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Criminal Nuggets

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Education
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This is what truly efficient legal learning looks like. Samuel Partida, Jr. has a way of turning dry, criminal court decisions into understandable bits of valuable knowledge. The nuggets of information just plop out of the cases. Sam has a knack of focusing on the choices made by the people, the lawyers and the judges in the cases. Under this kind of learning regime, the lessons just naturally fall out of the discussion. Anyone with a desire to learn the criminal law in a fundamental way will find a home here. Staying current with the case law has never been this easy, nor this fun.

Read more

This is what truly efficient legal learning looks like. Samuel Partida, Jr. has a way of turning dry, criminal court decisions into understandable bits of valuable knowledge. The nuggets of information just plop out of the cases. Sam has a knack of focusing on the choices made by the people, the lawyers and the judges in the cases. Under this kind of learning regime, the lessons just naturally fall out of the discussion. Anyone with a desire to learn the criminal law in a fundamental way will find a home here. Staying current with the case law has never been this easy, nor this fun.

iTunes Ratings

33 Ratings
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Energetic and passionate!

By Rachel2crafty - Sep 05 2018
Read more
Very interesting, and explains law in a very informative and interesting way. Just wish it was for my own state 🤭

Great Illinois-centered practical advice

By Tailoredestateplanning.com - Oct 09 2014
Read more
Informative and entertaining series of Illinois criminal law practice points!

iTunes Ratings

33 Ratings
Average Ratings
25
4
2
0
2

Energetic and passionate!

By Rachel2crafty - Sep 05 2018
Read more
Very interesting, and explains law in a very informative and interesting way. Just wish it was for my own state 🤭

Great Illinois-centered practical advice

By Tailoredestateplanning.com - Oct 09 2014
Read more
Informative and entertaining series of Illinois criminal law practice points!

Listen to:

Cover image of Criminal Nuggets

Criminal Nuggets

Updated 6 days ago

Read more

This is what truly efficient legal learning looks like. Samuel Partida, Jr. has a way of turning dry, criminal court decisions into understandable bits of valuable knowledge. The nuggets of information just plop out of the cases. Sam has a knack of focusing on the choices made by the people, the lawyers and the judges in the cases. Under this kind of learning regime, the lessons just naturally fall out of the discussion. Anyone with a desire to learn the criminal law in a fundamental way will find a home here. Staying current with the case law has never been this easy, nor this fun.

Did This Assistant Public Defender Violate Confidentiality When He Told The Judge About The Weird Phone Call?

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People v. Wood, 2017 IL App (1st) 143135 (November). Episode 426 (Duration 12:38)

Defendant thought his rant against the judge to the Public Defender was being made in confidence...not.

Facts

Defendant was on probation for telephone harassment for threatening to kill a coworker that got him fired.

Then the judge denied Defendant a chance to transfer his probation to Virginia where his girlfriend lived. Defendant was fired from multiple jobs and had difficulty meeting his probationary financial requirements, and he blamed the terms of his probation for his hardship.

Even though his probation was set to be terminated in April 2013, defendant figured he would not be released from his probation because he could not afford the fees.

He Makes The Call

Frustrated one night in March 2013, defendant looked up the public defender’s phone number and left a voicemail.

“There is not a day that goes by since I was sentenced at that courthouse that I have not dreamed about revenge and the utter hate I feel for the judge, and the utter hate I feel for the prosecuting attorney, and the utter hate I feel for the corporation that bound me in chains. There’s not a day that goes by that I don’t pray for the death and destruction upon the judge and upon every single person who sentenced me, and in front of witnesses, in front of everyone, and my utter hatred of you and of every other attorney there. You make me sick to my motherfucking stomach. And I hate you. And I hate the prosecuting attorney. And I hate Judge Calabrese. And I hate you all so very, very much. For the evil you did is un-freaking speakable and the lack of remorse I feel is because of the injustice done to me. You all can suck it because I hate you all with the bottomless, deepest hate of my heart.”

The Disclosure

Five days later, Assistant Public Defender Barry Horewitch went to Judge Calabrese’s courtroom, and while the judge was on the bench, told the judge that he needed to speak to him about something important.

Horewitch told Judge Calabrese about the voicemail and then played the voicemail for the judge in the presence of an assistant State’s Attorney.

At that time, no one knew the identity of the person that left the voicemail.

The Investigation

The judge alerted the sheriff in charge of security and his supervising judge.

A police officer was assigned to investigate.

About three weeks after the call was made and two weeks after the judge heard the message, defendant was identified as the caller.

Defendant was arrested and charged with threatening a public official. He admitted making the call, but claimed it was not a threat.

Was It A Threat?

Judge Calabrese testified at trial that he took the voicemail as a threat. He changed his routine, would not stay at the courthouse after hours, and was otherwise vigilant. He was scared for his own safety and that of his family. 

Defendant claimed he was overwhelmed by his legal troubles and wanted to tell the public defender exactly how he felt. He claimed that he never intended the message for the judge nor did he think the judge would ever hear it.

Following a jury trial, the jury found defendant guilty of threatening a public official. The trial judge sentenced defendant to two years in prison.

Threatening A Public Official

To sustain a conviction for threatening a public official, the State must prove three elements beyond a reasonable doubt:

(1) that defendant knowingly and willfully communicated, directly or indirectly, a threat to a public official; (2) that the threat would place the public official in reasonable apprehension of immediate or future bodily harm; and (3) that the threat was related to the official’s public status.

720 ILCS 5/12-9(a)(1)(i).

Issue

Defendant argues that his conviction should be reversed because he did not convey any communication to Judge Calabrese at all, either directly or indirectly, and because the content of the communication was not a true threat.

Analysis

We begin by analyzing whether defendant even made a threat to Judge Calabrese.

A true threat is...

a communication in which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.

The Case Law

Under recent Supreme Court precedent, statutes criminalizing speech for being threatening require proof that the speaker intends the communication to be a threat and that a reasonable listener would understand the communication to be threatening.

Again, the part of the defendant’s communication that the State principally relies upon to argue in favor of upholding the conviction is defendant’s statement that

“there is not a day that goes by since I was sentenced at that courthouse that I have not dreamed about revenge and the utter hate I feel for the judge” and

“there’s not a day that goes by that I don’t pray for the death and destruction upon the judge.”

It Was Just A Dream

Neither of those statements individually nor the communication in its entirety threatens “immediate or future bodily harm, sexual assault, confinement, or restraint.” See 720 ILCS 5/12-9(a)(1)(i) (West 2012).

Neither of the statements nor the communication in its entirety contains a “serious expression of an intent to commit an act of unlawful violence to a particular individual.”

A person expressing a dream for revenge is not the same as an expression that the person intends to undertake physical retaliation or commit violence. Dreaming about revenge in no way proves that defendant was communicating an intent to seek violent retribution.

Defendant made no actual threat of undertaking any act related to his dream for revenge. In the same way, praying for the death and destruction of the judge does not amount to a threat that defendant is going to do anything so that his prayers are realized.

The statements are not “serious expression[s] of an intent to commit an act of unlawful violence to a particular individual,” as the Supreme Court requires for criminalizing such speech.

Defendant never said he was going to do anything—just that he hoped and prayed bad things would befall those that he felt had wronged him.

On the flip side, defendant testified that he did not intend for the judge to hear the communication and specifically chose the public defender because he thought he could air his grievances confidentially.

Yes But...

The State points out that defendant was admittedly upset with Judge Calabrese’s ruling and that he called after-hours, from a blocked number, and did not leave his name.

The State emphasizes that defendant mentioned Judge Calabrese by name in the message.

Defendant also had a previous conviction for threatening a former coworker on the phone.

Holding

When reviewing the record, there is no evidence justifying a reasonable inference that defendant intended to convey the idea of violent retribution. Hypothetical and aspirational statements are not true threats as a matter of law.

Even back to the basic dictionary definition, defendant did not communicate an “intent to inflict harm.” He did not communicate an intent to do anything.

While distasteful, inept, and crude, defendant’s statement is not criminal. It is a vague, hyperbolic statement expressing defendant’s feelings, not making a true threat.

The State cannot criminalize a defendant’s hope that a judge dies, even if the defendant articulates those hopes. The State cannot criminalize a defendant’s dream for revenge unless, along with that expressed dream, the defendant seriously expresses an intention to commit an act of unlawful violence to fulfill his dream.

There was no such expression in this case.

Was It Reasonable For The PD To Believe It Was A Threat?

The referenced statements do not warn of any future harm. They are vague and ambiguous; they do not indicate defendant has the means to carry out a threat; they do not indicate any actual intent to carry out a threat or any intent to affirmatively do anything.

The lack of specificity and the lack of an expression that defendant had any intention to do anything makes it impossible to find defendant’s rant to be “a serious expression of an intent to commit a violent act.”

The State offered no evidence that defendant intended for the judge to hear this communication.

He's In The Clear

There is a difference between the public defender feeling obligated to alert the judge about the message and defendant knowingly transmitting a threat to the judge.

The evidence at trial proved the former, but not the latter. Reversed.

See Also

Episode 089 This Threatening a Public Official Charge Involved a Bad-Ass Public Defender 

Dec 13 2017

12mins

Play

Expert Testimony On Drug Use Is Not Always Required Sometimes Any Joe Shmoe Can Identify Impairment From Drug Use

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People v. Gocmen, 2018 IL 122388 (September). Episode 540 (Duration 14:15)

In obvious cases an officer need not be a drug detection expert to conclude a driver is under the influence of drugs.

Lower Case Opinion

People v. Gocmen, 2017 IL App (3d) 160025 (March). Episode 331 (Duration 7:57)

Officer untrained in the use of narcotics doesn't know enough to make this DUI drug arrest.

The trial court found that the officer lacked probable cause to arrest defendant for DUI/drugs because he was not qualified as an expert on the effects of drug use. Similarly, the appellate court concluded that a person with no specialized training could not properly opine on the “detection of controlled substances,” unlike the detection of alcohol use, the effects of which are “commonly known."  2017 IL App (3d) 160025, ¶ 16.

In reaching this conclusion, the appellate court relied, in part, on People v. Shelton, 303 Ill. App. 3d 915 (1999), and People v. Stout, 106 Ill. 2d 77 (1985). 

Facts

The officer had no specific DUI/drug detection training.

He responded to a motorist’s call reporting an unconscious person in a vehicle, possibly having a seizure. When he arrived, paramedics were already on the scene. Defendant’s Ford Explorer was in the eastbound lane of Route 52, with the passenger side tires on the grass and the driver’s side tires on the road. The vehicle’s transmission was in park, and the motor was running.

The officer observed defendant behind the wheel, with his foot on the brake and his left hand on the steering wheel.

Initially, defendant did not respond to the paramedics’ commands to exit the vehicle. He insisted that he was able to drive and said, incorrectly, that he was northbound on Route 59. Eventually, the paramedics convinced him to leave the vehicle; they placed him in the ambulance and transported him to the hospital.

Officer's Observations

The officer saw a Red Bull can “on the passenger’s side in plain view.”

The can had been cut or torn in half and had burn marks on its interior. On the outside bottom surface of the can, he saw a brown residue. He performed a “NARK swipe” test of the residue, which, he said, showed the presence of “opiates.” He also saw an uncapped one-milliliter syringe on the passenger seat. He described the syringe as having been “used.” He also found a small plastic bag containing a brown granular substance in defendant’s wallet in the center console.

Results of testing of this substance were not available at the time of the hearing.

He did not conduct any field sobriety tests. At the hospital, the officer observed that defendant was “tired and lethargic.”

He also testified that prior to the arrest defendant told him that he was diabetic.

Fresh Track Marks

On cross-examination, the officer testified that he spoke to the paramedics at the scene to ask if they had seen any signs of intoxication. They reported that defendant did not smell of alcohol, but they did observe a “fresh track mark” on his arm where a needle had been used.

Paramedics also reported that defendant was sweating, had pinpoint pupils, had a rapid heart rate of 144 beats per minute, and was drifting in and out of consciousness.

Suspension Recession Hearing

A motorist may request a judicial hearing for rescission of a statutory summary suspension in a civil proceeding, subject to civil procedure rules. 625 ILCS 5/2-118.1(a).

The scope of the hearing is limited to four specific statutory grounds for rescission. One of the issues that may be raised is “whether the officer had reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle upon a highway while under the influence of alcohol, other drug, or combination of both[.]” Id. § 2-118.1(b)(2).

The motorist has the initial burden of establishing a prima facie case for rescission. If he does so, the burden shifts to the State to come forward with evidence justifying the suspension. Id. at 559-60; see also People v. Orth, 124 Ill. 2d 326, 338, 340 (1988) (motorist has initial burden of making prima facie case for rescission; to make prima facie case, defendant must present evidence to support at least one of the statutory grounds for rescission).

Probable Cause Standard

This court has equated the “reasonable grounds” standard with the probable cause standard applied in the context of search and seizure under the fourth amendment. People v. Wear, 229 Ill. 2d 545, 560, 563 (2008). Under this standard, probable cause exists when the facts known to the officer at the time are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime, based on the totality of the circumstances. The standard is the probability of criminal activity, not proof beyond a reasonable doubt or even that it be more likely than not.

Issue In This Case

A more precise formulation of the issue is whether defendant made a prima facie case that the officer lacked reasonable grounds to arrest him for DUI/drugs.

This requires us to answer two questions.

First, must an officer be qualified as an expert to testify regarding his inference from the totality of circumstances that a motorist was driving under the influence of drugs?

And, if not, did the totality of the circumstances in the present case provide reasonable grounds for the arrest of defendant for DUI/drugs?

Opinion Testimony

Under our rules, a witness who is not an expert may testify to his opinions or inferences unless they are “based on scientific, technical, or other specialized knowledge.” Ill. R. Evid. 701 (eff. Jan. 1, 2011). If such knowledge is relied upon, the witness must be qualified as an expert. Ill. R. Evid. 702 (eff. Jan. 1, 2011). ¶ 26

People v. Shelton Overruled

We have reservations about the court’s analysis in Shelton.

In Shelton, an officer testified at a criminal jury trial that the defendant was under the influence of drugs, basing his conclusion on the manner in which he was driving, his conduct during the traffic stop, his failing all of the field sobriety tests given, and his statement to the officer that he was “ ‘on Tylenol 3 with codeine.’ ” Shelton, 303 Ill. App. 3d at 917-18.

Although it found the evidence presented sufficient to support the jury’s verdict beyond a reasonable doubt, the appellate court in that case nevertheless commented that the trial court found “ ‘no evidence in the record’ ” of the effects of any drugs (id.), apparently discounting the defendant’s speeding, his odd and agitated behavior during the traffic stop, and his failure of field sobriety tests (id. at 917-18).

While such conduct is not always indicative of drug intoxication, it was consistent with the defendant’s being under the influence in light of his admission that he was “on” a prescription pain killer. We, thus, disagree with the Shelton court that expert testimony was necessary to present to the jury the officer’s assessment that the defendant was under the influence.

To the extent that Shelton requires expert testimony in every case in which an officer’s finding of probable cause is based on his or her inference from the totality of circumstances that the defendant was under the influence of drugs, it is hereby overruled.

Defendant Was Acting Wacky In This Case

During the traffic stop, the defendant’s behavior included telling the officer that he did not have a driver’s license before giving him the license, his suggestion that the officer should go for a ride with him, ­ his statement that he was “ ‘getting ready to run’ ” followed by a statement that he was just kidding, his constant talking, his inability to stand still, his lack of balance, and his threats against the officer and his family.

An officer with many years of experience or with specialized training relevant to the issue may be more credible than a rookie. That said, nothing in our precedent requires expert testimony in every case involving the question of whether a defendant was under the influence of drugs.

Sometimes You Do Need An Expert

In some circumstances, expert testimony regarding the basis for an officer’s finding of probable cause is required.

In People v. McKown, 236 Ill. 2d 278 (2010), the defendant was convicted of DUI/alcohol, based in part on the results of the horizontal gaze nystagmus (HGN) test performed by the arresting officer. The defendant argued on appeal that the HGN test did not meet the Frye standard for admissibility of scientific evidence.

We held that “evidence of HGN field-sobriety testing, when performed according to protocol by a properly trained officer, is admissible under the Frye test for the purpose of showing whether the subject has likely consumed alcohol and may be impaired.” Id. at 306.

“A properly trained police officer who performed the HGN field test in accordance with proper procedures may give expert testimony regarding the results of the test.” Id.

Defendant Was Obviously Impaired

In the present case, there is no question that the defendant was impaired.

The probable cause question is whether the relatively inexperienced officer could have reasonably concluded that the defendant’s obvious impairment was due to his use of drugs. Had the officer conducted field sobriety tests, his experience and expertise in conducting such tests and interpreting the results would be at issue. However, no such tests were conducted, and the results of such tests were not the basis for the arrest.

The officer’s conclusion that defendant was under the influence of drugs was not based on scientific, technical, or specialized knowledge that required specialized training or experience. The trial court and the appellate court held categorically that a police officer could not opine as to whether a motorist was under the influence of drugs without being qualified as an expert witness. We reject this conclusion, which is not supported by our precedent.

Totality of the Circumstances

Having rejected the lower court’s insistence on expert testimony in this case, we turn to the question of whether defendant made a prima facie case that the officer lacked probable cause to arrest him for DUI/drugs. This question requires assessment of the totality of the circumstances.

The offense of DUI/drugs requires that the individual “drive or be in actual physical control” of a vehicle while “under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving.” 625 ILCS 5/11-501(a)(4).

He Was Driving

Defendant was behind the wheel of the vehicle, with the motor running, on Route 52, so he was in actual physical control of a motor vehicle on a state highway. Clearly, he was incapable of driving safely, having driven his sport utility vehicle off the road while semiconscious.

But Why Was He Impaired?

The only question is whether he was impaired as the result of a medical emergency, the ingestion of drugs or alcohol, or some combination thereof. First, defendant’s physical condition was consistent with drug use.

Trial Court Ignored The Obvious

The trial court, however, overlooked defendant’s semiconscious state and his disorientation, which a reasonably cautious person might suspect was due to drug or alcohol ingestion. The appellate court also discounted defendant’s physical symptoms because the officer “never observed defendant and only knew these symptoms by speaking to the paramedics.” 2017 IL App (3d) 160025, ¶ 14. However, the officer did observe the defendant at the scene and at the hospital, where they spoke.

Hearsay Is Permissible

Further, hearsay is a permissible basis for a finding of probable cause. People v. Macias, 39 Ill. 2d 208, 213 (1968) (probable cause “may be founded on hearsay evidence” and “is based upon the factual and practical considerations of everyday life upon which reasonable and prudent men, not legal technicians, act”); see also People v. Horine, 2017 IL App (4th) 170128, ¶ 16 (in hearing on defendant’s petition to rescind statutory summary suspension, “the officer’s testimony, even if it includes hearsay, is permissible as it provides the court with the necessary information to rule on the petition. Although such testimony may constitute impermissible hearsay at trial, such testimony is permissible in this setting.”).

Thus, the officer properly relied on his own observations, information provided by the paramedics, and his observations of their interaction with defendant.

While defendant’s physical condition, standing alone, did not demonstrate that his impairment was drug-induced, it was consistent with drug use and supports the officer’s conclusion.

Valid Evidence Of Drug Use

Second, the officer performed a swipe test on the burned Red Bull can and detected the presence of opiates.

The officer performed a swipe test for opiates, which revealed the presence of opiates. Further, defendant did not offer an innocent explanation for the presence of the burn-marked metal can, and none is readily apparent. Even a rookie police officer would be aware of this commonly known device for “cooking” drugs prior to injection, as would any person who watches crime dramas on film or television.

Combined with defendant’s physical and mental state, the positive swipe test for opiates supports probable cause for arrest for DUI/drugs.

And He Had Drugs On Him

Third, other evidence showed the likely, or at least possible, presence of illicit drugs.

Although it was reasonable under the circumstances for the officer to suspect that the substance was an illicit drug, the mere presence of the unidentified substance does not—standing alone—provide reasonable suspicion that the individual in possession of the substance was under the influence.

However, the packaging, the location of the small plastic bag, and the appearance of its contents support the officer’s inference that the driver was drug-impaired, especially considering other circumstances. Indeed, given the presence of this suspicious substance and the absence of insulin and a blood glucose meter in the vehicle, it was a reasonable inference that the defendant had recently injected a substance other than insulin.

He Had Track Marks

Fourth, there was evidence of intravenous drug use by the defendant.

The officer’s testimony, which alluded to a “fresh” track mark, does not clearly distinguish between the sort of “track marks” that are caused by repeated intravenous drug use and a single mark on his arm consistent with a recent intravenous injection, as by using the syringe found in the vehicle.

Both the trial court and the appellate court accepted as fact that the defendant’s arms showed track marks indicative of repeated intravenous injections. Because this evidence was elicited by the defendant, any failure to clarify is his responsibility.

Thus, on the record before us, based on testimony elicited by the defendant, we conclude that he had not only a mark showing a recent intravenous injection but also track marks indicative of repeated intravenous drug use. That such track marks are frequently seen in users of illegal drugs is a matter of common knowledge. Courts frequently accept such testimony without the need for explanation by an expert. See, e.g., People v. House, 232 Ill. App. 3d 309, 314 (1992); People v. $1,002 United States Currency, 213 Ill. App. 3d 899, 901 (1991).

Lower Court Off Base With This (Track Marks)

Both the trial court and the appellate court concluded that these track marks could have been caused by regular injections of insulin for diabetes.

If they were basing their conclusions on what they believed was common knowledge, they were incorrect. Absent common knowledge, they lacked any evidentiary basis for this conclusion. Indeed, the trial court and the appellate court demanded a level of expertise from a police officer that they lacked, yet they opined, inaccurately, on the technique for insulin injection.

Insulin is not injected intravenously and, thus, cannot cause the kind of track marks associated with illegal drug use.

Lower Court Messed This Up As Well (Believed Wacked Out Driver)

Finally, the lower courts gave substantial weight to defendant’s uncorroborated statement to the officer that he was diabetic, presumably to explain the presence of the used syringe.

Defendant’s statement to the officer that he is diabetic was not corroborated by any physical evidence or circumstance known to the officer at the time of the arrest. The officer found evidence of opiates in the vehicle but no insulin or blood glucose meter.

In sum, there was no evidence available to the officer at the time of the arrest that defendant’s impairment may have been due, even in part, to diabetes. We do not expect police officers in the field to make differential diagnoses—only to determine based on the totality of the circumstances whether an impaired driver is under the influence of alcohol or drugs, even if he or she may also have a medical condition.

While We Are At It Lower Court Messed This Up Too (Test For Opiates)

The lower court inferred the officer did not even know what kind of test he was performing. Was it a test for opiates or cocaine?

But the officer was quite clear in his testimony that he performed a test for opiates. That's what he trained on, and he said "opiates" more than once. 

The only person to refer to a test for "cocaine" was the prosecutor on cross examination of the officer. Yet, the officer always answered with the word "opiates."

Holding

In this case, the totality of the circumstances supports the officer’s conclusion that defendant had been driving under the influence of drugs. The semiconscious defendant showed signs of recent intravenous injection, he possessed a used syringe, and the only injectable substance present was an opiate, apparently prepared for injection in the depression on the bottom of the aluminum beverage can.

We find no evidence of any circumstance that tends to cast doubt on the reasonableness of the officer’s inference.

Thus, we conclude that the trial court erred in finding that the burden shifted to the State. The defendant failed to present a prima facie case. Thus, the trial court erred by not granting the State’s motion for a directed finding.

Expert testimony is not required in every case for an officer to testify to his opinion that a motorist was under the influence of drugs based on his inference from the totality of the circumstances. When, as here, the totality of circumstances at the time of the arrest is sufficient to lead a reasonably cautious person to believe that an individual was driving under the influence of drugs, probable cause exists.

Thus, defendant failed to make a prima facie case that the rescission of his license was improper and the burden did not shift to the State. For the foregoing reasons, we reverse the judgment of the appellate court, vacate the rescission order entered by the trial court, and remand to the trial court for further proceedings consistent with this judgment. 

Sep 24 2019

14mins

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What Does Timbs v. Indiana Have To Say About Illinois Asset Forfeiture?

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Timbs v. Indiana, 2019 SCOTUS (February). Episode 594 (Duration 24:32)

Eight Amendment ban on excessive fines and forfeitures extends to the states.

