Samuel Partida, Jr. Criminal Defense Attorney, Founder of IllinoisCaseLaw.com

Criminal Nuggets | A Criminal Law Podcast

Criminal Law Podcast
Criminal Nuggets | A Criminal Law Podcast

Description

Smart lawyers know the caselaw. Here, practicing attorneys are injected with all the latest criminal nuggets of valuable legal information. Listeners walk into criminal court immune from ignorance on the latest decisions. The tidbits and key points Illinois appellate judges are making are no longer hidden in voluminous text. For the first time in their careers, practitioners don't have to invest the enormous amounts of time usually required to sift through hundreds of pages of legal text. Now, their ears serve as the portals to vast, instant knowledge. Audio law learning not only will make you the smartest lawyer on the case, you will also have fun! And its all FREE.

Episodes

Matthew Paulson & Larry Vandersnick Explain Exactly What Is Happening During This Common Kind Of Traffic Stop

May 15, 2019 31:43

Description:

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 People v. Kruckenberg, 2019 IL App (3d) 170505-U Illinois Supreme Court Rule 23 ISBA LawPulse: The incredible, unciteable Rule 23 order ISBA Civil Practice Let’s Get Rid of Rule 23 Orders The Battle Over Rule 23: Authority v. Precedent People v. Pulling, 2015 IL App (3d) 140516 Illinois Attorney Dan Dalton People v. Koutsakis, 272 Ill. App. 3d 159 (3rd Dist. 1995) (routine traffic stop may not be used as a subterfuge to obtain other evidence based on an officer's suspicion) Illinois Attorney Anthony Cameron (See also discussion on Timbs v. Indiana, 2019 SCOTUS (February). ) See Also

You may also want to check out...

Episode 458 - People v. Lee, 2018 IL App (3d) 170209 (February) (“No Talking” Command Was An Order Not A Request & 25 Minute Wait For Dog Was Too Long) Episode 069 - Rodriguez v. United States, 135 S. Ct. 1609 (2015)(SCOTUS case that set the unreasonable delay standard for rode side drug dog sniffs) Episode 049 -  A summary of drug dog case law Episode 043 - People v. Thomas, 2014 IL App (3d) 120676 (October) (police dog sniff set-up procedures may be ordered by the police) Episode 087 - People v. Reedy, 2015 IL App (3d) 130955 (August) (this drug dog made it to the scene in a flash) Episode 417 - People v. Paddy, 20172017 IL App (2d) 160395 (October) (police unreasonably delayed this traffic stop to give the dog time to get there) Episode 446 - People v. Heritsch, 2017 IL App (2d) 151157 (December) (this is how you do it if your an officer who wants to conduct a rode side dog sniff every minute has to be accounted for) Episode 533 - People v. Thomas, 2018 IL App (4th) 170440 (August) (Unreasonable Delay For A Drug Dog Sniff – Accumulation of Road Trash Is Not Reasonable Suspicion) Episode 563 - People v. Sadeq, 2018 IL App (4th) 160105 (November) (Steigmann says the delay to have the drug dog come out was justified because defendant was, in part, extremely nervous.)  Fourth District Doing Something Different With Dog Sniff Cases – People v. Pettis – Episode 196 People v. Pulling, 2015 IL App (3d) 140516 (June 2015)(stop was unreasonably prolonged when drug dog is walked around the car) People v. Litwin, 2015 IL App (3d) 140429 (September 2015) (drug trafficking conviction must be reversed because this drug dog sniff exceeded the applicable scope of the traffic stop and oh yea, reviewing court doesn’t believe the officer)  

Double Jeopardy Concern Means There WILL BE A Second Trial In This Case

Apr 24, 2019 11:15

Description:

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... Episode 583 - People v. Shoevlin, 2019 IL App (3d) 170258 (January) (Serious double jeopardy concerns are raised when the judge declares a mistrial in this domestic battery case.) Episode 398 – People v. Kimble, 2017 IL App (2d) 160087 (September) (judge declares a mistrial too early and now the state cannot recharge defendant). Episode 279 – People v. Staple, 2016 IL App (4th) 160061 (December) (defendant plead guilty to misdemeanor DUI, so the trial judge dismissed the felony DUI without implicating double jeopardy) Episode 389 – People v. Threatte, 2017 IL App (2d) 160161 (August) (prosecutor got sick in the middle of trial and mistrial was declared) Episode 040  – People v. Guillen, 2014 IL App (2d) 131216 (November) (defendant tried to plead guilty to a misdemeanor DUI, the the judge allowed them to dismiss the charges so they could indict on felony charges) Episode 041 – More on Double Jeopardy Definition People v. Ventsias, 2014 IL App (3d) 130275 (July) (Double Jeopardy Does Not Attach on dismissed Charge, Double Jeopardy Attaches After a Guilty Plea)

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.

Butt In The Box Rule Means Your Available For Cross Examination

Apr 23, 2019 14:07

Description:

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 Episode 433 - People v. Dabney, 2017 IL App (3d) 140915 (October) (kid was available for cross even though he she didn't describer everything) Episode 123 - People v. Burnett, 2015 IL App (1st) 133610 (December . (Witness Can Be Available Under Crawford But Unavailable Under Domestic Violence Statute) Episode 450 - In re T.Z., 2017 IL App (4th) 170545 (December) (Judge Gets A Little Too Involved With Kid On The Stand: 7 year old victim is allowed to whisper the damaging testimony to the judge who then repeated the statement for the record.)

Eyewitness Expert Not Allowed To Get Into Individual Witnesses Reliability

Apr 22, 2019 11:39

Description:

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 Episode 293 -  People v. Anderson, 2017 IL App (1st) 122640 (January) (Trial court distinguishes Lerma to deny the use of an eyewitness expert in this case where the facts were stronger against defendant.) Episode 604 - People v. Macklin, IL App (1st) 161165 (March) (defense counsel no ineffective for not calling an eyewitness expert witness)   Episode 132 – People v. Lerma, 2016 IL 118496 (January)(Eyewitness Expert Testimony Validated by Illinois Supreme Court) See also Podcast 027 summarizing the lower court on this eyewitness expert testimony issue Episode 247 - Interview With Karen Daniel on Eyewitness Expert Litigation Episode 246 - Interview With Shari Berkowitz Expert on Eyewitness Identification Episode 578 -In re N.A., 2018 IL App (1st) 181332 (December) (No expert called in this single finger eyewitness identification case) Episode 392 - In re Christian W., 2017 IL App (1st) 162897 (August) (clear case where police fed the witness information)

Be Careful With Admissions By Omissions

Apr 17, 2019 15:48

Description:

People v. Ruiz, 2019 IL App (1st) 152157 (March). Episode 617 (Duration 15:47)

Defendant's conversation with his buddy is recorded and his friend kept telling him he always takes things to far.

Gist

Defendant was convicted of murder. He shot a killed a guy.

Issue

Prior to trial, defendant again tried to exclude recorded statements by filing a motion in limine to preclude the introduction at trial of a conversation between defendant and co-arrestee that took place in adjacent rooms at the police station shortly after the incident.

Defendant stated that he had asserted self-defense and the reasonableness of his actions was directly at issue.

According to defendant, his buddy’s commentary about defendant’s past actions was irrelevant, inadmissible, and highly prejudicial

Facts

As the victim was returning from purchasing cocaine and said, “What’s up?” to defendant, who was about 10 feet away from the victim.

Defendant asked, “Well, what you is?”, and the victim replied, “GD Folks.”

Defendant walked toward the victim, shot him three times, and ran to the back passenger seat of the Taurus, which left the area. 

The Car Stopped

Shortly after the shooting police stopped the car. Defendant had a gun on his lap.

Defendant, a female driver, and defendant's buddy were all arrested and taken into custody. They were taken to a police station and placed in separate rooms. Defendant’s and his buddy’s rooms were across from each other. Each room had video surveillance that was activated the entire time each person was in custody. A video camera is permanently mounted in the corner of each room and records anything that happens inside the room.

The Conversation

At one point, the men started talking to each other in Spanish. 

On the video and the recording you hear the buddy just wanting to know what happened. He wakes up in the car and the police are arresting everybody. He’s asking defendant what happened.

Defendant says things like:

"We did a f*** job, dude. I did it. I caught—I caught an a*** over there, dude. I caught a f***, dude. I let him have it, dude. Dude, you were—you were sleeping or very drunk, dude. I filled a guy with lead close range, n***. Close range—I filled him with lead, dude. He fell, dude, in front of me, dude. And when I—and when I tried to fill him up with lead again I didn’t have anymore, dude. I let him have like four or five, dude. Hey dude!"

The buddy repeatedly made statements such as, “You always take things too far.”

During the conversation, his buddy stated,

“You always take things too far,”

“You guys f*** take things too far, dude,”

“For real, dude, you guys take things too f*** far,”

“You went too far, dude,”

“Come on, man. No s*** man, you guys take things too f*** far,” and

“You guys take s*** too far, dude.”

Accountability

A defendant is legally accountable for another person’s criminal conduct when “either before or during the commission of an offense, and with the intent to promote or facilitate that commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person in the planning or commission of the offense.” 720 ILCS 5/5-2(c).

To establish that a defendant intended to promote or facilitate a crime, “the State may present evidence that either (1) the defendant shared the criminal intent of the principal, or (2) there was a common criminal design.” People v. Fernandez, 2014 IL 115527, ¶ 13.

“Under the common-design rule, if ‘two or more persons engage in a common criminal design or agreement, any acts in the furtherance of that common design committed by one party are considered to be the acts of all parties to the design or agreement and all are equally responsible for the consequences of the further acts.’ ” Fernandez, 2014 IL 115527, ¶ 13 (quoting In re W.C., 167 Ill. 2d 307, 337 (1995)).

Admission By Silence 

The court found that the conversation between defendant and his buddy was not entitled to any constitutional protections because it was not prompted by the police or law enforcement. The court further stated that the statements were voluntary and defendant “could have said, ‘Listen, you’re out of line by saying this,’ otherwise it could be considered *** an admission by silence.”

At the hearing on defendant’s motion, the State asserted that his buddy’s words added context to the conversation.

Tacit Admission

Defendant argues that the court should have excluded the statement that defendant had gone “too far” and the numerous statements about “you guys” taking things “too far.” Defendant asserts that the tacit admission rule is flawed and at a minimum should not apply here because defendant was in police custody when the statements were made.

Under the tacit admission rule, a defendant’s silence may be introduced as a tacit or implied admission of guilt if the defendant remains silent in the face of an accusation of criminal conduct. People v. Sneed, 274 Ill. App. 3d 287, 295 (1995). When an incriminating statement is made in the presence and hearing of an accused and the statement is not denied, contradicted, or objected to, both the statement and the failure to deny it are admissible at trial as evidence of the accused’s acquiescence in its truth. People v. Childrous, 196 Ill. App. 3d 38, 53 (1990).

For the statement to be admitted, the following elements must be met:

(1) the defendant heard the accusative statement,
(2) the defendant had an opportunity to reply and remained silent, and
(3) the accusation was such that the natural reaction of an innocent person would be to deny it.

People v. Goswami, 237 Ill. App. 3d 532, 536 (1992).

The statement does not need to be made in an accusatory tone as long as it is evident that the defendant “was being painted or portrayed as a participant in illegal and prohibited activity.” People v. Miller, 128 Ill. App. 3d 574, 584 (1984). Further, “acquiescence or assent may be manifested by silence or by an evasive, equivocal, or unresponsive reply.” Childrous, 196 Ill. App. 3d at 53.

See Also

People v. Boston, 2018 IL App (1st) 140369 (December). Episode 580 (Duration 9:54) (In Illinois Post Arrest Silence Even Before Miranda Generally May Not Be Commented On)

Error To Apply The Rule Here

We decline defendant’s invitation to dispose of the tacit admission rule.

The tacit admission rule should not have been applied here to admit his buddy’s statements about defendant and “you guys” taking things “too far” and defendant’s failure to deny those statements.

It has been noted that tacit admissions should be “received with caution.” The tacit admission rule appears to be on particularly shaky ground when a defendant is in police custody and knows the police can hear his conversation, as in People v. Soto, 342 Ill. App. 3d 1005 (2003). See also Michael H. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 802.7, at 679-80 (6th ed. 1994))), and that silence could be “motivated by many factors other than a sense of guilt or lack of an exculpatory story” (McCormick on Evidence § 262, at 306), such as “prior experience or the advice of counsel” (Powell, 301 Ill. App. 3d at 278).

Being in jai is a “unique” circumstance, it could not “reasonably be expected that defendant would feel free to respond” to his co-arrestee’s comments.

The statements by his buddy that defendant and “you guys” take things “too far” and defendant’s failure to deny those statements should not have qualified as tacit admissions.

Like the defendant in Soto, defendant here was under arrest and in a room at a police station. Further, defendant knew that an officer could hear him because he called for an officer multiple times while he spoke with his buddy. We find that defendant’s surroundings militate against applying the tacit admission rule to the specified statements made by his buddy and defendant’s failure to deny them.

Holding

We conclude that there is no reasonable probability that the jury would have acquitted defendant if his buddy’s statements had been excluded. The State’s evidence was overwhelming.

The judgment is affirmed.

Prosecutors Questions Could Have Been Presented More Clearly And Completely In The Grand Jury Room

Apr 16, 2019 15:30

Description:

People v. Rebollar-Vergara, 2019 IL App (2d) 140871 (March). Episode 616 (Duration 15:29)

Defendant gets into an argument with a guy and his buddy ups and shoots him, then sloppy questioning happens in the grand jury room.

Facts

Defendant and his buddy approach a rival gang member and trash talking ensues.

At one point the defendant’s buddy takes out his gun and fires 10 shots at the guy. One shot hits him in the back and the man dies. The shooter is convicted of murder in his own trial and gets 62 years.

This defendant says he didn’t know his buddy had a gun and didn’t know he was going to shoot the guy.

More Details

Defendant and the shooter were in the same gang, with the shooter allegedly serving in the role of security for the gang. Defendant and the shooter allegedly acted with the belief that the victim was a member of a rival gang. The state also showed that:

Defendant and the shooter walked to the convenience store, encountered the victim at the counter, and trash talked. Defendant and the shooter quarreled with the victim as he backed out of the store and across the parking lot. Defendant admitted that he wanted a “one-on-one” fistfight with the victim, but the shooter shot him first. The surveillance video shows the shooter flashing gang signs at the victim. Defendant had gang tattoos. Issue

Defendant says he is not accountable and says the indictment should have been dismissed because the evidence presented at the hearing showed that defendant did not confess or flash gang signs and the officers contrary testimony improperly affected the grand jury’s deliberations. Defendant argues that the statement was misleading because the surveillance video, which the grand jury did not view, does not show him flashing gang signs.

