FIRST DIVISION 

June 12, 2006 

No. 1-04-2624 

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, 

v. 

$111,900, U.S.C., 

Defendant, 

KEVIN GANIOUS and DARREN WILSON, 

Claimants-Appellees. 

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Appeal from the 

Circuit Court of 

Cook County. 

Honorable 

Laurence J. Dunford, 

Judge Presiding. 

JUSTICE BURKE delivered the opinion of the court: 

Plaintiff the People of the State of Illinois appeals from an 

order of the circuit court granting claimants1

 Kevin Ganious and 

Darren Wilson's motion for a directed finding on the State's 

complaint for forfeiture, ordering the return of $111,900 United 

States currency to claimants and their attorneys. On appeal, the 

State contends that the trial court erred in (1) granting a 

directed verdict in favor of claimants because, as a matter of law, 

the totality of the circumstances established probable cause; (2) 

 1

Although attorney Steven Greenberg apparently appeared on 

behalf of both claimants, on September 10, 2004, we granted 

attorney Charles Snowden leave to file an appearance on behalf of 

Wilson, which he did. Thereafter, we granted Greenberg leave to 

withdraw his appearance on behalf of Wilson. Wilson has not filed 

a brief before this court, nor adopted the brief filed by Ganious. 
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2 

failing to apply the statutory presumption of close proximity to 

establish probable cause; and (3) permitting Ganious and Wilson to 

join their claims since they did not share a common defense. For 

the reasons set forth below, we reverse and remand this cause. 

 STATEMENT OF FACTS 

On June 2, 2002, the State filed a complaint for forfeiture 

pursuant to the Drug Asset Forfeiture Procedure Act (Forfeiture 

Act) (725 ILCS 150/1 et seq. (West 2004)), seeking the forfeiture 

of $111,900 recovered from Ganious. In this complaint, the State 

alleged that on February 27, the police responded to a 911 call at 

7754 South Burnham, #2, in Chicago. The police were met by 

Ganious, who stated he had found $20,000 and a gun in the 6800 

block of South Maplewood and that the people who owned them were 

going to be looking for him. The police then recovered the 

following items from Ganious' bedroom: a .32 caliber Smith and 

Wesson revolver from the top shelf of the bedroom closet; a 

suitcase containing $64,450 from under a futon in the bedroom; a 

second case containing $39,400; and seven individually wrapped 

rock-like substances (suspect cocaine) from the dresser. According 

to the complaint, sometime after this date, Ganious denied 

ownership of the money and stated he found it while doing rehab 

work for Darren Wilson at 6106 South Maplewood. The State relied 

upon section 7 of the Forfeiture Act to establish probable cause to 

forfeit the money. This section provides: 
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3 

"The following situations shall give rise 

to a presumption that the property described 

therein was furnished or intended to be 

furnished in exchange for a substance in 

violation of the Illinois Controlled Substance 

Act ***, or is the proceeds of such an 

exchange, and therefore forfeitable under this 

Act, such presumptions being rebuttable by a 

preponderance of the evidence: 

(1) All moneys, coin, or currency found 

in close proximity to forfeitable substances 

***." 725 ILCS 150/7 (West 2004). 

On June 6, Ganious filed a response to the complaint, stating 

that he had found the money on February 17. On June 27, Wilson 

filed a verified claim, stating that he was the owner of 6106 South 

Maplewood and everything therein. Specifically, Wilson stated that 

the $111,900 found in the false ceiling was and is his. According 

to Wilson, he acquired the money on February 21, 1997, when he 

acquired the building. Wilson also filed a motion to dismiss the 

State's complaint for lack of jurisdiction. 

On August 29, Wilson filed a motion for summary judgment 

against Ganious, stating that he had no colorable claim to the 

money because it was found on Wilson's property. In an affidavit 

attached to this motion, Wilson averred that on February 17, he had 

hired Ganious to do rehab work at his building. Thereafter, the 
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4 

State responded to Wilson's motion to dismiss and motion for 

summary judgment, raising the issue of standing as to both 

claimants. On October 31, during a status hearing, it was made a 

matter of record that Wilson and Ganious had made an agreement 

that, if the money was to be returned to them, they would split it. 