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"Often when the defense wins one, you know, we get excited and we want to apply it to everything." -- Anthony Cameron.

About Anthony Cameron

Anthony Cameron is a lawyer in Quincy, Illinois. Anthony was Adams County state's attorney from 1980 to 1984. Now, his practice does it's fare share of criminal defense.

However, Anthony does not limit his practice to only criminal justice cases.

Any dilemma involving conflict with a government agency is in his wheelhouse.

"Can't Miss" Moments:

✓ What does Timbs v. Indiana have to say about Illinois DUI vehicle forfeiture? Do innocent owners now have a stronger claim? (Go to 8:41)

✓ Illinois already had a built in Eight Amendment protection clause into its Article 36 Forfeiture statute. To their credit they actually mention the Eight Amendment, but... (Go to 9:41)

✓ Here's a solid example of how Timbs v. Indiana could effect the outcome of a current Illinois based asset forfeiture. (Go to 10:54)

Links & Resources Issue

The question presented: Is the Eighth Amendment’s Excessive Fines Clause an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause?

Facts

Tyson Timbs pleaded guilty in Indiana state court to dealing in a controlled substance and conspiracy to commit theft.

The trial court sentenced him to one year of home detention and five years of probation, which included a court-supervised addiction-treatment program. The sentence also required Timbs to pay fees and costs totaling $1,203. At the time of Timbs’s arrest, the police seized his vehicle, a Land Rover SUV Timbs had purchased for about $42,000.

Timbs paid for the vehicle with money he received from an insurance policy when his father died. Timbs had recently purchased the vehicle for $42,000, more than four times the maximum $10,000 monetary fine assessable against him for his drug conviction.

The Bill of Rights

“The constitutional Amendments adopted in the aftermath of the Civil War,” however, “fundamentally altered our country’s federal system.” McDonald, 561 U. S., at 754.

With only “a handful” of exceptions, this Court has held that the Fourteenth Amendment’s Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States. Id., at 764–765.

A Bill of Rights protection is incorporated, we have explained, if it is “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.”

The Eighth Amendment

Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Part Of Our History

For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago.

Even absent a political motive, fines may be employed “in a measure out of accord with the penal goals of retribution and deterrence,” for “fines are a source of revenue,” while other forms of punishment “cost a State money.” In short, the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming.

Protection against excessive punitive economic sanctions secured by the Clause is, to repeat, both “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” McDonald, 561 U. S., at 767.

This Includes Asset Forfeitures

In Austin v. United States, 509 U. S. 602 (1993), however, this Court held that civil in rem forfeitures fall within the Clause’s protection when they are at least partially punitive. We thus decline the State’s invitation to reconsider our unanimous judgment in Austin that civil in rem forfeitures are fines for purposes of the Eighth Amendment when they are at least partially punitive.

As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. We disagree.

Broad Rights Are Protected

In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted. Indiana’s suggestion to the contrary is inconsistent with the approach we have taken in cases concerning novel applications of rights already deemed incorporated.

Look At These Recent SCOTUS Cases

For example, in Packingham v. North Carolina, 582 U. S. ___ (2017), we held that a North Carolina statute prohibiting registered sex offenders from accessing certain commonplace social media websites violated the First Amendment right to freedom of speech. In reaching this conclusion, we noted that the First Amendment’s Free Speech Clause was “applicable to the States under the Due Process Clause of the Fourteenth Amendment.” Id. We did not, however, inquire whether the Free Speech Clause’s application specifically to social media websites was fundamental or deeply rooted.

See also, e.g., Riley v. California, 573 U. S. 373 (2014) (holding, without separately considering incorporation, that States’ warrantless search of digital information stored on cell phones ordinarily violates the Fourth Amendment).

Similarly here, regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures is itself fundamental or deeply rooted, our conclusion that the Clause is incorporated remains unchanged. * * * For the reasons stated, the judgment of the Indiana Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

Holding

The Fourteenth Amendment, we hold, incorporates this protection..

Like the Eighth Amendment’s proscriptions of “cruel and unusual punishment” and “[e]xcessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminal law-enforcement authority. This safeguard, we hold, is “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.” McDonald v. Chicago, 561 U. S. 742, 767 (2010) (internal quotation marks omitted; emphasis deleted). The Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment.

Before You Go...

If you are an Illinios attorney and keeping up with the case law is important to you then read below to see how to get a free copy of my book.

You can't argue with the idea that steady, persistent attention to the cases increases your litigation game. But what if you could double, triple, even quadruple the number of cases your brain can digest and process?

Are you ready to join the other attorneys who have discovered how to make their ears their secret weapon?

Feb 25 2019

24mins

Play

077 DUI Discovery Violation Suppression of Evidence

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Go to Case Notes.

Does every DUI Discovery Violation result in suppression of evidence?

See People v. Olson, 2015 IL App (2d) 140267 (06/05/1015).

Download the Current Case List.

See What CLE Hours are Available.

Jun 18 2015

17mins

Play

081 Prosecutor Misuses Investigator Drug Evidence Suppressed

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Go to Show Notes.

Dispute over how broad a prosecutor's authority reaches leads to supression of drug evidence.

It turns out, a prosecutor was using an investigor hired by his office to conduct drug investigations.

The appellate court looked at whether the law actually authorized this type of use of county investigator services.

Download current Case List.

Jul 12 2015

14mins

Play

100 A Peek Into the Secret World of Informant Contracts (Snitch Contracts)

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Go to show notes.

For More Information on My October 22, 2015 Live CLE Opportunity:

How to Use a DUI Expert

Visit...

IllinoisCaseLaw.com/duicle

Click here to see my summary of the Two Cases This Year Where Police Have Broken Promises to a Snitch.

Oct 12 2015

12mins

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090 Meet A Tough PD (And Learn Something About Threatening a Public Official)

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Register for the October 22, 2015 - 4 Hours CLE  Seminar - Hampon Inn Suites, in Skokie, IL 

DUI Decoded | Learn How to Use a DUI Expert in Your Next DUI

Register Now for Either the 1pm Or the 5 pm Session.

Only $95 for Seminar & Book (DUI Decoded) or 

Just $75 for the Seminar (get the book; it will be helpful!)

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Sep 09 2015

10mins

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The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant With Kim Bilbrey

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In Episode 340 (Duration 14:18) of the Criminal Nuggets Podcast, Kim Bilbrey of the Kane County Public Defender's office indulges me as I ask about one of the easiest ways for police to search a car without a warrant.

Hit play to hear what she said. 

Subscribe: iTunes | Google PlayAndroid | RSS | DIRECT DOWNLOAD

Defending Difficult Drug Cases Register Now: Friday, May 19th Rockford, Illinois 6 Hrs CLE With 1 Hr Ethics

Hit the button below to learn more and register now.

Register Now

Register Now (March 19, 2017).

 

In this Episode

Kim Bilbrey has been with the Kane County Public Defender's Office for 9 years. 

She and her colleagues have had some success defending cases involving drug dog sniffs. Additionally, she and her team have brainstormed numerous ways in which the legal landscape around warrantless car searches is changing.

"Can't Miss" Moments

✓ These magic words instantly allow an officer to search a car without a warrant. (Go to 0:37) & (Go to 1:58 & 2:44)

✓ What happens when a soccer mom who hasn't smoked weed in her life has passengers in her car who reek of the stuff. (Go to 2:04)

✓ The presence of a prescription bottle in a car does not indicate or necessarily signal criminal activity. The new cannabis environment means we may have to rethink how we think about the odor of cannabis. (Go to 3:21)

✓Possession of a gun in Illinois is not necessarily illegal anymore. So, when an officer sees a gun it's not obvious at all that a crime is being committed. So too, the fundamental question here is this: If cannabis is not necessarily illegal anymore then how can the odor of cannabis justify a warrantless search of a car?  (Go to 4:39) & (Go to 5:08) 

✓ Kim is going be presenting at the IACDL Drug Seminar on Friday May 19, 2017. She'll be explaining how she breaks down a drug dog sniff case and reveal her secrets on how she's found success in these cases. Hit the link below to learn more and get registered for this CLE. (Go to 8:41)

Links & Resources Learn More & Register

This CLE presentation provides 6 hours of CLE credit including 1 hour of professional responsibility credit. 

Hit the button below to learn more.

Defending Difficult Drug Cases Register Now: Friday, May 19th Rockford, Illinois 6 Hrs CLE With 1 Hr Ethics

Hit the button below to learn more and register now.

Register Now

Register Now (March 19, 2017).

May 16 2017

14mins

Play

093 "Blackout" Evidence Insufficient To Prove Sexual Assault

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October 22, 2015

Live CLE Opportunity:

How to Use a DUI Expert in Your Next DUI Case

Click For More Information

Sep 15 2015

5mins

Play

Hearsay Involves Implied Information And Watch Out For “Course of Conduct” Exceptions

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People v. French,  2017 IL App (1st) 141815 (March). Episode 339 (Duration 18:04).

Little review of the hearsay rule involving the course of conduct and existing state of mind exceptions.

Facts

This was a drive-by shooting involving a driver and the shooter, who was the defendant in this case.

One victim died at the scene a second survived his gunshot wounds.

The surviving victim testified he saw the car pass by the group twice. The second time the victim that died tried unsuccessfully to wave or flag down the driver.

Deceased victim (Victim D) told surviving victim (Victim) that he wanted to talk to the driver about “what was going on between” him and Victim D’s family.

When the driver came back the third time he had the shooter with him and the shooting happened.

Hearsay Issue

Defendant argued this testimony was hearsay and should have been excluded.

Hearsay evidence is testimony regarding an out-of-court statement offered to prove the truth of the matters asserted.

Unless hearsay falls within an exception to the hearsay rule, it is generally inadmissible due to its lack of reliability and the inability of the opposing party to confront the declarant.

Implied Information Is Also Hearsay

The matters asserted as employed in the definition of hearsay includes both matters directly expressed and matters the declarant necessarily implicitly intended to express. When the declarant necessarily intended to express the inference for which the statement is offered, the statement is tantamount to a direct assertion and therefore is hearsay.

The declarant necessarily intends to assert (i.e., implicitly asserts) matters forming the foundation for matters directly expressed in the sense that such additional matters must be assumed to be true to give meaning to the matters directly expressed in the context in which that statement was made.

Example

To illustrate, the question “Do you think it will stop raining in one hour?” contains the implicit assertion that it is currently raining.” Michael H. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 801.1.

Trial Court Said Not Hearsay

The trial court erred when it admitted this statement and found the testimony was not hearsay because it was not offered for the truth of the matter, and allowed the testimony to explain the course of conduct.

The trial court added that very often victims’ statements made just prior to their murder were admissible.

Course of Conduct

Explaining the course of conduct is akin to explaining the effect of words on a listener. Here, contrary to the trial court’s ruling, the statement was not admissible for the nonhearsay purpose of explaining the course of conduct because the deceased victim’s out-of-court statement cannot be used to explain his own conduct.

This was not a case where statements were offered for their effect on the listener or to explain the subsequent course of conduct of another person, which would not be hearsay.

Existing State of Mind

Illinois Rule of Evidence 803(3) is not applicable.

It says that a “statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)” is not excluded by the hearsay rule, even though the declarant is available as a witness.

Rule 803(3) does not permit the surviving victim to testify to the deceased victim’s intent, plan, or motive to stop the driver and talk to him about something because the deceased victim’s state of mind was not relevant to a material issue in the case.

Perhaps the deceased victim’s state of mind might have been relevant if defendant or the driver had claimed to have acted in self-defense, but here the material issues were the identities of the driver of the car and the shooter in the passenger seat.

Under the plain terms of Rule 803(3), Victim D’s belief that he saw who was driving the car and his intent to stop the car to talk to the driver about a dispute that could serve as the driver’s motive for the subsequent shooting do not constitute then-existing state of mind hearsay exceptions.

Analysis

Victim D’s statement that he wanted to stop the car to talk to the driver about something contains the implicit assertion that Victim D believed he observed the driver in that car and it implies there was some beef between the driver and Victim D’s family.

This is not a situation where the out-of-court statement was relevant simply because of the fact it was said.

Here, the relevance of the implicit assertion in the deceased victim’s statement depends on his believing that it was true, so it was offered for the truth of its content and therefore is hearsay.

Similarly, Victim D’s directly expressed assertion that he wanted to talk to the driver about something that was going on between their families is also relevant only for the truth of its content.

They also discuss a 115-10.1 issue. I think trial court gets the analysis wrong. But it doesn’t matter because all this hearsay stuff was plain error.

May 15 2017

18mins

Play

075 Exclusionary Rule and the Good Faith Exception

Jun 08 2015

25mins

Play

Trial Court Distinguishes The Hell Out Of Lerma To Deny The Use Of Eyewitness Expert

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eople v. Anderson, 2017 IL App (1st) 122640 (January). Episode 293 (Duration  10:22)

Trial court distinguishes Lerma to deny the use of an eyewitness expert in this case.

Facts

The victims were shot to death as they sat in a vehicle in the parking lot behind Leader Liquors.

Officers just happen to be going to that area when they heard multiple gunshots and saw a man standing near a car shooting at the occupants. A chase ensues.

The officers have moments to observe the shooters face and make a general description. The call it in as they are chasing. A few moments later another officer sees defendant.

He has thrown some gloves on the ground but is arrested.

The officers who witnessed the shooting are able to identify defendant as the shooter. It also turned out they had arrested defendant one year earlier.

Police retrace the steps of the shooter and find the murder weapon on a roof. The gloves had gunshot residue on them. Turns our the defendant used to be friends with the victims.

Identification

Defendant challenged the identification made by the officers and challenged the fact he was denied the use of an eyewitness identification expert witness.

Both officers testified that as defendant was running, his hood fell back, allowing them to see an unobstructed view of his face from a distance of 10 to 12 feet away in a well-lit alley.

They positively identified him only 15 to 20 minutes later.

They testified to a degree of detail that would allow the jury to make a determination as to the appropriate weight to be given their identification testimony. The description of the fleeing offender given over the radio was accurate to the extent that it matched the defendant running through the neighborhood gangways within four minutes of the shooting in close proximity to the scene.

The court also considered the level of certainty the witness demonstrated in identifying defendant as the offender. Both officers identified defendant without hesitation shortly after seeing his face in the alley.

Finally, it considers the amount of time between the commission of the crime and the identification. Here, the officers identified defendant about 15 to 20 minutes after the shooting.

Why The Identification Was Denied

In addressing the admission of expert testimony, the trial judge should balance the probative value of the evidence against its prejudicial effect to determine the reliability of the testimony.

Furthermore, the necessity and relevance of the expert testimony should be carefully considered in light of the facts of the case.

The reviewing court noted that in People v. Lerma, 2016 IL 118496, the court began its analysis by stating that “this is the type of case for which eyewitness testimony is both relevant and appropriate” given that the only evidence of the defendant’s guilt was the eyewitness identifications made by two witnesses.

Lerma Distinguished

There was no physical evidence and no confession or other incriminating statements.

Arrested Nearby & Quick Identification

Here, defendant’s conviction does not rest solely on the identification made by the two officers. Not only did the officers see defendant shoot the victims, they chased him through an alley. After they lost sight of him, another officer saw the defendant who was wearing clothes that matched a radio broadcast that described the shooter, running through a gangway and alley near the shooting, and defendant was detained four blocks from the shooting only four minutes after it had occurred.

The Gloves

In addition, defendant was seen throwing down a pair of black gloves that later tested positive for gunshot residue.

The Murder Weapon

Additionally, the murder weapon was found on the route between where they chased defendant and where a third officer later observed him running.

2 Witnesses

Defendant was then identified separately by both officers who gave chase and saw the shooting.

The trial court weighed the facts and circumstances of this case and correctly concluded that the conclusion to be reached would not “rise or fall on the identification of two police officers alone.”

Unlike Lerma, there was physical and circumstantial evidence outside of the identification testimony that supported defendant’s conviction.

No Report

Furthermore, unlike Lerma, there was no report submitted by an expert in this case, nor did the defense submit a detailed motion containing the proposed testimony of the expert or a summary of the relevance of that testimony to the issues in this case.

Generalized Motion

Instead, the defense submitted a generalized motion indicating that the expert would testify to common misconceptions regarding eyewitness identifications, the accuracy of eyewitness identifications and the effect of suggestivity or bias, how memory affects eyewitness identification, “factors associated with verified cases of misidentification and as observed in this particular case,” and that “the eyewitnesses in the present case are not reliable based on the factors in this case.”

The trial court conducted a meaningful inquiry of the expert witness and the content to which he would testify at a hearing on defendant’s motion and, in its discretion, denied the motion.

There was no abuse of discretion.

Holding

The record shows that the trial court balanced the probative value against the possible prejudice that may arise from allowing this expert to testify. In addition, the jury was given an instruction on how to weigh eyewitness identification testimony. Even if this was the type of case for which expert eyewitness testimony was relevant and appropriate, which it is not, the trial court’s denial of defendant’s request is a harmless error.

Feb 13 2019

10mins

Play

085 Two Step Formula To Avoid Prior Inconsistent Statement Error

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See the Show Notes.

Case Discussed

See People v. Lofton, 2015 IL App (2d) 130135 (07/24/2015)

Law Discussed

Show discusses  725 ILCS 5/115-10.1, the Admissibility of Prior Inconsistent Statements, section of the Illinois Code of Criminal Procedure. 

Similar Prior Episodes

Prior Podcast Episode 052 of the Criminal Nuggets Podcast is also discussed.

Usful Referenes

Two methods of impeachment are discussed, the RAC (Recommit, Accredit, Confront) and CCC (Commit, Credit, Confront) systems.

Direct Link to the Diagram: Two Step Formula to Avoid Prior Inconsistent Statement Error Diagram.

Aug 18 2015

25mins

Play

099 DUI Errors And Omissions | Fight Back

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Go to Show notes.

Additionally,

For More Information on My October 22, 2015 Live CLE Opportunity:

How to Use a DUI Expert

Visit...

IllinoisCaseLaw.com/duicle

Click here ==>  to download three most recent Illinois DUI cases talking about no discovery sanctions

Oct 05 2015

12mins

Play

An Example Of Inartful Closing Argument And How To Fix It

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People v. Garcia, 2019 IL App (2d) 161112 (March). Episode 615 (Duration 15:28)

Prosecutor used an inartful example to illustrate accountability, but this was not plain error.

Gist

Following a trial in the circuit court of Boone County, a jury found defendant, Ricardo A. Garcia, guilty of first-degree murder in connection with the shooting death of Giovanni Galicia (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3)).

Defendant was also found guilty of mob action (720 ILCS 5/25-1(a)(1)). He was found not guilty, however, of the attempted murders of Jesus Casas and Fermin Estrada.

Sentence

The court sentenced defendant to 35 years in prison for first-degree murder, to be served consecutively to a 2-year sentence for mob action.

Facts

Defendant was the driver of black Navigator.

Two men got out of it and pepperred a rival gang members’ car with bullets. The victim got hit in the head and died.

The men then got back in the care and defendant drove away. A police chase ensued and defendant was caught.

Inartful Closing Argument

Although the State’s examples were inartful, we hold that any error that occurred does not require reversal pursuant to either prong of the plain-error doctrine.

Comment 1

In attempting to explain accountability the proseuctor said:

“Now, we recognize this concept every day and we probably don’t even think about it during lawful activities. For example, if you go to JC Penney’s and you want to buy blue jeans and you go into the store and there’s a sales clerk walking by and you stop her and say, ‘Excuse me. Where are your blue jeans?’ And she says, ‘Oh, they’re on the back wall.’ So you go to the back wall, you pick out your Levis, and you go to the cash register and another woman rings you out. Now, the question is who sold you the jeans? Was it JC Penney, was it Levi Strauss, was it the salesperson who pointed you to the back wall, or the salesperson who took your money? Well, in truth they all are responsible for selling you the jeans because they all facilitated the sale. We also see this that we don’t need to see an expressed agreement to know that there was a plan."

Comment 2

The prosecutor continued:

"Again, if you’re walking along the sidewalk next to a park and you watch a car pull up, there’s a parent in the front seat and two children get out and run and start playing in the park, you know that there was a common plan to go to the park between those three people. You know that it existed before they arrived at the park. They decided sometime to go to the park. They got in the car and drove to the park. That plan existed before they got to that park, and you have no evidence of an expressed agreement to go to the park, but you have no problem with the concept that the parents are responsible for the children being at the park because they facilitated that transaction. You don’t need an expressed agreement. You can tell by the circumstances that there was an agreement to go to the park.”

What Was Wrong With The Statements?

These examples, in and of themselves, failed to provide complete and accurate representations of the law of accountability.

Neither scenario mentioned any sort of criminal activity.

Of course, one cannot be held criminally accountable for another’s actions in the absence of a crime. The examples also failed to illustrate that a defendant is not accountable for another’s conduct unless the defendant acts with the intention of promoting or facilitating the commission of an offense. 720 ILCS 5/5-2(c).

Kids Are Dumb

Moreover, the park example did a poor job of illustrating the supposed common plan among the occupants of the vehicle.

The prosecutor asserted that the children, who were of unspecified ages, must have planned in advance to go to the park simply because their parent ended up taking them there. That is not necessarily the case. What if the parent did not tell the children in advance that they were going to the park? What if the parent did not form any plan to take the children to the park until he or she happened to pass the park on the way to a different destination?

Additionally, as defendant correctly notes, driving a person to a destination does not in itself make the driver legally accountable for the passenger’s acts.

Harmless Error

With that said defendant’s concerns about the prosecutor’s use of the phrase “expressed agreement” in the park example are a bit overstated.

The prosecutor clearly used this phrase as part of his attempt to illustrate, albeit through a questionable example, that the State does not need to prove express words of agreement between codefendants and that the common design may instead be inferred from the surrounding circumstances.

Defense Counter Example

Furthermore, defense counsel in his closing argument specifically informed the jury of some of the problems with the prosecutor’s park example:

“Now, when we talk about—when he talks about his analogies, he talks about, well, when you go to a park and two kids get out of the car and they run to the park, you know there was an agreement to go to the park. Okay. When those kids start getting in a fight with somebody else there, the parents did not agree for that fight. The parents did not intend for that fight. The parents did not plan for that fight. They are not accountable for that fight. Merely getting the kids to the park or merely getting these people to this area is not accountability. It is not guilty and it is not beyond a reasonable doubt.”

Holding

Considering that

    Settings

(1) the two examples at issue constituted a small portion of the State’s closing argument, which otherwise reflected a proper legal theory, (2) defense counsel took the opportunity to explain to the jury the flaws in one of those examples, and (3) the judge properly instructed the jury, there is no threat that the jury was under any misapprehensions about the applicable law.

For these reasons, defendant has not demonstrated second-prong plain error. 

Conviction affirmed.

Apr 15 2019

15mins

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038 DUI Sentencing Laws | Rational or a Frenzy?

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http://IllinoisCaseLaw.com/dui-sentencing-laws-rational-or-frenzy

DUI sentencing laws infect an Illinois non DUI sentencing hearing. Have good intentioned DUI laws turned into an  uncontrollable emotional frenzy?

[powerpress]

Podcast Episode number 038 of the Criminal Nuggets Podcast discusses the recently reversed prison sentence in People v. Daly, 2014 IL App (4th) 140624.

[you tube]

What Happened?

We have a family celebrating a birthday in rural Illinois. In the early morning hours, a 24 year old female defendant was driving an ATV with four passengers.

Defendant made a right turn. The vehicle skidded and overturned. The 19 year old passenger in the passenger’s seat suffered severe internal injuries that she died from.

Defendant admitted to drinking alcohol at the party.

The Charges

Defendant was charged with Aggravated DUI for being under the influence and driving an all terrain vehicle, while under the influence of alcohol, and a death results. See 625 ILCS 5/11-501(d)(1)(F).

This is Class 2 Felony offense with an enhanced sentencing range of 3-14 years in prison. Additionally, there is this weird presumption for prison.

The sentencing section says this:

 ...unless the court determines that extraordinary circumstances exist and require probation, [Defendant] shall be sentenced to: (i) a term of imprisonment of not less than 3 years and not more than 14 years if the violation resulted in the death of one person...”

625 ILCS 5/11-501(d)(2)(G)

The flips around the normal presumption for probation for a felony offense. See 730 ILCS 5/5-5-3(c)(2).