Convicted

The jury found defendant guilty of first-degree murder and also found that, during the commission of the offense, defendant, or one for whom he was legally responsible, was armed with a firearm. The court sentenced defendant to 38 years’ imprisonment.

Accountability

The trial turned on whether defendant was accountable for the shooter’s conduct, which the State attempted to show with evidence that defendant and the shooter were acting with a common criminal design to harm the victim, motivated by the victim’s disrespect to them and their gang.

“Accountability is not a crime in and of itself but, rather, a mechanism through which a criminal conviction may result.” People v. Pollock, 202 Ill. 2d 189, 210 (2002).

A defendant is legally accountable for another person’s criminal conduct when “either before or during the commission of an offense, and with the intent to promote or facilitate that commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person in the planning or commission of the offense.” 720 ILCS 5/5-2(c).

To establish that a defendant intended to promote or facilitate a crime, “the State may present evidence that either (1) the defendant shared the criminal intent of the principal, or (2) there was a common criminal design.” People v. Fernandez, 2014 IL 115527, ¶ 13.

Says He Didn't Know

Defendant insists that he had no idea that the shooter would shoot the victim and therefore he did not share a common criminal design with the shooter.

Mere presence at the scene of a crime, or even presence coupled with flight from the scene or knowledge of the commission, is not sufficient to establish accountability. It's noteworthy that a third man was with the defendant's. He didn't approach the victim and stayed clear of the whole thing. He was not charged.

Unless an alleged accomplice intends to aid the commission of a crime, no guilt attaches. Perez, 189 Ill. 2d at 268. 

Common Design Rule

“Under the common-design rule, if ‘two or more persons engage in a common criminal design or agreement, any acts in the furtherance of that common design committed by one party are considered to be the acts of all parties to the design or agreement and all are equally responsible for the consequences of the further acts.’ ” Fernandez, 2014 IL 115527, ¶ 13 (quoting In re W.C., 167 Ill. 2d 307, 337 (1995)).

The State’s position was that defendant and the shooter acted with a common criminal design to harm the victim, and, to establish defendant’s accountability, it relied on his statement that he exited the store with the intent to fight the victim when the shooter shot him.

He's Accountable

Here's what the evidence was:

Defendant and the shooter, were members of the same gang, and Defendant thought the victim was a member of a rival gang. Defendant was heard to make, and admitted making, gang references to the victim While arguing and talking trash with him. Defendant also admitted previously having a fistfight with the victim. Defendant admitted that he knew the shooter But was evasive about their relationship and the shooter’s role as the shooter. Defendant admitted that he exited the store intending to fight the victim. Defendant fled with the shooter. Defendant talked to police only after they sought him out.

The State presented ample evidence from which the jury could infer that defendant’s trash talking and pursuing the victim from the store was a cue to the shooter to escalate the confrontation

The shooter’s act of shooting the victim was in furtherance of the common design to harm the victim. Evidence of an express agreement between defendant and the shooter was not necessary to establish a common purpose to commit a crime, as defendant’s cues to the shooter established his participation in the criminal scheme, even though there was no evidence that defendant directly participated in the actual crime of shooting the victim.

Prosecutorial Misconduct

A prejudicial denial of due process can occur where an indictment is procured through prosecutorial misconduct. Legore, 2013 IL App (2d) 111038, ¶ 23. “ ‘The due process rights of a defendant may be violated if the prosecutor deliberately or intentionally misleads the grand jury, uses known perjured or false testimony, or presents other deceptive or inaccurate evidence.’ ” Oliver, 368 Ill. App. 3d at 694 (quoting People v. DiVincenzo, 183 Ill.2d 239, 257 (1998)).

To warrant dismissal of the indictment, the denial of due process must be unequivocally clear, and the prejudice must be actual and substantial. Oliver, 368 Ill. App. 3d at 694-95. Prosecutorial misconduct resulting in a due process violation is actually and substantially prejudicial only if the grand jury would not have otherwise indicted the defendant. Legore, 2013 IL App (2d) 111038, ¶ 23. 

Prejudice is shown if the evidence was so weak that the misconduct induced the grand jury to indict. Oliver, 368 Ill. App. 3d at 697-98.

The Grand Jury

In this case, the officer answered “yes” to several questions that allegedly conveyed to the grand jury that defendant “confessed” and flashed gang signs at the victim.

The two sets of questions were:

(1) “Subsequently the two defendants were arrested?” and “They did make confessions, is that correct?” and

(2) “As the victim began to walk out of the store, one of the defendants started flashing gang signs at him?” and “The defendants are following the victim out of the store flashing gang signs and arguing with him, is that correct?”

Furthermore, the challenged statement was immediately preceded by the officer affirming that, “as the victim began to walk out of the store, one of the defendants started flashing gang signs at him.”

What Does Confess Mean Anyway?

The Officer's statement that defendant “confessed” was ambiguous and not necessarily false.

Defendant defines “confession” as “a written or spoken statement in which you say that you have done something wrong or committed a crime.” Definitions of “confess” include “to tell of or make known (something private, hidden, or damaging to oneself)” and “to admit as true; assent to; acknowledge, especially after a previous doubt, denial or concealment.” Webster’s Third New International Dictionary 475 (1993).

Defendant claims that he, in fact, “did not confess to any involvement in the murder,” but that assertion is refuted by defendant’s acknowledgements during the police interview. Defendant’s initiation and escalation of the confrontation is now undisputed since the police confronted him with the surveillance video during the interview. Defendant admitted that he was at the convenience store and was at least a former member, if not a current member, of the gang.

Defendant admitted that he directed gang-related trash talk at the victim, whom he identified as a rival gang member. Defendant also admitted that he followed the victim into the parking lot with the shooter and intended a fistfight with the victim while the shooter looked on. He also admitted during his police interview that he argued with the victim as they exited the store.

No Prejudice

Defendant has not shown an “unequivocally clear” due process violation.

Even if the officer's affirmations regarding “confessions” and who flashed gang signs were inaccurate, we conclude that they did not cause “actual and substantial” prejudice.

The validity of the indictment did not turn on whether defendant explicitly “confessed” to being accountable for the shooter’s conduct or flashed gang signs at the victim. The grand jury heard detailed evidence that defendant and the shooter were fellow gang members who jointly confronted and aggressively pursued the victim, who they thought was a rival gang member. From these facts, we cannot say that “without [the complained-of testimony] the grand jury would not have indicted the defendant.” See Oliver, 368 Ill. App. 3d at 696-97.

The remaining evidence supported the grand jury’s determination of probable cause based on defendant’s actions.

Judge Had More Facts During The Hearing

The remaining evidence presented at the hearing shows that defendant admitted to conduct supporting the inference that he and the shooter shared a common criminal design. Defendant’s initiation and escalation of the confrontation was confirmed by the surveillance video that was viewed by the trial court at the hearing. At the request of defense counsel, the trial court also viewed portions of the video-recorded police interview of defendant. 

Counsel made the calculated decision that the surveillance and interview videos undermined the officer’s testimony.

In this appeal we are called upon to determine whether the trial court erred in denying defendant’s motion to dismiss the indictment after conducting a hearing that included the presentation of this evidence. The facts known at the time of the hearing were that:

Defendant admitted that he was at least a former member of the Latin Kings. Defendant admitted directing gang-related trash talk at the victim, Whom he identified as a rival gang member. Defendant admitted that he and the shooter followed the victim into the parking lot Defendant admitted he intended to fight the victim.

Under these circumstances, the grand jury would have indicted defendant even if the challenged testimony by the officer had been excised from the proceedings.

As such, there was no unequivocally clear denial of due process resulting in actual and substantial prejudice.

Holding

We agree with the court that the officer’s testimony could have been presented more clearly and completely, and we do not condone the ambiguities that the prosecution elicited. However, to obtain a dismissal of the indictment for a due process violation, defendant had the burden of establishing that the error was “unequivocally clear” and resulted in “actual and substantial” prejudice. Defendant’s challenge to the indictment rises and falls on this extremely limited scope of review, which supports the court’s decision not to dismiss the indictment.

We hold that the trial court did not err in denying defendant’s motions to dismiss the indictment. We conclude that there was sufficient evidence to support the indictment, even without the challenged testimony that defendant confessed to the police and flashed gang signs at the victim. Second, we hold that the trial court did not abuse its discretion in excluding the shooter’s statement that defendant should not be charged. Third, we hold that the State’s closing argument did not amount to reversible prosecutorial misconduct.

Finally, the evidence presented at trial supported the murder conviction beyond a reasonable doubt.

There Is A Strong Dissent

The majority has exhausted itself trying to find a way to justify―or, at the very least, excuse―the State’s false claim of defendant’s confession; it has misstated law, conjured evidence, and created a false construct wherein the trial court, rather than the grand jury, determines probable cause based on evidence not presented to the grand jury.

Taken to its logical conclusion, the majority’s position supports the theory that no evidence need be presented to the grand jury so long as the defendant is convicted; the lack of evidence before the grand jury is harmless error if the petit jury is presented with proof beyond a reasonable doubt. If this satisfies due process, then I submit that the grand jury is a subverted vestigial organ that needs to be abandoned and replaced.

The majority essentially gives the State carte blanche to present whatever it wants to the grand jury, no matter how false and deceptive, so long as there is any evidence, no matter how equivocal, to support the resulting indictment. That is not the law, never was the law, and should never be the law if the grand jury is to serve its traditional purpose. No longer “a ‘shield’ against arbitrary prosecutions” (Rodgers, 92 Ill. 2d at 289), the grand jury becomes the proverbial mushroom that is kept in the dark and fed false confessions.

See Also 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.) People v. Hernandez, 2017 IL App (2d) 150731 (January). Episode 306 (Duration 9:04) (Defendant is accountable for this 7 kilogram heroin deal (he did the heat run).) Don't Beat-Up A Person With An Enlarged Heart - People v. Doolan, 2016 IL App (1st) 141780 (November). Episode 263 (Duration 6:47) (Defendant is accountable for first degree murder because him and his buddies decided to start a fight with a victim with an enlarged heart) What Is Criminal Accountability? - Episode 054 (Duration 16:17) (I created a simple 2 page accountability cheat-sheet for criminal law attorneys. I keep this towards the front of my trial book. It comes in handy in accountability cases when I need exact language quickly) People v. Boston, 2016 IL 118661 (February 2016) (Episode 144 Duration 6:29) (Sloppy grand jury work does not prejudice the defendant.)

An Example Of Inartful Closing Argument And How To Fix It

Apr 15, 2019 15:28

Description:

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.

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

Apr 10, 2019 11:45

Description:

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 Episode 419 – People v. Sheley, 2017 IL App (3d) 140659 (October) (structural error when judge falls asleep during murder trial but the record didn’t establish that in this case) People v. Vargas, 174 Ill. 2d 355 (1996) (structural error when judge leaves the bench during a trial) Episode 452 – People v. Henderson, 2017 IL App (3d) 150550 (November) (judge brings the jury out to see a video and leaves them alone in the courtroom with court personnel) People v. McKinley, 2017 IL App (3d) 140752 (March) (not plain error when judge played the video in the courtroom) Episode – People v. Lewis, 2018 IL App (4th) 150637 (April) (4th District thinks it’s perfectly fine for trial judge to play video for the jury in the courtroom so long as they do it right.) Episode 270  – People v. Evans, 2016 IL App (1st) 142190 (December). (structural error when grandma kept out during voir dire) Episode 502 – People v. Gore, 2018 IL App (3d) 150627 (April). (not structural error judge locks the doors during a jury question) Episode 371 – Weaver v. Massachusetts, SCOTUS, No. 16-240 (June 2017) (petitioner’s mother and minister were excluded from the courtroom for two days during jury selection but no prejudice to petitioner) Episode 368 – People v. Thompson, 2017 IL App (5th) 120079-B (May)(failure to instruct the jury on an essential element of the case does not necessarily constitute plain error) People v. Belknap, 2014 IL 117094 (December) (failure of the trial court to get the Zehr admonishments right is not strictly plain error). See also People v. Thompson, 238 Ill. 2d 598, 609, 939 N.E.2d 403, 411 (2010)People v. Sebby, 2017 IL 119445 (June) (high court reexplains how plain error works) Episode 244 – People v. Buckhanan, 2016 IL App (1st) 131097 (September) (denial of your counsel of choice is structural error)  

In This DUI The Officer Substantially Complies With His Breathalyzer Certification

Apr 9, 2019 12:55

Description:

People v. Caraballo, 2019 IL App (1st) 171993 (March). Episode 613 (Duration 10:42)

Officer was not certified at the time of the breathalyzer, but he was substantially certified.

Gist

This is a DUI stop with an arrest.

The jury found defendant guilty of driving with an alcohol concentration of .08 or more and guilty of driving under the influence of alcohol. Defendant was sentenced to 12 months’ conditional discharge.

The Breathalyzer

The Officer testified that at the police station, he read defendant his Miranda warnings, and after the required 20-minute observation period, defendant agreed to submit to a breath test.

After The Officer described the test procedures employed, the State offered defendant’s breathalyzer ticket into evidence.

But...

The officer's certification had expired 5 days before the arrest.

He had 11 year employment with the Hickory Hills police department and had specific training for the administration of breath tests through “a class put on through NEMRT at the Burbank Police Department” in 2006 or 2007. He also took a three-day certification class that required him to take practical and written exams relating to the operation of a breathalyzer machine. After passing these exams, The Officer was certified to operate breath machines, specifically the Intoximeter EC/IR II used by the Hickory Hills police department, and he was recertified in 2010.

The officer was able to get recertified the very next day after this arrest. 

Issue

Defendant's sole argument on appeal is that the State did not lay a proper foundation for admission of the results of the breathalyzer test because the administrator of the test was not licensed at the time the test was given and therefore the court’s ruling on the State’s motion in limine was erroneous.

Admissibility of Breathalyzer

The admissibility of breathalyzer test results is governed by standards promulgated by the State Police as dictated by statute.