On April 24, 2003, the trial court entered an order denying 

Wilson's motion to dismiss as well as his motion for summary 

judgment. The case was then continued from time to time. On March 

12, 2004, the State filed a motion to strike the claim and answer 

of Ganious on the basis that he had no legal ownership interest in 

the money and, therefore, lacked standing. Attached to the motion 

were excerpts from Ganious' deposition.2

 In this deposition, 

Ganious admitted that the money was in close proximity to the 

cocaine at his home and that, when he carried the money into his 

home, he had had cocaine in his pocket. According to Ganious, he 

was performing drywall work at Wilson's property and after he had 

taken down the old ceiling to put in a new drywall ceiling, "it 

[the suitcase] came out of the ceiling." Ganious stated that 

inside the suitcase was a black bag containing the money. When 

Ganious discovered the money in the suitcase, he "thanked God," 

called a cab, and went home. When Ganious arrived home, he moved 

some of the money from the suitcase to his attache case. Ganious 

stated that he never counted the money and denied being afraid that 

 2

The entire deposition transcript is not part of the record on 

appeal. 
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5 

the money might belong to drug dealers who would come looking for 

him. According to Ganious, the suitcase that fell from the ceiling 

was the same suitcase the police took from his bedroom. 

On May 6, Ganious responded to the State's motion to strike, 

arguing that, as the finder of the lost money, he had a legal 

ownership interest in it and, thus, standing to contest the 

forfeiture. Thereafter, the State responded and, ultimately, the 

trial court denied the State's motion to strike Ganious' answer. 

On August 5, a bench trial was held. It was the State's 

position that it demonstrated probable cause for forfeiture of the 

money based on the presumption that it was found in close proximity 

to cocaine. Officer Windhorst testified that on February 27, 2002, 

at approximately 11:30 p.m., he and his partner, Officer Walsh, 

went to 7754 South Burnham, #2, responding to a 911 call that a 

child had been shot. The officers were met at the apartment door 

by Ganious. The officers immediately asked Ganious where the shot 

child was, at which time he responded that no child had been shot 

and he just told the 911 operator that so the police would arrive 

quicker. Ganious then told the officers he had found some money, 

approximately $20,000, and was afraid that the person who owned the 

money would come to get him. Ganious requested federal protection. 

 Ganious took the officers to his bedroom and showed them where the 

suitcase with the money in it was. According to Windhorst, he 

recovered the suitcase from under a couch or futon type of couch. 
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6 

Windhorst stated that the bedroom was 8 x 10 feet, there was a 

closet, a dresser, and the futon. While Windhorst was retrieving 

the suitcase, Walsh inquired of Ganious whether a gun was involved, 

to which he responded in the affirmative and stated it was in the 

closet. Windhorst then retrieved the gun from the closet. As the 

officers were talking to Ganious, Windhorst glanced to his left and 

observed a dish on top of the dresser with seven clear plastic bags 

containing a white, rock-like substance. Windhorst, believing the 

substance to be crack cocaine, retrieved these bags as well. The 

substance was later sent to the lab and tested positive for 

cocaine. As the police were preparing to leave, Ganious asked 

them, "Do you want the other one?" When Windhorst inquired of 

Ganious, "The other what?," Ganious responded, "The other suitcase. 

 It's under the couch." Windhorst recovered a second smaller case, 

opened it, and discovered more money. The police then left with 

the items they had recovered as well as Ganious. According to 

Windhorst, when he asked Ganious where he had found the money, 

Ganious stated that he had found it in an abandoned building in the 

6800 block of South Maplewood. When Windhorst asked Ganious who he 

was afraid of, Ganious refused to answer and just kept repeating 

that he wanted federal protection. 

At the police station, Ganious was placed in a room and kept 

yelling that he wanted protection. According to Windhorst, as time 

went on, Ganious' demeanor changed and he was saying, "I made a 

mistake. I'm sorry. I just want my money back." Prior to this 
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7 

time, however, Windhorst called for the canine unit. When the 

canine unit arrived, Windhorst was instructed to take one of the 

cases out to the parking lot and hide it under a car, which he did. 

 The canine officer let the dog go, who "went in a zigzag pattern 

immediately" to the car and started barking and biting at the case. 

 According to the canine officer, this was a positive 

identification for the odor of drugs. After this, Windhorst 

retrieved the case and took it back into the station. Both cases 

were then emptied and the money was counted. Windhorst stated that 

the larger suitcase was about 22 to 24 inches by 18 inches by 7 to 

8 inches. 

Upon examination by Ganious' attorney, Windhorst admitted 

that, prior to putting the suitcase under the car, the dog did not 

sniff the ground or underside of the vehicle to see if it was 

alerted in any way, nor was the suitcase ever opened for a test on 

the money. Windhorst also stated that no money was recovered from 

Ganious' living room and he did not believe the officers ever 

stepped foot in the living room. When asked whether the futon was 

right next to the dresser, Windhorst responded, "No. The dresser 

was to my left where the suspect cocaine was. The futon was 

directly in front of it." Windhorst admitted that the police did 

not find any scales, materials for packaging cocaine, cooking 

vessels, or anything else showing there was some kind of narcotics 

operation occurring in the home. 