Prosecution Was not The Problem

The prosecution needs to be given credit for trying to do the right thing in this case. The State had agreed to accept a plea to reckless homicide. This sounds like a more serious crime.

However, reckless homicide was a class 3 Felony offense. More importantly, the presumption of probation kicks back in. See 720 ILCS 5/9-3(d)(2).

The judge declined that plea.

The judge cited the enormous public policy imbedded in the statute demanding prison. Judge was referring to the DUI statute not the reckless homicide statute.

The Sentencing Hearing

Once the judge rejected the sentencing plea, it was clear the defendant was either going to have to have a trial or cold plea to something and face the same judge for a sentencing.

Defendant cold plead to the reckless homicide charge.

Her mitigation was substantial -

  • Registered Nurse
  • 24 Years Old
  • 20 Month Old Child
  • Lived With Baby’s Father
  • Zero Criminal History
  • No History of Alcohol or Drug Abuse
  • 9 Character Witness
  • Suffering From Post Traumatic Stress Disorder
  • Fully Engaged in Counseling
  • Accepted Responsibility
  • Support of Victim's Family

It was the State at sentencing who told the judge he could and should impose probation because she did not plead guilty to the DUI but to a lesser charge. The State told the court all the mandatory sentencing requirements he was reading into this case did not apply.

The Judge’s Sentence

“In sentencing defendant, the trial court rejected both parties' recommendations and alluded again to the public policy of the aggravated DUI statute.”  ¶ 18.

Judge began by saying he has considered the mitigation then went on to talk about -

  • The Deaths and Injury Caused by Drinking
  • The Other DUI Cases He Has Dealt
  • The Most Recent DUI Case Involved a Fireman
  • The Overuse of the Word “Accident” in This Case
  • Deterring Deaths from DUI

The judge then sentenced Defendant to 3.5 years in prison. Boot camp was quickly suggested by the parties but rejected by judge immediately.

The Appeal

“[T]he appellate court was never meant to be a rubber stamp for the sentencing decisions of trial courts. A reviewing court may disturb a sentence within statutory limits if the trial court abused its discretion in imposing a sentence.” ¶ 26.

The appellate court said that in there - 

“review of the record in this case shows little to indicate the trial court considered ‘the nature and circumstance of the offense,’ ‘the history, character and condition of the offender,’ or defendant's rehabilitative potential in fashioning its sentence. Instead, the record shows the court considered the nature and circumstances of an offense to which defendant did not plead guilty.” ¶ 30

Appellate court pointed out that the record did not reveal that defendant was intoxicated. All the record showed is that seatbelts were not being worn.

She wasn’t even speeding.

The appeals court also pointed out that a trial judge is not allowed to -

  • Compare one case to other cases
  • Refuse sentencing alternatives to a whole class of offender
  • Disregard probation in general
  • Consider factors inherent in the crime charged

The appellate court concluded the trial judge abused its discretion.

The sentence was reduced to probation and remanded back to the trial level for resentencing. The court wisely ordered the case go before a different judge.

Have DUI Sentencing Laws Gone Crazy?  

Does this case demonstrate that we are getting a little too crazy with DUI sentencing laws?

Not trying to be controversial. In general, I agree crime and punishment is a deterrent. I agree DUI deaths are a problem that should be discouraged by the law.

But can’t we do that with one simple law we all know, understand and execute?

The judge in this case was suppose to be the rationale party. The court is suppose to stay detached neutral and apply the law applicable in the case before the court.

Simple task and the court couldn’t do it.

Judge was the most emotional party in the case. I'm not trying to belittling the loss by the victim and her family. But the victim's family seemed to be in calm and collective about the criminal side of things.

Defense attorneys have quietly and loudly been saying this for  years now. In general, the fight it on a case by case basis in court.

What is different in this case, is that the prosecution got a feel for the effects when a frenzy takes over. Rationality and doing the right thing get lost.

Prosecution’s interest aligning with defendants in this case. May this case can give us some insight into the current state of affairs.

Dec 19 2014

22mins

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087 Drug Dog There In A Flash ...

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This is a very close case.

The trial judge granted the state's motion suppress evidence. The appellate court abruptly reversed.  

Go to Case to Find Out More.

Aug 29 2015

5mins

Play

080 Reasonable Doubt Question Answered By Illinois Supreme Court

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Go to show Notes.

The Illinois Supreme Court has put to rest the question of how to answer when the jury asks for a definition to “prove beyond a reasonable doubt.”

We here in Illinois do not provide a jury instruction on the meaning of the definition of beyond  a reasonable doubt...

Download the current case list Now.

Jul 08 2015

9mins

Play

048 Illegal Search & Seizure | Cop Pulls A Gun On This Lady

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http://illinoiscaselaw.com/illegal-search-and-seizure-cop-pulls-gun/

Illegal search and seizure results after a cop pulls a gun on a lady. If the officer had a reason to be so aggressive, he certainly did not articulate it for the record. In a hearing on a defense motion to suppress, failure of the officer to articulate his reasons usually means they are going to lose the motion.

Subscribe: iTunes | Stitcher | RSS

See People v. Bozarth, 2015 IL App (5th) 130147 (01/26/2015).

Issue

So The defendant was challenging the basis for her seizure by the police. At the trial level, she filed a motion to quash and suppress evidence that was denied.

She was charged and found guilty of DUI.

She was challenging the stop.

Facts

This is what we know from the hearing.

Trooper is on duty at 1:22 am in a rural and quiet area. There is only one car on the road. Yup, the Defendant.

Cop is in an unmarked squad car. He turns around and follows Defendant where he says he was “looking for violations.” ¶ 3.

Sees none.

Then the car appears to turn into a long private driveway but then disappears. The lights go off, and it is unclear where the car went.

So cop pulls into the driveway and notices that the car is parked alongside a barn way before the residence. Naturally, he pulls up behind the car about a car and half length away.

The officer then approaches the driver with his flashlight and gun drawn.

Then this is what happened:

  • Driver rolls down window
  • Says Property Not Hers
  • Cop Smells Alcohol

At this point, the officer removes the driver from her car for field sobriety tests.

What Suspicions Did The Officer Have?

The trooper testified that when he first saw the car he “had no real suspicion at that time.” ¶ 6. But, you never might what happen. Am I right?

What About the Whole Turning Into the DriveWay Thing?

The trooper was asked directly what suspicions he had when he saw the driver turn into the driveway. This is what he said:

“... It was an awkward way to just pull off in a driveway and shut off your lights. It depends on–it entered my mind, is where they stealing something, maybe doing something involving anhydrous, making methamphetamine." ¶ 6.

Ok. But Wasn’t It Clear She Was Hiding From You?

This is how the trooper answered the question:

"Um, there was not a residence in the immediate area of the barn. An individual pulled in behind a barn, and immediately shuts off the lights. Not knowing if they had seen me–I drive an unmarked squad car, so I didn't know if something was going on, or if they were trying to hide or not. *** I didn't know if there was any foul play going on, if they were trying to hide from me or not whenever they pulled up to the barn." ¶ 7.

Of course, the trooper testified that she was free to leave at any time.

Illegal Search & Seizure

So let me end the suspense. The appellate court reversed the trial court’s decision to deny the defendant’s motion to suppress.

No big surprise given the way the facts were rolled out.

However, I think that the prosecution could have had a better shot at winning the motion if they had just had some better preparation from the trooper.

These cases teach us that perspective matters. There are going to be judges and juries who 100% are on board with the views, opinions, and perspectives held by law enforcement.

Part of the problem for the State was that the trooper was not articulating anything. This left a horrible record (for them). The appellate court had no choice but to reverse this case.

If we have learned anything about cops, citizens, and especially search & seizure analysis it is that:

"There is always wiggle room." AndTheir perspectives really matter.

Maybe the State Could Have Won

Perhaps, with slightly different testimony from the trooper the State could have pulled out a victory, even with these facts.

I have lost plenty of trials and motions and thought I would win because of two main reasons:

  • Legal Wiggle Room
  • Personal Perspective of Judge or Jury

Now look, I think the result was definitely correct in this case. However, the litigator in me also can see how these same facts could have resulted in a win for the State. 

That does not mean that is what I think should have happened. It just means it is always in our best interest when we can explore a case and its results from all angles. 

You know what I'm saying?

The Law Is Wiggly 

On the law side, we don’t have to look to hard for wiggle room.

We know that police are people too. They are free to walk up to people or follow cars the same way a normal citizen can do it.

"It is well settled that not every encounter between the police and a private citizen results in a seizure." People v. Luedemann, 222 Ill. 2d 530, 544 (2006).

The test to determine whether a person seated in a parked vehicle has been "seized" by the police is whether a reasonable person in the defendant's position would have believed she was free to decline the officer's request or otherwise terminate the encounter. Luedemann, 222 Ill. 2d at 550-51.

"When a police officer, through the use of physical force or show of authority, has in some way restrained the liberty of a citizen, the court may conclude that a 'seizure' has occurred." People v. Carrera, 321 Ill. App. 3d 582, 589 (2001). 

A person may be seized with less than probable cause under Terry principles. "And Terry, a police officer may conduct a brief, investigatory stop of a person where the officer reasonably believes that the person has committed, or is about to, commit a crime." People v. Close, 238 Ill. 2d 497, 505 (2010). "The investigatory stop must be justified at its inception." Id.

And of Course we know that the ...officer must be able to point to specific, articulable facts which, taken together with rational inferences, reasonably warrant the investigatory stop.” Id. "The officer's suspicion must amount to more than an inarticulate hunch [citations], but need not rise to the level of suspicion required for probable cause [citation]." Id.

So had the State applied some of these search and seizure principles with a strong showing of the officer’s perspective who knows what might have happened in court?

Analysis

The gun was the deal killer for the appellate court.

Yea, drawing your gun and her was a significant show of authority. Despite, the officer’s statement that she was free to leave a reasonable person knows you ain't’ going anywhere when the cops pull a gun on you.

“Effectively, the defendant was seized from the point where the officer pulled in behind her vehicle.” ¶ 16.

The problem for the State is that the trooper had done a terrible job of articulating his suspicions. He doesn’t point to anything solid and doesn’t make sue of the very minimal flexible standards in the law.

Defendant’s Perspective Wins Out

This is where the huge difference in perspectives comes into play in these cases.

Clearly the appellate judges were swayed by the defendant’s story in this case. Her perspective is that -

  • She Was Minding Her Own Business
  • She Was Not Doing Anything
  • She Was Scared When Car Followed Her
  • She Couldn’t Avoid the Car
  • Then He Pulled a Gun on Me
Officer’s Perspective Never Articulated

Officer never really lays out his train of that or exactly what he was thinking. His perspective is not articulated well at all.

Which usually the prosecution would want to do because there are sympathetic judge and jurors out there who share the same view point.

Why didn’t they ask him directly,

“Why did you take out the gun?”

Make a record of him saying, “I was scared.” It seems the trooper did not take an opportunity to express exactly what he felt when he took his gun out.

We all know what was going on. She was hiding from him. But he never really takes a chance to address issues that always seem to come up in the cases I litigate.

  • Was she was making furtive movements in the car?
  • Do barns get burglarized?
  • Why else do people hide behind barns?
  • What other crimes were you worried about preventing?
  • Do these people who hide behind barns ever have weapons on them?
  • Do barn-hiders hate cops?

All I am saying is that I have seen the State hit home runs with these kinds of issues.

Maybe the issues were not there for the taking in this case, maybe the trooper just fumbled it, or maybe the defense just had the better story.

Holding: Illegal Search and Seizure

“Here, the evidence reveals that the officer could not articulate any facts to support a reasonable suspicion that the defendant had committed, or was about to commit, a crime that would justify the investigatory stop.” ¶ 19.

Jan 30 2015

17mins

Play

It's Structural Error To Proceed With A Bench Trial Without A Knowing Waiver In Open Court

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People v. Johnson, 2019 IL App (1st) 162517 (March). Episode 614 (Duration 11:45)

No valid jury waiver in the record even though he apparently signed the waiver form.

Charges

Defendant was charged with armed violence (720 ILCS 5/33A-2(a)), possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(1)(B)), and the unlawful use or possession of a weapon by a felon (720 ILCS 5/24-1.1(a)).

Trial Date Set

After the court discussed defendant’s decision to reject the plea with defendant, the court asked for a trial date and “what kind of trial.”

Defense counsel answered “bench.”

The cause was continued “for bench indicated.”

The file was placed on the bench trial call. On the trial date the case was then passed. When the case was recalled, the court stated that the parties “answered ready for a bench trial in this matter.” Defendant’s signed jury waiver is contained in the record on appeal, and the “Criminal Disposition Sheet” indicates “waiver taken.”

Found Guilty

After a bench trial the court found defendant guilty of armed violence, possession of heroin with the intent to deliver, and the unlawful use or possession of a weapon by a felon.

The trial court merged the unlawful use or possession of a weapon count into the armed violence count and sentenced defendant to 15 years in prison for armed violence. The court also sentenced defendant to a consecutive nine-year sentence for possession of heroin with the intent to deliver.

Issue

On appeal, defendant contends that this cause should be remanded for a new trial because he did not waive his right to a jury in open court.

Right To Jury Trial

The right to a jury trial is protected by the United States Constitution (U.S. Const., amends. VI, XIV) and the Illinois Constitution (Ill. Const. 1970, art. I, § 8) and has been codified by the Illinois legislature.

The right to a jury trial is a fundamental right guaranteed by our federal and state constitutions. People v. Bannister, 232 Ill. 2d 52, 65 (2008). Although the right to a jury trial is fundamental, a defendant remains free to waive that right. Bracey, 213 Ill. 2d at 269.

Any such waiver must be “understandingly” made by the defendant in open court. 725 ILCS 5/103-6. Under section 103-6 of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-6), a bench trial may be held if the right to a jury trial is

“understandingly waived by defendant in open court.”

A written waiver as required by section 115-1 of the Code of Criminal Procedure of 1963, is one means of establishing a defendant’s intent, although not dispositive of a valid waiver. This section provides that

“[a]ll prosecutions except on a plea of guilty or guilty but mentally ill shall be tried by the court and a jury unless the defendant waives a jury trial in writing.”

An Effective Waiver

Generally, a jury waiver is valid if it is made by defense counsel in open court in the defendant’s presence, without objection by the defendant. Id. at 270. “For a waiver to be effective, the court need not impart to defendant any set admonition or advice.” Id. (citing People v. Smith, 106 Ill. 2d 327, 334 (1985)).

Therefore, “the effectiveness of a defendant’s waiver depends on the facts and circumstances of each particular case” and turns on “whether the waiving defendant understood that his case would be decided by a judge and not a jury.” See People v. Reed, 2016 IL App (1st) 140498, ¶ 7 (citing Bannister, 232 Ill. 2d at 66, 69).

A reviewing court can consider a defendant’s silence when his attorney requests a bench trial as well as his “prior interactions with the justice system in determining whether a jury waiver was made knowingly. See also People v. Asselborn, 278 Ill. App. 3d 960 (1996) where the the court found that, despite the absence of a written jury waiver, the record demonstrated that the defendant knowingly waived his right to a jury trial in open court because he was present and failed to object when defense counsel elected to proceed by way of a bench trial. 

Signed Waiver Insufficient

Although the record contains defendant’s signed jury waiver, the record contains nothing that shows defendant was informed he was entitled to choose between a jury or bench trial or that he waived his right to a jury trial on the record. In other words, there is no indication in the record that defendant “understandingly waived” (725 ILCS 5/103-6) his right to a jury trial in open court.

Furthermore, while defense counsel mentioned a bench trial several times on the record, counsel did so only in the context of scheduling and at no point waived the right to a jury trial on defendant’s behalf. See, e.g., People v. Watson, 246 Ill. App. 3d 548, 549 (1993) (“Vague references to a bench trial at the rescheduling conferences were not sufficient to constitute a valid jury waiver, especially in light of the fact that the record is devoid of evidence suggesting that the defendant was ever apprised of his right to a jury trial.”).

See also People v. Ruiz, 367 Ill. App. 3d 236, 239 (2006) where this court has previously held, in a case where there was no discussion in open court of the defendant’s jury waiver but merely a signed jury waiver and discussion of a bench trial in terms of scheduling, that the defendant did not validly waive his right to a jury trial.

In other words, the existence of a written jury waiver is not dispositive of the issue of whether that waiver is valid.

In the case at bar, however, the trial court did not ask whether defendant wanted a bench trial or a jury trial, which would have indicated that defendant could choose how to proceed. There was no indication in the record that defendant knew he had a choice between a bench trial or a jury trial, and there was no discussion of defendant’s signed jury waiver in open court.

Holding

Accordingly, we find that defendant’s right to a jury trial was violated and he has, therefore, met his burden under the plain error doctrine.

Here, defense counsel and the trial court mentioned a bench trial several times on the record in the context of scheduling. This is not a valid jury waiver by, or on behalf of, defendant. Accordingly, we reverse the judgment of the circuit court and remand this cause for a new trial without reaching defendant’s other arguments on appeal. 

Compare This Case To…

People v. Thomas, 2019 IL App (2d) 160767 (March)

In that case defendant refused to sign the jury waiver but still wanted a bench trial.

However, the failure to file a written jury waiver does not require reversal “so long as the defendant’s waiver was made understandingly in accordance with section 103-6 of the Code of Criminal Procedure.” People v. Tooles, 177 Ill. 2d 462, 468 (1997).

The trial court is not required to provide a defendant with any particular admonishment or information regarding the constitutional right to a jury trial, but it has a duty to ensure that any waiver of that right is made expressly and understandingly. People v. Hernandez, 409 Ill. App. 3d 294, 297 (2011).

“Regardless of whether the defendant executed a written jury waiver, the record must show that the defendant understandingly relinquished the right to a jury trial.”

Here, the trial court discussed defendant’s jury waiver at length in the presence of his attorney, who had also discussed the matter with him. He clearly didn’t want a jury trial.

See Also These Other Examples of Structural Error

Apr 10 2019

11mins

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Illinois Residential Burglary Statute Makes It A Class 1 Felony

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Residential Burglary In Illinois

In Illinois residential burglary is class 1 felony. The crime is defined by statute this way:

A person commits residential burglary when he or she knowingly and without authority enters or knowingly and without authority remains within the dwelling place of another, or any part thereof, with the intent to commit therein a felony or theft. 720 ILCS 5/19-3(a).

See also the Illinois Crimes Index

Illinois Residential Burglary Sentence

Since the Illinois residential burglary statutes defines it as a class 1 felony that means the sentencing range is between 4 to 15 years. However see the below chart for more sentencing information.

Charge Statute Felony Range Extended Term Max  Fine Residential Burglary 720 ILCS 5/19-3(a)   Class 1  4-15 yrs 15-30 yrs $25,000

The most important sentencing aspect to know about Illinois residential burglary is that it is considered a non-probationable offense. That means an individual who is convicted of residential burglary is by law required to be sentenced to prison time even if the individual has absolutely no criminal history or prior convictions in their record.

See the Illinois Sentencing checklist for more sentencing details.

General Burglary Statute In Illinois 

However, the Illinois burglary statute is a little more broad than just residential burglary. The more general form of the burglary statute provides the following:

Section 19-1(a) of the Illinois Criminal Code provides, in part, that…

“A person commits burglary when without authority he or she knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any part thereof, with intent to commit therein a felony or theft.” 720 ILCS 5/19-1(a).

General Burglary Sentence In Illinois

“Burglary committed in, and without causing damage to, a watercraft, aircraft, motor vehicle, railroad car, or any part thereof is a Class 3 felony.

Burglary committed in a building, housetrailer, or any part thereof or while causing damage to a watercraft, aircraft, motor vehicle, railroad car, or any part thereof is a Class 2 felony.” 720 ILCS 5/19-1(b)

Charge Statute Felony Range Extended Term Max  Fine Burglary to watercraft, aircraft, motor vehicle, railraod (no damage) 720 ILCS 5/19-1(a)   Class 3 2-5 yrs 5-10 yrs $25,000 Burglary to building, housetrailer, or damage to watercraft, aircraft, motor vehicle, railraod 720 ILCS 5/19-1(a)   class 2 3-7 yrs 7-14 yrs $25,000 There Are 2 Ways To Commit Burglary

Thus, under the statute, there are two ways to commit the crime of burglary:

(1) By entering without authority and with the intent to commit a felony or theft, or  (2) By remaining without authority and with the intent to commit a felony or theft. 

Correct Way To Interpret The Burglary Statute

In regards to a retail store, like Walmart, a person can only be guilt of burglary “remaining without authority with intent…” if the person lawfully enters a public building and then commits theft AND exceeds the physical scope of his authority.

In other words, burglary by remaining requires evidence that a defendant, with the intent to commit a felony or theft, is found in a place where the public is not authorized to be.

This section is not intended to apply to ordinary shoplifting scenarios.

Rather, it refers to situations in which a person lawfully enters a place of business, but, in order to commit a theft or felony:

(1) hides and waits for the building to close (2) enters an unauthorized area within the building; or (3) continues to remain on the premises after being asked to leave.

However, if the state can prove that a person enters with the intent to steal then a burglary under the first section can still be sustained because it is presumed that that a shopkeeper did not grant permission for someone to enter just to steal.

See Also

Nov 15 2019

2mins

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A Break Down Of The Illinois Custodial Sexual Misconduct Statute With Michael Wepsiec

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Episode 698 (Duration 29:54). Attorney Michael Wepsiec of Murphosboro, Illinois deconstructs the custodial sexual misconduct criminal law statute.

 

In This Episode...

"'Hey I'm on parole, date me.' No body says that." -- Michael Wepsiec

Attorney Michael Wepsiec

Attorney Michael Wepsiec has over 34 years of legal experience.

He is the former elected States's Attorney of Jackson County Illinois. Before that he has the Carbondale city attorney, and before that he was an assistant state's attorney in Jackson County.

Contact Information

The Wepsiec Law Office 1502 Walnut St Murphysboro, IL 62966 (618) 565-5206

The Illinois Custodial Sexual Misconduct Statute

In Illinois custodial sexual misconduct is found under 720 ILCS 5/11-9.2. The section provides that...

(a) A person commits custodial sexual misconduct when:           (1) he or she is an employee of a penal system and engages in sexual conduct or sexual penetration with a person who is in the custody of that penal system;          (2) he or she is an employee of a treatment and detention facility and engages in sexual conduct or sexual penetration with a person who is in the custody of that treatment and detention facility; or          (3) he or she is an employee of a law enforcement agency and engages in sexual conduct or sexual penetration with a person who is in the custody of a law enforcement agency or employee. (b) A probation or supervising officer, surveillance agent, or aftercare specialist commits custodial sexual misconduct when the probation or supervising officer, surveillance agent, or aftercare specialist engages in sexual conduct or sexual penetration with a probationer, parolee, or releasee or person serving a term of conditional release who is under the supervisory, disciplinary, or custodial authority of the officer or agent or employee so engaging in the sexual conduct or sexual penetration.

"Can't Miss" Moments:

✓ The Illinois statute on custodial sexual misconduct came into effect in 1997. Before that the regular sexual assault and official misconduct charges weren't doing the job. Here's why...(Go to 5:14)

✓ Prisons and correctional facilities are big business down in southern Illinois. Where there are prisons there will be custodial sexual misconduct. (Go to 6:35)

✓ Really hard to imagine how this law could be stretched into unintended conduct, I mean the law is really clear on what it is trying to prevent. Nonetheless, Wepsiec found a set up facts that leave you wondering if the law was meant to go there. (Go to 7:20)

✓ The one thing a guy is going to keep off his online dating profile. For some people it leads to disappointment and a dud date. For others it can lead to a criminal charge. (Go to 8:20) & (Go to 11:07)

✓ How a workman's comp claim can lead to criminal charges, and I don't mean fraud charges. In this case, a workman's comp claim lead to a charge of custodial sexual misconduct. (Go to 9:05)

✓ A parolee parked outside your residence on a Saturday morning just might get you charged with a crime. Push play to find out how. (Go to 9:55)

✓ The secret to getting a parolee to say anything you want to hear. (Hint: this only works if you're a parole agent.) (Go to 10:03)

✓ Did you know legally speaking that a person who is on parole also called mandatory supervised release is in the custody of the Illinois Department of Corrections? (Go to 11:43)

"A person commits custodial sexual misconduct when he or she is an employee of a penal system and engages in sexual conduct or sexual penetration with a person who is in the custody of THAT penal system". Clearly, the law is written to prevent guards who are directly in authority over inmates in the guard's facility. (Go to 12:08)

✓ Heaven forbid you ever have to dig into the legislative history of a bill. When Wepsiec did it Barack Obama's name turned up. (Go to 13:26)

✓ The one key distinction between the Illinois Department of Juvenile Justice and the Illinois Department of Corrections made all the difference in the world to one downstate resident. Everything turned on the phrase "that penal system." (Go to 15:05)

✓ Here's a clear example of when we wouldn't want to charge a Jackson County Jail guard with custodial sexual misconduct, this ain't exactly "Orange is the New Black". (Go to 18:19)

✓ Does anyone object to charging politicians under this provision in the code? (Go to 19:35)

✓ "You know, I see some stuff now, and I'm going 'why in the heck did they file that?'." (Go to 20:47)

✓ The four rules to following a case. This was the standard Michael tried to live by when he was on the other side. When he was brining charges as a prosecutor he always tried to honor these principles. It's the last prong were prosecutors really distinguish themselves. (Go to 21:03)

✓ Here's a clear example of conduct the statute was intended to prevent. (CAUTION: these words are harsh, but they're not Michaels.) (Go to 23:35)

Links & Resources See Also

You may also want to check out...