625 ILCS 5/11-501.2(a) of the Illinois Vehicle Code (Code) states in relevant part:

"(a) Upon the trial of any civil or criminal action or proceeding arising out of an arrest for an offense as defined in Section 11-501 or a similar local ordinance or proceedings pursuant to Section 2-118.1, evidence of the concentration of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof in a person’s blood or breath at the time alleged, as determined by analysis of the person’s blood, urine, breath or other bodily substance, shall be admissible.

Where such test is made the following provisions shall apply:

1. Chemical analyses of the person’s blood, urine, breath or other bodily substance to be considered valid under the provisions of this Section shall have been performed according to standards promulgated by the Department of State Police by a licensed physician, registered nurse, trained phlebotomist, certified paramedic, or other individual possessing a valid permit issued by that Department for this purpose. The Director of State Police is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, to issue permits which shall be subject to termination or revocation at the discretion of that Department and to certify the accuracy of breath testing equipment. The Department of State Police shall prescribe regulations as necessary to implement this Section.”

The Administrative Code

Section 1286.00 of Title 20 of the Illinois Administrative Code states:

“The Director or his/her designee is authorized to license persons to be BAOs [(Breath Alcohol Operators)] subject to the requirements of this Section. BAOs are licensed to perform all appropriate BAO functions described in this Part. Only licensed BAOs may operate evidential breath testing instruments.

a) To be eligible to be a BAO, the individual must be employed by an agency or an accredited law enforcement training academy. BAO candidates, including those who have previously been licensed as a BAO in another state, must successfully attend the course and pass the written and proficiency examination or successfully complete a computer-based training (CBT) course.

b) Under the direction and control of a BAI [(Breath Alcohol Instructor)], BAO candidates must:

1) Complete a training curriculum approved by the Department that includes a minimum of 16 hours of instruction, which includes the following:

A) Presentation and discussion of the psychological, physiological, and pharmacological effects of alcohol in the human body;

B) Demonstration and discussion of instruments and the analytical processes used to measure BrAC [(Breath Alcohol Concentration)];

C) Practical application and demonstration in the use of an evidentiary instrument; and

D) Discussion of current DUI issues, the administrative rules, and case law.

2) Pass the following:

A) The standardized written examination for Breath Analysis Operator provided by the Department with a minimum score of 70 percent.

B) A proficiency examination in which the candidate operates approved evidentiary instruments.

c) A license shall be valid for a period of three years after the printed date of issuance. If the license is not renewed as provided for in Section 1286.110, it shall expire three years after the printed date of issuance.”

20 Ill. Adm. Code § 1286.100.

The Case Law

The requirements for laying the proper foundation of breath test results were outlined by our supreme court in People v. Orth, 124 Ill. 2d 326, 340 (1988). To lay a proper foundation, the State must establish that the test was performed in accordance with both section 11-501.2(a) of the Illinois Vehicle Code (625 ILCS 5/11–501.2(a) (West 2010)) and the regulations promulgated by the Illinois Department of State Police.

The State must lay a foundation establishing five factors:

(1) evidence that the test was performed in accordance with the uniform standard adopted by the Illinois Department of State Police;
(2) evidence that the operator conducting the test was certified by the Department of State Police;
(3) evidence that the breath test machine used was a model approved by the Department of State Police, was working properly, and was tested regularly for accuracy;
(4) evidence that defendant was observed for 20 minutes prior to the test, and during that time, he did not smoke, drink or regurgitate; and
(5) evidence that the results on the “printout” sheet are properly identified as defendant’s test results.

Failure to comply with section 11-501.2(a) and the regulations renders the results of the test unreliable and, thus, inadmissible. People v. Emrich, 113 Ill. 2d 343, 350 (1986).

Substantial Compliance?

Because the administrator was not licensed at the time the test was administered, the breath test was not conducted in conformity with the regulations promulgated by the Department of State Police.

Both Ebert and Bishop involve challenges to tests that deviated slightly from the standards prescribed for administration of the test. These de minimis deviations did not affect the validity or reliability of the results. Substantial compliance was sufficient in those cases where a defendant was not continuously observed for the required 20-minute period because the defendant testified that he did nothing that, if he was observed, would have affected the test and where the State collected a second urine sample because the first sample was taken at the hospital following defendant’s automobile accident.

In this case we cannot find there was substantial compliance where the officer was not licensed at the time he administered the breath test: there simply was no compliance, as required by the statute and the Department’s standards.

The plain language contained in the Department standards and the finding in Orth specifically requires that, to be admissible in evidence, the breath tests shall be “performed” by a licensed administrator according to the standards. The test was not performed according to the required standards in this case, and the failure to strictly comply was not de minimis.

Holding

Because The Officer was not a licensed breath analysis operator at the time he administered the defendant’s test, the State failed to lay the required foundation for the admission of the breath test results in a section 501(a)(1) prosecution and it was reversible error to admit the results into evidence.

 Accordingly, defendant’s motion in limine should have been granted and the breath test results should not have been admitted. We therefore reverse defendant’s conviction for driving with an alcohol concentration of .08 or more (625 ILCS 5/11-501(a)(1)).

We find that there was overwhelming evidence from which the jury could conclude beyond a reasonable doubt that defendant was under the influence of alcohol while in physical control of the vehicle even without the admission of the breath test evidence.

Reckless Homicide Cases

See People v. Keith, 148 Ill. 2d 32 (1992). It's a reckless homicide case where BAC results that didn't comply with the code were admitted. The court held so long as the results were relyably the normal rules of evidence applied. The regs only applied to prosecutions under the DUI statute.

These cases don't help the state here.

More Interesting Facts

The officer was  originally stopped at a stop sign in his marked patrol vehicle when he observed a vehicle pass him and “the passenger’s side tires strike a curb, go over the curb, travel through the grass, just miss a tree and then come back into the lane of traffic.” As the vehicle came back into the lane of traffic, “the driver’s side tires then crossed the solid yellow line before coming back into the road.”

The Officer then initiated a traffic stop based on his observations.

The Officer observed that defendant had “glassy, bloodshot eyes” and “highly slurred” speech. Defendant also had a strong odor of alcohol coming from his mouth. Defendant told The Officer that he had a little to drink.

Defendant attempted to hand The Officer a bottle of Jack Daniels but he missed The Officer’s hand and the bottle fell to the ground.

The video from The Officer’s squad car was played in open court. It showed defendant complying with The Officer’s request to exit the vehicle. As defendant exited, he tripped and almost fell into moving traffic. The Officer had to stop him from hitting the ground.

The Officer asked defendant to complete some field sobriety tests and read the instructions for these tests from a book of standardized instructions. During the one-legged test, defendant placed his foot down, fell off balance, and raised his hand up. These actions suggested impairment. For the walk-and-turn-test, The Officer noted that defendant’s balance was “horrible,” and that he did not seem to understand the directions or The Officer’s demonstration. The Officer observed four or five clues of impairment, when only two are needed. 

The authenticated breathalyzer ticket showed a test result of .260.

See Also  Episode 470 - People v. Robledo, 2018 IL App (2d) 151142 (February). (Defendant blew .082 she argued the margin of error of the machine means the state didn’t prove she was .08.) Episode 454 - People v. Ernsting, 2018 IL App (5th) 160330 (January).  (Ronald Henson testified that blood in the mouth produces unreliable breathalyzer results and would tend to produce a disproportionately higher BAC.) Episode 271 - People v. Cielak, 2016 IL App (2d) 150944 (December).  (Observation period lasted only 19 minutes rather than 20. Is rescission of SSS proper?) Episode 035 - DUI Breathalyzer Machine and Procedure, DUI Expert Witness William Pelarenos Breaks it All Down Episode 211 - People v. Taylor, 2016 IL App (2d) 150634 (July) (Forced PBT leads to suppression of DUI evidence and DUI reversal.)

March 2019 Speed Round (The Illinois Criminal Case Law Round Up)

Apr 8, 2019 44:20

Description:

This is the March 2019 Illinois criminal case law audio round-up (the fast case law summary). Episode 612 (Duration 44:19)

The March 2019 Top Illinois Criminal Law Cases (The Monthly Round-Up)

Here's a quick snapshot of the top cases:

1. People v. Patel

State failed to produce discover for the SSS Hearing, they subsequently blew Trainor.

2. People v. Caraballo

Officer was not certified at the time of the breathalyzer, but he was substantially certified.

3. People v. Sanchez

Defendant is arrested at his home where he found plastered and driven back to the crash scene by police.

4. People v. Thomas

Police see a defendant hand a gun to another person and then try to run and hide.

5. People v. Holmes

An essentially anonymous tip was treated as wholly unreliable resulting in an outright reversal of this gun conviction.

6. People v. Webb

Another version of UUW is held unconstitutional; this time it's the one banning tasers.

7. People v. Cunningham

Defendant gets 3 years for shooting himself in the leg in a housing project; this UUW version is constitutional.

8. People v. Drake

Although the reversal is still good the lower court judgement that double jeopardy barred a retrial is reversed.

9. People v. Lewis

One gun expert testified about the work done a different expert who was out on medical leave.

10. People v. Spicer

Can the prosecution compel you to give up your phone password?

11. People v. Othman

Has the plain error gotten much more liberal?

12. People v. Smith

Kid is available for cross even though they don't remember the actual allegation of sexual abuse.

13. People v. McArthur

17 year old held for more than 70 hours before his probable cause hearing, nonetheless, his confessions were all voluntary.

14. People v. Ruiz

Defendant's conversation with his coarresttee is recorded and his friend kept telling him he always takes things too far.

15. People v. Corral

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.

16. People v. Macklin

Was defense counsel ineffective for not calling an eyewitness expert witness?

17. In re J.P.

Juvenile court act allows a judge to order the removal of a gang tattoo.

18. People v. Rebollar-Vergara

Defendant gets into an argument with a guy and his buddy ups and shoots him, then sloppy questioning happens in the grand jury room.

19. People v. Garcia

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

20. People v. Holt

The split deepens between the Second, Fourth and Third Districts on these burglary/retail theft convictions.

21.  People v. Bausch

Grabbing your wife's purse can constitute insulting and provoking contact.

22. People v. McCurine

Defendant says he was prejudiced and due process was violated when the state was allowed to tell the jury he was charged with being a habitual criminal.

23. People v. James

Another SORA conviction reversed because police failed to investigate the circumstances of his living arrangement.

24. People v. Johnson

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

25. People v. Thomas

Defendant refused to sign the jury waiver but still wanted a bench trial.

26. People v. Maya

Even "obvious" matters of sound trial strategy may be rebutted by defendant, here the lawyer kept a sheriff's deputy on the jury.

27. People v. Mooney

Agreeing to continuance was ineffective, outright reversal is the only remedy.

Is It Constitutional To Ban Guns From Public Housing?

Apr 4, 2019 11:05

Description:

People v. Cunningham, 2019 IL App (1st) 160709 (March). Episode 611 (Duration 9:18)

Defendant gets 3 years for shooting himself in the leg in a housing project; this UUW version is constitutional.

See Also These Prior Constitutionality Cases Episode 610 - People v. Webb, 2019 IL 122951 (March) (UUW Provision Banning Stun Guns Is Shot Down) Episode  387 – People v. Holmes, 2017 IL 120407 (July) (Can Police Stop You If They See A Gun?) Episode 457 – People v. Chairez, 2018 IL 121417 (February) (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) Episode 513 – People v. Bell, 2018 IL App (1st) 153373 (June) (Gun Laws Banning Firearms In Protected Places Are 100% Constitutional-This Was A Park) Episode 512 – People v. Green, 2018 IL App (1st) 143874 (June) (Gun Laws Banning Firearms 1,000 Feet From Protected Places Are Unconstitutional - School Was The Place In Question)  Episode 060 – People v. Mosley, 2015 IL 115872 (February) (Aggravated Unlawful Use of a Weapon – 720 ILCS 5/24-1.6 Revisited by Illinois Supreme Court Nonprobationable Class 4 AUUW Invalidated) Episode 524 – In re N.G., 2018 IL 121939 (August) (Illinois Supreme Court Admits They Got McFadden Wrong Proceed To Vacate Those AUUW’s) Gist

The State charged defendant with unlawful use of a weapon and reckless discharge of a firearm based on defendant having shot himself in the leg.

Charges

The charging instrument stated the State sought to have defendant sentenced as a Class 3 felon because the incident took place in an apartment owned by the Chicago Housing Authority and used as public housing.

UUW Public Housing

Section 24-1(a)(4), (c)(1.5) (in public housing) of the Criminal Code of 2012 (Criminal Code) which reads, in pertinent part, as follows:

“(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; or
(iv) are carried or possessed in accordance with the Firearm Concealed Carry Act by a person who has been issued a currently valid license under the Firearm Concealed Carry Act; or...* * *

(c) Violations in specific places. * * * (1.5) A person who violates subsection 24-1(a)(4) *** in 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 *** or on any public way within 1,000 feet of the real property comprising any *** 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).

Facts

Defendant was messing around with a gun at his buddies house.

The responsible lady of the house she lived in her apartment with her boyfriend and daughter. When She arrived home on the day defendant was shot, defendant, her boyfriend, and two others were in the apartment. The women saw them running from the area of two back bedrooms.

Defendant exclaimed, “I’m shot, I’m shot.”

When she returned to the living room she saw defendant lying on the floor bleeding from his right leg. She then took the gun from her boyfriend and put it in a different apartment in the building.

When the police got there she was evasive at first but eventually retrieved the gun and gave it to police.

Did Defendant Live There?

At the time defendant was shot he had been staying in her apartment for about one week, but defendant did not pay any rent or bills.

Defendant Confesses

Once at the hospital defendant apologized to the Sergeant for not telling him the truth earlier and stated he (defendant) had shot himself.

Guilty

The court found defendant guilty of UUW and reckless discharge of a firearm and sentenced him to three years’ imprisonment for UUW and a concurrent term of two years’ imprisonment for reckless discharge.

Issue

Defendant argues Chairez demonstrates that section 24-1(a)(4), (c)(1.5) (in public housing) is facially unconstitutional because Chairez establishes that to survive a constitutional challenge the State “must make a strong showing of a substantial justification for subsection (c)(1.5), as well as a close fit between a law that bans firearms in public housing residences and its end: the safety of those residents and invitees.”

The Chairez Standard

The Chairez court stated that answering the question of whether a portion of the UUW statute is constitutional “involves a two-part approach.” Id. ¶ 21.