Officer Thomas Roper next testified on behalf of the State. 
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On February 27, 2002, Roper met Ganious and Walsh at the police 

station as the officer on call for the asset forfeiture unit. It 

was Roper's duty to attempt to ascertain the ownership of the 

money. In this regard, he tried to question Ganious. However, 

Ganious would not speak to Roper, but "turned his back and cowered 

in a corner, crouched down in a corner." Although Roper called 

Ganious' name two to three times, Ganious would not respond. Roper 

ceased trying to interview him, but left him a card. 

Approximately one month later, Roper received a call from 

Ganious. At this time, Ganious stated he had found the money while 

doing plaster work at 6106 South Maplewood. According to Ganious, 

he was tearing out plaster and a suitcase fell from the ceiling in 

the far west corner of the bedroom in the rear of the apartment. 

After ascertaining the owner of the property, Roper spoke with 

Wilson on the telephone and advised him of the events that had 

transpired. Wilson acknowledged owning the building, but denied 

any knowledge of the money. Thereafter, Roper went to the 

building, spoke with the current resident, and requested to view 

the bedroom. Roper observed that the corner of the bedroom, as 

described by Ganious, had been freshly painted. Roper wanted to 

ascertain the space between the ceiling and the floor above it, but 

did not want to damage the ceiling by poking a hole in it. The 

resident advised him that the room next door was not finished. At 

this time, Roper measured the floor joists in the ceiling, which 

were 16 inches apart and the clearance between the ceiling and 
1-04-2624 

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floor above it was 2 to 3 inches. According to Roper, this ceiling 

was the same height as the ceiling in the bedroom. Roper then 

testified that he spoke with Wilson both before and after viewing 

the property and Wilson indicated that he had no idea about the 

money in the ceiling. 

Upon cross-examination by Ganious' attorney, Roper stated 

that, prior to his attempt to speak with Ganious, he spoke to the 

arresting officers who advised him that Ganious appeared to be in a 

drug-induced stupor during their interview of him and he appeared 

nervous and agitated, and that, while at Ganious' apartment, 

Ganious had closed his curtains and shades while leading the police 

through his residence, spoke in whispers to make sure no one would 

overhear him, and requested a towel or blanket to put over his head 

to conceal his identity. Roper further testified that when he went 

to Wilson's building, he observed that rehab work had been done, 

but was not able to verify who had done it. Roper also stated that 

while counting the money, he observed that a majority of the bills 

were 2000 and 2001 bills and that some of the stacks were $10s in 

sequence. According to him, because the majority of the bills were 

2000 and 2001, it was his belief that the money had not been hidden 

for a long time. The State then rested and Wilson's attorney moved 

for a directed finding as to his client. 

The parties then presented arguments with respect to the 

motion for a directed finding. Thereafter, the court first found 

that Ganious was in a drug-induced stupor at the time of the search 
1-04-2624 

10 

and seizure and when he was questioned by the police. It then 

noted that two cases had been found, one under the futon and maybe 

one under a couch. However, the court stated that it was assuming 

the two cases were found in the same place. Thereafter, the court 

noted that, while cocaine was found on the top of a dresser, there 

was no description of the dimensions of the dresser or its height. 

 The court further found that while a "sniff test" was done, there 

was no "hit" on the money, but only on the suitcase. The court 

then stated that it did not believe the State had established a 

nexus since it did not think the cocaine on the dresser and the 

money under the futon were close enough in proximity. Thereafter, 

the court denied the State's complaint for forfeiture. 

Subsequently, the court granted a motion to strike Roper's 

testimony with respect to his opinions, specifically, the ceiling 

depth. The court then ordered that the money be paid to Wilson as 

owner of the property since the court believed the money to be 

treasure trove. The parties made additional arguments as to who 

should receive the money. Subsequent to these arguments, the trial 

court stated that the money was to be returned to both claimants. 

Thereafter, the trial court entered an order, granting judgment in 

favor of Ganious and Wilson and staying enforcement of the judgment 

until September 2. On September 2, the State filed its notice of 

appeal. The State also filed a motion to stay pending an appeal, 

which was denied. The trial court ordered that the money was to be 

released to claimants. On the same day, we granted the State's 
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emergency motion for a stay until further order of this court. 