Nov 12 2019

29mins

Play

Illinois v. Caballes: The Police Drug Dog Sniffer Case

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Illinois v. Caballes, 543 U.S. 405 (2005). SCOTIS Notice (Duration 1:43)

This is the SCOTUS case that set the framework for the use of drug dogs in the United States.

[insert mp3 player]

This opinion normalized the use of drug dogs by police departments during traffic stops. The case concluded that police don't need a warrant when they walk a drug dog around a car during a traffic stop.

Issue Do police need a warrant to use a drug dog to sniff a car during a traffic stop? Facts Driver was stopped and ticketed for speeding. During the traffic stop, a canine unit appeared and a dog handler walked the dog around the car. The police dog alerted on the trunk. Police searched the trunk. Driver was arrested for trafficking cannabis. Everything happened in under 10 minutes. He was sentenced to 12 years. Analysis A privacy interest (that society recognizes as reasonable) cannot exist from aromas that come from completely illegal contraband. There is no right to privacy that protects illegal smells. Holding Conviction was affirmed because there was no 4th amendment violation. Related Cases

[insert video]

Key Facts In Illinois v. Caballes

Key facts in the case include ...

  • Defendant’s car stopped
  • He’s ticketed for speeding
  • During stop canine unit appeared
  • Sniff dog handler walks the dog around car
  • Drug dog alerts on the trunk
  • Car searched
  • Cannabis discovered
  • Convicted for trafficking cannabis
  • Everything happened in under 10 minutes

The case began as a traffic stop for speeding. The car was stopped and driver ticketed for speeding. During the traffic stop, a canine unit appeared and a dog handler walked the dog around the car. The police dog alerted on the trunk. Police searched the trunk. Driver was arrested for trafficking cannabis.

Everything happened in under 10 minutes.

Key Finding 

Key findings from the court:

  • Police Dog Drug Sniffs are Not Searches
  • Practical Limits Remain
  • Not That Many K-9 Units
  • Police Can Not Cause an Undue Delay

The case worked its way up to the United States Supreme Court, where the Court’s central finding was that:

“That any interest in possessing contraband cannot be deemed legitimate, ‘and thus, governmental conduct that only reveals the possession of contraband’ compromises no legitimate privacy interest.” Quoting United States v. Place, 462 U. S. 696 (1983).

You don’t have a privacy interest in illegal smells.

The Aftermath of Illinois v. Caballes

This case threatened to blow this issue wide open in favor of the police and the use of drug dogs. The central finding that a police dog sniff was not a search meant the use of drug dogs could perhaps be expanded to other areas besides a traffic stop.

The gist of the ruling is that a privacy interest (that society recognizes as reasonable) cannot exist from aromas that come from completely illegal contraband.

“A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”Caballes, 543 U.S. 405 (2005).

So if a sniff is not a search police can probably do more of them without running afoul of the 4th amendment.

There Are Still Limitations

Yet, even Caballes recognized limits on the use of police dogs during a traffic stop. Beginning with Caballes itself, we can see that fundamental limits on the use of sniffer dogs during traffic stops were built right into the system.

The Court approvingly noted that the police officers detaining Caballes did not delay the traffic stop just so that the drug dog could finish the sniffing.

This is important.

Had the Court found undue delay, the clear inference is that the case would have come out differently. This is what the court is talking about when it mentions a “prolonged” traffic stop.

The Court wrote that:

“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Caballes, 543 U.S. 405 (2005).

If the police try to slow down the interaction with the driver so that the police dog has time to make it to the scene of a traffic stop, that would be illegal.

Similarly, delaying the writing of the ticket or returning a driver’s license so slowly that the dog has time to finish the sniff is unconstitutional. This may also be referred to as going “outside the scope” of the traffic stop.

This “no delay” or “scope” rule serves as a real and practical limitation on the use of police dogs.

Any Undue Delay is Unconstitutional

The simple fact is that K-9 units are far less numerous than normal patrol vehicles. This specialized team is typically only called out on special assignments. The practicality of having a drug dog at every traffic stop is impossible.

The criminal defense bar, however, has to be vigilant about recognizing stone walling by the police. Any proof of an unconstitutional delay must be brought to the trial court’s attention in a motion to suppress evidence illegally seized.

Nov 08 2019

1min

Play

What To Do About Fatally Flawed Criminal Charges: Alan Downen Interview

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People v. Rowell, 229 Ill. 2nd 82 (May 2008). Episode 686 (Duration 31:58)

What's the best way to handle legally insufficient criminal charges? In this episode you get a feel for what it's like working in the criminal law.

Subscribe: Apple Podcasts | Google PodcastsSpotify | Android | RSS | Direct Download

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DIRECT DOWNLOAD

Illinois attorney Alan Downen walks us through the detailed intricacies of just one issue in criminal litigation:

In This Episode...

"There's an old saying about losing your 'tall'. 'Tall' is your favorite marble." -- Alan Downen.

Illinois Attorney Alan Downen

Alan Downen has been a member of the Illinois bar since 1974. He's a solo practitioner concentrating his practice in the areas of criminal, DUI, traffic law.

His office is in McLeansboro, Illinois.

"Can't Miss" Moments:

✓ Here's an example of the kind of fatally flawed or legally insufficient charging document we are talking about: A defendant charged with aggravated domestic battery is charged by information. However, the information is missing the mental state. It doesn't state if defendant acted "knowingly" or "intentionally". It also omits the type of battery the defendant is alleged to have done. It doesn't say if he caused bodily harm or committed insulting or provoking contact. (Go to 3:35)

✓ What's the law now? What does a court do when it's confronted with a legally insufficient complaint? Well it depends. There are two legal standards. If a motion to dismiss is filed pretrial the court will adopt a "strict construction" policy and automatically dismiss the charges without prejudice. That means the state is free to refile. If the motion to dismiss if filed on appeal or after the trial is over then a defendant must show prejudice to get the charges dismissed. (Go to 5:07)

✓ Some defense attorneys say they don't the prosecution a darn thing. There's nothing wrong with lying in the weeds and springing the issue on the state when the time is right. (Go to 6:40)

✓ Why some judges really hate a motion to dismiss, and why they'll accuse you of "sandbagging" and other dastardly legal things.  (Go to 7:16) & (Go to 15:40)

"Like any attorney, if the judge asks you a question and you answer like this, 'Yea - I'm ready to go' when you know that there's a problem. That's kinda troublesome to me as an attorney...But that's kinda the scenario." (Go to 8:42)

✓ The problem with informing the state they have a bad charge. (Go to 9:20)

✓ Why it better to save your motion to dismiss until after the trial has started. Sure, you have to show prejudice but a few cases demonstrate that can be done.  (Go to 9:51)

✓ The thing about the Rowell case is that it really highlights how a defense attorney can go about demonstrating the prejudice that results to an accused with a fatally flawed charging document is filed against them.  This is the "bible" on insufficient charging instruments. (Go to 11:49)

✓ Talk about getting caught in court with your pants down. This might be every prosecutor's worst nightmare.  (Go to 11:20)

✓ The number one lesson for prosecutors about this discussion is this. Some of them will do it. Many more won't and that's exactly why criminal defense can be so fun sometimes.  (Go to 13:55)

✓ Why defense attorneys sometimes win by filing "the wrong" motion against all precedent and contrary to clearly applicable laws, and why judges are quick to grant you these "meritless" motions. (Go to 17:49)

"You have a duty to the court as a lawyer to be honest and forthright. But you also have a duty to your client. Sometimes, as you say, the lines are just real clear." (Go to 22:29)

✓ What an older attorney told Alan about the practice of law. Why sometimes it's best to do nothing even when you know something can be done. (Go to 24:25)

Links & Resources See Also

You may also want to check out...

Oct 08 2019

31mins

Play

Disorderly Conduct Conviction For Making A Threat Must Get Past Free Speech Protection

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People v. Khan, 2018 IL App (2d) 160724 (October). Episode 561 (Duration 18:46)

Dude posted a message on facebook that he carries a gun on the college campus and people gonna end up in a body bag if they don't stop messing with him.

Gist

Defendant, Aden D. Khan, was convicted of committing disorderly conduct by making a threat of violence against persons at a school (720 ILCS 5/26-1(a)(3.5)) and sentenced to 30 months’ probation.

Facts

At the time, defendant was 17 years old.

He was suspended for five days for that post. Then he posted the thing about brining a gun to the North Central College campus every day.

Defendant admitted he did the posting and said it was a joke. He got arrested this time.

Disorderly Conduct

As pertinent here, a person commits disorderly conduct when he or she

“knowingly [t]ransmits or causes to be transmitted a threat of destruction of a school building or school property, or a threat of violence, death, or bodily harm directed against persons at a school, school function, or school event, whether or not school is in session.”

A Threat

“[a] threat is knowingly transmitted if the defendant transmitted a communication for the purpose of issuing a threat of violence directed at persons at a school and with knowledge that the transmitted communication will be viewed as a threat of violence directed at persons at a school.”

The Indictment

The indictment against defendant charged that, he

“knowingly transmitted a threat of violence directed against persons at a school, being North Central College, in that on www.facebook.com/NCCConfessions.1, defendant posted, ‘I bring a gun to school every day. Someday someone is going to p me off and end up in a bag.’ ”

Issue

Defendant argues in part that under Elonis and People v. Relerford, 2017 IL 121094, the statute violates constitutional guarantees of free speech (see U.S. Const., amend. I; Ill. Const. 1970, art. I, § 4) because the State need prove only that a defendant knew that he was transmitting a threat, without having to prove that he actually intended to make the recipient feel threatened.

He contends first that the school-threat law is unconstitutional on its face because it does not require a sufficient mental state. 

Elonis v. United States

In Elonis v. United States, 575 U.S. , 135 S. Ct. 2001 (2015), the Supreme Court read a heightened scienter requirement into a federal statute that criminalizes transmitting a threatening statement that a person knows or should know would intimidate a reasonable recipient.

The Facebook post was, titled “The people who i want to kill most.” The list included

“1. my stepmother who has f up my life[,] 2. my father for the same reason[,] 3. my brother for tormenting me since birth[,] 4. f brandon for talking hella s and for being a f[,] 5. ruben bautista for talking too much s and cuz i already promised to kill him[,] 6. whatever a told casper that i was planning to shoot up the school[,] 7. whatever a*** told casper that i carried a knife[,] 8. the pope, just for laughs[,] 9. ms. limacher: worst teacher ever. gave me a referral for spitting on the sidewalk[, and] 10. god, if he/she/it exists.”

In Elonis, the defendant was convicted of violating a federal statute that makes it a crime to transmit “any communication containing any threat…to injure the person of another.” Elonis, 575 U.S. at , 135 S. Ct. at 2004 (quoting 18 U.S.C. § 875(c) (2006)).

The statute in Elonis containted no mental state so the court read a scienter requirement into it. Given its construction of the statute, the Court saw no need to reach any first-amendment issues.

Jury Instructions

Among the instructions that the court gave the jury were the following.

First, “[a] person commits the offense of disorderly conduct when he knowingly transmits a threat of violence directed against persons at his school whether or not school is in session and he intends that the threat would place those persons in reasonable apprehension of violence.”

Second, “[a] threat is knowingly transmitted if the defendant transmitted a communication for the purpose of issuing a threat of violence directed at persons at a school and with knowledge that the transmitted communication will be viewed as a threat of violence directed at persons at a school.”

Mini-Holding

We recognize that the trial court instructed the jury that the State had to prove beyond a reasonable doubt that defendant did intend to make recipients of his message feel threatened. As we shall explain, the statute under which defendant was charged does not actually impose such a requirement on the State and need not do so in order to pass constitutional scrutiny.

There is a reasonable construction of the statute here that obviates any constitutional infirmity.

But See Also People v. Diomedes

In People v. Diomedes, 2014 IL App (2d) 121080, ¶ 3, the defendant was charged with disorderly conduct for e-mailing a threat of violence against the dean of his former school, Geneva High. The e-mail was sent to an anti-bullying activist who had spoken there some time earlier.

Diomedes implicitly held that the school-threat provision of the disorderly conduct statute is not facially unconstitutional. The provision can and may be applied to the knowing communication of a message if the defendant knows that a reasonable speaker would foresee the message as communicating, to a reasonable recipient, a serious intent to commit harm.

Thus, under Diomedes, the provision includes a mental-state requirement that is consistent with the first amendment.

A True Threat Is Required

The knowledge that the communication is a “true threat” is sufficient.

In Diomedes they defined a true threat this way, as to:

“encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.”

But See People v. Wood

In People v. Wood, 2017 IL App (1st) 143135 the defendant was convicted of threatening the judge who had presided over his criminal case.

As pertinent here, the statute required the State to prove that

(1) he had knowingly and willfully communicated a threat to a public official and (2) the threat would place the official in reasonable apprehension of immediate or future bodily harm.

720 ILCS 5/12-9(1)(a)(1)(i).

The appellate court held that he had not been proved guilty beyond a reasonable doubt. The court observed that a conviction required “intentionality on the defendant’s part,” i.e., the making of a true threat.

The statute at issue in Wood differs from the one here in that it explicitly requires that the offending communication be of such a character as to place the recipient in reasonable apprehension of harm.

Nonetheless, in its construction of “threat,” Wood is consistent with our opinion in Diomedes. Both opinions follow the command of our supreme court to construe a statute to uphold its constitutionality if reasonably possible.

What Disorderly Conduct and Threatening A Public Official Have In Common

Thus, as used in each statute, the combination of the terms “knowingly” and “threat” requires the State to prove that

(1) the defendant knowingly made the statement and (2) the statement was a true threat

We return to the interpretation of the school-threat provision as a whole.

The existence of a true threat is one element. As we held in Diomedes, there is also the requirement that the defendant knowingly transmit a true threat and not merely that he should know that he is doing so.

Thus, if the defendant does not know that he is transmitting a true threat, which is unprotected by the first amendment, he is not guilty. Insofar as this case is governed by Diomedes and Wood, the school-threat provision of the disorderly conduct statute is constitutional.

The provision does not punish protected conduct, because it applies only to communications that are true threats, which are unprotected. It also requires the State to prove that the defendant knew that he was transmitting a true threat.

Elonis Is Not A Problem

Insofar as Elonis applies here, it does not help defendant.

Without directly considering first-amendment issues, the Court implicitly held that, by requiring

(1) the mental state of either intent or knowledge and (2) the communication of a threat to injure another person, both firstamendment problems and the danger of criminalizing innocent conduct were obviated.

Nothing in Elonis is inconsistent with Diomedes and Wood; indeed, they essentially said the same thing.

The primary difference is that in Elonis the Court read a mental state of intent or knowledge into a statute that prohibited communicating threats, whereas in Diomedes and Wood the courts recognized that the statutes already contained the mental state of knowledge.

Jury Instructions Favored Defendant

Defendant’s case was tried on the theory that the State had to prove intent, a higher standard.

The statute required the State to prove that defendant knowingly communicated a true threat—that he knew that his words were a serious expression of an intent to cause harm. The instructions told the jury that the State also had to prove that he intended that his words cause such apprehension. In other words, the jury instructions rewrote the statute in defendant’s favor.

State Wins Either Way

Fortunately, however, we need not decide whether the issue on appeal is the sufficiency of the proof of the offense as defined by the statute or the sufficiency of the offense as redefined by the jury instructions.

The evidence was sufficient either way.

The jury did not exceed its prerogative in finding that defendant knew that his promise to kill someone would cause a reasonable recipient to fear violence to the community.

Further, the jury reasonably inferred that defendant intended his message to cause at least some people to fear violence, as that was a natural and foreseeable reaction to a person telling them that he went to campus every day armed with a firearm and was bound to use it on slight provocation.

Holding

A jury may infer that a defendant intended the natural and probable consequences of his act. For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

See Also

Sep 24 2019

18mins

Play

Expert Testimony On Drug Use Is Not Always Required Sometimes Any Joe Shmoe Can Identify Impairment From Drug Use

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People v. Gocmen, 2018 IL 122388 (September). Episode 540 (Duration 14:15)

In obvious cases an officer need not be a drug detection expert to conclude a driver is under the influence of drugs.

Lower Case Opinion

People v. Gocmen, 2017 IL App (3d) 160025 (March). Episode 331 (Duration 7:57)

Officer untrained in the use of narcotics doesn't know enough to make this DUI drug arrest.

The trial court found that the officer lacked probable cause to arrest defendant for DUI/drugs because he was not qualified as an expert on the effects of drug use. Similarly, the appellate court concluded that a person with no specialized training could not properly opine on the “detection of controlled substances,” unlike the detection of alcohol use, the effects of which are “commonly known."  2017 IL App (3d) 160025, ¶ 16.

In reaching this conclusion, the appellate court relied, in part, on People v. Shelton, 303 Ill. App. 3d 915 (1999), and People v. Stout, 106 Ill. 2d 77 (1985). 

Facts

The officer had no specific DUI/drug detection training.

He responded to a motorist’s call reporting an unconscious person in a vehicle, possibly having a seizure. When he arrived, paramedics were already on the scene. Defendant’s Ford Explorer was in the eastbound lane of Route 52, with the passenger side tires on the grass and the driver’s side tires on the road. The vehicle’s transmission was in park, and the motor was running.

The officer observed defendant behind the wheel, with his foot on the brake and his left hand on the steering wheel.

Initially, defendant did not respond to the paramedics’ commands to exit the vehicle. He insisted that he was able to drive and said, incorrectly, that he was northbound on Route 59. Eventually, the paramedics convinced him to leave the vehicle; they placed him in the ambulance and transported him to the hospital.

Officer's Observations

The officer saw a Red Bull can “on the passenger’s side in plain view.”

The can had been cut or torn in half and had burn marks on its interior. On the outside bottom surface of the can, he saw a brown residue. He performed a “NARK swipe” test of the residue, which, he said, showed the presence of “opiates.” He also saw an uncapped one-milliliter syringe on the passenger seat. He described the syringe as having been “used.” He also found a small plastic bag containing a brown granular substance in defendant’s wallet in the center console.

Results of testing of this substance were not available at the time of the hearing.

He did not conduct any field sobriety tests. At the hospital, the officer observed that defendant was “tired and lethargic.”

He also testified that prior to the arrest defendant told him that he was diabetic.

Fresh Track Marks

On cross-examination, the officer testified that he spoke to the paramedics at the scene to ask if they had seen any signs of intoxication. They reported that defendant did not smell of alcohol, but they did observe a “fresh track mark” on his arm where a needle had been used.

Paramedics also reported that defendant was sweating, had pinpoint pupils, had a rapid heart rate of 144 beats per minute, and was drifting in and out of consciousness.

Suspension Recession Hearing

A motorist may request a judicial hearing for rescission of a statutory summary suspension in a civil proceeding, subject to civil procedure rules. 625 ILCS 5/2-118.1(a).

The scope of the hearing is limited to four specific statutory grounds for rescission. One of the issues that may be raised is “whether the officer had reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle upon a highway while under the influence of alcohol, other drug, or combination of both[.]” Id. § 2-118.1(b)(2).

The motorist has the initial burden of establishing a prima facie case for rescission. If he does so, the burden shifts to the State to come forward with evidence justifying the suspension. Id. at 559-60; see also People v. Orth, 124 Ill. 2d 326, 338, 340 (1988) (motorist has initial burden of making prima facie case for rescission; to make prima facie case, defendant must present evidence to support at least one of the statutory grounds for rescission).

Probable Cause Standard

This court has equated the “reasonable grounds” standard with the probable cause standard applied in the context of search and seizure under the fourth amendment. People v. Wear, 229 Ill. 2d 545, 560, 563 (2008). Under this standard, probable cause exists when the facts known to the officer at the time are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime, based on the totality of the circumstances. The standard is the probability of criminal activity, not proof beyond a reasonable doubt or even that it be more likely than not.

Issue In This Case

A more precise formulation of the issue is whether defendant made a prima facie case that the officer lacked reasonable grounds to arrest him for DUI/drugs.

This requires us to answer two questions.

First, must an officer be qualified as an expert to testify regarding his inference from the totality of circumstances that a motorist was driving under the influence of drugs?

And, if not, did the totality of the circumstances in the present case provide reasonable grounds for the arrest of defendant for DUI/drugs?

Opinion Testimony

Under our rules, a witness who is not an expert may testify to his opinions or inferences unless they are “based on scientific, technical, or other specialized knowledge.” Ill. R. Evid. 701 (eff. Jan. 1, 2011). If such knowledge is relied upon, the witness must be qualified as an expert. Ill. R. Evid. 702 (eff. Jan. 1, 2011). ¶ 26

People v. Shelton Overruled

We have reservations about the court’s analysis in Shelton.

In Shelton, an officer testified at a criminal jury trial that the defendant was under the influence of drugs, basing his conclusion on the manner in which he was driving, his conduct during the traffic stop, his failing all of the field sobriety tests given, and his statement to the officer that he was “ ‘on Tylenol 3 with codeine.’ ” Shelton, 303 Ill. App. 3d at 917-18.

Although it found the evidence presented sufficient to support the jury’s verdict beyond a reasonable doubt, the appellate court in that case nevertheless commented that the trial court found “ ‘no evidence in the record’ ” of the effects of any drugs (id.), apparently discounting the defendant’s speeding, his odd and agitated behavior during the traffic stop, and his failure of field sobriety tests (id. at 917-18).

While such conduct is not always indicative of drug intoxication, it was consistent with the defendant’s being under the influence in light of his admission that he was “on” a prescription pain killer. We, thus, disagree with the Shelton court that expert testimony was necessary to present to the jury the officer’s assessment that the defendant was under the influence.

To the extent that Shelton requires expert testimony in every case in which an officer’s finding of probable cause is based on his or her inference from the totality of circumstances that the defendant was under the influence of drugs, it is hereby overruled.

Defendant Was Acting Wacky In This Case

During the traffic stop, the defendant’s behavior included telling the officer that he did not have a driver’s license before giving him the license, his suggestion that the officer should go for a ride with him, ­ his statement that he was “ ‘getting ready to run’ ” followed by a statement that he was just kidding, his constant talking, his inability to stand still, his lack of balance, and his threats against the officer and his family.

An officer with many years of experience or with specialized training relevant to the issue may be more credible than a rookie. That said, nothing in our precedent requires expert testimony in every case involving the question of whether a defendant was under the influence of drugs.

Sometimes You Do Need An Expert

In some circumstances, expert testimony regarding the basis for an officer’s finding of probable cause is required.

In People v. McKown, 236 Ill. 2d 278 (2010), the defendant was convicted of DUI/alcohol, based in part on the results of the horizontal gaze nystagmus (HGN) test performed by the arresting officer. The defendant argued on appeal that the HGN test did not meet the Frye standard for admissibility of scientific evidence.

We held that “evidence of HGN field-sobriety testing, when performed according to protocol by a properly trained officer, is admissible under the Frye test for the purpose of showing whether the subject has likely consumed alcohol and may be impaired.” Id. at 306.

“A properly trained police officer who performed the HGN field test in accordance with proper procedures may give expert testimony regarding the results of the test.” Id.