First, we conduct a textual and historical analysis of the second amendment to determine whether the challenged law imposes a burden on conduct that was understood to be within the scope of the second amendment’s protection at the time of ratification. If the conduct falls outside of the scope of the second amendment, then the regulated activity is categorically unprotected, and the law is not subject to further second amendment review.

Second, if the historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected, then we apply the appropriate level of heightened means-ends scrutiny and consider the strength of the government’s justification for restricting or regulating the exercise of second amendment rights. 

Clearly Some Bans & Restrictions Are Proper

The scope of the second amendment’s protection is not unlimited.

Some “presumptively lawful regulatory measures” (Heller, 554 U.S. at 627 n 26) include “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” (Heller, 554 U.S. at 626-27).

But Illinois courts will apply the appropriate level of heightened means-ends scrutiny and consider the strength of the government’s justification for restricting or regulating the exercise of second amendment rights under the second step, even where a “presumptively lawful regulation” is involved.

Under this approach, the second step of the inquiry requires the court to examine the strength of the government’s justifications for restricting certain firearm activity by evaluating the restriction the government has chosen to enact and the public-benefits ends it seeks to achieve. 

A severe burden on the core Second Amendment right of armed self-defense will require an extremely strong public-interest justification and a close fit between the government’s means and its end. However, laws restricting activity lying closer to the margins of the Second Amendment right, laws that merely regulate rather than restrict, and modest burdens on the right may be more easily justified.

Thus, the heightened means-end inquiry is a sliding scale that is neither fixed nor static.

Thus, a substantial curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment. Conversely, when a state bans guns merely in particular places, such as public schools, a person can preserve an undiminished right of self-defense by not entering those places; since that’s a lesser burden, the state doesn’t need to prove so strong a need.

The 720 ILCS 5/24-1(a)(4) Exception

Section 24-1(a)(4) provides an exception for persons in their “own abode [or] legal dwelling.” 720 ILCS 5/24- 1(a)(4).

Therefore, the statute at issue in this case could not be applied to a resident of public housing. On the face of section 24-1(a)(4), (c)(1.5), residents of public housing are not prohibited from carrying or possessing a firearm “in residential property owned *** by a public housing agency.” 720 ILCS 5/24-1(a)(4), (c)(1.5).

Residents of public housing, to whom the statute at issue does not apply. As such this case is more akin to a ban on guns merely in particular places. It is a specific ban on the carriage of guns by nonresidents in public housing.

Strong State Interest

The State argues the provision at issue “is substantially related to the important government interest in preventing harm to families, children, seniors, persons with disabilities and other vulnerable populations who reside in public housing.” The State argues that, like the public park in Bell, the law only prohibits firearms “in” a public housing building and, like public parks, public housing buildings are areas where large numbers of people, including children, congregate, and for all the same reasons and the same rationale, the prohibition on possessing firearms in Chicago Housing Authority (CHA) buildings is a reasonable measure to secure public safety.

Not A Categorical Ban

The statutory provision at issue in this case does impose some burden on visitors’ to public housing second amendment rights. However, this burden is not a categorical ban on the carrying of firearms in public and therefore a “more rigorous showing” under heightened.

There is more than a “rational” fit between “protecting the safety of residents, guests, and others who are present from time to time at housing facilities” and limiting the number of guns on public housing properties, thereby limiting potential violence.

Holding

The law and the State’s justification for the provision at issue are not so unreasonable as to fail intermediate scrutiny.

The state’s aim is to protect vulnerable populations in public housing facilities and it has done so with a modest and easily avoidable burden on its citizens’ second amendment rights. We hold the statutory provision at issue in this case survives the heightened intermediate scrutiny that is applicable in this instance and, thus, defendant’s facial challenge to the statute fails.

On A Side Note...

Here, the evidence adduced at trial is insufficient to prove defendant acted recklessly beyond a reasonable doubt.

The reckless discharge conviction is vacated.

The record contains no facts from which to reasonably infer defendant consciously disregarded a substantial and unjustifiable risk to the bodily safety of an individual. 

See Also Episode 531 - People v. Peel, 2018 IL App (4th) 160100 (August) (Another Idiot With A Gun – Reckless Discharge?) Episode 313 - People v. Grant, 2017 IL App (1st) 142956 (February) (Reckless Discharge Requires Endangering The Bodily Safety Of “An Individual”) Episode 215 - People v. Olivieri, 2016 IL App (1st) 152137 (August) (Sympathetic Nervous System Reaction Wins The Day In This Gun Case) Episode 066 - People v. Moreno, 2015 IL App (3d) 130119 (March) (What’s so wrong about about a little firearm discharging during the holidays?)

UUW Provision Banning Stun Guns Is Shot Down

Apr 3, 2019 07:41

Description:

People v. Webb, 2019 IL 122951 (March). Episode 610 (Duration 6:17)

Another version of UUW is held unconstitutional; this time it’s the one banning tasers.

Charges

Defendant was charged by misdemeanor complaint with violating section 24-1(a)(4) of the UUW statute (720 ILCS 5/24-1(a)(4)) after he was discovered carrying a stun gun in his jacket pocket while in his vehicle on a public street.

Gist

He was charged by misdemeanor complaint with violating section 24-1(a)(4) after he was found carrying a stun gun in his backpack in a forest preserve, a public place.

Issue

At issue is the constitutionality of the portion of section 24-1(a)(4) of the UUW statute relating to stun guns and tasers.

Illinois Unlawful Use of Weapons (UUW) Statute

This provision states, in pertinent part:

“(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[2] 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: * * * (iv) are carried or possessed in accordance with the Firearm Concealed Carry Act by a person who has been issued a currently valid license under the Firearm Concealed Carry Act[.]”

720 ILCS 5/24-1(a)(4)(iv).

“A ‘stun gun or taser’, as used in this paragraph (a) means (i) any device which is powered by electrical charging units, such as, batteries, and which fires one or several barbs attached to a length of wire and which, upon hitting a human, can send out a current capable of disrupting the person’s nervous system in such a manner as to render him incapable of normal functioning or (ii) any device which is powered by electrical charging units, such as batteries, and which, upon contact with a human or clothing worn by a human, can send out current capable of disrupting the person’s nervous system in such a manner as to render him incapable of normal functioning[.]”

720 ILCS 5/24-1(a)(10).

The Second Amendment

The second amendment to the United States Constitution provides,

“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.

A Brief History Before Aguilar

In District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), the Supreme Court of the United States held that the second amendment secures for individuals the right to keep and bear arms and that, through the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), this right is fully applicable to the states.

Then came Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) and People v. Aguilar, 2013 IL 112116 (holding the provision of the aggravated unlawful use of a weapon statute that categorically prohibited the possession and use of any operable firearm for self-defense outside the home violated the second amendment).

See also Mosley, 2015 IL 115872 (holding unconstitutional under the second amendment the portion of the aggravated unlawful use of a weapon statute that criminalized the possession of an uncased, loaded firearm on a public way).

In determining whether a statutory provision violates the second amendment we first consider whether the provision imposes a burden on conduct that falls within the scope of the amendment. People v. Chairez, 2018 IL 121417, ¶ 21.

Second Step Analysis

If it does not, our analysis comes to an end. 

Otherwise, we move to the second step of the inquiry, in which we must determine and apply the appropriate level of constitutional scrutiny.

In this case, the State concedes that stun guns and tasers are bearable arms that fall within the protection afforded by the second amendment. We agree. In Heller, 554 U.S. at 582, the Supreme Court rejected the idea that the second amendment extends only to “those arms in existence in the 18th century.” Instead, “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”

Heller defined “bearable arms”: Stun guns and tasers may be taken into one’s hands and used both for defense or “to cast at or strike another.” Clearly, stun guns and tasers are bearable arms within the meaning of the second amendment. People v. Yanna, 824 N.W.2d 241, 244 (Mich. Ct. App. 2012).

Accordingly, the State concedes that stun guns and tasers are bearable arms that fall within the scope of the second amendment.

But The Section Has A Conceal & Carry Exception

Subparagraph (iv) of section 24-1(a)(4) excludes from the offense of UUW only those weapons that are carried or possessed “in accordance” with the Carry Act by a person who has been issued a concealed carry license.

To be “in accordance” with a statute means to be in agreement or conformance with that law.

In our view, the most natural reading of the requirement that weapons be carried or possessed “in accordance” with the Carry Act is that the weapons, themselves, are of the type for which a valid concealed carry license may be issued under the Carry Act.

Indeed, any other reading would lead to absurd results.

Under the State’s reading of the statute, as long as a person has a concealed carry license for a handgun, that person may carry any other weapon, including a rifle or shotgun, and still be acting “in accordance” with the Carry Act, even though the Carry Act is specifically limited to handguns and does not allow for the concealed carry of rifles or shotguns.

We do not think the State’s interpretation is what the legislature intended.

You Can’t Get A Conceal & Carry License For A Stun Gun

Our conclusion that stun guns and tasers cannot be carried or possessed “in accordance” with the Carry Act because a concealed carry license cannot be issued for those weapons is further supported by section 24-2(a-5) of the UUW statute.

This provision states that section 24-1(a)(4) of the UUW statute does not “apply to or affect any person carrying a concealed pistol, revolver, or handgun and the person has been issued a currently valid license under the Firearm Concealed Carry Act at the time of the commission of the offense.” 720 ILCS 5/24-2(a-5).

When read together with section 24-1(a)(4), section 24-2(a-5) makes clear that only those weapons that can be licensed under the Carry Act are meant to be excluded from the reach of the UUW statute.

Holding

Given the foregoing, we reject the State’s argument that section 24-1(a)(4) is merely a regulation of stun guns and tasers. Rather, that provision sets forth a comprehensive ban that categorically prohibits possession and carriage of stun guns and tasers in public.

Thus, that provision necessarily cannot stand.

Accordingly, we hold the portion of section 24-1(a)(4) that prohibits the carriage or possession of stun guns and tasers is facially unconstitutional under the second amendment.

See Also Episode 387 – People v. Holmes, 2017 IL 120407 (July)(Does Aguilar Mean Stops Based On Seeing A Gun Are Unconstitutional?) Episode 457 – People v. Chairez, 2018 IL 121417 (February) (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) Episode 512 – People v. Green, 2018 IL App (1st) 143874 (June) (Gun Laws Banning Firearms 1,000 Feet From Protected Places Are Unconstitutional)  Episode 513 – People v. Bell, 2018 IL App (1st) 153373 (June) (Gun Laws Banning Firearms In Protected Places Are 100% Constitutional) Episode 524 – In re N.G., 2018 IL 121939 (August) (Illinois Supreme Court Admits They Got McFadden Wrong Proceed To Vacate Those AUUW’s) Episode 060 – People v. Mosley, 2015 IL 115872 (February) (Aggravated Unlawful Use of a Weapon – 720 ILCS 5/24-1.6 Revisited by Illinois Supreme Court) Episode 008 – People v. Gayfied, 2014 IL App (4th) 120216-B (July) (only some districts support the extension of bans under AUUW)

Police Chase Some Men, See A Gun And Arrest Them - Is That Legal?

Apr 2, 2019 18:16

Description:

People v. Thomas, 2019 IL App (1st) 170474 (March). Episode 609 (Duration 11:51)

Police see a defendant hand a gun to another person and then try to run and hide.

First See Episode 552 - People v. Bonilla, 2018 IL 122484 (October) (Supreme Court Is Pushed To Decide If Apartments Have Less Constitutional Protection Than Houses) Episode 464 - Recap of the Apartment v. House Controversy Episode 595 - In re K.M., 2019 IL App (1st) 172322 (February) (Police Still Haven’t Quite Got The Hang Of This Property Based Rights Thing When They Trample Onto Private Property) Episode  387 - People v. Holmes, 2017 IL 120407 (July) (Can Police Stop You If They See A Gun?) Episode 601 - People v. Holmes, 2019 IL App (1st) 160987 (March) (Police Told Man Has A Gun An Unconstitutional Stop Then Happens) Gist

Defendant was charged with various counts of aggravated unlawful use of a weapon following his arrest at a south side multiunit building, 7555 South Kenwood Avenue in Chicago, on March 25, 2015.

Loitering Youths

As they drove slowly down Kenwood Avenue, from about five feet away, they observed four or five males “loitering on the sidewalk in front” of the aforementioned apartment building.

At that point, the officer saw two of the males, later identified as defendant and his friend, “flee into the building.” At that moment, the officer did not observe defendant holding a gun. Police stopped their car and jumped out and followed the two men.

The men ran inside the apartment building while the other members of the group simply stood still on the sidewalk.

Police Enter The Building

Subsequently, the officer “reopened the door,” then stepped inside the building to what he described was the “common area.” The evidence thus indicates that the building was unlocked, although the officer never explicitly stated this.

Once inside, the officer observed a hallway, and to the right was a first-floor stairwell, where defendant and his friend were standing. At that point, the officer saw that defendant had a gun. He promptly handed it his friend before fleeing to the second floor.

The officer “probably” said “police, freeze.” Defendant went into an apartment unit on the second floor and closed the door behind him. His friend was was “locked out,” froze and then threw the handgun on the second-stair landing. Buddy was detained and arrested. 

The Gun

Police recovered the loaded firearm, a .380, and returned to the locked apartment unit.

The Apartment Unit

A female, whom the officer believed was defendant’s girlfriend, opened the door.

The officer arrested defendant, handcuffing him just outside the unit. 

Only after that did officers learn defendant did not have a FOID or concealed carry card.

Trial Court Grants The Motion

The court noted that there was no evidence of criminal activity from the outset “to suggest that this defendant should be stopped in any way.” The court found that outside the apartment complex, defendant was not committing any crime, and there was no reason to believe he was committing a crime, yet police chased him anyway. The court stated that it was during the “pursuit” that police observed a weapon. However, given the laws permitting the public to possess guns outside the home via a FOID card and concealed carry license, the court ruled that when the police observed defendant with a handgun, they did not have probable cause to stop, seize, and then arrest defendant.

The court noted that the gun was not fully exposed but rather found that “a moment in time in your hand should be partially concealed.” The court, accordingly, found the arrest was unlawful and, further, that the gun recovered “subsequent to the violation of this defendant’s constitutional rights” had to be suppressed under the exclusionary rule.

Issue

The question of law at issue in this case is whether a fourth amendment violation occurred when the police entered an unlocked multiunit apartment building without a warrant and, once inside the common area, observed defendant hand his friend a gun just before both fled upstairs, with defendant entering his purported apartment unit while the friend then discarded the gun.