 ANALYSIS 

In a proceeding under the Forfeiture Act, the State has the 

initial burden of demonstrating probable cause for forfeiture of 

money recovered from illegal drug activities. People v. A Parcel 

of Property Commonly Known As 1945 North 31st Street, Decatur, 

Macon County, Illinois, 217 Ill. 2d 481, 498, 841 N.E.2d 928 (2005) 

(1945 North 31st Street). The legislature has declared that the 

Forfeiture Act is to be liberally, not strictly, construed. 1945 

North 31st Street, 217 Ill. 2d at 496-97. In 1945 North 31st 

Street, the court reiterated the rules relevant to establishing 

probable cause: 

"To satisfy the probable cause 

requirement under the Forfeiture Act, a 

complaint for forfeiture must allege facts 

providing reasonable grounds for the belief 

that there exists a nexus between the property 

and illegal drug activity, supported by less 

than prima facie proof but more than mere 

suspicion. [Citation.] Probable cause in 

this context requires only a probability or 

substantial chance of the nexus and not an 

actual showing. [Citations.]" 1945 North 

31st Street, 217 Ill. 2d at 505. 
1-04-2624 

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The strength of the connection need not be a substantial 

connection. People v. $1,124,905 U.S. Currency and One 1988 

Chevrolet Astro Van, 177 Ill. 2d 314, 338, 685 N.E.2d 1370 (1997). 

 "[T]he government's evidence need not exclude other plausible 

hypotheses of the source of the money." 1945 North 31st Street, 

217 Ill. 2d at 505. Moreover, the State need not tie the money to 

a specific drug transaction. $1,124,905 U.S. Currency, 177 Ill. 2d 

at 336. "[I]t is the totality of the circumstances, not a minute 

parsing of each item of information, that leads to a finding of 

probable cause." 1945 North 31st Street, 217 Ill. 2d at 505. 

Probable cause can be established if the State demonstrates 

that a presumption exists. See People v. $5,970 United States 

Currency, 279 Ill. App. 3d 583, 588, 664 N.E.2d 1115 (1996). 

Specifically, "[a] presumption arises [under section 7 of the 

Forfeiture Act] that currency was furnished or intended to be 

furnished in exchange for drugs when the currency is found in close 

proximity to forfeitable substances." $5,970 United States 

Currency, 279 Ill. App. 3d at 587. "During the probable cause 

portion of the proceeding, the court must receive and consider, 

among other things, all relevant hearsay evidence and information.' 

 [Citation.]" 1945 North 31st Street, 217 Ill. 2d at 505. 

Once the State satisfies its burden to establish probable 

cause, the burden shifts to the claimants to demonstrate, by a 

preponderance of the evidence, that the money is not subject to 

forfeiture. 1945 North 31st Street, 217 Ill. 2d at 497. During 
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this portion of the proceeding, "the law of evidence relating to 

civil actions applies." 1945 North 31st Street, 217 Ill. 2d at 

505. 

"[I]n a forfeiture case, the circuit court, as the trier of 

fact, determines the credibility of the witnesses and evaluates 

their testimony." 1945 North 31st Street, 217 Ill. 2d at 507. 

Morever, "the court may draw reasonable inferences and reach 

conclusions to which the evidence lends itself." 1945 North 31st 

Street, 217 Ill. 2d at 507-08. Since "the circuit court bases its 

conclusion upon its assessment of the evidence, a reviewing court 

will not reverse an order of forfeiture unless it is against the 

manifest weight of the evidence." 1945 North 31st Street, 217 Ill. 

2d at 508. 

The State contends that the trial court erred in failing to 

apply the statutory presumption of close proximity, which alone is 

sufficient to establish probable cause. The State maintains that 

we review this issue de novo. According to the State, since all of 

the items were found within an 8 x 10 foot bedroom, they were 

sufficiently near to establish the statutory presumption. In this 

regard, the State argues that the question should not be one of 

feet or inches, but should be made on a case-by-case basis. 

 Ganious contends that the trial court properly declined to 

apply the statutory presumption because there was no evidence 

showing the distance between the money and the drugs. Ganious, 

too, maintains that we review this determination de novo because it 
1-04-2624 

14 

involved the trial court's interpretation of close proximity. 

Ganious argues that the State fails to cite any Illinois authority 

holding that the distance should not be defined in feet or inches; 

rather, it cites only to an out-of-state case. Ganious further 

argues that there was no evidence presented that the two cases were 

taken from under the same couch or futon. According to Ganious, if 

Windhorst had grabbed the first suitcase, he would surely have seen 

the second one under the same futon. Because he did not, Ganious 

maintains this casts doubt on the fact the two cases were under the 

same couch.3

 Likewise, Ganious maintains that the State is really 

reaching when it cites to two Maryland cases because the statutes 

are different and the facts are distinguishable. In this regard, 

Ganious argues that he offered a cogent and coherent reason for 

having the money and how it got into his bedroom, which was 

corroborated by Wilson. Ultimately, Ganious maintains that the 

money and drugs must be in reach of each other for the statutory 

presumption to apply. 

 3

This argument is speculative and without any support in the 

record. 