Defendant Was Obviously Impaired

In the present case, there is no question that the defendant was impaired.

The probable cause question is whether the relatively inexperienced officer could have reasonably concluded that the defendant’s obvious impairment was due to his use of drugs. Had the officer conducted field sobriety tests, his experience and expertise in conducting such tests and interpreting the results would be at issue. However, no such tests were conducted, and the results of such tests were not the basis for the arrest.

The officer’s conclusion that defendant was under the influence of drugs was not based on scientific, technical, or specialized knowledge that required specialized training or experience. The trial court and the appellate court held categorically that a police officer could not opine as to whether a motorist was under the influence of drugs without being qualified as an expert witness. We reject this conclusion, which is not supported by our precedent.

Totality of the Circumstances

Having rejected the lower court’s insistence on expert testimony in this case, we turn to the question of whether defendant made a prima facie case that the officer lacked probable cause to arrest him for DUI/drugs. This question requires assessment of the totality of the circumstances.

The offense of DUI/drugs requires that the individual “drive or be in actual physical control” of a vehicle while “under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving.” 625 ILCS 5/11-501(a)(4).

He Was Driving

Defendant was behind the wheel of the vehicle, with the motor running, on Route 52, so he was in actual physical control of a motor vehicle on a state highway. Clearly, he was incapable of driving safely, having driven his sport utility vehicle off the road while semiconscious.

But Why Was He Impaired?

The only question is whether he was impaired as the result of a medical emergency, the ingestion of drugs or alcohol, or some combination thereof. First, defendant’s physical condition was consistent with drug use.

Trial Court Ignored The Obvious

The trial court, however, overlooked defendant’s semiconscious state and his disorientation, which a reasonably cautious person might suspect was due to drug or alcohol ingestion. The appellate court also discounted defendant’s physical symptoms because the officer “never observed defendant and only knew these symptoms by speaking to the paramedics.” 2017 IL App (3d) 160025, ¶ 14. However, the officer did observe the defendant at the scene and at the hospital, where they spoke.

Hearsay Is Permissible

Further, hearsay is a permissible basis for a finding of probable cause. People v. Macias, 39 Ill. 2d 208, 213 (1968) (probable cause “may be founded on hearsay evidence” and “is based upon the factual and practical considerations of everyday life upon which reasonable and prudent men, not legal technicians, act”); see also People v. Horine, 2017 IL App (4th) 170128, ¶ 16 (in hearing on defendant’s petition to rescind statutory summary suspension, “the officer’s testimony, even if it includes hearsay, is permissible as it provides the court with the necessary information to rule on the petition. Although such testimony may constitute impermissible hearsay at trial, such testimony is permissible in this setting.”).

Thus, the officer properly relied on his own observations, information provided by the paramedics, and his observations of their interaction with defendant.

While defendant’s physical condition, standing alone, did not demonstrate that his impairment was drug-induced, it was consistent with drug use and supports the officer’s conclusion.

Valid Evidence Of Drug Use

Second, the officer performed a swipe test on the burned Red Bull can and detected the presence of opiates.

The officer performed a swipe test for opiates, which revealed the presence of opiates. Further, defendant did not offer an innocent explanation for the presence of the burn-marked metal can, and none is readily apparent. Even a rookie police officer would be aware of this commonly known device for “cooking” drugs prior to injection, as would any person who watches crime dramas on film or television.

Combined with defendant’s physical and mental state, the positive swipe test for opiates supports probable cause for arrest for DUI/drugs.

And He Had Drugs On Him

Third, other evidence showed the likely, or at least possible, presence of illicit drugs.

Although it was reasonable under the circumstances for the officer to suspect that the substance was an illicit drug, the mere presence of the unidentified substance does not—standing alone—provide reasonable suspicion that the individual in possession of the substance was under the influence.

However, the packaging, the location of the small plastic bag, and the appearance of its contents support the officer’s inference that the driver was drug-impaired, especially considering other circumstances. Indeed, given the presence of this suspicious substance and the absence of insulin and a blood glucose meter in the vehicle, it was a reasonable inference that the defendant had recently injected a substance other than insulin.

He Had Track Marks

Fourth, there was evidence of intravenous drug use by the defendant.

The officer’s testimony, which alluded to a “fresh” track mark, does not clearly distinguish between the sort of “track marks” that are caused by repeated intravenous drug use and a single mark on his arm consistent with a recent intravenous injection, as by using the syringe found in the vehicle.

Both the trial court and the appellate court accepted as fact that the defendant’s arms showed track marks indicative of repeated intravenous injections. Because this evidence was elicited by the defendant, any failure to clarify is his responsibility.

Thus, on the record before us, based on testimony elicited by the defendant, we conclude that he had not only a mark showing a recent intravenous injection but also track marks indicative of repeated intravenous drug use. That such track marks are frequently seen in users of illegal drugs is a matter of common knowledge. Courts frequently accept such testimony without the need for explanation by an expert. See, e.g., People v. House, 232 Ill. App. 3d 309, 314 (1992); People v. $1,002 United States Currency, 213 Ill. App. 3d 899, 901 (1991).

Lower Court Off Base With This (Track Marks)

Both the trial court and the appellate court concluded that these track marks could have been caused by regular injections of insulin for diabetes.

If they were basing their conclusions on what they believed was common knowledge, they were incorrect. Absent common knowledge, they lacked any evidentiary basis for this conclusion. Indeed, the trial court and the appellate court demanded a level of expertise from a police officer that they lacked, yet they opined, inaccurately, on the technique for insulin injection.

Insulin is not injected intravenously and, thus, cannot cause the kind of track marks associated with illegal drug use.

Lower Court Messed This Up As Well (Believed Wacked Out Driver)

Finally, the lower courts gave substantial weight to defendant’s uncorroborated statement to the officer that he was diabetic, presumably to explain the presence of the used syringe.

Defendant’s statement to the officer that he is diabetic was not corroborated by any physical evidence or circumstance known to the officer at the time of the arrest. The officer found evidence of opiates in the vehicle but no insulin or blood glucose meter.

In sum, there was no evidence available to the officer at the time of the arrest that defendant’s impairment may have been due, even in part, to diabetes. We do not expect police officers in the field to make differential diagnoses—only to determine based on the totality of the circumstances whether an impaired driver is under the influence of alcohol or drugs, even if he or she may also have a medical condition.

While We Are At It Lower Court Messed This Up Too (Test For Opiates)

The lower court inferred the officer did not even know what kind of test he was performing. Was it a test for opiates or cocaine?

But the officer was quite clear in his testimony that he performed a test for opiates. That's what he trained on, and he said "opiates" more than once. 

The only person to refer to a test for "cocaine" was the prosecutor on cross examination of the officer. Yet, the officer always answered with the word "opiates."

Holding

In this case, the totality of the circumstances supports the officer’s conclusion that defendant had been driving under the influence of drugs. The semiconscious defendant showed signs of recent intravenous injection, he possessed a used syringe, and the only injectable substance present was an opiate, apparently prepared for injection in the depression on the bottom of the aluminum beverage can.

We find no evidence of any circumstance that tends to cast doubt on the reasonableness of the officer’s inference.

Thus, we conclude that the trial court erred in finding that the burden shifted to the State. The defendant failed to present a prima facie case. Thus, the trial court erred by not granting the State’s motion for a directed finding.

Expert testimony is not required in every case for an officer to testify to his opinion that a motorist was under the influence of drugs based on his inference from the totality of the circumstances. When, as here, the totality of circumstances at the time of the arrest is sufficient to lead a reasonably cautious person to believe that an individual was driving under the influence of drugs, probable cause exists.

Thus, defendant failed to make a prima facie case that the rescission of his license was improper and the burden did not shift to the State. For the foregoing reasons, we reverse the judgment of the appellate court, vacate the rescission order entered by the trial court, and remand to the trial court for further proceedings consistent with this judgment. 

Sep 24 2019

14mins

Play

This Photo Causes Defense Counsel To Just About Have An Aneurysm

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People v. Middleton, 2018 IL App (1st) 152040 (June). Episode 503 (Duration 17:07)

Here's the photo...

Reversible error for the state to spring a doctored image before the jury on rebuttal argument.

Gist

Defendant was arrested and then charged with murder after allegedly shooting to death his girlfriend’s brother on the sidewalk outside the victim's home.

A jury found defendant guilty of the first degree murder while personally discharging a firearm and sentenced to 53 years in prison.

The Eye Witness

At trial, the victim’s neighbor testified that he was standing on his front porch around when he saw defendant near the sidewalk across the street and several houses east from where he stood.

The witness was 13 years old.

The Shooter

He testified that there was nothing blocking his view and he described defendant as an African-American male, with long dreads half pinned back, who was wearing black jogging pants, and a gray hoodie bearing black writing and the hood was hanging down.

Defendant wore a ski mask that covered only the lower half of his face, which the witness described as going up “right here to the nose.” The witness saw defendant look in his direction as he drew a silver revolver from his hoodie. The witness said he saw defendant as he “rammed up on” the victim, who was standing on the sidewalk.

The Shooting

The 13 year old heard the victim plead with defendant not to shoot but defendant fired at his chest, causing the victim to fall to the ground. Defendant returned to his car but “came back like he wasn’t *** finished with him,” and shot the victim again in his upper body.

The Get-A-Way

The witness then saw defendant get into a white car and drive off.

At this point, the witness moved from his porch to the hallway and looked out the window, noting he could see the whole block from that vantage point. He saw defendant, still wearing the half-ski mask as he drove west past his house. The 13 year old could see defendant’s whole upper body and from his nose “all the way up.”

The State did not present the ski mask at trial or ask the witness to identify any image of defendant wearing a ski mask.

Later ID

Less than three months later, the witness identified defendant as the shooter from a photo array.

One month later, the witness identified defendant from a lineup. 

State's Closing

During closing argument, defense counsel honed in on the key question of whether the 13 year old was actually capable of identifying defendant as the shooter.

During its rebuttal argument, the State asserted that the identification was sound notwithstanding the half-ski mask. The State argued the witness “could see the defendant’s hair, the defendant’s eyes, the defendant’s forehead, defendant’s legs, his chest, his shoulders.”

To emphasize this point, the State presented the jury with two, side-by-each photographs. One was defendant’s mug shot taken the day of his arrest. The other photo showed the same mug shot, but in the nature of a crude “photoshop” edit, it blacked out the bottom portion of his face, in an obvious effort to show what defendant might look like if wearing a “half-ski mask.”

The court did not strike the exhibit or the related argument, and it denied the motion for mistrial.

The Picture

The exhibit showed a black half-circle superimposed over the lower portion of defendant’s face in his arrest mug shot and cannot be described as a graphic representation of a mask. 

Issue

Defendant contends the trial court’s denial of defense counsel’s motion for a mistrial on the basis of introducing this exhibit during rebuttal closing argument without having introduced this exhibit at trial constitutes reversible error.

Defendant's Argument

Defendant specifically argues the altered mug shot was inadmissible in the first place as a demonstrative exhibit because it did not depict the “physical facts as they actually existed at the time of the crime” and the display was at the heart of this identification case.

Defendant argues that even assuming the altered mug shot was admissible, the State failed to properly tender it to the defense prior to trial or lay a foundation for its introduction during trial, instead springing the surprise exhibit on the jury during rebuttal argument.

He argues he was deprived of the opportunity to object to the exhibit, move for its exclusion prior to trial, or prepare a counter demonstrative exhibit depicting defendant wearing full ski mask.

Defendant thus asserts the introduction of the exhibit was prejudicial error which could not be cured with any remedial instruction.

States Argument

The State responds that the State’s conduct was not improper because the altered mug shot accurately reflected the victim’s testimony that defendant wore a half-ski mask during the shooting and, moreover, was used as invited comment, in response to defense counsel’s closing argument.

Demonstrative Evidence

We note that demonstrative evidence has no probative value in itself but rather serves as a visual aid to the jury in comprehending the verbal testimony of a witness. See Cisarik v. Palos Community Hospital, 144 Ill. 2d 339, 341-42 (1991).

The overriding considerations in admitting demonstrative evidence are relevancy and fairness. People v. Burrows, 148 Ill. 2d 196, 252 (1992). Thus, before a demonstrative exhibit like the present one can be introduced, a foundation must be laid, by a knowledgeable witness, that it accurately depicts and portrays what it purports to show.

In addition, the exhibit is only admissible if its probative value is not substantially outweighed by the danger of unfair prejudice.

Court Finding

The court agreed with defendant that it was error for the State to introduce a demonstrative exhibit during its rebuttal argument without having produced the exhibit to the defense and without laying any sort of foundation for its use during the trial.

Analysis

While the State and the court found the exhibit to be consistent with Conner’s testimony as to the half-ski mask, we question the wisdom of that conclusion, as it strains credulity that any ski mask could possibly look like a blacked-out half-circle over an individual’s face.

As set forth above, there is no indication that this witness reviewed any photographic or graphic images of defendant wearing a ski mask, when he identified defendant as the shooter to police. At trial, the State did not introduce any mask into evidence or ask the witness to testify about the altered mug shot, let alone defendant’s unaltered mug shot.

Moreover, we cannot say that the witness would not have testified that the altered mug shot, apparently created some two years after the shooting, reflected how the half-ski mask looked or how defendant looked while wearing the half-ski mask when the crime occurred.

The witness testified that defendant had his hair half pulled back and a hoodie on at the time of the shooting. In the arrest photo, by contrast, defendant’s dreadlocks are down, and he’s wearing a white v-neck T-shirt.

The State thus deprived the defense of questioning the accuracy of the image, moving to exclude it or forcing the State to create the image to the defense’s satisfaction, cross-examining the witness regarding the image, and likewise presenting a counterimage of a full ski mask.

Prejudice

The image was central to this prosecution, which revolved almost entirely around the accuracy of Conner’s identification of defendant as the shooter.

Here, the evidence was closely balanced, as there was no physical evidence linking defendant to the crime, and the 13­ year-old witness was the only eyewitness to the shooting. The testimony, while competent, was impeached by the State’s own police reports indicating the shooter wore a full ski mask with velcro and the defense’s two witnesses.

The closely-balanced nature of the evidence made the error especially harmful.

In addition, the side-by-side presentation to the jury of the altered mug shot, introduced absent any evidentiary foundation, with the exact same properly admitted mug shot immeasurably enhanced the prejudice. The jury was then forced to compare how defendant appeared wearing the supposed ski mask to how he looked without it, not on the day of the crime but the day of his arrest, thus boosting the credibility of the State’s main witness.

No Instruction Could Fix This

Furthermore, the judge did not instruct the jury to disregard the altered photo but rather emphasized it was demonstrative, making this case arguably more prejudicial. Putting the trial court’s instruction aside, it is difficult to conceive of any instruction that would be curative of this rebuttal sucker punch.

Holding

Based on the totality of the circumstances, the State failed to maintain its burden of proving the error was harmless beyond a reasonable doubt, and the court abused its discretion in both allowing the State to utilize the undisclosed demonstrative exhibit in rebuttal and also in denying defense counsel’s motion for a mistrial. 

The gravity of the error resulted in a denial of fundamental fairness.

While we reverse and remand for a new trial on the basis of the improper admission of the altered arrest photo, remand for a new trial.

Offensive Rebuttal

In reaching this conclusion, we find the State’s argument that the use of the exhibit was “invited” comment on rebuttal is palpably offensive, as this specific argument was surely expected given the defense theory of the case, announced in opening statement, as being all “about identification” and that “no one could have actually seen the face of the person who shot [the victim].”

Almost all of the evidence related to the identification issue.

The State Had This Ready

If such an argument was unanticipated, the State would have had no opportunity to spring this doctored exhibit on the court because they would not have been on notice.

Instead, it is clear that the prosecution knew the defense would focus on the eyewitness identification, so they prepared this exhibit ahead of time and displayed it without disclosing it and without ever laying a foundation for it. This patently improper tactic would surely be highly prejudicial to defendant’s right to a fair trial.

There’s a picture!

Sep 20 2019

17mins

Play

Consensual Blood Draw Has To Be Clear And Unequivocal Especially If You Have Not Been Ticketed

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People v. Hayes, 2018 IL App (5th) 140223 (February). Episode 461 (Duration 17:53)

Defendant runs over and kills a 7 year old boy, however, the resulting blood draw is out because defendant was never under arrest.

Hits & Kills A Little Boy

Defendant was driving home from the store with two of his children.

One of the children attempted to hand the defendant a piece of candy to unwrap for him. The defendant looked back to talk to the child. As he did, his vehicle struck seven-year-old David Kirby.

According to witnesses, the boy rode his bicycle between two parked cars onto the roadway and into the path of the defendant’s van. Defendant could have done anything to avoid the accident.

The accident took place near city hall in Sumner, Illinois. The defendant ran into city hall asking for help. Brent Parrott, a volunteer firefighter who was there that day, administered CPR to David. Several police officers responded to the accident, including Lawrence County Deputy Danny Ash, Illinois State Police Trooper Brooks Thomann, and Bridgeport Police Chief Scott Murray.

No Signs of Intoxication No Tickets Issued

Trooper Thomann testified that he had both training and experience in recognizing the signs of intoxication or influence of drugs in motorists. He did not notice anything about the defendant’s demeanor or appearance that would lead him to believe that the defendant was intoxicated or under the influence. He did not detect the odor of alcohol or drugs, and he noted that the defendant did not slur his speech.

Asked what his conclusion was as to the cause of the accident, Trooper Thomann replied,

“as far as I could see, the child had just ridden out into the street. And when he came around that vehicle, shot out in the middle of the street, and then Mr. Hayes struck him.”

Trooper Thomann testified that he did not issue any traffic citation to the defendant, explaining,

“There was no violation, as far as Mr. Hayes.”

To The Hospital

Deputy Ash asked Chief Murray to transport the defendant to Lawrence County Memorial Hospital to provide blood and urine samples for drug screening.

Chief Murray did so.

He testified that he did not know whether Deputy Ash had placed the defendant under arrest prior to this time. He testified that he did not personally place the defendant under arrest at any time, and he did not issue the defendant any traffic citations. Chief Murray drove the defendant to the hospital. He further testified that during the 10-minute ride to the hospital, the defendant was not handcuffed. At the hospital, Chief Murray accompanied the defendant to the restroom while he provided a urine sample and remained with him while his blood was drawn.

Eventually Charged

Chief Murray testified that he waited with the defendant until Deputy Ash arrived to transport him from the hospital. Chief Murray handed Deputy Ash the DUI kit completed by hospital staff and then left.

He assumed that Deputy Ash transported the defendant back to the police station, but he left the hospital before they did. The test indicated the presence of drugs, and the defendant was charged with aggravated driving under the influence (DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2010)).

Deputy Ash arrived after the samples were taken and drove the defendant back to the police station.

Implied Consent

Deputy Ash was then asked about his decision to have the defendant transported to the hospital for drug testing. Defense counsel asked him on what basis he made that decision. Deputy Ash responded, “He was involved in a personal injury accident. He was the driver of a vehicle involved in a personal injury accident.” Deputy Ash then testified that “consent is implied whenever you receive a driver’s license to obey all the rules in the [Illinois Vehicle Code].”

Blood & Urine Results

The results of initial tests performed by the hospital’s lab were faxed to Deputy Ash later that afternoon. The blood tests revealed the presence of amphetamine. The urine sample collected on that date, however, indicated the presence of methamphetamine, amphetamine, THC, and naproxen.

After receiving these results, Deputy Ash placed the defendant under arrest for DUI. Deputy Ash also issued two traffic citations to the defendant for failing to exercise due care (id. § 11-1003.1) and failing to reduce speed to avoid an accident (id. § 11-601(a)). The next day defendant was charged with aggravated DUI (id. § 11-501(d)(1)(F)).

Second Blood & Urine Tests

Deputy Ash asked the defendant to submit to a second drug testing again a few days later.

This testing of both the blood and urine samples tested negative for the presence of any drugs.

Deputy Ash testified about the timing of the defendant’s arrest for DUI and the issuance of the two traffic citations. He noted that he believed the statute governing implied consent to drug testing required only the issuance of a traffic citation, rather than an arrest.

He conceded that the defendant was not under arrest at the time he was transported to the hospital for testing, testifying that he arrested the defendant on the charge only after receiving the initial test results from the hospital’s lab.

Defense counsel asked Deputy Ash whether he had issued traffic citations to the defendant prior to directing him to be taken to the hospital for drug testing. In response, Deputy Ash stated that the defendant had not been handed a citation prior to this point. He acknowledged that he did not give the citations to the defendant until two days after the initial tests, but he testified that the citations were written earlier.

Asked to explain why he took the unusual step of ordering a second drug test, Deputy Ash explained that someone from the state’s attorney’s office informed him that the initial test might not be valid because the defendant was not given the warning to motorists and because he was not given any traffic citations prior to the tests.

He testified that the second test was intended to remedy this flaw.

Trial Court Says There Was Probable Cause

The court found that the tests were supported by probable cause.

It reasoned that Deputy Ash’s knowledge that the defendant had a history of drug charges and a prior DUI coupled with the defendant’s admitted lack of attention to the road gave Deputy Ash probable cause to believe the defendant may have been under the influence of drugs.

In explaining its ruling, the court noted that Deputy Ash might reasonably have decided that he did not believe the defendant’s version of events and that Deputy Ash might reasonably have concluded that the presence of drugs may have been a contributing factor to the defendant’s inattentiveness.

54 Months Prison!

The matter proceeded to a stipulated bench trial, at which the court found the defendant guilty.

The defendant subsequently filed a motion for a new trial, which the court denied. The court sentenced the defendant to 54 months in prison.

Issue

The question before us is whether the results of the drug tests should have been excluded because they were obtained in violation of the fourth amendment to the United States Constitution.

The Law

The compulsory testing of a defendant’s blood or other bodily fluids is a search within the meaning of the fourth amendment.

To be reasonable under the fourth amendment, a search must ordinarily be conducted pursuant to a warrant supported by probable cause. There are, however, “a few specifically established and well-delineated exceptions” to the requirement of a warrant. Katz v. United States, 389 U.S. 347, 357 (1967).

Consent Is An Exception

Under one exception, a warrantless search is reasonable—and therefore permissible— if there is voluntary consent to the search. People v. Anthony, 198 Ill. 2d 194, 202 (2001); Kratovil, 351 Ill. App. 3d at 1030. Consent to a search is the waiver of a constitutional right. Kratovil, 351 Ill. App. 3d at 1030. The validity of a warrantless search based on consent thus “depends on the voluntariness of the consent.” Anthony, 198 Ill. 2d at 202.

Whether consent is voluntary is a question of fact that must be determined by evaluating the totality of the circumstances. The State has the burden of proving that the defendant’s consent to the search “was truly voluntary.” Id.

No Probable Cause Here

We also agree that the July 25 test was not supported by probable cause.

Here, the court’s finding of probable cause was based on the court’s belief that it would be reasonable for Deputy Ash to disbelieve the version of events given by the defendant, but Deputy Ash never testified that this was the case.

In addition, the court found that it would be reasonable for Deputy Ash to conclude that the presence of drugs might have contributed to inattention on the part of the defendant. However, this reasoning is bootstrapping, and Deputy Ash never testified that he in fact reached that conclusion. We note that because Deputy Ash did not have probable cause to test the defendant for drugs, we need not consider whether exigent circumstances were present under McNeely.

We conclude that the court erred in finding the tests to be justified on the basis of the exigent circumstances-plus-probable-cause exception.

No Consent Either

We turn our attention to the question of consent.

We first consider whether the testing was supported by the defendant’s actual consent.

Must Be Clearly Given

Acquiescence to apparent authority is not the same thing as consent. Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968); Anthony, 198 Ill. 2d at 202. Consent to a search “must be received, not extracted.” Anthony, 198 Ill. 2d at 202 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973)). A defendant can consent to a search without making an express verbal statement of consent; he can instead convey his consent to officers through nonverbal conduct.

As the Illinois Supreme Court observed in Anthony, dueling inferences can easily arise from a single ambiguous gesture. As we explained earlier, consent to a search is the waiver of a constitutional right. Kratovil, 351 Ill. App. 3d at 1030. As such, a “defendant’s intention to surrender this valuable constitutional right should be unmistakably clear.” Anthony, 198 Ill. 2d at 203.