Reasonableness Requirement

Reasonableness under the fourth amendment generally requires a warrant supported by probable cause. People v. Johnson, 237 Ill. 2d 81, 89 (2010). A limited exception to the warrant requirement under Terry v. Ohio, 392 U.S. 1 (1968), permits a police officer to briefly stop (and therefore necessarily seize) a person for temporary questioning if he reasonably believes the person has committed, or is about to commit, a crime. Johnson, 237 Ill. 2d at 89, 91.

Thus, a “seizure” occurs when an officer has in some way restrained a citizen’s liberty so the person believes he is not free to leave. People v. Thomas, 198 Ill. 2d 103, 111 (2001).

The Initial Encounter: Unprovoked Flight

An individual’s unprovoked flight on seeing police in an area known for crime is suggestive of wrongdoing and may justify police suspecting that individual of criminal activity, which warrants further investigation. See Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000); People v. Timmsen, 2016 IL 118181, ¶¶ 15-19; Thomas, 198 Ill. 2d at 113.

That the defendant’s flight from police is susceptible to an innocent explanation does not vitiate the officer’s right to detain that individual to resolve any ambiguity.

Here, the most rational inference from the officer’s testimony is that the police presence and potential encounter is what prompted defendant’s flight, giving rise to reasonable suspicion. While defense counsel suggested that defendant and Turner could have mistaken the unmarked police vehicle for a potential drive-by shooter, for example, this innocent explanation does not lessen the officers’ objective in resolving any ambiguity under the law.

Contrary to the trial court’s finding, there was no fourth amendment stop or seizure implicated by the officers’ pursuit of defendant, where there was no real encounter or submission.

Police Entry Into Unlocked Apartment Building: Privacy Interest in Apartment Common Area

Notably, the fourth amendment protects people, not places. Pitman, 211 Ill. 2d at 514. The extent to which the fourth amendment protects people may depend on where those people are. As such, a defendant who objects to the search of a particular area must prove a legitimate expectation of privacy in the area searched, i.e., an actual subjective expectation of privacy and one that society deems reasonable. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); Johnson, 237 Ill. 2d at 90; Carodine, 374 Ill. App. 3d at 22.

Thus, a “search” for purposes of the fourth amendment occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. Carodine, 374 Ill. App. 3d at 22.

The State argues there was no reasonable expectation of privacy in the common area of the unlocked apartment building, which police were permitted to enter. The State further asserts that it was in this common area that police observed defendant “committing a criminal offense” and, as such, there was no “search” at issue. We are inclined to agree.

Illinois courts have found that there is no reasonable expectation of privacy in common areas of apartment buildings that are accessible to others. Martin, 2017 IL App (1st) 143255, ¶ 20. In that sense, Smith, 152 Ill. 2d 229, is instructive. See People v. Smith, 152 Ill. 2d 229, 244 (1992) (police enter apartment building and overhear incriminating conversation police had a right to be there and defendant had no expectation of privacy). See also Carodine, 374 Ill. App. 3d at 24 (holding the defendant did not have an objective expectation of privacy to the dryer vent because it was located in a common area where other tenants of the building, the landlord, and members of the public had access; therefore, the officer’s opening and reaching inside of the vent was not a fourth amendment “search”).

What About Bonilla?

In Bonilla, 2018 IL 122484, the use of a drug-sniff dog at the threshold absent a warrant was an unlicensed physical intrusion that violated the defendant’s fourth amendment rights. Similarly distinguishable is Burns, 2016 IL 118973, ¶ 44, where the court held that a warrantless middle-of-the-night use of a drug-detection dog at the defendant’s apartment door, located within a locked apartment building, violated the defendant’s fourth amendment rights.

Defendant Wanted To Tell The Jury That He Pays For Sex

Mar 28, 2019 10:19

Description:

People v. Encalado, 2017 IL App (1st) 142548 (February). Episode 314 (Duration 10:18)

Trial judge did not allow the defendant to ask the jury if they could remain impartial not withstanding the fact that likes to pay for sex. 

Facts

Defendant was found guilty of a brutal sex assault.

The victim testified she got her into his car on a rouse and then punched her in the face and put her clothes over her face and raped her.

Other Crimes (not an issue)

Other crimes evidence was admitted.

The victim in the older case said essentially the same thing.

The defendant offered her a ride. When she got in the care he punched her in the face and put her clothes over her face then raped her.

She also had some items stolen.

Defendant's Story

Defendant’s defense in both situations was that they were prostitutes who got mad at him after he took back his money.

He asked the court to question the venire as to whether they could evaluate the evidence of assault without bias if they knew he had narcotics with him at the time of the alleged offenses. He testified he offered to pay the women with money and drugs.

Wanted This Question

He also asked the court to say to the venire, “you will hear evidence about prostitution. Would that fact alone prevent you from being fair to either side?”  

"Hell No" Said Judge

The court refused to ask the venire any questions relating to drugs or prostitution.

Judicial Discretion

Our supreme court, in People v. Strain, 194 Ill. 2d 467 (2000), articulated the guiding principles for appellate review of questions asked on voir dire:

The trial court is given the primary responsibility of conducting the voir dire examination, and the extent and scope of the examination rests within its discretion.

However, the trial court must exercise its discretion in a manner consistent with the purpose of voir dire, which is to ascertain sufficient information about prospective jurors’ beliefs and opinions so as to allow removal of those members whose minds are so closed by bias and prejudice that they cannot apply the law as instructed in accordance with their oath.

Unbiased Jurors

The jurors must harbor no bias or prejudice which would prevent them from returning a verdict according to the law and evidence.

Thus, a failure to permit pertinent inquiries to enable a party to ascertain whether the minds of the jurors are free from bias or prejudice which would constitute a basis of challenge for cause, or which would enable him to exercise his right of peremptory challenge intelligently, may constitute reversible error.

Shield Not A Sword

However, the trial court should not permit the parties to use voir dire to indoctrinate the jurors or to ascertain prospective jurors’ opinions with respect to evidence to be presented at trial.

For example, Strain was a gang case.

He was worried about gang membership bias.

Defendant had no right to indoctrinate the jury or ascertain their attitudes towards his defense, so he could not ask whether the venire members could weigh impartially evidence that he robbed prostitutes.

Different Quetion

However, Encalado did not request that question. Instead, he asked the court to say to the venire,

“you will hear evidence about prostitution. Would that fact alone prevent you from being fair to either side?”

Sex Issues Are Goofy

The court noted that some sexual behaviors can evoke from many venire members strong responses that prevent the venire members from assessing evidence without bias.

Courts have noted potential juror bias against persons who exchange sex for money, homosexuals, people who perform in pornography, or pose nude for photos, and persons engaged in sexually immoral conduct.

The court said that jurors may hold similar biases against customers of women who exchange sex for money.

Analysis

The court held that defendant requested an appropriate question during voir dire to help him determine whether the potential jurors could weigh the evidence against him, without a predisposition to find him guilty of criminal sexual assault because he patronized prostitutes.

The trial court’s voir dire questions failed to reveal whether any members of the venire harbored a bias against persons who participate in prostitution, and therefore Encalado could not ascertain whether the minds of the jurors are free from bias or prejudice which would constitute a basis of challenge for cause, or which would enable him to exercise his right of peremptory challenge intelligently.

Holding

The judge chose the course that gave the parties no opportunity to discover whether any members of the venire could weigh the evidence impartially once Encalado testified.

The judge’s choice led to a high likelihood that some persons serving on the jury would react with strong disgust and antipathy toward Encalado when he testified that he patronized prostitutes.

Sure, voir dire is not perfect.

Sometimes biased people make it on a jury.

Nonetheless, questioning on voir dire provides a means for the parties to attempt to discover biases that could affect the parties’ right to a fair trial. The procedure used by the trial court here, and defended by the dissent, removed the possibility of discovering whether a venire member held a widespread bias that would affect his or her ability to weigh the evidence impartially.

Reversed and remanded.

Dissent

See the dissent that this case completely undercuts the purpose and the rationale behind the rape shield law.

The dissent said this was nothing but a transparent ploy, and it was properly rejected by the trial court.

Reckless Discharge Requires Endangering The Bodily Safety Of "An Individual"

Mar 28, 2019 03:49

Description:

People v. Grant, 2017 IL App (1st) 142956 (February). Episode 313 (Duration 3:49)

Defendant shot himself in an empty apartment, reckless discharge?

Facts

Defendant shot himself in the hand.

He told the cops it happened when he was trying to clear it.

The gun belongs to his sister’s boyfriend who also lived there.

Reckless Discharge

"A person commits reckless discharge of a firearm by discharging a firearm in a reckless manner which endangers the bodily safety of an individual." 720 ILCS 5/24-1.5(a).

Defendant conceded the issue that he acted reckless in discharging the gun.

Issue

He took issue with the second prong, that the State failed to satisfy the second element because there is no evidence that his reckless conduct endangered the bodily safety of "an individual."

More specifically, he maintains that the term "an individual," as used in the statute, refers to another person or others and that, bodily injury to himself does not satisfy the second element of the offense.

Thus, the defendant asserts that the evidence presented at trial did not demonstrate beyond a reasonable doubt that his reckless conduct endangered "an individual" since the State presented no evidence that another person or others were in the vicinity of the discharge.

Analysis

When it comes to reckless conduct the case law is clear that the General Assembly did not intend to punish, through the vehicle of the reckless conduct statute, behavior that only harms the person who is reckless.

It is much more likely or reasonable, as the defendant surmises, that the legislature decided that the injury the reckless conduct inflicts on the person who acts in a reckless manner is sufficient punishment and that it was unwise or unnecessary to subject that person to an additional, criminal penalty.

Absurd Results

The State's broad reading of the statute, on the other hand, has the potential to lead to absurdity, and is inconsistent with the language of the statute itself, the intent of the legislature in enacting the law, and Illinois case authority.

Holding

Here too, the defendant’s interpretation offers a reasonable and just result in which a defendant may only be found guilty of reckless discharge of a firearm where he endangers the bodily safety of another person or others.

 The court held that our legislature intended the term "an individual" to mean someone other than the "person" who is charged with the offense of reckless discharge of a firearm.

In this case, there was no one else in the apartment at the time nor is there any evidence any other person was in the building. There is no evidence that another person or others were in the vicinity of the discharge.

The conviction for reckless discharge was reversed.

See Also

Episodes 215 - People v. Olivieri, 2016 IL App (1st) 152137 (August) (Sympathetic Nervous System Reaction Wins The Day In This Gun Case)

Citizen's Arrest Made By Off Duty Officer Way Outside His Jurisdiction

Mar 28, 2019 10:26

Description:

People v. Williams, 2017 IL App (3d) 150879 (February). Episode 312 (Duration 10:26)

Off duty officer outside his jurisdiction stops defendant for swerving; this leads to a DUI arrest.

Facts

Off duty officer is on on his way home after a shift.

He is in an unmarked squad car equipped with a radar gun. He is still in his police uniform. He is driving in another county when he sees defendant driving in the opposite lane towards him.

Defendant is going 60 in a 25 and swerves into the officer’s lane almost striking the off duty officer’s car.

The off duty officer uses his personal cell to call 911 and to get an officer from the jurisdiction out to the scene.

The off duty officer follows defendant to a driveway where he engages him in conversation. He takes his DL and tells him to wait for the Lockport police officer to get there.

When Lockport PD gets there defendant fails the FSTs and he is arrested for DUI.

More Details

The record reveals defendant voluntarily stopped his vehicle once he arrived at the driveway of a friend’s house.

The off-duty Palos Hills police officer did not activate his lights to effectuate a traffic stop at any point in this process.

Instead, defendant voluntarily parked and exited his vehicle without any directive from the off-duty officer.

Defendant was on foot when the off-duty Palos Hills police officer approached defendant and struck up a conversation.

Defendant voluntarily stopped walking in order to speak to the off-duty Palos Hills police officer.

During this conversation, the off-duty Palos Hills police officer asked if defendant had been drinking, asked for defendant’s driver’s license, and instructed defendant to wait with the officer in the driveway until the Lockport police department could reach that location.

Shortly thereafter, the Lockport police officer arrived and spoke to both men.

The off-duty Palos Hills police officer spoke to the Lockport police officer about the erratic driving and improper lane use he witnessed on the night of the incident.

Trial Court

The trial court noted it was undisputed that the Palos Hills police officer was off duty and outside of his jurisdiction when the officer first observed defendant’s vehicle traveling towards him on the roadway.

The court expressed doubts about “the truthfulness and accuracy of the officer’s testimony as it relates to the series and sequence of the officer’s observations.

The court’s findings implied that the court believed the off-duty Palos Hills police officer first used the radar gun to measure defendant’s speed before observing defendant commit the other offenses.

The trial judge stated that when making an extraterritorial arrest, an off-duty police officer may not use powers of his office that are unavailable to a private citizen to obtain evidence. The trial court emphasized that it believed the evidence obtained from the radar gun was the true reason for the stop, not the improper lane usage described by the off-duty police officer. The trial judge was concerned that the Lockport police officer did not charge defendant with an improper lane usage violation.

For these reasons, the trial court judge questioned the off-duty police officer’s “conclusion that the stop was predicated on the lane violation” independent from information gathered by the use of the radar gun.

Accordingly, the trial court granted defendant’s motion to quash the DUI arrest and suppressed all evidence obtained as a result of the first unlawful stop.

Citizen's Arrest

At common law, a police officer cannot lawfully arrest a suspect outside of the jurisdiction that appointed the officer unless acting in “fresh pursuit” of a suspected felon fleeing from that jurisdiction.

An exception to the common law rule arose from section 107-3 of the Code of Criminal Procedure of 1963 (the Code), which allows a private person to arrest another person when “he has reasonable grounds to believe that an offense other than an ordinance violation is being committed.” 725 ILCS 5/107-3.

Under section 107-3, a police officer acting outside of his jurisdiction retains all of the rights of an ordinary citizen to effectuate a citizen’s arrest.

However, an extraterritorial arrest by an officer acting in the capacity of a private citizen will not be upheld by a court pursuant to section 107-3 where the officer, acting as a citizen, relies on information gathered by using powers of his office to create reasonable grounds for the arrest.

What About A Radar Gun?

Powers of office have been construed to include the use of a radar gun because this device is generally unavailable to private citizens. See People v. Lahr, 147 Ill. 2d 379, 383 (1992).