Initially, we agree with the State that if the statutory 

presumption is demonstrated, this is sufficient to establish 

probable cause. See $5,970 United States Currency, 279 Ill. App. 
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15 

3d at 588; People v. $1,002.00 U.S. Currency, 213 Ill. App. 3d 899, 

904, 572 N.E.2d 385 (1991). Although several cases in Illinois 

have addressed the statutory presumption of close proximity, none 

have expressly defined the breadth or parameters of the term, nor 

have they set forth guidelines for determining whether an object is 

in close proximity to another. We find cases from other 

jurisdictions instructive. Although Ganious argues that out-ofstate cases are not relevant because they are based on different 

statutes, we disagree. Clearly, when there is no Illinois 

authority on a point, we may look to other jurisdictions for 

guidance. Allstate Insurance Co. v. Lane, 345 Ill. App. 3d 547, 

552, 803 N.E.2d 102 (2003). We believe this to be particularly 

true here where the statutes of the other jurisdictions are quite 

similar and utilize the same terminology in the same context. 

In $15,956 in U.S. Currency v. State, No. 05-671, ___ S.W.3d 

___ (Ark. April 6, 2006), the Arkansas Supreme Court reiterated the 

rules adopted in Arkansas with respect to close proximity. "Close 

proximity" means "very near." $15,956 in U.S. Currency, slip op. at 

___. Specifically, the court stated: " '[W]hether one thing is in 

close proximity to another under the forfeiture statute is to be 

determined on a case-by-case basis, not by a particular number of 

feet, by reference to particular rooms, or by any rule of thumb.' 

[Citation.]" $15,956 in U.S. Currency, slip op. at ___. Thus, the 

interpretation of close proximity, " 'depends upon the facts and 

circumstances existing in connection with their application.' 
1-04-2624 

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[Citation.]" $15,956 in U.S. Currency, slip op. at ___. See also 

Limon v. State, 285 Ark. 166, 168, 685 S.W.2d 515, 516-17 (1985) 

("The meaning of close proximity is to be made on a case-by-case 

basis and is not subject to 'rigid rules.' [Citation.]"). 

The Delaware Superior Court espoused the following rules: 

"What constitutes close proximity was 

examined in the case of In the Matter of: 

$1,165.00 U.S. Currency, Del. Super., C.A. No. 

95M-05-009-RSG, Reynolds, Commissioner (March 

6, 1997) at 11-14, and I quote therefrom: 

'Close proximity' is a relative 

term. However, there are many cases 

construing identical or similar 

language in various forfeiture 

statutes in a number of states and 

localities. Analysis of those 

cases indicates that close proximity 

is not usually determined in the 

abstract. Rather, the courts tend 

to consider the totality of 

circumstances in determining whether 

seized money is in close enough 

proximity to illegal drugs or 

paraphernalia to raise an inference 

that the money was used in, or 
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17 

derived from, drug dealing. *** 

The 'close proximity' provision 

applying to money in the Act does 

not appear to have been previously 

construed by this Court. However, 

in construing other provisions of 

the statute, this Court has utilized 

a probable cause approach.... In 

applying the test, this Court took 

into account the totality of the 

circumstances, .... *** [Citations 

and footnotes omitted.]" Cottman v. 

State, No. 97M-09-020, slip ord. at 

___ (Del. Super. April 19, 1999) 

(unpublished). 

Likewise, the Maryland courts have treated the determination 

of close proximity in a similar manner. Specifically, the courts 

there have held: 

" 'The breadth of the term "close 

proximity" deliberately has not been defined 

by either Maryland appellate court. Were we 

to undertake a delineating of "close 

proximity," it is almost a foregone conclusion 

that in any future searches, monies will 

always be found outside the area embraced by 
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18 

our definition. We shall not, therefore, 

attempt to define "close proximity." Instead, 

we shall treat the term with the same 

deference afforded "fraud" and "a quantity 

sufficient to indicate an intent to 

distribute." *** We do not define it, but we 

know it when we see it. In short, we shall 

determine "close proximity" on a case-by-case 

basis.' [Citation.]" Ewachiw v. Director of 

Finance of Baltimore City, 70 Md. App. 58, 64-

65, 519 A.2d 1327, 1330 (1987). 

Lastly, the Missouri courts have stated, " 'The words "close 

proximity" are words of common usage, understandable by a person of 

normal intelligence.' [Citation.]" State v. Dillon, 41 S.W.3d 

479, 486 (Mo. App. 2000). 

