Ann Maher Jun. 10, 2014, 1:10pm

The Fifth District Appellate Court has upheld St. Clair County Circuit Judge Stephen McGlynn who ruled there was not probable cause to find that $579 seized from a waitress arrested on drug charges last year in Fairview Heights was subject to forfeiture.

State’s Attorney Brendan Kelly had appealed McGlynn’s ruling that involved cash found in the purse of Natalie Turner – a waitress at the Penthouse Club in Sauget – who was arrested on July 10, 2013.

Turner had been stopped by FairviewHeights police officer Greg Hosp because the green Toyota she was driving had a cracked windshield. Turner and boyfriend Colin Feazel, the sole passenger, appeared “nervous,” the order states, thus leading to a computer check which revealed they both had drug histories.

Subsequently, Hosp called for a canine unit to sniff for drugs. When the unit arrived, the dog alerted to the odor of drugs in the vehicle, the order states. During a search, marijuana and a pipe were found in the vehicle's center console, 10 Xanax tablets were found in the driver's-door pocket, and a second marijuana pipe and $579 were found in Turner's purse. When she was searched, a small amount of heroin was found in her right pocket, and one oxymorphone pill was found in her left pocket.

According to the Rule 23 decision posted June 4, Turner produced a printout of the hours she had worked and the amount of cash tips that she had earned each shift at a hearing before McGlynn on July 19. McGlynn then specifically determined that Turner had offered sufficient evidence to prove that the cash was not related to drug activity, but was rather earned in the course of her job as a waitress.

Justice S. Gene Schwarm wrote the order for the three-justice panel with Justice Bruce Stewart concurring.

Justice Stephen Spomer dissented.

Spomer wrote that McGlynn erred when he allowed Turner to present "’evidence’–to the extent her unsworn ‘testimony’ at the brief hearing may be construed as evidence” when the sole question before him was whether the state had provided sufficient evidence to support a finding of probable cause.

“In this case, the State clearly did,” Spomer wrote. “Therefore, I would reverse the judgment of the trial court and remand with instructions to enter an order finding probable cause. Should the State institute subsequent proceedings, the claimant would then be entitled, in those proceedings, to try to prove by a preponderance of the evidence that her interest in the money in question is not subject to forfeiture.”

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