Analysis

Here, an off-duty police officer, acting outside his jurisdiction, stopped defendant for improper lane usage. Improper lane use is an “offense other than an ordinance violation” for the purposes of creating the authority to effectuate a citizen’s arrest under section 107-3 of the Code. See People v. Kleutgen, 359 Ill. App. 3d 275, 279 (2005).

However, the Lockport police officer conducted his own investigation of the DUI offense after arriving on scene.

It was the Lockport police officer that elected to arrest defendant for DUI and speeding, but did not issue a citation for improper lane usage.

The case law provides that the Lockport police officer was not required to charge defendant with all minor violations witnessed by the off-duty Palos Hills police officer because after the stop, the Lockport police officer became aware of a more serious violation. See People v. Goestenkors, 278 Ill. App. 3d 144, 149 (1996).

The reviewing court concluded that the Lockport police officer’s decision not to charge defendant with improper lane usage is not outcome determinative. In spite of these unusual events, the appellate courts said the trial court’s ruling misapplies existing case law.

In People v. Gutt, 267 Ill. App. 3d 95, 99 (1994), the court upheld an extraterritorial arrest, similar to the case at bar. In that case, the off-duty officer first used a radar gun to obtain evidence but later observed the defendant fail to use his turn signal.

Holding

The same circumstances exist here and support the lawfulness of defendant’s arrest for improper lane usage before the Lockport police officer made it to the scene.

The holding is that an off-duty police officer’s use of a radar gun outside of his jurisdiction, before personally witnessing a driver commit other traffic offenses unrelated to excessive speed, will not taint subsequently developed probable cause to conduct an arrest by the officer acting in his civilian capacity.

Reversed and remanded for further proceedings.

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

Feb 25, 2019 24:33

Description:

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

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

Attorney Anthony Cameron

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"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 Illinois Crime Related Forfeiture of Vehicles Illinois Crime Related Forfeiture of Property Eight Amendment of The United States Constitution Illinois Innocent Owner Hearing Article 36 Eight Amendment Statement on Proportionality 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.

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This Feels A Little Like Sheriff Rosco P Coltrane

Feb 18, 2019 13:45

Description:

People v. Bowden, 2019 IL App (3d) 170654 (February). Episode 591 (Duration 11:29)

Another example of evidence that was admitted to demonstrate the course of the police investigation.

Roscoe P Coltrane Traffic Stop

Facts

The officer was following defendant’s vehicle, in Carthage, Illinois, in the westbound lane of Highway 136.

The westbound lane was defined with a solid white fog line on the right and two solid yellow lines on the left. The officer testified that the single westbound lane of Highway 136 became two lanes that were divided by a white dashed line.

He observed that defendant had continued to follow along the right-hand white fog line and crossed over the white dashed line that originated from the right-hand fog line without using a turn signal.

The officer stated, “I think he continued a little bit with the left lane before moving back towards the fog line if I remember correctly.” He initiated a traffic stop, discovered defendant’s driver’s license had been suspended, placed defendant under arrest, and found methamphetamine when searching defendant’s person incident to the arrest. Defendant’s vehicle was subsequently towed.

During an inventory search of defendant’s vehicle, additional methamphetamine was found.

Highway 136

The juncture of Highway 136 at issue was “a white dashed line that starts at the white fog line on the right-hand side of the westbound lanes that moves out into the center of the roadway as the lane—the single lane splits into two lanes.”

There were essentially two fog lines where the single lane splits into two lanes, one solid and one dashed line. Defendant crossed over the white dashed line and proceeded in the right-hand lane without signaling a lane change. By doing so, the officer believed that defendant violated section 11-804(d) of the Vehicle Code (id. § 11-804(d)). The officer pulled defendant over for failure to signal the lane change because he believed defendant had moved from the left lane into the right lane.

Trial Judge Ruling

After viewing the video the trial judge stated:

“The Court can honestly say that it has probably driven this roadway a thousand times over the course of living in this area. And I don’t think any of those times, not only have I traveled the exact same way that the defendant traveled, staying next to the fog line, the Court has never considered that to be a lane change. It’s not a lane change until such time that you would actually be in a lane and then if you go either way, that becomes a lane change. This is confusing at best. But I don’t believe that a signal was required by defendant.”

The trial court also found that the traffic stop was not objectively reasonable because defendant did not commit any traffic violation.

The trial judge stated, “I did not see any violation that the defendant made.”

When Turn Signal Required

Section 11-804(d) of the Illinois Vehicle Code, in pertinent part, provides:

“(d) The electric turn signal device must be used to indicate an intention to turn, change lanes or start from a parallel parked position...” 

Illinois Vehicle Code (625 ILCS 5/11-804(d)).

Analysis

Our review of the video shows that defendant did not move from the left lane into the right lane.

Rather, the video shows that defendant continued to proceed alongside the right-hand white fog line, when a white dashed line abruptly appeared from the right-side white fog line and continued toward the middle of the westbound lane, eventually dividing the single lane into two separate lanes. Defendant crossed the white dashed line as the dashed line appeared on the road in front of him, with the single lane eventually becoming two lanes that were separated by the white dashed line.

At the point defendant crossed over the white dashed line, however, he was continuing along the right-side fog line and did not make any abrupt movements in either direction. Thus, there was no evidence presented indicating that defendant had changed from one lane to another lane.

Instead, the evidence showed that two separate lanes had not yet been formed at the point defendant crossed over the white dashed line. See 625 ILCS 5/1-136 (West 2016) (defining a “[l]aned roadway” as a “roadway which is divided into two or more clearly marked lanes for vehicular traffic”). Therefore, the trial court’s finding that defendant did not execute a lane change was not against the manifest weight of the evidence.

Decline To Follow Theus

We decline the State’s request for this court to follow Theus.

First, we hold that section 11-804(d) is not ambiguous. Section 11-804(d) is clear in its requirement that a turn signal “must be used to indicate an intention to *** change lanes.” 625 ILCS 5/11-804(d).

Despite its eventual holding that section 11-804(d) was ambiguous in its requirement of turn signal when a single lane divides into two separate lanes, the Theus court acknowledged that the signal requirement of 11-804(d) when changing lanes was unambiguous. See Theus, 2016 IL App (4th) 160139, ¶ 34.

Second, we believe that the issue of whether a lane change occurred is a factual determination. The trial court in Theus found that “there was no movement made from one marked lane to another” to require a lane change. ¶¶ 9, 18. Based on that factual determination in Theus, the trial court had found there was no violation of section 11-804(d) of the Vehicle Code.

Third, the facts in Theus are distinguishable from this case. In Theus, the single lane widened with white dashed markings appearing, almost without warning, “in front of” the driver’s vehicle, forming two separate lanes, and the officer testified that the driver had made an abrupt lane change without activating a turn signal. In this case, the single westbound lane of Highway 136 widened, with the white dashed marking originating from the right side of the road toward the center of the road and those white markings abruptly crossing in front of defendant’s vehicle.

The officer said defendant had continued in the newly forming left lane before moving back toward the right-hand fog line, the video showed that defendant continuously followed along the right-hand fog line with no abrupt movement in either direction.

Holding

Therefore, the officer’s belief that defendant committed a traffic violation for failing to signal a lane change was not objectively reasonable where no lane change had occurred. Defendant crossed the white dashed lines as he continued traveling in the single westbound lane, prior to the dash marks establishing two separate lanes. Given these circumstances, Officer Glenn’s belief that defendant had changed lanes was not objectively reasonable.

Accordingly, the officer's belief that a lane change occurred to require a turn signal was not objectively reasonable where the evidence showed that defendant continued following along the right-side fog line and could not have changed lanes at that particular juncture of the road because the white dashed road markings had not yet divided the single lane into two separate lanes.

Therefore, the trial court did not err in granting defendant’s motion to quash arrest and suppress evidence.

See Also 

Episode 579 - An Update On The Barney Fife Traffic Stop

Demon Tells Defendant To Test His Mortality: He Collides Into A Mother's Mini-Van

Feb 15, 2019 13:05

Description:

People v. Oelerich, 2017 IL App (2d) 141281 (February). Episode 295 (Duration 13:05)

Defendant had severe mental delusions and issues when he drove his car head on into a lady's mini van.

Facts

Defendant was either trying to kill himself or test to see if he was invisible when he drove his mother's Cadillac into a minivan with a mother and her two children.

The mother died.

Defendant was convicted of murder.

Mentally Ill

He had been on Haldol, an antipsychotic drug.

He was suffering from schizophrenia and was demonstrating very unusual behavior before the crash, immediately after the crash and all throughout the investigation.

One expert concluded in part that, although defendant “over-reported” symptoms of psychosis, he was not feigning mental illness.

Rather, his elevated scores on the scales for persecutory ideation and paranoia showed that, long after the crash, he continued to have delusional thinking about being persecuted or followed and still had paranoid thinking.

Another expert disclosed “elevated levels of impairment in reality testing,” i.e., “someone who really has a difficult time evaluating objective reality, really had a break with reality.”

Defendant continued to have paranoia and feelings of persecution.

Yea, But What Did He Know?

The State argued that, even had defendant believed that crashing his car into the Nissan was some sort of divine calling, the evidence still proved that he knew that the probable result was death or great bodily harm to another person.

He Wanted The Lesser Included

Defendant argued that his state of mind negated a finding beyond a reasonable doubt that he had had the mens rea for murder. He had had no idea what he was doing.

The main defensive strategy was to ask for the lesser included of reckless homicide.

Defendant never sought nor plead an insanity defense.

His Main Argument

Defendant contends that the evidence, even when viewed most favorably to the State, did not prove beyond a reasonable doubt that, when he drove the Cadillac into the Nissan, he knew that there was a strong probability that the result would be death or great bodily harm to another.

Defendant contends, however, that the evidence left a reasonable doubt of whether he knew that his act created a strong probability of death or great bodily harm. Defendant relies primarily on the evidence that his mind was severely disordered on the evening of the crash.

First Degree Murder v. Reckless Homicide

Defendant notes that, to obtain a conviction of first-degree murder, the State had to prove that he knew that his act created a strong probability of death or great bodily harm. 720 ILCS 5/9-1(a)(2).

By contrast, to obtain a conviction of reckless homicide, the State had to prove only that defendant’s act was likely to cause death or great bodily harm and that he performed it recklessly. 720 ILCS 5/9-3(a).

A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that circumstances exist, or that a result will follow, and that disregard grossly deviates from the standard of care that a reasonable person would exercise in the situation. 720 ILCS 5/4-6.

Analysis

Both his mental state and the character of his act are pertinent; the difference between the offenses is what he knew.

“Knowing” murder requires proof of (1) knowledge of (2) a strong probability. 720 ILCS 5/9­ 1(a)(2).

Reckless homicide requires proof of (1) “conscious disregard” of (2) a substantial (and unjustifiable) risk. 720 ILCS 5/4-6.

The respective criteria numbered (1), which address a defendant’s mental state directly, do not explain the difference between the offenses.

The reviewing court saw no meaningful distinction between “knowledge” and “conscious disregard,” at least not one that aids the defendant.

The Mental States

To consciously disregard something, one must know it.

Therefore, the distinction between the two offenses must lie in the difference between the respective criteria numbered (2).

A “strong probability” is more than a “substantial risk.” This does not mean that defendant’s mental state is irrelevant. Even if he knew that there was a “substantial risk” that his act would cause death or great bodily harm, he might not have known that it created a “strong probability” of this result.

What Did He Know?

The issue is not whether the evidence proved that the act, considered objectively, created a strong probability of death or great bodily harm but whether the evidence proved that the act, considered objectively, created a strong probability of death or great bodily harm and that defendant was aware of that strong probability—and not merely of the substantial risk of death or great bodily harm.

This, indeed, appears to be the nub of defendant’s argument on appeal and the reason that he emphasizes his impaired mental state as negating his guilt of murder.

What Do The Mentally Ill Know?

A person whose perception of reality is compromised might know that he faces a risk of causing a given result but not that he faces a strong probability of causing it.

Defendant contends that the evidence required the jury in his case to so conclude.

The reviewing court said it saw no serious argument that defendant’s act itself did not create a strong probability of causing death or great bodily harm.

The Act

Viewed most favorably to the State, the evidence showed that defendant crossed the median while driving his car at no less than 65 miles per hour, approximately twice the posted speed limit, and rammed it directly into the front of a moving vehicle. That this act created a strong probability of death or great bodily harm cannot be disputed.

State's Burden

The State’s burden was to show guilty knowledge, not to prove that defendant was legally sane at the time of the crash.

The State did not need to prove that defendant intended to kill or cause great bodily harm to another person. It needed to prove only that he knew of the strong probability that he would cause at least one of those results.

As noted, had defendant suffered no psychosis, the evidence would not have been close.

Ordinarily, it is a perfectly reasonable inference that a driver who proceeds at twice the posted speed limit, crosses the median into oncoming traffic, and swerves sharply into the front of a vehicle going the other way, hitting it head-on, knows that he is creating a strong probability of killing or severely harming another person. It would be difficult to imagine a reasonable jury not finding guilty knowledge under this scenario.

How His Illness Affected His Mental State

The evidence of defendant’s psychosis, its severity, and its close relationship to his conduct did not create a reasonable doubt of his guilty knowledge.

A schizophrenic does not lose all contact with reality or all ability to absorb and retain information. And defendant’s apparent delusions did not necessarily cast doubt on whether he knew that his conduct could easily kill or severely injure another person.

Acting On A "Calling"

His belief that he was acting on a “calling” to test his immortality was not inconsistent with a recognition that he would probably get another person killed or severely injured.

Orders From Demons

Defendant’s delusion that he was acting under orders from demons did not negate his recognition that he was causing an automobile collision that would probably be fatal or greatly harmful to another.

Delusional Motive

It is important to note affirmative evidence, beyond the nature of defendant’s conduct itself, that he was aware of reality to a great degree and did perceive the consequences of his act.

His delusional motive itself provides some such evidence.

The jury reasonably inferred that, in believing that he had to test whether he was immortal by crashing his car into another vehicle, defendant recognized that such crashes ordinarily carry a strong probability that someone will be killed (and, a fortiori, severely injured). Otherwise, he would not have considered his act a test of his invincibility.

And if he knew that his conduct could kill him, at least were he not protected by his “calling,” it was fair to infer that he knew that it could kill someone else.

His Words

Other aspects of defendant’s conduct also helped the jury to conclude that his contact with reality had not been so attenuated that he could not have recognized what otherwise was an obvious probability.