We adopt this approach in Illinois. Specifically, the 

determination of whether one object is in close proximity to 

another object under the presumption of the Forfeiture Act must be 

based upon a totality of the circumstances, made on a case-by-case 

basis founded upon common sense. A rigid approach based on feet, 

inches, or some other esoteric formula or definition is simply not 

workable nor logical. We believe this approach is supported by 

Illinois law. First, the Forfeiture Act is to be liberally 

construed. 1945 North 31st Street, 217 Ill. 2d at 496-97. 
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19 

Applying a rigid formula would not serve this purpose. Moreover, 

the Illinois Supreme Court has specifically stated, with respect to 

probable cause, of which this presumption relates, that the trial 

court must look to the totality of the circumstances on a case-bycase basis. 1945 North 31st Street, 217 Ill. 2d at 505. Lastly, 

use of the totality of the circumstances of a particular case, 

combined with common sense, is only logical. Close proximity 

should not, and cannot, rationally be defined in precise terms. To 

do so, would result in absurd results. If the objects were 

required to be within one's reach or within reach of each other, 

inconsistent and unreasonable results would occur. For example, if 

an individual who owns a Geo Metro and has money in the front seat 

and drugs in the back seat, these items would logically be within 

reach of each other and, thus, the statutory presumption of close 

proximity would be satisfied and demonstrate the items were subject 

to forfeiture. However, if that same person owned a Navigator or 

some other large SUV, items in the backseat or even in the cargo 

area would not be within reach and, thus, not satisfy close 

proximity. Clearly, the legislature did not intend such absurd 

results based on the size of a vehicle or the precise distance 

between one object and another. The same is true with respect to 

objects' locations on premises. As such, we agree with the State 

that close proximity is not a matter of feet or inches, and 

disagree with Ganious, who cites no authority to support his 

position, that close proximity mandates that the objects be within 
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20 

reach of each other. 

The cases addressing close proximity in Illinois further 

support such a conclusion, although, again, none have so defined or 

delineated the scope of this determination. In $5,970 United 

States Currency, relied upon by the State, the claimant was stopped 

for driving with a suspended license. $5,970 United States 

Currency, 279 Ill. App. 3d at 585. During a search of the 

claimant's car, the police discovered a "Twinkies" box on the 

passenger front floor that contained $5,970. $5,970 United States 

Currency, 279 Ill. App. 3d at 585. Within inches of this box, the 

police also found a plastic bag containing white rocky residue, 

which was determined to be cocaine residue. The claimant also had 

a pager attached to his pocket and a search of his pocket revealed 

another plastic bag with a small amount of white rocky residue, as 

well as $55.99. $5,970 United States Currency, 279 Ill. App. 3d at 

586. After a hearing, the trial court ruled in favor of the 

claimant, but upon the State's motion to reconsider, reversed its 

decision and ordered the money forfeited. $5,970 United States 

Currency, 279 Ill. App. 3d at 587. On appeal, the court concluded: 

"By adducing evidence that the currency was found in close 

proximity to cocaine, the State effectively raised the presumption 

that the currency was furnished or was intended to be furnished in 

exchange for drugs," and, therefore, it presented sufficient 

evidence to establish probable cause. $5,970 United States 

Currency, 279 Ill. App. 3d at 588. 
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21 

In People v. $52,204.00 United States Currency, 252 Ill. App. 

3d 778, 623 N.E.2d 959 (1993), the trial court entered an order 

forfeiting $52,204 found in two safes located in the claimant's 

son's bedroom. In this bedroom, the police found numerous guns, 

ammunition, and four safes that were two to four feet from each 

other. $52,204.00 United States Currency, 252 Ill. App. 3d at 779. 

 One of the safes held $51,946, a gun, and two savings passbooks, 

another held $258 plus other items, and the other two were empty. 

All four safes were tested for the presence of drugs and only one 

of the empty safes showed the presence of cocaine residue. 

$52,204.00 United States Currency, 252 Ill. App. 3d at 780. The 

trial court ordered forfeiture of the money recovered from the 

safes. $52,204.00 United States Currency, 252 Ill. App. 3d at 781. 

 On appeal, the appellate court reversed, finding that the State 

failed to show that the statutory presumption based on close 

proximity had been raised. $52,204.00 United States Currency, 252 

Ill. App. 3d at 783. Specifically, the safe in which the cocaine 

residue, which was a microscopic amount, was empty, and because the 

State presented no evidence as to where or when the bills in the 

other safes were, if they had in fact been, in close proximity to 

the cocaine. $52,204.00 United States Currency, 252 Ill. App. 3d 

at 784. 

In People v. $4,175.00 U.S. Currency, 239 Ill. App. 3d 857, 

607 N.E.2d 610 (1993), relied upon by Ganious, the trial court 

ruled in favor of the claimant and denied the State's complaint for 
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22 

forfeiture, finding that the State failed to establish probable 

cause and failed to demonstrate that the statutory presumption of 

close proximity was established. $4,175.00 U.S. Currency, 239 Ill. 

App. 3d at 861. During a search of the claimant's home, the police 

discovered 14 manilla envelopes containing 15.54 grams of marijuana 

and $35 in the second drawer of a dresser contained in the middle 

east bedroom of the home. $4,175.00 U.S. Currency, 239 Ill. App. 

