{
  "id": 5541533,
  "name": "THE PEOPLE ex rel. MICHAEL M. MIHM, State's Attorney of Peoria County, Plaintiff-Appellant, v. CHARLES E. MILLER et al., Defendants-Appellees",
  "name_abbreviation": "People ex rel. Mihm v. Miller",
  "decision_date": "1980-10-15",
  "docket_number": "No. 79-860",
  "first_page": "148",
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    "id": 8837,
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      "year": 1972,
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    {
      "cite": "52 Ill. 2d 37",
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      "reporter": "Ill. 2d",
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      "weight": 2,
      "year": 1972,
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          "page": "44"
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  "last_updated": "2023-07-14T20:16:28.821099+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE ex rel. MICHAEL M. MIHM, State\u2019s Attorney of Peoria County, Plaintiff-Appellant, v. CHARLES E. MILLER et al., Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE BARRY\ndelivered the opinion of the court:\nThe underlying cause in this appeal was brought to the Circuit Court of Peoria County upon the filing of a complaint for the forfeiture of the automobile of the defendant Charles E. Miller. In his answer to the complaint, the defendant prayed that the complaint be dismissed.\nBefore the trial court, the facts were stipulated by the parties to be that on June 23,1979, the defendant\u2019s automobile, which was being driven by the defendant, was stopped for failing to make a complete stop at a stop sign. The police officers making the stop observed what appeared to be marijuana on the console. One of the officers asked the defendant to exit the automobile, and the officer discovered in the car a glass which appeared to contain alcoholic liquor. In addition, when the defendant stepped out of the car, one of the officers observed the defendant drop from his pocket a small, plastic envelope containing a white powder which was later determined to be .08 grams of cocaine.\nAt the time of the hearing, charges against the defendant for the unlawful possession of cocaine and the unlawful possession of cannabis remained pending. A motion to suppress the evidence in the drug charges had been determined in favor of the State.\nBased on this evidence, the trial court dismissed the complaint. The trial court found that the automobile was not being used in or to further a criminal act, but that the presence of the drug on the defendant\u2019s person \u201cwas merely coincidental in time and place.\u201d From this determination, the State appeals.\nThe relevant portion of the pertinent statute states:\n\u201cAny vessel, vehicle or aircraft used with the knowledge and consent o\u00ed the owner in the commission of, or in the attempt to commit * * * an offense prohibited by * * * Section 0 0 0 402 * * * of the \u2018Illinois Controlled Substances Act\u2019 060 may be seized and delivered forthwith to the sheriff of the county of seizure.\u201d (Ill. Rev. Stat. 1977, ch. 38, par. 36 \u2014 1.)\nSection 402 (Ill. Rev. Stat. 1977, ch. 56M, par. 1402) declares the unlawful possession of less than 30 grams of cocaine to be a Class 3 felony.\nAs the terms are employed in the forfeiture statute, \u201cused in the commission or attempt\u201d seems to imply that the commission or attempt is in some way facilitated by the utilization of the vehicle. In People ex rel. Hanrahan v. One 1965 Oldsmobile (1972), 52 Ill. 2d 37, 284 N.E.2d 646, rev\u2019d on other grounds sub nom. Robinson v. Hanrahan (1972), 409 U.S. 38, 34 L. Ed. 2d 47, 93 S. Ct. 30, the Illinois Supreme Court, discussing the forfeiture of vehicles as a method of crime control, found no valid distinction between the confiscation of vehicles used in smuggling \u201cand the seizure of one which is used to facilitate an alleged felony\u201d (52 Ill. 2d 37, 44) where the facts indicate that the vehicle was an integral part of the crime.\nWhile there may be some question as to whether an automobile facilitates the actual possession of a very small amount of a controlled substance which is carried on the person of the driver, to the extent the automobile adds a dimension of privacy, however, it does facilitate the possession.\nIt must be noted that the defendant-appellee has not filed a brief with this court. This is unfortunate because the court is deprived of the appellee\u2019s reasoning and argument, but the court will not act as the appellee\u2019s advocate (Fischer v. Kellenberger (1979), 73 Ill. App. 3d 550, 392 N.E.2d 733.) Where, as here, the appellant\u2019s brief, with support from the record, demonstrates prima facia reversible error, the judgment of the trial court may be reversed. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.\nFor the reasons previously discussed, the order of the Circuit Court of Peoria County is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.\nReversed and remanded.\nSTOUDER and STENGEL, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE BARRY"
      }
    ],
    "attorneys": [
      "Michael M. Mihm, State\u2019s Attorney, of Peoria (Peter J. Wayne, Assistant State\u2019s Attorney, of counsel), for appellant.",
      "No brief filed for appellees."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE ex rel. MICHAEL M. MIHM, State\u2019s Attorney of Peoria County, Plaintiff-Appellant, v. CHARLES E. MILLER et al., Defendants-Appellees.\nThird District\nNo. 79-860\nOpinion filed October 15,1980.\nMichael M. Mihm, State\u2019s Attorney, of Peoria (Peter J. Wayne, Assistant State\u2019s Attorney, of counsel), for appellant.\nNo brief filed for appellees."
  },
  "file_name": "0148-01",
  "first_page_order": 170,
  "last_page_order": 172
}