Defendant drove to his parents’ home, picked up his mother’s car, and managed to drive it on Cedar Lake Road until he deliberately steered it into the Nissan.

He told the OnStar operator that he had just driven into another vehicle; he was not so deluded that he did not realize what had just happened.

It was a fair inference that, having recognized the reality of the crash just after it occurred, he had also recognized the probability of the crash and its consequences just before it occurred.

Defendant also recognized these consequences later, when he talked to police.

Holding

Here, as we have explained, the circumstantial evidence was extremely strong, based on the character of defendant’s act and its surrounding circumstances. Moreover, the expert psychiatric testimony did not negate the inference that defendant knew the natural and probable consequences of his act, despite the distorted thinking that accompanied it.

Murder conviction affirmed.

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

Feb 13, 2019 10:23

Description:

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.

Surveillance Privilege Unjustified When Cop Is The Only Witness

Feb 8, 2019 08:56

Description:

In re Manuel M., 2017 IL App (1st) 162381 (January). Episode 292 (Duration 8:55)

Accused minor was not allowed to cross the officer on the location he said he made his observations.

Facts

The respondent was arrested for reckless conduct after he was seen flashing gang signs at passing cars near Throop Park in Chicago.

When the respondent was searched following his arrest, a pistol was found in his pants.

The State alleged in a petition for adjudication of wardship that the 16-year-old respondent committed two counts of AUUW and one count of UPF.

What Cop Said He Saw

Using binoculars, the office observed the respondent and two other individuals near the park entrance flashing gang signs at passing vehicles, causing the vehicles to swerve toward oncoming traffic or parked cars.

The officer said the group was endangering drivers and pedestrians.

After observing the respondent and his companions for 15 to 20 minutes, he drove to the park with other officers. Upon arriving at the park, he arrested the respondent for reckless conduct, patted him down, and recovered a pistol from his pants.

Officer Refused To Disclose Location

On cross-examination, defense counsel asked the officer to disclose the exact location from which he observed the respondent and his two companions flashing gang signs at passing vehicles.

The officer stated that disclosing the location would endanger his life and the lives of every officer that uses the location. The prosecutor objected to defense counsel’s question on the grounds that revealing the location would endanger officer safety.

Following arguments on the objection, the trial court elected to conduct an in camera examination.

The trial judge ruled that she would not compel disclosure to his "exact location" from which he conducted his surveillance of the park but would permit the defense to inquire regarding "distance, lighting, and everything else."

Issue On Appeal

The reviewing court agreed with the minor that his constitutional right of confrontation was violated when his attorney was prevented from questioning the officer as to the exact location from which he conducted his surveillance and that his constitutional rights to confrontation and to a public trial were violated when, during the in camera examination both he and his attorney were excluded, the prosecutor was, nonetheless, permitted to question the officer and argue in support of the State’s objection to disclosure of the surveillance location.

Surveillance Privilege

Illinois recognizes a qualified privilege from disclosing secret surveillance locations in a criminal proceeding against the target of the surveillance.

When, as in this case, the State invokes the surveillance location privilege at trial, it bears the initial burden of demonstrating that the privilege should apply.

The State can satisfy its initial burden by establishing that the surveillance location was located on private property with the permission of the owner or in a useful location which would be compromised by disclosure.

Once the State has carried its burden, the defense can overcome the privilege by showing that the surveillance location is relevant to the defense or essential to the fair determination of the case.

In Camera Examination

In making its determination of whether to apply the privilege and prevent the defense from inquiring into the exact location from which the surveillance was conducted, the trial court may conduct an in camera examination of the surveillance officer out of the presence of the defendant and his attorney.

Following such a hearing, the court should weigh the defendant’s need for the information against the public’s interest in nondisclosure.

Analysis

The reviewing court said that, the trial court failed to give adequate consideration to the respondent’s need to ascertain the exact location from which the officer conducted his surveillance of Throop Park.

Cross-examination is the principal means by which the credibility of a witness is tested.

The officer was the only witness to testify for the State, and its case against the respondent rested entirely upon his testimony. The defense challenged the credibility of the officer’s testimony that he observed the respondent and his companions flashing gang signs at passing cars from a location more than one block away.

Clearly, the ability to see Throop Park from his point of observation is relevant to the credibility of his testimony; and it was the officer’s observations from that point which supplied the probable cause for the respondent’s arrest and subsequent search leading to the discovery of the pistol underlying the AUUW and UPF charges for which he was on trial.

By sustaining the State’s objection to defense counsel’s inquiry as to the exact surveillance location, the trial court severely hampered the respondent’s ability to test the credibility of the only witness against him on a material issue.

As this court held in Knight, when the case against a defendant turns almost exclusively upon the uncorroborated testimony of the police officer who conducted the surveillance, “disclosure must almost always be ordered."

Holding

The trial court abused its discretion by sustaining the State’s objection to the cross-examination of on that issue.

Defendant’s confrontation and public trial rights were violated.

Also

This panel said the the in camera examination should be conducted by the trial court outside the presence of both the State and the defense. It said that the trial court’s in camera examination of the surveillance officer should be limited to a disclosure of the exact location from which the surveillance was conducted, nothing more.

Any testimony or argument addressing the public interest to be protected by nondisclosure of the location should be made in open court.

Allowing the State to examine a witness in a proceeding outside the presence of the defendant and his attorney, as occurred in this case, violates both the defendant’s right of confrontation and his right to a public trial as guaranteed by the United States Constitution and the Constitution of Illinois.

Permitting the State to make an ex parte argument in support of an objection, as also occurred in this case, violates a defendant’s constitutional right to a public trial.

Reversed and remanded.

See also https://illinoiscaselaw.com/clecourses/defendant-had-a-right-to-know-the-surveillance-location/

An Update On The Barney Fife Traffic Stop

Jan 14, 2019 16:26

Description:

What is happening in Illinois with the mistake of law doctrine?

Episode 579 (Duration 16:25) [

In Re Maurice J. 

In re Maurice J., 2018 IL App (1st) 172123 (June). Episode 506 (Duration 8:18)

Officer not knowing the traffic law he says he was enforcing is not the same as being reasonably confused about the law.

Gun Case

The minor respondent was charged in juvenile court and adjudicated for UUW under 21. The minor was sent to JIDOC

Facts

Police see a car “go around a speed bump.” 

Specifically, the driver went toward the curb so that one set of tires was on the speed bump and the other set was level. Although the driver steered around the bump, he did not swerve.

The Stop & The Gun

After the traffic violation, the officer  activated the emergency equipment in order to curb the vehicle.

From 12 to 15 feet away, he “observed the front passenger pass a handgun to the rear passenger.”

The officer could see the gun because the police car was an elevated SUV and illuminated the inside of the car.

Everyone Removed

The driver and respondent, who was in the front passenger seat, were immediately removed form the car and handcuffed. The officer testified that he knew to look for the firearm “[i]n the direction [that] the offender gave it to the co-offender.”

Moreover, the officers searched the occupants and found a firearm in a purse. 

Wells was released with a traffic citation for driving around the speed bump.

Issue

On appeal, respondent first asserts that the trial court erred in denying his motion to suppress evidence because it was not reasonable for an officer to believe that the driver committed a traffic violation.

Specifically, the testimony failed to show that the car drove upon or through private property to avoid a traffic control device.

Fourth Amendment

Under the fourth amendment and the Illinois Constitution of 1970, individuals have the right to be free from unreasonable searches and seizures. U.S. Const., amend. IV, and Ill. Const. 1970, art. I, § 6.

In addition, the stop of a vehicle for a suspected violation of law constitutes a seizure, regardless of whether the seizure is brief and is made for a limited purpose. People v. Gaytan, 2015 IL 116223, ¶ 20. Pursuant to Terry v. Ohio, 392 U.S. 1 (1968), police officers may conduct a brief, investigatory stop if the officer reasonably believes that the individual in question committed or is about to commit a crime.

Mistakes Of Law

In Heien v. North Carolina, 574 U.S. ___, ___, 135 S. Ct. 530, 536 (2014), the United States Supreme Court held that a reasonable suspicion can be supported by an officer’s misunderstanding of the scope of a law.

Consequently, a police officer does not violate the fourth amendment when he stops a vehicle based on an objectively reasonable, albeit mistaken, belief that the driver’s conduct leading to the stop violated traffic laws. 

This reflects that the fourth amendment permits government officials to make some mistakes.

…but

The Court stated in Heien, “an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.” Heien, 574 U.S. at ___, 135 S. Ct. at 539.

It’s An Objective Standard

That being said, courts apply an objective standard in determining whether a police officer made a reasonable mistake of law, without examining the particular officer’s subjective understanding.

Respondent essentially contends that, even taking the officer’s account as true, the traffic stop lacked a reasonable articulable basis.

The Traffic Code On Avoiding Traffic Control Devices

Section 11-305 of the Illinois Vehicle Code states, in pertinent part, that

“[i]t is unlawful for any person to leave the roadway and travel across private property to avoid an official traffic control device.”

625 ILCS 5/11-305(b).

Thus, section 11-305 clearly applies only where a driver enters private property.

Accordingly, the ordinance unambiguously applies only where the driver enters private property or an alley, or drives on a traffic island.

This Is Pretty Clear

We find the distinction between the street itself and private property, alleys, or traffic islands to be obvious.

The State nonetheless argues that the officer could have reasonably, albeit mistakenly, believed that this was a violation of the ordinance because maneuvering around a speed bump while remaining in the roadway is similar to driving onto a traffic island. While vehicles are permitted to be driven on a public street in most instances, they should almost never be driven on a raised traffic island.

We categorically disagree.

No Mistake Of Law Here

 The case before us does not present an officer’s misunderstanding of the law. Instead, it presents an officer’s failure to know the law.

Here the officer’s mistaken belief that the driver committed a traffic violation was unreasonable where Wells never left the street to avoid a speed bump.

Holding

It follows that the seizure of respondent as an occupant in Wells’s car, which occurred when the police activated their lights and siren, was also unreasonable. Consequently, respondent was entitled to the suppression of such evidence. 

Accordingly, we reverse the adjudication of delinquency outright. 

People v. Mueller

People v. Mueller, 2018 IL App (2d) 170863 (December). Episode 572 (Duration 8:47)

Jeep touches he traffic lines 3 times and gets stopped, reasonable?

Charges

Defendant, Amy Lynn Mueller, was charged with driving under the influence of alcohol (625 ILCS 5/11-501(a)(1), (a)(2)) and improper lane usage (ILU) (625 ILCS 5/11-709(a)).

Innocent Left Turn

Defendant’s Jeep was stopped in the left-turn lane at a light at the intersection at 1:40 am on a rural rode. When the light turned green, she turned left onto Route 31. There was nothing unusual in the turn.

The sheriff’s deputy followed defendant. She was not speeding.

First Touch

Then Jeep’s driver’s-side tires rolled onto the yellow center line and touched it for a few seconds. The vehicle did not cross the line but returned to its lane.

Did It A Second Time

Then a second time after traveling some distance, the Jeep’s passenger’s-side tires touched the white fog line but never crossed over it. The Jeep never left the lane. The Jeep moved back toward the center of the lane without doing anything unusual.

Happened A Third Time

Then a third violation was when the Jeep’s passenger’s-side tires again rode on the white fog line. This was “momentary.” The tires never crossed over the line. Other than the three incidents of what he regarded as ILU, the sheriff’s deputy did not see defendant violate any traffic laws.

Jeep Stopped

He acknowledged that the stretch of road on which he followed defendant was not straight and had “some twists and turns.” Also, he acknowledged that the video system in his squad car had been inoperable since October 2016 and that he had not requested any repair.

Based on the three incidents alone, he stopped the Jeep nearly a mile from where he first saw it.

Trial Court Findings

The trial court said the sheriff’s deputy’s testimony had been “problematic. He either didn’t remember important details or was flippant with defendant’s attorney.  The sheriff’s deputy never saw the Jeep’s tires cross over either the yellow center line or the white fog line, nor did he observe any jerky or erratic driving corrections.

The three lane-line touches occurred over a mile-long twisting and turning stretch of road.

The trial court noted that, current law required evidence that defendant’s tires crossed over the lane lines to create a reasonable suspicion of ILU.

That had not occurred.

Issue

She moved to quash her arrest and suppress evidence, contesting the initial stop of her vehicle for ILU. 

Question: Was there sufficient reasonable suspicion justifying the traffic stop? Does a vehicle have to cross the line or does merely touching it register as an improper lane usage?

Illinois Traffic Code on Lane Usage

Section 11-709(a) states that,

“Whenever any roadway has been divided into 2 or more clearly marked lanes for traffic,..vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”

625 ILCS 5/11-709(a).

Crossing The Lane Will Get You Stopped

Although the statute requires a driver to remain entirely within a single lane only as nearly as practicable, it is settled that an officer may stop a vehicle for driving outside its lane for no obvious reason, without further inquiry into practicability. Hackett, 2012 IL 111781, ¶¶ 27-28.

To be clear what we are asking here is if the sheriff’s deputy had a reasonable suspicion that defendant failed to drive “entirely within a single lane” (625 ILCS 5/11-709(a)), when (1) her driver’s-side tires touched, but did not cross, the yellow center line or (2) her passenger’s-side tires touched, but did not cross, the white fo

Trial Court’s Ruling

The trial court relied on

People v. Hackett, 2012 IL 111781,  ¶ 9 People v. Smith, 172 Ill. 2d 289, 297 (1996) People v. Flint, 2012 IL App (3d) 110165, ¶¶ 8, 17 and People v. Leyendecker, 337 Ill. App. 3d 678, 680, 682 (2003)

…which, it stated, all held that a person commits ILU only when his or her vehicle crosses the center line or the fog line.

However, in none of those cases did the defendant merely touch the line without crossing it. Each motorist crossed the line. In each case the court held that crossing the line is ILU, but in no case did it explicitly hold that only crossing the line is ILU.

What Is A Traffic Lane?

The Illinois statute does not define “lane” and does not specify whether either a center line or a fog line is part of the “lane” in which the driver is traveling.

Although the Code does not specifically define “lane,” it defines “laned roadway” as

“a roadway which is divided into two or more clearly marked lanes for vehicular traffic.”

625 ILCS 5/1-136.

As a matter of established usage, a “lane” is “a strip of roadway for a single line of vehicles.” Merriam-Webster’s Collegiate Dictionary 652 (10th ed. 2001). As these definitions suggest, in common practice, a traffic “lane” is one in which vehicles legally and customarily are driven toward their destinations.

