an

individual may not be kidnapped in one state and dragged across

state lines to be subjected to jurisdiction in another state, the

court first assuming jurisdiction over property may maintain and

exercise that jurisdiction to the exclusion of the other. 

"Jurisdiction obtained by mere possession 'goes much too far.'" 

One 1979 Chevrolet, 924 F.2d at 123, quoting United States v. $79,123.49 in U.S. Cash & Currency, 830 F.2d 94, 98 (7th Cir. 1987).  "'Possession obtained through an invalid seizure neither

strips the first court of jurisdiction nor vests it in the

second.'"  One 1979 Chevrolet, 924 F.2d3 at 123, quoting $79,123.49, 830 F.2d at 98.

		Contemnors argue that the trial court's orders in this

case were void, because they violated section 9(J) of the Forfei

ture Act, which provides:

			"An acquittal or dismissal in a criminal 

		proceeding shall not preclude civil proceedings 

		under this [Forfeiture] Act; however, for good 

		cause shown, on a motion by the State's Attor-

		ney, the court may stay civil forfeiture 

		proceedings during the criminal trial for a 

		related criminal indictment or information 

		alleging a violation of the [Substances Act]

		or the Cannabis Control Act.  Such a stay 

		shall not be available pending an appeal.  

		Property subject to forfeiture under the 

		[Substances Act] or the Cannabis Control Act 

		shall not be subject to return or release by 

		a court exercising jurisdiction over a criminal 

		case involving the seizure of such property 

		unless such return or release is consented to 

		by the State's Attorney."  725 ILCS 150/9(J) 

		(West 1996).  

This provision was intended to prevent the release of property

until such time as the procedures set forth in the Forfeiture Act

have been followed.  The trial court recognized that it could not

deal with the assets here as a part of the criminal proceeding

and that it had to make its determination in accordance with the

forfeiture statutes.  It did so. 

		Contemnors argue that they refused to comply with the

trial court's order in a good-faith attempt to obtain review of

the trial court's order.  They argue that they do not have the

property in their possession and that it is impossible for them

to comply with the trial court's order.  We are confident that,

now that we have upheld the trial court's order, the contemnors

will act appropriately in attempting to comply with it and the

trial court will take those actions into consideration.

		The dissent suggests that contemnor Reed was not given

notice of the motion for return of noncontraband property or of

the June or July 1999 hearings.  There is no indication, however,

that defendants knew of Reed's involvement when they filed their motion.  The motion involved an in rem proceeding where jurisdic tion over particular individuals was not necessary, only juris

diction over the property.  We should not tolerate a situation

where individuals who have been served transfer property to other

individuals and then complain there has been no service of

process on those other individuals.  Even assuming Reed was a

necessary party, his interests were clearly represented by the

Sstate's Aattorney, with whom he was in privity.  In enforcing a

turnover order, the court may order the person or entity holding

the property to turn it over without giving that person or entity

any advance notice.  A common example is an order served on a

bank, directing it to turn over the funds of a particular deposi

tor.

	III.  CONCLUSION

		We have considered all the arguments raised by the

parties and nevertheless conclude that the trial court had

jurisdiction to enter its order of June 18, 1999, directing the

return of the assets.  No appeal was taken from that order.  For

the foregoing reasons, we affirm the August 20, 1999, order

finding contemnors to be in indirect civil contempt.        

		Affirmed.  	             

		MYERSCOUGH, J., concurs.

		STEIGMANN, P.J., dissents.

		PRESIDING JUSTICE STEIGMANN, dissenting:

		The contemnors as appellants raised several issues in

their attack on the trial court's finding them in indirect civil

contempt of court, and this is one of those rare cases where--in

my judgment--the appellants are correct across the board. 

Accordingly, I respectfully dissent.

