No. 2--06--0457 Filed 3-21-07

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Wi nn eb ag o C ou nt y. ) Plaintiff -Appella nt, )

) v. ) No. 05--MR--406 ) $9,290 in UNITED STATES CURRENCY, ) ONE BULO VA W ATC H, F OUR GOLD ) RING S, and TWO G OLD N ECKLACES, )

) Defend ants ) Honorab le ) Ronald L. Pirrello, (Sierra Morris, Claimant-Appellee). ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE HUTCHI NSON deli

vered the opinion o f the cou rt: The State appeals from the circuit court's order dismi ssing its forfeiture complaint on the
mo tion of the cl aimant, Sie rra Mor ris. The St

ate cont ends that the motion t

o dismiss wa s n o t accompanied

by an aff idavit and that the claimant thus failed to establish her ownersh ip intere st in the prope rty the State sought to forfeit . We affir

m. InSeptember 2004, the State served a notice of forf eiture on Lonn

ie Morris , seeking

to forfe it the contents

of a saf e deposit box that Mor

ris had r ented. Whe

n Morris d

id not appea

r, the pr operty
was administr

atively forfeit e d. On September 1, 2005, the claimant filed a two-count complaint alleging that she had an

ownership interest in the property in the safe deposit box. She alleged that because she had received no notice of the forf eiture proceedings, the

State h ad converted herNo. 2--06--0457

-2-

pr op er ty. The parties later agreed that the c laimant would dismiss her complaint and the State wou ld file a forfeitur

e compla int. The State subs equently

fil ed a for fei tu re c om pl ain t co nt ain in g th e fo ll owi ng a ll ega ti ons . In 2004, Illinois State Police trooper Daniel Balsley was investigating allege d drug d

ealing by L onnie Morris. Balsley le arned that Morris had a safe deposit box containing a large amount

of currency at Amcore Bank in Rockford. Balsley learned that

Morris had

a history of drug -related arrests and
was thenin the Winne

bago Cou nty jail. Amc ore Ba

nk employ

ees conf irmed tha t Morrishad rented a safe deposit box on July 1, 2004, and had acce ssed it several times since then. Based on this information, Balsley executed a complaint for a search warr ant. Judge Angus Moore issued the

warran t and ag ents of

the State Line Area Na rcotics T eam exec

uted it the

same da y. In th e safe d

eposit box, a

gents f ound $9,29 0 in curr

ency , one go ld Bulova

watch, f our gold rings, t wo gold necklac es, and c ertific ates of ti tle for th ree veh icles re gister

ed to L onnie Mor

ris. Balsl ey's affidavit, which was attached to the complaint, alleg ed the following ad di tional facts. From speaking with Judy Ma rtinez, abank employee , Balsley learned that on August 5, 2004, Lonni e Morris's two daughters, the claimant and Lori Morris-Tillman, tried to acc ess the safe de posit box. The clai

mant plac ed a lar

ge han dful of gol d jewelry on the c ounter. Martinez denied the
womenaccess to the box because they did not have the key. The women left. They

returned about five hour s late

r and were give n acc ess to

the b ox. The claimant moved to dismiss the complaint. She alleged that , b ecause she had an
owner ship interest in the property and had not received notice of the forfe iture within 45 d ay s a s required by

statute (see 725 ILCS 150/6(A) (West 2004)), the complaint could not proceed.No. 2--06--0457

-3-

At the he aring, the State

argue d that, in s eeking

to forfe it personal property , it was required to notify only those with

an owner

ship inter est of whi ch it was a

ware, a nd the cla

imant's si ngle
access to the saf e deposit box did not de

monstrate that she in

fact had any

interest in the pro

perty therein. The trial cou

rt stated that it was "inclined" to accept the State' s position, but continued the hearing to al lo w t he pa rt ie s t o p re se nt au th or it y. At the continued hearing, the claimant tendered the rental agreement for the

safe deposit box, showing that she was listed as a co-lessee with her father. The tria l court g ranted t he motion to

dismiss and

the State appeals
. The State con

tends tha t the tria l court e rred in d ismissing the compl aint. The State's primary contentionis that the motion to dismiss was improper, as it was not accompan ied by an af fidavit. The State also contends that th e c la im an t f

ai le d t o e st ab li sh he r o wn er sh ip in te re st in th e p ro pe rt y. The claimant responds that an affidavit was unnecessary because the motion was filed pursuant to section2--615 (735 IL CS 5/2-- 615 (West 2004)) rather than section 2--619 (735 I LCS 5/2--619 (West 2004)) of the Code of Civil Procedure and, in any event, the facts

showing her interest in the propert y w ere app arent f

rom the fa

ce of the State's complain t. "A section 2--6 15 motion attacks the l egal sufficiency of a comp laint." Rockford Memorial Hospital v. Havrilesko , 368 Ill. App. 3d 115, 120 (2006). On the other hand, a section2--619 motion present s affirmative matter that tends to defeat the cause of action. Lo v. Provena