Must Be Voluntary

Moreover, even unmistakably clear consent is not valid unless it is given voluntarily. People v. Green, 358 Ill. App. 3d 456, 462 (2005). Consent is voluntary when it is “given freely without duress or coercion.” Id. (citing People v. LaPoint, 353 Ill. App. 3d 328, 332 (2004)). In determining whether this standard is met, courts consider “whether, in light of all the circumstances surrounding the officer’s request for consent, a reasonable person in the defendant’s position would have felt free to leave” or to refuse to consent to the search. Id. at 463 (citing LaPoint, 353 Ill. App. 3d at 332).

No Consent

Here, the record contains no evidence at all concerning how the test was presented to the defendant or how the defendant responded. We do not know whether Deputy Ash asked the defendant to take the test or demanded that he do so. We do not know whether Deputy Ash told the defendant that he had no right to refuse the test. We do not know whether the defendant agreed to take the test, objected, or merely acquiesced.

The State asks us to presume based on this record that the defendant deliberately got into Chief Murray’s vehicle because he willingly agreed to submit to a test he felt free to refuse. We cannot find the waiver of an important constitutional right based on these circumstances.

Moreover, even assuming the defendant did anything to unambiguously convey consent, the surrounding circumstances indicate that any such consent was not voluntary. He was transported to the hospital for the test by a uniformed police officer. The officer remained with him at all times, even when he went to the restroom to provide a urine sample. Deputy Ash had the defendant’s vehicle towed from the scene of the accident to be stored until Deputy Ash completed his investigation.

We do not believe that a reasonable person confronted with these circumstances would feel free to leave the hospital or refuse to take the test.

Holding

Considering the totality of these circumstances, we find that the State failed to meet its burden of demonstrating that the defendant voluntarily consented to the tests. 

Doesn't Implied Consent Authorize This Testing?

Section 11- 501.6(a) of the Illinois Vehicle Code provides that any motorist “shall be deemed to have given consent” to drug testing if the motorist is

“arrested as evidenced by the issuance of a Uniform Traffic Ticket for any violation of the Illinois Vehicle Code *** with the exception of equipment violations.”

625 ILCS 5/11-501.6(a) (West 2010).

The statute, by its express terms, applies only if the defendant has been arrested for a violation of the Illinois Vehicle Code when asked to submit to testing. We agree with the defendant that this condition was not met in this case.

There is no dispute in this case that Deputy Ash did not issue any traffic citations to the defendant until two days after he directed the defendant to submit to the test.

Sure, the defendant was seized within the meaning of the fourth amendment when he submitted to the tests, but he was not under arrest for a violation of the Illinois Vehicle Code as required by the implied consent provision.

States' Argument

The state argued that if the defendant was arrested that was sufficient for implied consent to kick it.

In support of its position, the State cites People v. Gamblin, 251 Ill. App. 3d 769 (1993), People v. Brantley, 248 Ill. App. 3d 580 (1993), and People v. Wozniak, 199 Ill. App. 3d 1088 (1990).

Moreover, as we emphasized earlier, the court also held that the admission of test results in a criminal case is subject to fourth amendment constraints. We read these cases to say that if a test is otherwise proper under the fourth amendment, its results are admissible regardless of whether the requirements for application of the implied consent provision are satisfied. In a criminal proceeding the fourth amendment governs beyond implied consent law.

Ludicrous Results

Accepting the State’s arguments in this case would mean that almost any driver involved in an accident involving a fatality or serious injury would be deemed to have consented to drug screening. If an officer restricts the driver’s freedom in any meaningful way, the driver would be deemed to have consented to the test through the implied consent provision—even if his movement is only so restricted because of the officer’s decision to administer the test, as happened in this case.

If the officer does not restrict the driver’s freedom to the extent necessary to constitute a seizure or arrest within the meaning of the fourth amendment, the driver will, in many cases, be deemed to have voluntarily consented.

Given the particularly intrusive nature of the blood testing at issue in this case, such a result would be untenable.

Second Holding

We therefore hold that before a motorist may be found to have impliedly consented to this intrusive search, thereby waiving an important constitutional right, he must be under arrest for a violation of the Illinois Vehicle Code.

We note that our holding does not limit the admissibility of test results in cases where the defendant has actually given voluntary consent or in cases where some other recognized exception to the requirement of a warrant applies.

We merely hold that the State cannot rely on the implied consent provision unless the defendant has been arrested for a nonequipment violation of the Illinois Vehicle Code.

The fact that the defendant’s movement is restricted to the degree necessary to be seized within the meaning of the fourth amendment coupled with a decision to issue tickets one to two days after the fact, as occurred in this case, is not sufficient to meet this standard.

To find that standard met in this case would allow the State to do an end-run around the requirements of the fourth amendment. We conclude that the drug test at issue in this case did not fall within any recognized exception to the requirement of a warrant. As such, it was an unreasonable search within the meaning of the fourth amendment, and the results should have been excluded.

Reversed Outright

Because there is insufficient evidence to convict the defendant without evidence of the test results, we will reverse his conviction outright.

See Also

Episode 439 - People v. Sykes, 2017 IL App (1st) 150023 (December). (no police action when police hold a lady down in the hospital)

Episode 423 – People v. Brooks, 2017 IL 121413 (November), (our supreme court recently held that mere police participation, absent the private actors acting as an agent or instrumentality of the State, is not state action)

Episode 319 How Can Police Enforce A Blood Warrant | A Discussion With Anthony Cameron

Episode 438 – People v. Eubanks, 2017 IL App (1st) 142837 (December) (really bad defendant held down in the hospital)

Episode 186 – Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016)

Sep 18 2019

17mins

Play

“No Talking” Command Was An Order Not A Request

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People v. Lee, 2018 IL App (3d) 170209 (February). Episode 458 (Duration 6:59)

25 minute wait for the sniff dog was too long.

Drug Charges

The State charged defendants, Wan Fung Lee and Jacky Yao Chuan Xiong, with unlawful cannabis trafficking (720 ILCS 550/5.1(a) (West 2014)), unlawful possession with intent to deliver cannabis (id. § 5(g)), and unlawful possession of cannabis (id. § 4(g)).

The Stop

Sergeant Clint Thulen testified that he pulled over defendants’ vehicle on March 9, 2015, for failure to signal a lane change.

A video recording of the traffic stop was introduced into evidence. Defendants’ exhibit No. 4 is a three-page timeline of the traffic stop. The first page chronicles the stop up until the point where Thulen returns Lee’s license. The second page details Thulen’s requests for consent and the period of waiting for the canine to arrive. The third page covers the period of the stop after the canine arrives.

Defendants agree that the traffic stop in the present case was lawful—based upon Thulen’s probable cause to believe a traffic violation had occurred—up until the point that Thulen issued Lee a warning ticket.

The State agrees that, at that point, Thulen had neither probable cause nor a reasonable, articulable suspicion upon which defendants could be detained.

The Video

The video begins as Thulen commences the traffic stop. Thulen approaches the passenger side of the vehicle and leans into the window. Approximately 1½ minutes later, the driver of the vehicle, later identified as defendant Lee, exits the vehicle and walks to the front of Thulen’s squad car. Thulen sits in the driver’s seat of the squad car and soon thereafter Lee sits in the passenger seat. The officers said they couldn’t smell the weed but they were sure the bags in the car contained weed.

They ask about it when defendant is in the squad car. He denies and the officer tells defendant to shut the door so he doesn’t run.

Thulen radios in defendants’ information. At the seven minute mark of the video recording, a second officer, Sergeant Brian Strouss arrives at the scene. Thulen asks Lee and Xiong, “You guys have got nothing to hide, right? Would you mind waiting for a dog to come and walk around the outside of the car?” Thulen tells them “it won’t take too long.” At the 14:45 minute mark of the video, Thulen radios in requesting a canine. He then tells defendants, “Hey, you’re free to go. You can do anything you want. You know, you’re free to go so I sure appreciate you waiting around for the dog though.” For approximately 25 minutes, defendants and the officers make small talk outside of the vehicle. In that period, Thulen requests that Xiong roll up the windows of the vehicle. The dog alerted. The trial judge granted the motion to suppress and the trial court sustained it.

Issue

Thus, the issue turns upon whether the encounter from that point forward was consensual.

Mendendhall Factors

We need not venture outside the four factors enumerated in Mendenhall to find the most compelling in the present case.

Thulen yelled, “Hey, no talking” at defendants, a plain example of “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” 

Not only was Thulen’s statement made in a loud and controlling voice, but the substance of that statement was in the nature of an order, dictating what defendants may or may not do.

Moreover, the order was accompanied by Thulen gesturing for Lee to come to him and, later, a direction that Lee look at Thulen. In a short span of time, toward the very beginning of the purportedly consensual portion of the stop, Thulen had thus made a number of demands of Lee. A reasonable person would not believe that he was allowed to leave the scene completely if he was not even allowed to speak to his friend.

Officer Safety

In its initial brief, the State ignores Thulen’s command that defendants not speak, only describing Thulen’s tone and language as “respectful, polite, and deferential to [defendants’] wishes as to whether they would remain on the scene.” In its reply brief, the State simply asserts that Thulen’s command “was merely for officer safety.”

To be sure, this court recognizes an officer’s need to protect himself or herself by preventing individuals from communicating in a language that the officer does not understand.

However, Thulen did not calmly ask defendants to speak in English. Instead, he loudly ordered them to stop speaking completely.

Thulen himself testified that he erred in delivering the command that he did, admitting that he should have asked defendants to speak in English. Again, a reasonable person who has been forcefully commanded by an officer to stop speaking would not feel free to enter his vehicle and drive off.

Sep 18 2019

7mins

Play

Little Reminder Why Gun Bans Aren’t So Easy

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People v. Chairez, 2018 IL 121417 (February). Episode 457 (Duration 10:04)

Another UUW provision is struck down.

Gist

On April 24, 2013, pursuant to a negotiated plea agreement, defendant Julio Chairez pled guilty in the circuit court of Kane County to possessing a firearm within 1000 feet of Virgil Gilman Trail, a park in Aurora, Illinois, in exchange for the State’s agreement to file a nolle prosequi for several other charges and the recommendation that defendant receive a sentence of two years’ probation.

Issue

At issue in this appeal is the constitutionality of section 24-1(a)(4), (c)(1.5) of the unlawful use of a weapon (UUW) statute (720 ILCS 5/24-1(a)(4), (c)(1.5) (West 2012)), which, in pertinent part, prohibits an individual from carrying or possessing a firearm within 1000 feet of a public park.

The Statute

At the time of the proceedings herein, the UUW statute provided:

“§ 24-1. Unlawful Use of Weapons. (a) A person commits the offense of unlawful use of weapons when he knowingly: * * (4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person’s permission, any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a)(4) does not apply to or affect transportation of weapons that meet one of the following conditions:

(i) are broken down in a non-functioning state; or (ii) are not immediately accessible; or (iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner’s Identification Card[.] * *

(c) Violations in specific places. (1.5) A person who violates subsection 24-1(a)(4) *** on any public way within 1,000 feet of the real property comprising any school, public park, courthouse, public transportation facility, or residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 3 felony.”

720 ILCS 5/24-1(a)(4), (c)(1.5) (West 2012).

The Second Amendment

The second amendment to the United States Constitution provides that

“[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

U.S. Const., amend. II.

Through the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), this right is “fully applicable to the States.” McDonald v. City of Chicago, 561 U.S. 742, 750 (2010).

The Case Law

In District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the United States Supreme Court determined that there is a guaranteed “individual right to possess and carry weapons in case of confrontation,” based on the second amendment. However, Heller instructs that even though the second amendment guarantees an individual right to bear arms, that right is “not unlimited.”

Adopting the reasoning in Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012), this court in People v. Aguilar, 2013 IL 112116, ¶ 21, recognized that “the second amendment protects the right to possess and use a firearm for self-defense outside the home.”

As such, we held the offense set forth in section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute, which prohibited carrying on one’s person or in any vehicle, outside the home, an uncased, loaded, and immediately accessible firearm, to be unconstitutional on its face.

Two years later, in Mosley, 2015 IL 115872, ¶ 25, we extended Aguilar’s finding of facial unconstitutionality to another portion of the AUUW statute, section 24-1.6(a)(2), (a)(3)(A) (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West 2012)), which prohibited carrying an uncased, loaded, and immediately accessible firearm on a public way.

This court has already said that section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute is facially unconstitutional “without limitation” (id. ¶ 29) because “[t]he offense, as enacted by the legislature, does not include as an element of the offense the fact that the offender has a prior felony conviction” (id. ¶ 25). As such, we held there is only one offense of AUUW based on section 24-1.6(a)(1), (a)(3)(A), and a prior felony conviction that enhances the felony classification at sentencing is not an element of that offense but, rather, a sentencing factor which enhances the penalty from a Class 4 felony to a Class 2 felony. People v. Burns, 2015 IL 117387.

Collectively, this court has held that the second amendment protects an individual’s right to carry a ready-to-use gun outside the home, subject to certain regulations.

What About Bans Within 1000 Feet Of A Park?

The question, then, is whether the offense of possessing a firearm within 1000 feet of a public park, as set forth under section 24-1(a)(4), (c)(1.5) of the UUW statute, impermissibly encroaches on conduct at the core of the second amendment right to armed self-defense and whose right it affects.

There Is A Constitutional Test

In sum, what is taught from these cases is that step two of our second amendment analysis begins with a balance of considerations where the quantity and persuasiveness of the State’s evidence required to justify the challenged restrictions varies depending on how much it affects the core second amendment right to armed self-defense and whose right it affects.

The rigor of this means-end analysis “depends on ‘how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.’” The closer in proximity the restricted activity is to the core of the second amendment right and the more people affected by the restriction, the more rigorous the means-end review.

If the State cannot proffer evidence establishing both the law’s strong public-interest justification and its close fit to this end, the law must be held unconstitutional.

Analysis

Applying this framework to the law at issue here requires an initial determination of where on the sliding scale of intermediate scrutiny the law should be analyzed. To answer this question, our first task is to determine the breadth of the law and the severity of its burden on the second amendment.

We find that the 1000-foot firearm restriction at issue more closely resembles the restrictions at issue in Ezell I, Ezell II, Moore, and Aguilar. In fact, the 1000-foot firearm restriction not only directly implicates the core right to self-defense, it does so more severely than the regulations at issue in the Ezell cases.

That is so because section 24-1(a)(4), (c)(1.5) of the UUW statute prohibits the carriage of weapons in public for self-defense, thereby reaching the core of the second amendment.

While in the Ezell cases, the laws only affected a right (maintain firearm proficiency) that was merely a “corollary” to the right to possess firearms for self-defense. Although the firearm restriction at issue is not a comprehensive statewide ban, like in Moore or Aguilar, the restriction is not minimal. The firearm restriction not only covers a vast number of public areas across the state, it encompasses areas this court held in Mosley to be areas where an individual enjoys second amendment protection, i.e., public ways. See Mosley, 2015 IL 115872, ¶ 25.

Big Burden

As to the second variable on the sliding scale, the severity of the law’s burden on the right, the law at issue affects the gun rights of the entire law-abiding population of Illinois like the laws in Moore, Ezell, Aguilar, and Mosley. As in those cases, the law functions as a categorical prohibition without providing an exception for law-abiding individuals. It is therefore a severe burden on the recognized second amendment right of self-defense.

All of this suggests that elevated intermediate scrutiny should apply.

Government's Burden

And under this more rigorous review, the government bears the burden of showing a very strong public-interest justification and a close fit between the government’s means and its end, as well as proving that the “public’s interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights.”

That means the State must establish a close fit between the 1000-foot firearm restriction around a public park and the actual public interests it serves.

No Legitimate Public Interest

Turning to the State’s proffered public-interest justifications, the State claims a compelling interest in public safety is served by reducing firearm possession within 1000 feet of a public park. In support, the State relies heavily on an analysis of school violence and the 1000-foot firearm ban surrounding schools.

For instance, the State references the federal Gun Free School Zones Act of 1990, which restricts firearm possession within 1000 feet of school grounds. 18 U.S.C. § 921(a)(25) (2012). The State claims that it was in the atmosphere behind the passage of the Gun Free School Zones Act—a rise in school violence in the late 1980s—that the General Assembly passed the law extending the existing restriction on drugs within 1000 feet of schools, public parks, and public housing to also ban firearms from these locations.

The State attempts to relate the reasoning behind the gun-free school zones to public parks, stating that because there is a substantial and distinctive interest in protecting those in parks due to a large number of children who frequent these places, prohibiting firearms near public parks is substantially related to the important government interest in protecting these children and others.

According to the State, the goal of the 1000-foot firearm restriction around public parks is to extend the distance where a shooter might fire a weapon.

Specific Evidence Required

We certainly accept the general proposition that preventing crime and protecting children are important public concerns. After all, “[g]uns are inherently dangerous instrumentalities.” The State, however, cannot simply invoke these interests in a general manner and expect to satisfy its burden.

There must be sufficient evidence to support the State’s rationale.

In sum, based on the record, the State provides no evidentiary support for its claims that prohibiting firearms within 1000 feet of a public park would reduce the risks it identifies. Without specific data or other meaningful evidence, we see no direct correlation between the information the State provides and its assertion that a 1000-foot firearm ban around a public park protects children, as well as other vulnerable persons, from firearm violence.

The State merely speculates that the proximity of firearms within 1000 feet threatens the health and safety of those in the public park. The lack of a valid explanation for how the law actually achieves its goal of protecting children and vulnerable populations from gun violence amounts to a failure by the State to justify the restriction on gun possession within 1000 feet of a public park.

It's Basically A Complete Ban

There is another flaw in the State’s position.

The State claims that the restriction is not overly burdensome because there are areas throughout Illinois where one could exercise their core second amendment right. Indeed an individual can preserve an undiminished right of self-defense by not entering one of the restricted areas.

But the State conceded at oral argument that the 1000-foot firearm restriction zone around a public park would effectively prohibit the possession of a firearm for self-defense within a vast majority of the acreage in the city of Chicago because there are more than 600 parks in the city.

Aside from the sheer number of locations and public areas that would qualify under the law, not only in the City of Chicago, but throughout Illinois, the most troubling aspect is the lack of any notification where the 1000-foot restriction zone starts and where it would end.

Innocent behavior could swiftly be transformed into culpable conduct if an individual unknowingly crosses into a firearm restriction zone. The result could create a chilling effect on the second amendment when an otherwise law-abiding individual may inadvertently violate the 1000-foot firearm-restricted zones by just turning a street corner.

Likewise, in response to a question at oral argument, the State conceded that an individual who lives within 1000 feet of a public park would violate section 24-1(a)(4), (c)(1.5) every time that individual possessed a firearm for self-defense and walked to his or her vehicle parked on a public street. To remain in compliance with the law, the State said that the individual would need to disassemble his or her firearm and place it in a case before entering the restricted zone. This requirement, however, renders the ability to defend oneself inoperable and is in direct contradiction to this court’s decisions in Aguilar, which recognized that the right to carry firearms for self-defense may be especially important when traveling outside of the home, and perhaps even more important than while at home.

Moreover, the State’s proposition conflicts with Heller’s decision that struck down the requirement that firearms be kept “unloaded and disassembled or bound by a trigger lock” because it “makes it impossible for citizens to use them for the core lawful purpose of self-defense.” (Internal quotation marks omitted.) Heller, 554 U.S. at 630. Thus, the State’s suggestion runs counter to established law.

Holding

For these reasons, the State has not established the required means-end fit between the challenged law and its justifications. Accordingly, we hold that possessing a firearm within 1000 feet of a public park in violation of section 24-1(a)(4), (c)(1.5) of the UUW statute is facially unconstitutional.

Removing this single location offense does not undermine the completeness of the remaining locations in section 24-1(c)(1.5). The remaining specific locations are capable of being executed without the offense of possessing a firearm within 1000 feet of a public park.

We, therefore, find the unconstitutional portion of the statute at issue severable from the remaining portions of the statute. For the reasons set forth above, we affirm the circuit court’s judgment vacating defendant’s Class 3 felony conviction of UUW in violation of section 24-1(a)(4), (c)(1.5) within 1000 feet of a public park, which we find to be unconstitutional. We vacate the circuit court’s judgment to the extent that it declared portions of section 24-1(a)(4), (c)(1.5) of the UUW statute not at issue in this case unconstitutional.

See Also

To help get a handle on Illinois Gun Laws see also:

Sep 18 2019

10mins

Play

Retail Theft Statute Countermands This Class Of Burglaries

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People v. Johnson, 2018 IL App (3d) 150352 (January). Episode 456 (Duration 11:30)

Stealing from a Walmart was not a burglary.

Sad Facts

Defendant is caught takign $76.91 in girl’s clothing from a Walmart.

He was pro se and got a hung jury the first time. In the second trial was aquitted of retail therfet but convicted of burglary.

Although burglary is a Class 2 felony with a three-to-seven-year sentencing range (720 ILCS 5/19-1(b) (West 2014); 730 ILCS 5/5-4.5-35(a) (West 2014)), the court sentenced defendant as a Class X offender because his criminal record contained prior theft and burglary felony convictions within 20 years. 730 ILCS 5/5-4.5-95(b) (West 2014).

The court sentenced defendant to eight years in prison.

Burglary

The burglary statute identifies two ways in which a person commits the offense:

“A person commits burglary when without authority he or she knowingly enters or without authority remains within a building, *** or any part thereof, with intent to commit therein a felony or theft.” 720 ILCS 5/19-1(a) (West 2014).

To commit either manifestation of burglary, the offender must lack authority to be present within the building.

Issue

The crux of his argument is that he could not enter Wal-Mart “without authority” because he entered and exited the store during business hours and remained in designated public areas.

See Also

Episode 155 - People v. Bradford, 2016 IL 118674 (March).

Defendant relies on Bradford, where our supreme court held that an offender commits “burglary by remaining” only if “he exceeds his physical authority to be on the premises.” Id. ¶ 31.

Defendant claims Bradford applies to either manifestation of burglary. The State argues that defendant never entered the building lawfully; therefore, Bradford does not require reversal.

More On Bradford

The supreme court recently held that the limited authority doctrine does not apply in “burglary by remaining” shoplifting cases. Bradford, 2016 IL 118674. In Bradford, the defendant walked into a Wal-Mart with another man and immediately stole two DVDs from a display near the cash registers. He took these DVDs to the customer service desk and “exchanged” them for a Wal-Mart gift card.

Next, he walked to the men’s clothing department where he selected a hat, removed the price tag, and wore it.

He then retrieved a pair of shoes from the shoe department and placed them in a Wal-Mart bag that he concealed in his pocket— presumably to represent that he already purchased the shoes. He wore the hat and carried the shoes to the cash registers, where he rejoined the other man.

He paid for the man’s merchandise with the gift card he received in exchange for the DVDs and exited the store without paying for the hat or shoes.

The appellate court, citing Weaver, applied the limited authority doctrine and held that the defendant remained in the store without authority once he formed the intent to shoplift. People v. Bradford, 2014 IL App (4th) 130288, ¶¶ 31, 33-34.

Limited Authority Doctrine

The State relies on the “limited-authority doctrine,” which states that “one’s otherwise valid authority to be in certain premises is vitiated when that individual acts in a manner inconsistent with the authority originally granted.” People v. Wilson, 155 Ill. 2d 374, 378 (1993).

According to the State, shoplifters who form the intent to steal before entering a store lack authority to enter.  They commit burglary the instant they cross the building’s threshold.

Bradford Was Charged Differently

The State claims that this case is distinguishable from Bradford because the State charged defendant with “burglary by entering,” whereas Bradford addressed “burglary by remaining.”

Statutory Construction

The limited authority doctrine, relied upon by the State, took shape before Illinois passed its retail theft statute in 1975 (720 ILCS 5/16-25 (West 2014)). 

In Bradford, the supreme court reversed the appellate court’s decision. The court emphasized that the legislature enacted the retail theft statute in 1975, 14 years after enacting the burglary statute and 7 years after Weaver. Based on this timeline, “it strains logic to presume that the legislature intended most incidents of retail theft to be prosecuted as burglaries.” Bradford, 2016 IL 118674, ¶ 28.

The court reasoned that charging every shoplifter with burglary by remaining would “effectively negat[e] the retail theft statute.” Id. ¶ 27. Because stores are often “building[s]” or trailers (720 ILCS 5/19-1(a) (West 2014)), virtually every retail theft would also constitute a burglary if one’s “authority” hinged on whether he or she intended to shoplift merchandise.