		Contemnors are correct when they argue that because the

trial court lacked in rem jurisdiction when it entered the order directing them to return the seized property to defendants, that

order is void.  In a 1991 amendment (Pub. Act 87-614, §4, eff. September 18, 1991 (1991 Ill. Laws 3061, 3067-68)) to section 505

of the Substances Act (720 ILCS 570/505(d) (West 1996)), the

General Assembly gave State's Attorneys the power (concurrent

with the state circuit courts) to turn property subject to

forfeiture over to other agencies. $62,600, 899 F. Supp. 378.  Thus, the State was acting within its authority when it sought

the trial court's permission to turn the seized property over to

federal law enforcement authorities for federal forfeiture

proceedings.  Once the turnover order was entered, the FBI had

the authority to initiate federal forfeiture proceedings, which

it did.  The court's later order voiding its turnover order could

not divest the federal authorities of in rem jurisdiction over the property seized from defendants.  

		Defendants argue that the trial court retained juris diction over the property because the court (1) authorized the

search and seizure warrants under which the property was seized, and (2) was still presiding over defendants' criminal trial. 

Defendants are wrong.  The court's continued jurisdiction over

defendants' criminal trial is inapposite to whether it has in rem jurisdiction over the property subject to forfeiture.  In short,

the court lost jurisdiction when the property was turned over to

the federal authorities, and the court's subsequent efforts to

exercise jurisdiction over the property are void. 

		Defendants also argue that the turnover order was

entered in violation of their due process rights--namely, their

right to be notified of proceedings pertaining to their property. 

I disagree.  

		Defendants had the opportunity to avail themselves of

all of the process that they were due.  They were notified of the

commencement of federal administrative forfeiture proceedings and

of their right to contest the seizure and claim their property in

federal court.  The motions defendants filed in the trial court

constituted a collateral attack on the federal forfeiture pro

ceedings and were thus improper.  

		Defendants characterize the State's conduct (filing the

motion for turnover ex parte) as surreptitious and underhanded, and the majority appears to agree.  However, the record does not

support that inference or the conclusion that either the State's

motion or the trial court's ex parte order was were improper.  Defen dants are generally not entitled to advance notice of prosecuto

rial decisions.  Moreover, the State routinely seeks certain

court orders ex parte, and trial courts have the authority to enter orders pertaining to the seizure of property and its

custody without notifying the property owners.  See, e.g., 725 ILCS 5/108-11 (West 1996) (requiring the court to enter an order

providing for the custody of property seized pursuant to a search

warrant pending further proceedings).  Sections 108-10 and 108-11

of the Code of Criminal Procedure of 1963 (Code) require (1) a

return to be made to the court of an inventory of seized prop

erty, and (2) that the court (a) enter an order providing for the

custody of those items and (b) upon request deliver a copy of the

inventory to the person from whose premises the property was

seized.  725 ILCS 5/108-10, 108-11 (West 1996).  Considering the

hundreds of search warrants that are executed annually in Illi

nois, it is noteworthy that no case in the 38-year history of the

Code has ever held that property owners are entitled to a hearing

prior to the court's entry of such an order.

		Because the previous discussion is sufficient to show

that the trial court's rulings are erroneous and should be

reversed, I need not discuss contemnors' additional arguments.  

		One additional aspect of this case warrants mentioning. 

Defendants criticize contemnor Reed for not filing a timely

notice of appeal from the return order.  However, the record

shows that defendants did not serve contemnor Reed with their

motions for the return of noncontraband and seized property, nor

did they serve him with notice of the June or July 1999 hearings. 

In this regard, I agree with contemnor Reed, who asserts as

follows:

		"Moreover, even though [d]efendants had not

joined [c]ontemnor Reed as a party, and even

though he did not appear either in person or

through his own counsel at the June 8,

1998[,] hearing, they drafted an order di

recting him individually as well as in his official capacity as V-MEG Director to return

the property.  Given their own due process

challenge to the [turnover] [o]rder, it is no

small irony that [d]efendants now fault

[c]ontemnor Reed for not filing a timely

notice of appeal from an order entered at a

hearing of which he had no prior notice and

at which he had no opportunity to be heard. 

Worse yet, [d]efendants offer no authority

whatsoever for their assumption that

[c]ontemnor Reed, a non[]party, even could have appealed from the order."  (Emphasis in

original.)