Covenant Medical Center , 356 I ll. App. 3d 538, 540 (2005). In either c ase, we review de novo the granting of such a motion. Havrilesko , 368 I ll. App. 3d at 121; Lo , 356 Ill. App. 3d at 540. Where a section 2--619 motion relies on grounds appearing onthe fac e of the c omplaint, it need not be supported by af

fidavit. O'HareTruck Se

rvice, I nc. v. Illinois Stat

e Police , 284 Ill. App. 3d 941, 946 (1996). Here, the facts support ing the m otion--that the cla

imant wen

t to the ba nk withNo. 2--06--0457

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a handful of jewelry , later returned with the key , and was given access to the box--were contained inBa ls le y' s affida vit, which was attached to the complaint. See 735 I LCS 5/2--606 (West 2004) (exhibits are part of complaint for all purposes). Notice of a

forfeiture must be given to any one with a known interest in the property involved. 725 IL CS 150/6(A) (West 2004); see also People ex rel. Foreman v. Estate of Kawa , 152 I ll. App. 3d 792, 798 (1987), quoting Ill. Rev. Stat. 1985, ch. 38, par. 15- -2 (now 720 IL CS 5/15--2(West 2004)) ( an "owner," f

or purpos es o f the for feiture statutes, is one " 'who has possession of or a ny other interest inthe property involved'

"). Here, the State's allega tions that the c laimant ha

d acces s to the box and appa

rently placed s ome prope

rty in it were sufficie nt to establish that it knew she had
a protectable interest in the box's contents. Thus, regar dless of the section under

which the claimant moved to dismiss, it was unnecessary for the claimant to attach an affidavit attesting to the fac ts that
were a lleged in the State 's compl aint. It is true that the claimant injected a factual issue into the hearing by

introducing the rental agree ment. However, this does not change our conc lusion. First, the agreement speaks for itself. The claimant's name appears at the end as a co- lessee, and an affidavit to that effect would ha ve added little. See Goldberg v. Michael , 328 Ill. App. 3d 593, 598 (2002) (plaintiffs did not question existence of settlement agreement on whichdefenda

nts relie d, and af

fidavit would have

been mer ely cumulative). Moreover, the rental agreement was not par ticularly probative of

the central issue in the case. The issue, after all, was who owned the property in the box, not who leased the box itself. The State's complaint already contained the information that the claimant was able to produce a key to the box and gain access to it. Moreove r, the mos treasonable inference fr om the complaint is that the jewelry the c laimant placed on the counter when she first tried to gain access to the box is theNo. 2--06--0457

-5-

same jewelry

that the Sta

te is now seeking to forfeit. Thus, the critical information was found in the Stat e's complain

t. The rental agreement

was mere ly a

dditional c ircumsta

ntial evid ence tha t at least some of th e proper

ty in the box belonged to

the claimant. The State argues that the claimant's sig nature may ha

ve been added to the rental agreement after the fact and that the interests of justice require that the State be abl e to ex plore the circumstances surrounding the claimant's interest in the box and its conten

ts. This ar

gument f ails for several reasons. First, for the rea sons just described, the issue o f th e rental agreement wa s something of a red herring. The complaint alleged ample facts tha t should have put the State on notice that th e cl aimant had an interest in the box and its contents. Moreover, the State never questioned

the genuineness of the rental ag reement in the trial court. The State could have asked the trial court for an evidentiary hearing or

for leave to conduct additional discovery on this issue, but did not do so. See Cabrera

v. First N a tional Bank of Wheaton , 324 Ill. App. 3d 85, 103 (2001) (failure to request hearing on motion results in waiver ). For the foregoing reasons, the judg ment of the circuit cour t of Winnebag o County

is affirmed. Affirmed. BYRNE and GIL

LERAN JOHNSON, JJ., concur.