3d at 860. This room contained female and children's clothing and 

belonged to the claimant's daughter. In the southeast bedroom, 

which was the claimant's, the police discovered $4,140 in the 

pocket of claimant's pants. The record disclosed that the two 

bedrooms were adjacent to each other, but their doors were not. 

$4,175.00 U.S. Currency, 239 Ill. App. 3d at 860. On appeal, the 

appellate court concluded that the State failed to establish the 

statutory presumption of close proximity. Specifically, "no 

cannabis was found in plain view but rather was found in sealed 

envelopes in a dresser drawer in a room containing women's and 

children's clothing. No scales, envelopes, or any other indicia of 

drug trafficking were found on the person of the claimant, in his 

bedroom, or in the remainder of the residence." $4,175.00 U.S. 

Currency, 239 Ill. App. 3d at 865. In this regard, the court held 

that, if it were to rule the presumption had been established based 

on these facts, it would be "tantamount to determining that the 

presumption exists whenever contraband and money are found in the 

same premises, without a connection between them." $4,175.00 U.S. 
1-04-2624 

23 

Currency, 239 Ill. App. 3d at 865. 

In People v. U.S. Currency $3,108, 219 Ill. App. 3d 441, 579 

N.E.2d 951 (1991), relied upon by Ganious, the trial court denied 

the State's complaint for forfeiture. U.S. Currency $3,108, 219 

Ill. App. 3d at 442.4 A search of the claimant's home pursuant to 

a search warrant yielded the following items from a portable safe 

contained in his bedroom: $3,108, drug paraphernalia, a bag 

containing four to five ounces of a white powdery substance, that 

later failed to test positive for cocaine, and jewelry. U.S. 

Currency $3,108, 219 Ill. App. 3d at 443. Discovered in a hamper 

in the bathroom, which was directly adjacent to the claimant's 

bedroom, were three packets containing .80 grams of cocaine. U.S. 

Currency $3,108, 219 Ill. App. 3d at 443. It was the State's 

position that the money was subject to forfeiture because it was 

discovered in close proximity to the cocaine. U.S. Currency 

$3,108, 219 Ill. App. 3d at 443. The trial court disagreed, which 

the appellate court affirmed. Although the appellate court noted 

that, while claimant's bedroom was a separate room, it "was in 

close proximity to the hamper." U.S. Currency $3,108, 219 Ill. 

App. 3d at 448. However, other individuals had access to the 

hamper and, because of this, the appellate court concluded that the 

State failed to establish a prima facie case for forfeiture. U.S. 

 4

This case was decided under the State's old initial burden of 

proof, preponderance of the evidence. 
1-04-2624 

24 

Currency $3,108, 219 Ill. App. 3d at 448. 

In $1,002.00 U.S. Currency, relied upon by the State here, the 

trial court denied the State's complaint for forfeiture. $1,002.00 

U.S. Currency, 213 Ill. App. 3d at 900. Following a traffic stop 

of the claimant, the police found $1,022 in his pocket ($20 was 

given to his passenger for transportation), a red and white capsule 

in the car, and, in the backseat of the car, a red suitcase that 

contained hypodermic needles, balloons with a white powder 

substance, and a "bottle-cap" cooker. Both of the latter items 

subsequently tested positive for heroin. $1,002.00 U.S. Currency, 

213 Ill. App. 3d at 900. The appellate court reversed the trial 

court's denial of the State's complaint for forfeiture, finding 

that the statutory presumption based on close proximity had been 

established through the testimony of a police officer that the 

suitcase in the backseat of the car was within reach of the 

claimant. $1,002.00 U.S. Currency, 213 Ill. App. 3d at 904. 

In In re Twenty-Seven Thousand Four Hundred Forty Dollars, 164 

Ill. App. 3d 44, 517 N.E.2d 704 (1987) ($27,440), relied upon by 

the State and Ganious, the trial court denied the State's complaint 

for forfeiture. $27,440, 164 Ill. App. 3d at 45. Although the 

facts of this case are not relevant, with respect to the statutory 

presumption based upon close proximity, the court found that "the 

legislature intended the presumption to apply to situations where 

observable controlled substances or distributing paraphernalia, 

etc., are found in near proximity to currency." $27,440, 164 Ill. 
1-04-2624 

25 

App. 3d at 48. 