Bradford Changes The Law

To be fair, a long line of cases supports the State’s position that one who intends to commit retail theft lacks authority to enter a store. This limited authority doctrine would allow a prosecutor to charge and convict a first time offender who enters a store with intent to steal a candy bar with burglary rather than with the misdemeanor charge of retail theft.

As explained below, we feel that Bradford changes the law and effectively overrules the law upon which the State relies.

Analysis

Courts should not interpret criminal statutes to provide prosecutors unbridled discretion to arbitrarily charge some shoplifters with Class 2 felony burglary and others with Class A misdemeanor retail theft under similar circumstances.

Another reason not to “give improbable breadth” to our burglary statute in retail theft cases is that the retail theft statute occupies the field of shoplifting crimes. Particularly relevant to this case, the statute covers situations where shoplifters knowingly transfer merchandise “to any other container with the intention of depriving the merchant of the full retail value.” 720 ILCS 5/16-25(a)(3) (West 2014). It also covers situations where shoplifters knowingly use a “theft detection shielding device,” which is “any laminated or coated bag or device designed and intended to shield merchandise from detection by an electronic or magnetic theft alarm sensor.” Id. § 16-25(a)(7), (e).

The Statute Contemplates These Facts

Obviously, persons who enter a store with any of these items formed the intent to commit theft before entering.

The statute contemplates all manifestations of retail theft, regardless of whether shoplifters form the requisite intent before or after entering the store. 

The state's attempt to distinguish Bradford does not logically follow the supreme court’s rationale. Under either manifestation of burglary, the offender must lack “authority.” If forming the intent to shoplift does not revoke one’s authority to remain in a store, then it cannot logically revoke one’s authority to enter either.

We suspect that it is a miniscule percentage of shoplifters who form the intent to steal only after entering a store.

Burglary Is Different Than Retail Theft

The State’s position also ignores the purpose for criminalizing burglary. The “crime of burglary reflects a considered judgment that especially severe sanctions are appropriate for criminal invasion of premises under circumstances likely to terrorize occupants.” Model Penal Code § 221.1 (Explanatory Note). In other words, burglary aims to punish circumstances where a trespass and unwelcomed criminal intent combine to harm the victim more than either individual crime; the whole is greater than the sum of its parts. Applying the limited authority doctrine to shoplifting cases disregards the purpose of criminalizing burglary, negates the retail theft statute, and conflicts with Bradford.

Holding

We hold that Bradford’s physical authority test applies to all retail theft cases, regardless of when the defendant forms the intent to shoplift. In this case, the State alleged that defendant stole $76.91 worth of merchandise from Wal-Mart. Defendant entered the store during its business hours, remained in public areas while inside, and left the store before it closed.

He never exceeded his physical authority. We reverse his burglary conviction.

Sep 18 2019

11mins

Play

Is Attempt Armed Robbery A Per Se Forcible Felony? Hmmm?

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People v. Brown, 2017 IL App (1st) 150146 (May). Episode 377 (Duration 8:07)

Attempt armed robbery is a per se forcible felony.

Facts

Following a bench trial, defendant Dewayne Brown was convicted of the offense of armed habitual criminal. He was sentenced to 8 years’ imprisonment.

Officers are drawn to a parking lot when a car alarm goes off.

In the lot they find defendant and his girlfriend smoking a blunt in their own car. Defendant gets out of his car, but is immediately handcuffed. Inside the car there was a purse. The purse was open, and the handle of a handgun was “sticking out” in “plain view.”

The officer testified that he recovered the weapon, which turned out to be a Highpoint “black 45-caliber semiautomatic handgun.” The gun was loaded and “contained one round in the chamber and seven in the magazine.”

He Fesses Up

Defendant immediately “stated that the weapon was his” and explained that he had put the handgun into Fain’s purse.

On the way to the station, defendant stated that he wanted to apologize to Fain for placing his gun in her purse. Later at the police station defendant explained where and how he purchased the weapon. Defendant had no FOID card.

Criminal History

The State also entered into evidence certified copies of defendant’s prior convictions, including

a 1998 conviction for attempted armed robbery, a 2006 robbery conviction, and a 2012 possession of a controlled substance conviction.

Defendant first challenges the sufficiency of the evidence.

Issue

Specifically, he argues that the State failed to prove beyond a reasonable doubt that his prior conviction for attempted armed robbery was a forcible felony sufficient to satisfy the elements of the offense of armed habitual criminal.

Accordingly, because the State simply presented certified copies of his convictions and did not detail the circumstances surrounding his attempted armed robbery conviction, defendant argues that there was insufficient evidence that his crime involved the use or threat of force against another individual.

He submits that attempted armed robbery is not inherently a forcible felony and that the State failed to present any specific details pertaining to his attempted armed robbery conviction to establish that the offense “involved any kind of use or threat of physical force or violence,” such that it could be categorized as a forcible felony.

Armed Habitual Criminal

Section 24-1.7 of the Illinois Criminal Code of 2012 (Criminal Code or Code) sets forth the offense of armed habitual criminal and provides, in pertinent part, as follows:

“(a) A person commits the offense of being an armed habitual criminal if he or she receives, sells, possesses, or transfers any firearm after having been convicted a total of 2 or more times of any combination of the following offenses: (1) A forcible felony as defined in Section 2-8 of this Code[.]”

720 ILCS 5/24-1.7(a)(1).

Forcible Felony

“‘Forcible felony’ means treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual.”  

720 ILCS 5/2-8.

The "Residual Clause"

Where, as here, an offense is not one of the specifically delineated offenses set forth in section 2-8 of the Criminal Code, it will only be deemed to constitute a forcible felony if it falls within section 2-8’s “residual clause” in that it involved “the use or threat of physical force or violence against any individual.”

Importantly, the Illinois statute that defines forcible felony does not require the actual infliction of physical injury; instead, the statute requires only the ‘use or threat of physical force or violence.

Accordingly, courts construing this provision have emphasized that it is the contemplation that force or violence against an individual might be involved combined with the implied willingness to use force or violence against an individual that makes a felony a forcible felony under the residual category of section 2-8.

Armed Robbery

Therefore, here the relevant inquiry is whether the underlying predicate offense is an inherently forcible felony to satisfy the elements of the armed habitual criminal statute.

Pursuant to Illinois law, a person commits the offense of armed robbery when he or she commits the offense of robbery, which is an enumerated forcible felony that entails knowingly taking property from a person or the presence of another by the use of force or by threatening the imminent use of force, and:

“(1) he or she carries on or about his or her person or is otherwise armed with a dangerous weapon other than a firearm; or (2) he or she carries on or about his or her person or is otherwise armed with a firearm; or (3) he or she, during the commission of the offense, personally discharges a firearm; or (4) he or she, during the commission of the offense, personally discharges a firearm that proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person.”

720 ILCS 5/18-2(a).

Attempt Armed Robbery

A person commits the offense of attempted armed robbery, in turn, when, with the intent to commit armed robbery, he or she takes a substantial step toward the commission of that offense. 720 ILCS 5/8-4(a).

Taking into account these statutory definitions, the offense of attempted armed robbery requires evidence that a defendant possessed the specific intent to knowingly take property from another by threat or use of force while armed with a firearm or other dangerous weapon and took a substantial step to accomplish that objective. 720 ILCS 5/8-4(a), 18-2(a).

Holding

Thus, by virtue of his conviction of that offense, defendant necessarily demonstrated the requisite contemplation or willingness to use force by virtue of the fact that he was armed with a firearm or other dangerous weapon and took a substantial step to deprive another person of property by threat or use of force.

The reviewing court then held that the offense of attempted armed robbery qualifies as an inherently forcible felony for purposes of the armed habitual criminal statute.

See Also

Episode 180 - Some Attempts of Forcible Felonies Are Not Forcible Felonies

Episode 126 - Aggravated Battery is Not Necessarily a Forcible Felony

Sep 14 2019

8mins

Play

Ron Hain Kane County Sheriff Has Started A Series Of New Jail Programs Designed To Leave Inmates Better Off Than When They Came In

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Kane County Sheriff Ron Hain has instituted a series of new inmate programs. Episode 667 (Duration 34:37)

The Kane County Jail's new Diversion Program is making every effort to leave detainees better off than when they came into the jail.

In This Episode...

"'Go and get that bad guy' is actually a bad way to look at our community." -- Sheriff Ron Hain

Sheriff Ron Hain

Ron Hain was elected Sheriff of Kane County in 2018.

As a deputy his number one focus was on gang and drug enforcement. Now, as Sheriff of Kane County, he's tasked with managing the county jail system and must confront a complicated jail population.

How To Contact The Sheriff of Kane County

Sheriff Ron Hain Kane County Sheriff's Office 37W755 Route 38 St.Charles, Illinois 60175

KaneSheriff.com

"Can't Miss" Moments:

✓ How "go and get that bad guy" mentality turned into something else. It was drug and gang arrests until the work transformed into a different meaning for Sheriff Hain.  (Go to 2:50)

✓ Doing this over and over helped the Sheriff come to a new understanding about his role in law enforcement. Not everyone will react this way.   (Go to 4:08)

"These are not bad guys they're people, there citizens. And those high crime neighborhoods are also low income neighborhoods. These are people who have never been giving an opportunity in their life. How did we expect them to turn out?"  (Go to 4:50)

✓ The 3 categories of inmates that fill our jails. Understanding the reason people end up in jail is the first step to really helping them.  (Go to 5:25)

✓ 18 of the 122 corrections officers are specially trained certified officers that help triage and help identify this kind of inmate. The most important cog in the system isn't even about providing onsite services. The real work begins with an appropriate "exit strategy".  (Go to 7:37)

✓ When it comes to this "10 is a soft number." When it comes to assisting others what are your practical limits?   (Go to 9:10)

✓ Lane number 1 in the system overpopulates the jail with this kind of inmate. This is the cog in the entire system. Do noble work here and watch the crime rate plummet.  (Go to 9:40)

✓ This type of inmate is 74 times more likely to die of an overdose upon release. Identifying these inmates is literally life saving information.  (Go to 10:04)

✓ How a 30 person pilot program within a month ballooned to 54 people. The Sheriff won't say "no" to people in need. You'll learn all about it in the "Recovery Pod."  (Go to 10:50)

✓ Here's a common comment the Sheriff hears: "Hey I don't want to pay for a criminal's recovery and addiction programs; they should be paying for it." Go here to see what the Sheriff says in response.   (Go to 11:38)

✓ How the jailhouse commissary can be used to run down the crime rate...on the outside. No joke and it doesn't cost Joe Tax Payer a dime.  (Go to 12:50)

✓ If inmates think they'll take a few classes and get a shiny letter from the Sheriff they can give to the judge they got another thing common. The rubber hits the rode in these programs and no inmate is guaranteed placement.  (Go to 13:46)

✓ A positive vibe, real life mentors, and better life skills can be seen in this Kane County Jail pod. Recently, they even started an online store that sells their own pressed shirts. Learn all about it here.  (Go to 14:50)

✓ One of the most successful inmates out of "Recovery Pod" runs his business in the jail. He's not selling contraband either. It's 100% legit and has the Sheriff's blessing. The Sheriff's Office is even prepared to help him when he gets to the outside.   (Go to 16:57)

✓ What does female inmate recovery look like? There's a mural in the Kane County Jail that only inmates can see. The Sheriff says he can look at it for hours. It was painted by the inmates of "female" pod. In many ways it captures the entire focus of the whole jail.  (Go to 18:20)

✓ What "soft skills" training looks like, and how it translates into opportunities for inmates who have historically lacked any meaningful opportunity. One of the most fun things that happens in this jail is a fair. It's a different kind of fair than you are thinking.  (Go to 20:12)

✓ What is the biggest push-back Sheriff Hain is getting? It's coming from prosecutors and other police. How does the Sheriff (the keeper of 500 misdirected soles) respond to these critics? Go here to see what the Sheriff says. (He doesn't mind losing friends over this.  What he minds most is something else.)  (Go to 24:40)

"You have to get it started to see what will work." (Go to 26:50)

✓ A phone call most defense attorneys never expect to receive. They won't believe their clients when the client says the attorney is getting the call. Go here for a message to defense attorneys directly from Sheriff Hain. (Go to 30:36)

Links & Resources

Aug 22 2019

34mins

Play

Updates On Cannabis Law & Bail Reform With Jamie Mosser Candidate For Kane County State’s Attorney

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Jamie Mosser, candidate for Kane County State's Attorney, stops by to provide an update on the new Illinois cannabis law and lets us know what's happening with bail reform in Illinois. Episode 658 (Duration 26:11).

In This Episode…

“What I want to do is take a strong office that we already have with some amazing people, and I just want to make it better.” — Jamie Mosser.

Attorney Jamie Mosser

Jaime Mosser is a former Kane County Assistant State’s Attorney. She’s now in private practice, and is a Democratic candidate for the head Kane County State’s Attorney.

Contact Information

Legal Office Mosser & Eisenmenger Law, LLC 525 Tyler Rd Ste Q2 St. Charles, IL 60174 (630) 549-0364 https://www.mosserlawfirm.com/

Campaign Office Mosser For Kane County https://mosserforkanecounty.com/

“Can't Miss” Moments:

✓ Beginning January 1, 2020 Illinois will do away with all misdemeanor charges for possession of cannabis. However, there are some significant restrictions. (Go to 2:05) & (5:55)

✓ The law makes it quite clear there is still a certain amount you cannot exceed or you risk facing felony drug possession charges. There are exceptions for possession of cannabis for medical purposes. (Go to 2:50)

✓ The distinction between decriminalization and full blown legalization still matters. It's not accurate to say Illinois went full legalization. It's not legal across the board.  (Go to 3:48)

✓ The truth about cannabis decriminalization is revealed when you consider the raw logic behind the law. Minor possession is not crime anymore. Selling the stuff is a different story. The law has a pretty strict licensing requirement. (Go to 4:19)

✓ How Illinois is going to make money from all this. (Go to 5:28)

✓ The list of things you still can't do with cannabis runs deeper than just a prohibition against selling it. Jump to this time stamp for a detailed description provided by Jamie on everything else you can't do with cannabis. (Go to 5:55)

✓ When police get a hint of the "smell of weed" that currently has significant legal ramifications for citizens. Jamie takes a stab and how things will change after the law takes effect...will things change?  (Go to 7:58)

✓ Jamie asks: "What's going to happen with the DUI's?" Carol Stream Police Department is working with scientists to be the fist department in Illinois with this new type of machine. (Go to 9:33)

✓ Bail reform in Illinois is in effect and underway. How's it going? We are suppose to be emptying out the jail system. How's that going? (Go to 12:32)

✓ The 7-Day Rule was created to act as a stop-gap against oppressive pretrial detention. Here's how it works. (Go to 15:50)

Links & Resources New Illinois Cannabis Law Bail Reform In Illinois See Also

You may also want to check out…

New Illinois Cannabis Law Illinois Bail Reform

Jul 31 2019

26mins

Play

Why You Should Never Pass Out While In Police Custody...You May Find Yourself In A Hospital Getting Jabbed For Blood

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Mitchell v. Wisconsin, SCOTUS No. 18–6210, Decided June 27, 2019. Episode 647 (Duration 22:02)

Unconscious drivers plus natural BAC dissipation create an exigent circumstance for a blood draw.

Gist

Police get a call of a very drunk man driving off.

Man Is Found

Man is found near a lake stumbling and slurring his words.

He could hardly stand without the support of two officers. Field sobriety tests were hopeless, if not dangerous, but he could blow for a preliminary breath test. It registered a BAC level of 0.24%, triple the legal limit for driving in Wisconsin.

Man Is Arrested

He is arrested for operating a vehicle while intoxicated and, as is standard practice, drove him to a police station for a more reliable breath test using better equipment. By the time the squad car had reached the station, he was too lethargic even for a breath test.

Hospital Instead

Police drove him to the hospital instead.

Defendant lost consciousness on the ride over and had to be wheeled in. Police asked hospital staff to draw a blood sample. Mitchell remained unconscious while the sample was taken, and analysis of his blood showed that his BAC, about 90 minutes after his arrest, was 0.222%.

Issue

We granted certiorari, 586 U. S. (2019), to decide whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement. 

Implied Consent

A states implied consent scheme is centered on legally specified BAC limits for drivers—limits enforced by the BAC tests promoted by implied-consent laws. In Birchfield, we applied precedent on the “search-incidentto-arrest” exception to BAC testing of conscious drunkdriving suspects. See Birchfield v. North Dakota.

We held that their drunk-driving arrests, taken alone, justify warrantless breath tests but not blood tests, since breath tests are less intrusive, just as informative, and (in the case of conscious suspects) readily available. Id., at (slip op., at 35).

Exigent Circumstances

We have also reviewed BAC tests under the “exigent circumstances” exception—which, as noted, allows warrantless searches “to prevent the imminent destruction of evidence.” Missouri v. McNeely, 569 U. S. 141, 149 (2013).

In McNeely, we were asked if this exception covers BAC testing of drunk-driving suspects in light of the fact that blood-alcohol evidence is always dissipating due to “natural metabolic processes.” Id., at 152. We answered that the fleeting quality of BAC evidence alone is not enough.

Don't Forget About Schmerber

But in Schmerber it did justify a blood test of a drunk driver who had gotten into a car accident that gave police other pressing duties, for then the “further delay” caused by a warrant application really “would have threatened the destruction of evidence.” McNeely, supra, at 152 (emphasis added). See Schmerber v. California, 384 U. S. 757, 765 (1966).

Reasonableness Is The Standard

The Fourth Amendment guards the “right of the people to be secure in their persons . . . against unreasonable searches” and provides that “no Warrants shall issue, but upon probable cause.” A blood draw is a search of the person, so we must determine if its administration here without a warrant was reasonable.

The important question here is what officers may do when a driver’s unconsciousness (or stupor) eliminates any reasonable opportunity for a breath test.

Though we have held that a warrant is normally required, we have also “made it clear that there are exceptions to the warrant requirement.” Illinois v. McArthur, 531 U. S. 326, 330 (2001). And under the exception for exigent circumstances, a warrantless search is allowed when “‘there is compelling need for official action and no time to secure a warrant.’” McNeely, supra, at 149 (quoting Michigan v. Tyler, 436 U. S. 499, 509 (1978)).

Categorical Conclusion

Like Schmerber, this case sits much higher than McNeely on the exigency spectrum.

McNeely was about the minimum degree of urgency common to all drunkdriving cases. In Schmerber, a car accident heightened that urgency. And here this driver's medical condition did just the same.

Here today the court addresses not the specific facts of this case but instead on how the exception bears on the category of cases featuring an unconscious driver. In those cases, the need for a blood test is compelling, and an officer’s duty to attend to more pressing needs may leave no time to seek a warrant.

While our exigent-circumstances precedent requires a “totality of the circumstances” analysis, “the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.” McNeely, 569 U. S., at 166 (ROBERTS, C. J., concurring in part and dissenting in part).

BAC Tests Are Important

The bottom line is that BAC tests are needed for enforcing laws that save lives.

The specifics, in short, are these: Highway safety is critical; it is served by laws that criminalize driving with a certain BAC level; and enforcing these legal BAC limits requires efficient testing to obtain BAC evidence, which naturally dissipates.

So BAC tests are crucial links in a chain on which vital interests hang. And when a breath test is unavailable to advance those aims, a blood test becomes essential.

Dissipation Is Still A Thing

It must be noted that enforcement of BAC limits also requires prompt testing because it is “a biological certainty” that “[a]lcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour. . . . Evidence is literally disappearing by the minute.” McNeely, 569 U. S., at 169 (opinion of ROBERTS, C. J.). As noted, the ephemeral nature of BAC was “essential to our holding in Schmerber,” which itself allowed a warrantless blood test for BAC. Id., at 152.

When a breath test is unavailable to promote those interests, “a blood draw becomes necessary.” McNeely, 569 U. S., at 170 (opinion of ROBERTS, C. J.).

Thus, in the case of unconscious drivers, who cannot blow into a breathalyzer, blood tests are essential for achieving the compelling interests described above. Indeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk.

It would be perverse if the more wanton behavior were rewarded—if the more harrowing threat were harder to punish. For these reasons, there clearly is a “compelling need” for a blood test of drunk-driving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test.

Dissipation + Unconsciousness = Exigent Circumstance

The only question left, under our exigency doctrine, is whether this compelling need justifies a warrantless search because there is, furthermore, “no time to secure a warrant.”

So even if the constant dissipation of BAC evidence alone does not create an exigency, Schmerber shows that it does so when combined with other pressing needs:

“We are told that [1] the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where [2] time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case [without a warrant] was . . . appropriate . . . .”

Schmerber, 384 U. S., at 770–771.

Thus, exigency exists when

(1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application.

Both conditions are met when a drunk-driving suspect is unconscious, so Schmerber controls: With such suspects, too, a warrantless blood draw is lawful.

In Schmerber, the extra factor giving rise to urgent needs that would only add to the delay caused by a warrant application was a car accident; here it is the driver’s unconsciousness.

Indeed, unconsciousness does not just create pressing needs; it is itself a medical emergency. It means that the suspect will have to be rushed to the hospital or similar facility not just for the blood test itself but for urgent medical care.

Just as the ramifications of a car accident pushed Schmerber over the line into exigency, so does the condition of an unconscious driver bring his blood draw under the exception.

An Accident Could Cause Exigent Circumstance

In many unconscious-driver cases, the exigency will be more acute, as elaborated in the briefing and argument in this case. A driver so drunk as to lose consciousness is quite likely to crash, especially if he passes out before managing to park.

And then the accident might give officers a slew of urgent tasks beyond that of securing (and working around) medical care for the suspect. Police may have to ensure that others who are injured receive prompt medical attention; they may have to provide first aid themselves until medical personnel arrive at the scene.

In some cases, they may have to deal with fatalities. They may have to preserve evidence at the scene and block or redirect traffic to prevent further accidents. These pressing matters, too, would require responsible officers to put off applying for a warrant, and that would only exacerbate the delay—and imprecision—of any subsequent BAC test.

Holding

In sum, all these rival priorities would put officers, who must often engage in a form of triage, to a dilemma. It would force them to choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value and all the compelling interests served by BAC limits. This is just the kind of scenario for which the exigency rule was born—just the kind of grim dilemma it lives to dissolve.

When police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment.

We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. Because Mitchell did not have a chance to attempt to make that showing, a remand for that purpose is necessary.

The Dissent

The dissent took issue with such a broad categorical approach in light of the most recent case law which seemed to counsel against such an approach.

The dissent also questioned whether there was really no time to go get a warrant. Isn't there always time for that?

See Also

Episode 574 - People v. Pratt, 2018 IL App (5th) 170427 (December) (Warrantless blood draw after an accident deemed unconstitutional blood results excluded.)

Episode 469 - Warrantless Blood Draws Coming To A Hospital Near You (A Summary Of Recent Warrantless Blood Draw Cases In Illinois). Including the following cases:

Jul 08 2019

22mins

Play

Gary True On What Happens When Police See Your Gun In Public

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Episode 643 (Duration 31:51) Illinois attorney Gary True explains the risk involved for anyone who reveals their gun in public. Licensed and unlicensed gun carriers have something to worry about.

In This Episode...

"A law abiding person that exposes his gun too much, what ever too much is, is subject to being charged and subject to being searched ." -- Gary True.

Attorney Gary True

Gary True practices in the areas of business and corporate law, mergers and acquisitions and estate planning.  He also concentrates in the area of self-defense and firearms law. 

Gary is licensed to practice law in Illinois, Missouri and Wisconsin. He also teaches a course for other Illinois conceal carry instructors.