In People ex rel. Daley v. Nine Thousand Four Hundred and 

Three Dollars, $9,403 in U.S.C., 131 Ill. App. 3d 188, 476 N.E.2d 

80 (1985) ($9,403), again relied upon by both the State and 

Ganious, the trial court ruled in favor of the State on its 

complaint for forfeiture, finding that the statutory presumption 

based on close proximity had been raised. $9,403, 131 Ill. App. 3d 

at 190-91. In this case, a search was conducted of the claimant's 

single family home. A vial of tinfoil packets was discovered on 

the kitchen table; three of which contained heroin. $9,403, 131 

Ill. App. 3d at 190. The sum of $8,542 was found in the claimant's 

bedroom, which was directly adjacent to the kitchen. Specifically, 

$7,000 was found in a dresser drawer, which also contained numerous 

hypodermic needles. Additionally, $1,450 was found in the bedroom 

closet, along with a bag containing several handguns. Lastly, on 

top of the dresser, the police discovered scales, a quantity of 

plastic bags, squares of tinfoil, and an ounce of powder used to 

dilate heroin. $9,403, 131 Ill. App. 3d at 190. On appeal, the 

claimant argued that "when the money sought to be forfeited is 

found in a separate room from the forfeitable substance, the 

presumption is not raised because close proximity is not 

established." $9,403, 131 Ill. App. 3d at 191. The court 

disagreed, finding that, in the case before it, "the funds seized 

were found in a room directly adjacent to that where the heroin was 
1-04-2624 

26 

found. Moreover, the funds were in the same room as the scale and 

other drug paraphernalia." $9,403, 131 Ill. App. 3d at 191. 

According to the court, it would "not restrict or enlarge the plain 

meaning of an unambiguous statute to require that controlled 

substances and forfeitable items related thereto be found in the 

same drawer, box, or cabinet as the money." $9,403, 131 Ill. App. 

3d at 192. 

Clearly, none of these cases have mandated a set distance in 

either feet or inches. Moreover, it is clear from these cases that 

Illinois courts have found that objects in different rooms can be 

in close proximity. See U.S. Currency $3,108, 219 Ill. App. 3d at 

448 (bathroom and adjacent bedroom); $9,403, 131 Ill. App. 3d at 

191 (kitchen and adjacent bedroom). 

Based on the foregoing, the facts relevant to the inquiry here 

are the circumstances existing in Ganious= room at the time. In 

other words, the questions of whether Ganious gave a "cogent and 

coherent" reason for possessing the money, whether he was in a 

drug-induced stupor when he allowed the police to take the money 

and was later interviewed, the circumstances surrounding the canine 

sniff, and other similar questions are simply not relevant. In 

this regard, we disagree with the trial court=s finding that the 

fact no evidence was offered as to the dimensions of the dresser or 

its height is dispositive. Clearly, no case, either in Illinois or 

elsewhere, has required such evidence. 

Here, the undisputed evidence shows the following. Ganious 
1-04-2624 

27 

took the police to his bedroom, which was 8 x 10 feet. There can 

be no question in any rational person=s mind that this is a very 

small bedroom. In this bedroom, according to Windhorst's 

testimony, was a futon, a dresser, and a closet. A gun was 

retrieved from the closet. A suitcase and another case were 

recovered from under the futon. In this regard, we disagree with 

Ganious that this is a disputed question. Windhorst testified that 

he was never in the living room and there is no evidence of the 

presence of any other couch or futon in the apartment. Whether 

directly in front of the futon or very near it, given the 

dimensions of the room, the police discovered the cocaine on the 

dresser. Clearly, given the spacial relationship of this room, 

there can be no question that all of the objects were found in 

close proximity, or very near, to each other. We therefore find 

that the trial court erred in failing to apply the statutory 

presumption that the money was forfeitable based on its close 

proximity to the cocaine. Specifically, we find that the trial 

court erred in requiring the State to prove the dimensions or 

height of the dresser or its distance from the futon. Certainly, 

in a room this size, everything, under a common sense view, had to 

be within close proximity. 

We further believe that the trial court collapsed the 

necessary analysis in this case by addressing facts and factual 

questions as to other issues in analyzing the close 

proximity/probable cause issue. Since the State met its burden of 
1-04-2624 

28 

demonstrating that the statutory presumption arose, the burden then 

should have been shifted to claimants to demonstrate, by a 

preponderance of the evidence, under the civil rules of procedure 

and evidence, that the money was not subject to forfeiture. As the 

State argues, the trial court appears to have addressed this 

question without requiring claimants to present any admissible 

evidence to the court. 

Accordingly, we reverse the trial court's determination as 

contrary to law and remand this cause for further proceedings 

consistent with this decision and the dictates of the Forfeiture 

Act, including the question of the claimants' standing under 

applicable law. Based on our conclusion, we need not address the 

State's argument that the trial court erred in granting a directed 

verdict in favor of claimants because, as a matter of law, the 

totality of circumstances surrounding Ganious' voluntary surrender 

of the money established probable cause. However, we note in this 

regard, that the State did not posit this theory or argument before 

the trial court. 

 

 CONCLUSION 

For the reasons stated, we reverse the judgment of the circuit 

court of Cook County and remand this cause. 

Reversed and remanded. 

CAHILL, P.J., and GORDON, J., concur.