Contact Information 

Gary True 515 St. Louis Street, Suite 203 Edwardsville, Illinois 62025

Tel: 314.872.0331 Fax: 314.872.0321 gtrue@summerscomptonwells.com

http://www.summerscomptonwells.com

"Can't Miss" Moments:

✓ What does the Illinois Concealed Carry law say about exposing your gun in public? What every properly licensed gun carrier has to be worried about. (Go to 3:58)

✓ This two-word adjective has become a term of art for lawyers and gun owners. Funny how the term is not defined anywhere in the code, and reasonable minds can invent their own working definitions. This is the term we are all waiting for the court to define. (Go to 5:12)

✓ Like it or not, properly licensed gun carriers can still get arrested for carrying a gun if this happens. Here's a clear example of how not to carry your gun in public...when just a few seconds can get you arrested. (Go to 5:49) & (9:42)

✓ A certain group of gun instructors believe this legal term means something else entirely different than what some Illinois judges say it means. The consequences may be dire for certain people if we don't all get on the same page. (Go to 7:15)

✓ The absurdity of it...Guy walking down the street and a gust of wind blows his jacket open a bit exposing the butt of his gun. Some say a crime has just been committed.  (Go to 8:25) & (10:00)

✓ This "ordinary common sense" standard is dead. Why the old rules before the current laws existed don't help us, and in fact, might hurt us. (Go to 8:39)

✓ The real reason you're likely to get arrested if you are seen with a gun in public.  (Go to 10:00)

✓ WARNING - All gun owners licensed to conceal carry better make sure they understand the "traffic stop" rule. If the officer says these magic words a gun carrier has to respond in the right way or risk getting arrested for providing the wrong answer. (Go to 11:55)

✓ What is NOT in the statute is as important as what is in the statute. Knowing what's not in there can save you some hassle. There are a lot of unanswered questions about the law, but Gary says there are some clear-cut examples of when an officer cannot stop you even when they know for sure you have a gun.  (Go to 13:16)

✓ 3 serious hints are out there, if you know where to look, strongly suggesting what the court is going to do next. (Go to 18:30)

✓ How a federal case can come along and upend and change the rules in Illinois. If it's going to happen it will happen this way. (Go to 21:05)

✓ Holding your crotch is not indicative of gun possession precisely because police see no gun. That being said, once you take this out of your pants all bets are off...and if it's fully out then you really have some problems. (Go to 24:01)

✓ Let's face it, most law abiding conceal carry citizens are not going to have trouble with the police. This is the number one thing they have to worry about. (Go to 25:40)

✓ Keep an eye on the case law and look for answers to these questions: (1) What in the world does "mostly concealed" mean? (2) Will the Thomas dicta hold-up? (3) Exactly what other factors can be used to justify a gun search? (Go to 28:40)

Links & Resources Here's That Dicta From Thomas

People v. Thomas, 2019 IL App (1st) 170474 (March):

"We wish to emphasize that under the current legal landscape, police cannot simply assume a person who possesses a firearm outside the home is involved in criminal activity. Likewise, they cannot use a firearm in partial view, such as a semi-exposed gun protruding from the pant pocket of a person on a public street, alone as probable cause to arrest an individual for illegal possession without first identifying whether the individual has the necessary licenses."

See Also

You may also want to check out...

Jun 03 2019

31mins

Play

Matthew Paulson & Larry Vandersnick Explain Exactly What Is Happening During This Common Kind Of Traffic Stop

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People v. Kruckenberg, 2019 IL App (3d) 170505-U. Episode 628 (Duration 31:43). 

Matthew Paulson and Larry Vandersnick describe a drug interdiction traffic stop and analyze where it went wrong for the prosecution.

In This Episode...

"The appellate court is looking at what is actually going on in the case versus just looking at the total amount of time." -- Matthew Paulson.

Matthew Paulson & Larry Vandersnick

Matt Paulson has over 7 years of experience and has distinguished himself in both Illinois and Iowa as a successful criminal defense attorney handling all matters including Drug Trafficking and DUI / OWI cases.

Larry Vandersnick is a former Henry County State's Attorney and a former Rock Island County and Henry County Circuit judge. Now he mainly handles criminal cases in state court.

Contact Information

Paulson & Vandersnick 4709 44th Street Ste 1 Rock Island, IL 61201

(309) 558-0774

https://www.mplvlaw.com/

"Can't Miss" Moments:

✓ Abolish it. Does it still make sense to have Rule 23 cases? What's the point now that information is so easily accessible online? If you know how to find them why can't you use them? (Go to 2:49)

✓ A surprising and disturbing reason why an attorney may not want to ask the court to publish a winning decision. (Go to 5:59)

✓ How the "tag team" approach is used on I-80 to get you to lower your shield so low you don't go home again for a very long time. (Go to 7:15)

✓ How to measure 15 minutes. Everybody doesn't experience the same 15 minutes the same way. Go here to uncover how the appellate court is measuring 15 minutes. (Go to 8:29)

✓ When common day pleasantries is considered outright rude and even illegal. (Go to 9:40)

✓ When the "K-9 search duration principle" that determines if a search is likely to be upheld or stricken down...again exactly what the officer is doing matters. (Go to 12:00)

✓ What police don't want you to know about what exactly they are doing during a traffic stop. What is actually happening doesn't feel like what is happening. It feels much differently to the driver. (Hint: profiling and pretextual stops are 100% legal.) (Go to 13:38)

✓ Drug interdiction officers are there to write speeding tickets. How this officer tipped his hat and showed his cards in a way that revealed his true intentions to the appellate court. (Go to 14:09)

✓ It took just 6 minutes of interaction with the driver, these 6 minutes of nothing much happening, the officer didn't radio in the drivers information until 6 minutes after they got back in his squad car, these were 6 minutes recorded as an eternity. (Go to 14:09)

✓ This is happening all over the place all the time...at least since 1995. Who's gonna stop it. This is the one thing that actually takes longer and has been slowed down by modern computers. (Go to 17:14)

✓ The only way known to man to turn 10 into infinity. (Go to 19:45)

✓ Exactly what is happening when you are "front seated". Wether you know it or not that's when a  Spidey sense is being aimed directly at you. (Go to 20:55)

✓ Doing this one thing in life can get you suspended or expelled from a program. Doing it in the law not only is completely ethical and proper it actually helps you win cases. (Go to 20:55)

✓ If attorneys shared more of this the world would be a better place...or at least for defense attorneys and their clients.  (Go to 26:06)

Links & Resources See Also

You may also want to check out...

May 15 2019

31mins

Play

Double Jeopardy Concern Means There WILL BE A Second Trial In This Case

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People v. Drake, 2019 IL 123734 (March). Episode 620 (Duration 11:14)

Although the reversal is still good the lower court judgement that double jeopardy barred a retrial is reversed.

Gist

Defendant was sentenced to 20 years’ imprisonment for aggravated battery of a child.

Facts

At defendant’s bench trial, the nurse testified that, as a registered nurse, she treated J.H. in the pediatric intensive care unit at Stroger Hospital for burns to his buttocks, genital area, and legs.

When the nurse entered his room one day, J.H. called to her and stated he was going to tell her something. J.H. then revealed that defendant poured hot water on him while he was in the bathtub.

When the nurse asked if J.H. had done anything to upset defendant, J.H. replied that he had done nothing.

Statement Came In

The trial court ruled that J.H.’s statement was admissible under the hearsay exception for statements made for purposes of medical diagnosis or treatment. See Ill. R. Evid. 803(4).

Lower Court Opinion

The appellate court held that the trial court erred in admitting J.H.’s statement identifying defendant as the offender under the hearsay exception for statements made for the purpose of medical diagnosis and treatment.

The appellate court concluded the hearsay statement was not made for that purpose and admission of the statement could not be considered harmless error.

Barred Retrial

The appellate court further held that the double jeopardy clause barred retrial because the evidence presented by the State was insufficient to prove defendant guilty of the offenses beyond a reasonable doubt.

Issue Now

According to the State, the appellate court failed to give adequate weight to J.H.’s out-of-court statement identifying defendant as the offender in its double jeopardy analysis. 

More On The Statement

J.H.’s hearsay statement that defendant poured hot water on him was the only evidence that defendant was even present in the bathroom, but the statement is inconsistent with Dr. Fujara’s opinion that the burns could have resulted only from forcible immersion.

Additionally, the evidence showed the hot and cold water lines were reversed, and the hot water temperature was 160 degrees, indicating the burns could have been caused accidentally. Defendant, therefore, concludes that this court should affirm the appellate court’s judgment. The applicable law is well established.

Double Jeopardy

The double jeopardy clause prohibits a second, or successive, trial to afford the prosecution another opportunity to provide evidence that it failed to present at the first trial. People v. Lopez, 229 Ill. 2d 322, 367 (2008).

The double jeopardy clause does not preclude retrial when a conviction has been overturned because of an error in the trial proceedings, but retrial is barred if the evidence introduced at the initial trial was insufficient to sustain the conviction. Lopez, 229 Ill. 2d at 367.

“For purposes of double jeopardy all evidence submitted at the original trial may be considered when determining the sufficiency of the evidence.” People v. Olivera, 164 Ill. 2d 382, 393 (1995).

Retrial is the proper remedy if the evidence presented at the initial trial, including any improperly admitted evidence, was sufficient to sustain the conviction. People v. McKown, 236 Ill. 2d 278, 311 (2010). 

On Double Jeopardy See Also...

Double Jeopardy Concerns

Double Jeopardy

The fifth amendment to the United States Constitution, made applicable to the states via the fourteenth amendment, provides, in part, that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. See also Ill. Const. 1970, art. I, § 10; 720 ILCS 5/3-4.

The double jeopardy clause protects against

(1) a second prosecution for the same offense following acquittal,  (2) a second prosecution for the same offense following conviction, and  (3) multiple punishments for the same offense.

However, the rules with regard to double jeopardy, however, should not be applied in a mechanical nature, especially if the situation is such that the interests the rules seek to protect are not endangered and a mechanical application would frustrate society’s interest in enforcing its criminal laws.

The Expert Witness

In this case, a rational trier of fact could have credited Dr. Fujara’s testimony that J.H.’s burns resulted from forcible immersion in hot water. Indeed, Dr. Fujara provided the only expert testimony explaining J.H.’s burns.

In this case, Dr. Fujara offered persuasive expert testimony that J.H.’s burns resulted from forcible immersion in hot water.

Dr. Fujara’s testimony ruling out alternative causes rebuts defendant’s argument that J.H. may have been burned accidentally as a result of the faulty water heater installation. We conclude that the trial court reasonably credited Dr. Fujara’s testimony that J.H.’s injuries resulted from forcible immersion.

Was The Evidence Sufficient Beyond A Reasonable Doubt?

The critical issue, therefore, becomes whether the evidence was sufficient to conclude beyond a reasonable doubt that defendant was the offender.

  • The evidence showed defendant was the only adult present in the house at the time J.H. was injured.
  • He did not seek prompt treatment for the severe injuries suffered.
  • Kid taken to the hospital for treatment only after the other children informed their mother.
  • The injuries apparently occurred when J.H. took a bath at some point in the morning.
  • J.H.’s mother did not return home from work until late that night.
  • Defendant lied at the hospital about his name and relationship.
  • And, of course, the expert evidence outlined above.

Accordingly, substantial evidence pointed to defendant as the offender even without the excluded hearsay statement.

Before concluding that the evidence was insufficient to prove defendant guilty beyond a reasonable doubt, the appellate court observed that “J.H.’s erroneously admitted hearsay statement was the only piece of evidence placing defendant in the bathroom where the injury occurred” and “[t]he State provided no other identification evidence.” 2017 IL App (1st) 142882, ¶ 40.

Analysis

Although the appellate court mentioned the excluded hearsay statement in its analysis, we do not believe that statement was given the proper weight.  The excluded hearsay statement is, therefore, competent evidence that defendant caused J.H.’s injuries for the purpose of the sufficiency of the evidence analysis.

Further, all of the evidence, including J.H.’s hearsay statement, must be viewed in the light most favorable to the prosecution. Given that standard, we believe a rational trier of fact could have considered J.H.’s hearsay statement simply as an identification of the person who caused his injuries.

We do not believe a rational trier of fact is required to completely discount the part of J.H.’s statement identifying defendant as the person who caused his injuries merely because part of his statement is not perfectly consistent with the expert’s testimony.

In sum, our decision in this case is guided by the standard for reviewing this issue.

Holding

We must determine whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  We believe the evidence, including J.H.’s hearsay statement identifying defendant as the person who caused his injuries, was sufficient when viewed in the light most favorable to the prosecution for a rational trier of fact to find defendant guilty beyond a reasonable doubt.

Accordingly, the double jeopardy clause does not bar retrial, and this case must be remanded to the circuit court for retrial without the excluded hearsay evidence.

Apr 24 2019

11mins

Play

Butt In The Box Rule Means Your Available For Cross Examination

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People v. Smith, 2019 IL App (3d) 160631 (March). Episode 619 (Duration 14:06)

Kid is available for cross even though they don't remember the actual allegation of sexual abuse.

Gist

Defendant was charged with predatory criminal sexual assault of a child (720 ILCS 5/11- 1.40(a)(1)) in that he placed his penis in the mouth of J.H.

Charges

The information alleged that defendant was 17 years of age or older at the time of the offense and J.H. was under 13 years of age. The State filed a motion for a hearing pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10). 

The court found defendant guilty of predatory criminal sexual assault of a child and aggravated kidnapping.

115-10 Statement

The State sought a ruling that J.H.’s recorded interview at the CAC would be admissible if J.H. testified and was subject to cross-examination. After a hearing, the court ruled that the recording of the interview would be admitted into evidence as an exception to the hearsay rule pursuant to section 115-10 of the Code.

Facts

7 year old female victim was at an auction with her 8 year old brother and grandpa.

A man took her into a camper and forced her to undress and put her mouth on his penis. Grandpa found her in the camper and chased the man. He was caught.

The child described the even in a recorded interview.

On The Stand

On the stand she testified to the events of the day including parts of the auction.

Then she said could not remember what happened inside the camper. During cross-examination, defense counsel asked J.H.

  • questions about watching the recording of the interview previously,
  • whether she had discussed the case with anyone,
  • what defendant was wearing at the time of the incident, and
  • whether J.H. saw defendant getting in trouble with his mother after the incident.

Defense counsel did not ask any questions about the incident itself.

J.H. answered all of defense counsel’s questions.

Independent Witnesses

Four witnesses testified that they were at the auction on the day of the incident.

They all saw a man running and heard another man yell to stop him. They all later identified defendant as the man they saw running.   

Sentence

The court sentenced defendant to natural life imprisonment for predatory criminal sexual assault of a child, which was mandatory based on defendant’s prior conviction for aggravated criminal sexual assault. The court sentenced defendant to 20 years’ imprisonment for aggravated kidnapping, to be served consecutively with his sentence for predatory criminal sexual assault of a child.

Issue

Defendant argues that his right to confront his accusers was violated in that the recording of J.H.’s interview at the CAC was admitted into evidence but J.H. was unavailable for crossexamination.

Specifically, defendant contends that J.H. became unavailable as a witness when she testified at trial that she could not remember the portion of the incident that comprised the offense of predatory criminal sexual assault of a child.

Confrontation

Both the United States Constitution and the Illinois Constitution guarantee a criminal defendant the right to confront his or her accusers. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8.

“When the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements...The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004).

“In general, a witness is considered to be present, available for, or subject to cross-examination when the witness takes the stand, is placed under oath, and willingly answers questions, and the opposing party has an opportunity to cross-examine the witness.” People v. Dabney, 2017 IL App (3d) 140915, ¶ 19. The key inquiry in determining whether the declarant is available for cross-examination is whether the declarant was present for cross-examination and answered all of the questions asked of him or her by defense counsel.

Where the declarant appears for cross-examination, even where the declarant does not testify to the substance of his hearsay statement, its admission is a nonevent under the confrontation clause. People v. Garcia-Cordova, 2011 IL App (2d) 070550-B, ¶ 66.

Many Illinois cases have held that child victims of sex offenses were available for cross-examination for purposes of the confrontation clause where they testified at trial and answered the questions posed to them during cross-examination even if they were unwilling or unable to testify as to some or all of charged conduct. See Dabney, 2017 IL App (3d) 140915, ¶ 20 (collecting cases).

“A gap in the witness’ recollection concerning the content of a prior statement does not necessarily preclude an opportunity for effective cross-examination.” People v. Flores, 128 Ill. 2d 66, 88 (1989). “There are no confrontation clause problems merely because the witness’s memory problems preclude him from being cross-examined to the extent the parties would have liked.” People v. Leonard, 391 Ill. App. 3d 926, 934-35 (2009).

What About Rule 804(a)(3)?

Illinois Rule of Evidence 804 is called Hearsay Exceptions; Declarant Unavailable. The rule says,

 “Unavailability as a witness” includes situations in which the declarant–testifies to a lack of memory of the subject matter of the declarant’s statement..." 

Rule 804(a)(3).

Rule 804 concerns certain exceptions to the rule against hearsay that are applicable where a declarant is “unavailable as a witness.” Ill. R. Evid. 804.

To be sure, the definition of unavailability in Rule 804 applies when analyzing the admissibility of hearsay statements pursuant to the exceptions outlined in the rule. However, Rule 804 does not concern availability for cross-examination under the confrontation clause.

Defendant has cited no authority to support the proposition that the definition of unavailability in Rule 804 applies in the context of an alleged confrontation clause violation. We reassert that our supreme court has held that “a gap in the witness’ recollection concerning the content of a prior statement does not necessarily preclude an opportunity for effective cross-examination” for purposes of the confrontation clause.

People v. Learn Is Out

Defendant further relies on People v. Learn, 396 Ill. App. 3d 891, 899-900 (2009), for the proposition that a victim does not testify for purposes of the confrontation clause when the victim’s testimony is not incriminatory.

As we stated in Dabney, “we respectfully disagree with the conclusion reached by the appellate court in that case and do not believe that it reflects the current state of the law on this issue.” Dabney, 2017 IL App (3d) 140915, ¶ 21; see also In re Brandon P., 2013 IL App (4th) 111022, ¶ 44 (noting that much of the Illinois judiciary had distanced itself from Learn and that no court has cited it approvingly).

This Case

In the instant case, J.H. was available for cross-examination for purposes of the confrontation clause. She took the witness stand and willingly answered the questions posed to her by the prosecutor and defense counsel. She answered every question asked of her during cross-examination.

Although she testified that she could not remember what happened between the time she removed her clothing and the time her grandfather entered the camper, her lack of memory did not render her unavailable for cross-examination.

Holding

Conviction affirmed.

See Also

Apr 23 2019

14mins

Play

Eyewitness Expert Not Allowed To Get Into Individual Witnesses Reliability

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People v. Corral, 2019 IL App (1st) 171501 (March). Episode 618 (Duration 11:38)

Kid got his eyewitness expert witness on the stand, but the witness was not allowed to get into what she thought about the reliability of the witness.

Gist

Buyers in a deal to purchase some cannabis instead shot the dealers in an attempt to take the weed. The shooter was a 16 year old. One man was hit 8 times and died.

The dealer identified defendant then picked his photo out of a live line-up.

Kid got 31 year sentence.

No Other Physical Evidence

There was no fingerprints, blood, or DNA belonging to defendant discovered at the crime scene. Police could not establish any direct phone contact between the shooter and other codefendant.

However, defendant’s cell phone was missing the “SIM card” and therefore he did not submit the cell phone to the Regional Forensics Computer Laboratory for analysis.

The Eyewitness Expert

Dr. Kimberly McClure testified as an expert in the field of eyewitness identification without objection.

She testified that even under optimal circumstances, i.e., where “a person has all the time in the world to view, the person is not under any duress or stress, and the person has an immediate opportunity to identify the person that they saw,”

there is only “67 to 70 percent” accuracy in those identifications.

Dr. McClure opined that the factors that tend to reduce the reliability of an eyewitness identification were present in the case.

Regarding Vargas’s degree of attention during his encounter with defendant, Dr. McClure testified that,

  • the encounter commenced as something routine and not very memorable
  • attention seemed to be on the older adult male that was involved not defendant
  • the victim was focused on the weapon
  • memory decay is an issue the longer a witness goes without making an ID
  • on inattentive blindess
Inattentive Blindness

“Inattentive blindness” is where “we can interact with someone and we can see that person clearly, and it seems as if we are processing information about them but in fact we are not really processing information that’s related to the person’s face or how she or he might look and how we might subsequently be able to recognize them.”

Intervening Variables

Dr. McClure also discussed the “intervening variables” between the event and the actual identification that can impact memory.

Intervening variables “impact and change memory because we don’t just witness the event and never talk about it again.  We might tell our friends, we might tell our family members. Each time we are retrieving that information it has the potential to change how we remember that experience and how we remember the individual involved.

It is common for these intervening events to actually get incorporated into memories. We call that the misinformation effect.

48 Delay Here

Specifically addressing the 48-day delay between the shooting and the witness ID being presented with the photo array, Dr. McClure testified that it is a “very long time” in terms of memory. 

She noted that after 72 hours there is a detrimental effect on memory and it “drops off quickly, very fast. After 72 hours, 40 to 50 percent is a ballpark figure that I am pulling from my recollection.”

The Photo Array & Lineup

In this case, the lead detective and therefore not an independent administrator, conducted the photo array and lineup. Dr. McClure further testified that it was problematic that defendant was the only individual who appeared in both the photo array and the lineup.

According to Dr. McClure, one cannot be sure that the victim’s identification of defendant was because “he was actually there during the event or was it because he was the only person that was also in the photographic lineup.”

On cross-examination, Dr. McClure testified she was not compensated for her testimony apart from her travel and accommodation expenses and that this was the first time she had testified as an expert in eyewitness identification.

Helpful To The State

Dr. McClure testified that “most of the time people are pretty accurate” when describing basic features such as gender, ethnicity, and general physicality.

Dr. McClure further testified that memories related to traumatic experiences can be retained over time and that an individual’s memory can increase during a traumatic event. According to Dr. McClure, however, there is an upper limit to an individual’s ability to retain memories when under duress. Once an individual’s ability to cope with the stress is exceeded then his memory deteriorates.

Confidence & Retrieval Fluency

Dr. McClure also testified that when one is questioned over a period of time there is not an increase in accuracy in memory, but an increase in confidence. This means that someone can be confident in his memory because he has had “retrieval fluency,” i.e., he has practiced retrieving it and told a story to himself and others for so long that he is confident he is correct when in fact nothing has happened to affect the individual’s accuracy.

To this end, Dr. McClure further testified that while repeating a memory during an interview can “lock in an accurate memory” that only occurs where there is no misleading information or misinformation provided during the interview, because that misinformation can also be incorporated into the memory leading to “irretrievable effects.”

Dr. McClure also testified that the victim had the opportunity to go over the details of the event with detectives and the state’s attorneys several times. In that vein, Dr. McClure testified that eyewitness confidence or certainty is not a good indicator of accuracy and that the retrieval process can actually inflate confidence “so people appear as if they are more confident about what they saw but they are not any more accurate about what they experienced.”

Not Allowed

The only testimony Dr. McClure was excluded from presenting was her own opinion as to whether or not Vargas’s identification of defendant as the shooter was reliable.

Issue

Defendant maintains the trial court abused its discretion when it did not allow Dr. McClure to testify regarding her ultimate opinion of whether or not the victim's testimony was reliable.

Opinion On Credibility Testimony

Notably, in Lerma, Dr. Loftus also indicated he would not “issue judgments” about whether the witnesses’ memories or assertions were correct and that any part that implied the unreliability of the eyewitness should not be construed as meaning that the defendant was innocent. 

Under Illinois law, it is generally improper to ask one witness to comment directly on the credibility of another witness. People v. Kokoraleis, 132 Ill. 2d 235, 264 (1989); People v. Henderson, 394 Ill. App. 3d 747, 753-54 (2009). This is because “[q]uestions of credibility are to be resolved by the trier of fact.” Kokoraleis, 132 Ill. 2d at 264.

Thus, in this case the trial court did not abuse its discretion when it prohibited the defense from presenting Dr. McClure’s opinion regarding the reliability of Vargas’s identification.

Holding

We observe that “[a] trial court is not required to allow an expert to render an opinion on every conceivable question simply because such expert is qualified to do so.” People v. Cloutier, 156 Ill. 2d 483, 502 (1993). Given the facts of this case, the trial court properly limited Dr. McClure’s testimony, as such testimony could constitute direct, adverse comment on Vargas’s credibility.

In doing so, the trial court correctly left the issue of whether the State established the identification of the shooter to the jury. Therefore, based on the record before us, we find that the trial court’s decision was not arbitrary or unreasonable and does not amount to an abuse of discretion.

We therefore conclude that the trial court did not err in prohibiting Dr. McClure from testifying and rendering her opinion as to the reliability of Vargas’s identification, especially where such testimony “is clearly a function of the jury, not a purported expert.”

See Also

Apr 22 2019

11mins

Play