Dividing lines or boundary lines, by contrast, are legally and customarily used only to change lanes, turn, or make other maneuvers (see 625 ILCS 5/11-709(a) (vehicle “shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety”)).

If a line’s purpose is to divide two lanes, then a vehicle has not changed lanes until it has crossed the line.

Moreover, this interpretation is consistent with the official rules of the road, in Illinois and elsewhere. “Yellow center lines separate lanes of traffic moving in opposite directions.”  Ill. Sec’y of State, 2018 Illinois Rules of the Road 76 (Mar. 2018)), https://www.cyberdriveillinois .com/publications/pdf_publications/dsd_a112.pdf. [https://perma.cc/3GA7-MJGH].

Not Ambiguous Either

We conclude that the statute is unambiguous. Therefore, Heien and Gaytan do not apply and the stop cannot be validated as based on a reasonable mistake of law.

Analysis

In any event, we note that a stop for ILU is valid when “a police officer observes multiple lane deviations, for no obvious reason.” Hackett, 2012 IL 111781, ¶ 28.

Here, even if defendant’s multiple touches could be considered “lane deviations,” the road’s “twists and turns” provided an innocent (and obvious) explanation for those brief touches.

Holding

Thus, under any construction of section 11-709(a), the trial court correctly granted defendant’s motion to quash and suppress. We affirm the order of the circuit court of McHenry County.

People v. Walker

People v. Walker, 2018 IL App (4th) 170877 (September). Episode 536 (Duration 10:58)

Turns out we’ve been misreading the “proper turn” statute all along.

Gist

Defendant was stopped for an improper left turn and received a ticket for driving while his license was revoked (625 ILCS 5/6-303 (West 2016)).

He filed a motion to suppress evidence from the stop, asserting the police officer who stopped him lacked reasonable, articulable suspicion defendant had violated the law.

State Argued

The State argued defendant was required to turn into the nearest westbound lane pursuant to section 11-801 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11­ 801). Because defendant did not do so, the traffic stop was valid.

According to the State, section 11-801(a)(2) unambiguously required defendant to enter the leftmost lane legally available when he executed the left turn in this case. In the alternative, the State argues section 11-801(a)(2) is ambiguous.

The Turn

Around 12:30 a.m. on defendant drove his car out of a gas station by making a right turn onto Hershey Road in Bloomington, Illinois. Defendant then proceeded north on Hershey Road, eventually moving into the left turn lane as he approached the intersection of Hershey Road and Empire Street.

The traffic light was red, and defendant stopped at the intersection.

When the light turned green, defendant made a left turn onto Empire Street, exiting the intersection into the farthest available westbound lane, which was the northernmost lane. After making his left turn, defendant was proceeding in a westerly direction on Empire Street, which had two lanes for westbound traffic.

Immediately after defendant exited the intersection, an officer stopped defendant for making an improper left turn because defendant did not exit the intersection into the nearest westbound lane of traffic on Empire Street.

Required Position And Method Of Turning

Section 11-801(a)(2) provides the following:

“(2) The driver of a vehicle intending to turn left at any intersection shall approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle, and after entering the intersection, the left turn shall be made so as to leave the intersection in a lane lawfully available to traffic moving in such direction upon the roadway being entered. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.”

625 ILCS 5/11-801(a)(2) (West 2016).

The first sentence of section 11-801(a)(2) is a compound sentence and states (1) the law as to what lane—“the extreme left-hand lane”—a driver must be in when approaching an intersection to make a left turn and (2) the law as to what lane—“a lane lawfully available to traffic moving in such direction upon the roadway being entered”—the driver should use when exiting the intersection.

The second sentence of subsection (a)(2), which is the focus of the State’s argument, states the law as to what the driver should do within the intersection: “Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.”

Analysis

Pursuant to a plain reading of section 11-801(a)(2), which we do not find to be ambiguous, defendant did not violate the law by exiting the intersection into the farthest westbound lane of traffic on Empire Street. For this court to agree with the State’s interpretation of this subsection, we would have to depart from the plain language of the statute by reading into the statute exceptions, limitations, or conditions the legislature did not express, and we would have to deem other parts of the statute superfluous.

This court would have to determine the legislature intended (1) for the last sentence of subsection (a)(2) to be read to restrict what lane a driver could exit an intersection—without any language in the sentence to that effect—and (2) for language in the first sentence—“the left turn should be made so as to leave the intersection in a lane lawfully available to traffic moving in such direction” (emphasis added)— to be ignored.

We will not interpret this statute in the manner suggested by the State.

Mistake Of Law

The United States Supreme Court in Heien v. North Carolina, 574 U.S. ___, ___, 135 S. Ct. 530, 536, 539 (2014), did hold reasonable suspicion justifying a traffic stop “can rest on a mistaken understanding of the scope of a legal prohibition” as long as the mistaken understanding of the law was objectively reasonable. With regard to the objective standard, the Court stated, “We do not examine the subjective understanding of the particular officer involved.” Heien, 574 U.S. at ___, 135 S. Ct. at 539.

In addition, the Court declared, “[A]n officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is dutybound to enforce.” Heien, 574 U.S. at ___, 135 S. Ct. at 539. According to Justice Kagan: “A court tasked with deciding whether an officer’s mistake of law can support a seizure thus faces a straightforward question of statutory construction. If the statute is genuinely ambiguous, such that overturning the officer’s judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not. As the Solicitor General made the point at oral argument, the statute must pose a ‘really difficult’ or ‘very hard question of statutory interpretation.’ [Citation.] And indeed, both North Carolina and the Solicitor General agreed that such cases will be ‘exceedingly rare.’ ” Heien, 574 U.S. at ___, 135 S. Ct. at 541. 

Holding

Based on the evidence and a plain reading of the unambiguous language of section 11-801(a)(2), defendant did not violate any statute justifying the traffic stop by exiting the intersection in the farthest westbound lane of Empire Street. As we have concluded section 11-801(a)(2) is not ambiguous, the State’s alternative argument “the traffic stop was still lawful due to the ambiguity of the statutory language” also fails.

In this case, the plain language of section 11-801(a)(2) does not present a difficult or hard question of statutory interpretation. The statute clearly allows a driver making a left turn to exit the intersection into any available lane of traffic moving in the proper direction. The officer’s misunderstanding of section 11-801(a)(2) was not objectively reasonable. As a result, the officer’s stop of defendant’s vehicle was not justified. As we have found the stop of defendant’s vehicle was not constitutionally justified, we next turn to the State’s argument the exclusionary rule should not be applied under the circumstances in this case.

For the reasons stated, we affirm the circuit court’s judgment.

See Also

Episode 073 – People v. Gaytan (ball hidge on a license plate blocking the numbers)

Episode 238 – People v. Theus (defendant fails to signal when rodeway jumped from one to two lanes)

Heien v. North Carolina, 135 S. Ct. 530 (2014), (truck stopped because of broken tail light)

Episode 232 – People v. Lubienski, 2016 IL App (3d) 150813 (September) (Crossing The Line One Time Justifies A Traffic Stop)

Episode 434 – People v. Lomeli, 2017 IL App (3d) 150815 (December) (Traffic Stop Based On Dangling Rosary Is Legal)

Episode 142 – People v. Little, 2016 IL App (3d) 130683 (February) (Reasonable Suspicion Does Not Require Ruling Out All Innocent Behavior)

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The Top 10 Criminal Law Cases In 2018

Dec 10, 2018 22:58

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Here are the top 10 criminal opinions released in 2018 by the Illinois court system. Episode 567 (Duration 22:57)

Top 10 Illinois Criminal Law Opinions in 2018

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Top 10 Most Important & Significant Criminal Opinions Released In 2018 ➊ The SCOTUS Cases

Carpenter v. United States, 585 U. S. ____ (2018) (June). Episode 508 - The first two opinions here are not even Illinois cases. These are 2 SCOTUS cases that likely will change police procedures all up and down this state. Carpenter made it clear police need a warrant to capture your CSLI (cell site location information).

Collins v. Virginia, 584 U.S. __ (2018) (May). Episode 495 -Another SCOTUS opinion. Again, the high court limited police warrantless searches rather than expand them. Police need a warrant to search a vehicle on private property.

❷ High Court Reverse

In Re N.G., 2018 IL 121939 (August). Episode 524 - This never happens. The Illinois Supreme Court admits they got something wrong and fixed before years of litigation were wasted. The expressly overruled McFadden (see below) invalidated gun convictions are dead in the water and can't be used for anything. 

People v. McFadden, 2016 IL 117424 (June). Episode 187 - Originally, the Illinois Supreme Court said prosecutors could use invalidated gun convictions for charging and enhancement purposes. This is what they said was wrong.

❸ Apartments v. Houses

People v. Bonilla, 2018 IL 122484 (October). Episode 557 - Here the Illinois Supreme Court was pushed into deciding if apartments have less constitutional protection than houses. It said they have the same level of constitutional protection.

❹ Minors In Adult Court

People v. Harris, 2018 IL 121932 (October). Episode 551 - After changing the way minors are sentenced in adult court, the question popped up about what to do with young adults between 18 and 21 years of age. Many of the reasons for treating minors differently could also apply to this group of defendants. The Illinois Supreme Court said maybe, but 17 and under is where the line is drawn, and it's a hard line. Any young adults over the age of 18 looking for a break need to make "as applied" constitutional challenges. Those are not impossible, but difficult to win.

People v. Rodriguez, 2018 IL App (1st) 160030 (September). Episode 457 - This could be interesting. But expect the Illinois high court to slap this down the first chance it gets. This panel of appellate judges was feeling a little adventurous when they expanded protection for youthful offenders into uncharted areas of the law.

❺ SORA Issues

People v. Bingham, 2018 IL 122008 (September). Episode 551 - 2018 was the year to challenge SORA (sex offender registration act). Some defendants were seeing some success challenging the requirement to register as punitive. The Illinois Supreme Court finally said that the Appellate Court had no jurisdiction to waive a sex offender registration requirement.

In re B.C., 2018 IL App (3d) 170025 (February). Episode 465 - It wasn't all bad news. Minors in juvenile court found it difficult to use the section in the code that allowed some of them to get off the registration rolls if they could establish that it is “more probable than not” that he poses no risk to the community. The problem was that no evaluator would ever say that. This case helped fix this.

People v. Kindelspire, 2018 IL App (3d) 150803 (October). Episode 559 - This case was just one example of many overturned "failure to register" convictions. There is talk of revamping the SORA. This was just one example of why that change couldn't come too soon.

❻ Juvenile Interrogations

In re Jose A., 2018 IL App (2d) 180170 (October). Episode 557 - We finally got a good case that lays out and explains how the new juvenile interrogation statute works.

❼ Missing Video

People v. Montgomery, 2018 IL App (2d) 160541 (October). Episode 555 - What to do, what to do about lost, destroyed, or missing video? This question never gets old. There's no clear cut answer either. Things will really get interesting when police start wearing all those body cams.

❽ Higher Scrutiny

People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode  488 - Not long ago an appellate court would have let this kind of conviction slide through. Not anymore. Wave after waver of wrongful convictions will get your attention. This reviewing court saw a case where the facts didn't add up. They flat out reverse a conviction. It's pretty clear they appellate judges thought they had the wrong guy.

People v. King, 2018 IL App (2d) 151112 (August). Episode 530 - These weren't the only 2 cases like this. But they do a good job of illustrating the scrutiny reviewing courts are now beginning to engage in. This time it was the state’s expert witness who was not allowed to get carried away with his opinion. Not that long ago this would not have been a problem.

❾ The Basics: Causation & Impartiality

People v. Nere, 2018 IL 122566 (September). Episode 541 - Every once and a while we'll catch a case that does a good job of bringing us back to the basics. Love those cases. Prepare for a PhD on "criminal causation" in this drug overdose case.

People v. Little, 2018 IL App (1st) 151954 (September). Episode 546 - This case too...This time the court was asking what it means to have an unbiased trier of fact. The case was set off when the judge appeared to have his mind made up before the defense attorney gave his closing argument. Very interesting stuff.

➓ Fines & Costs

People v. Barajas, 2018 IL App (3d) 160433 (November) & People v. Garza, 2018 IL App (3d) 160684 (November). Episode 562 - Not the sexiest issue, but these little cases go a long away reminding us how we can do something for defendants with fines and costs. Fines and costs are a mess.

What Constitutes Probable Cause For A DUI Arrest In Illinois?

Nov 20, 2018 11:25

Description:

 People v. Williams, 2018 IL App (2d) 160683 (October). Episode 558b (Duration 11:25)

Challenging this DUI traffic stop gave us a reason to review exactly what it takes for police to find probable cause for a DUI arrest in Illinois.

Probable Cause For DUI Arrest in Illinois

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  The Stop

Around 1 in the morning officer sees a car with the left-turn arrow activated. It then proceeded straight through the intersection. The car then lunged into the intersection, paused, and then continued through into the parking lot for the Elgin Mall.

The officer stopped the car.

DUI Indicia

Defendant’s speech was “kind of mumbled, slow and slurred,” and he smelled an alcoholic beverage “coming from [defendant’s] person.” Defendant advised the officer that he had come from a bar—JB’s.

Defendant said he had consumed four beers.

DUI Investigator Arrives

Suspecting that defendant might be impaired, the first officer called a second officer to the scene. The second officer was more experienced in DUI investigations. The second officer arrived a few minutes later.

The DUI investigator testified that he spoke with defendant and asked him to step out of the vehicle. Defendant emerged from the vehicle without stumbling or falling, but he swayed as he stood outside the vehicle.

The second officer also smelled the odor of alcohol on defendant. He also noticed the defendant’s eyes were “red, bloodshot, glassy, watery.”

Defendant refused to perform field sobriety tests. Defendant said a football injury prevented him from performing the tests. He also claimed that he could not walk a straight line sober.

Defendant was then arrested for DUI.

The Car Search

The car was searched and police discovered what appeared to be cannabis pipes. They still had a little cannabis inside them.

No Fields, No Blow But Guilty

At the station defendant refused to take the breath test. 

The jury found defendant guilty of the three charged offenses. Defendant was sentenced defendant to an 18-month term of conditional discharge and 240 hours of community service.

Issue

Defendant contends that there was no probable cause to arrest him for DUI.

DUI Probable Cause

“Probable cause to arrest exists when the totality of the facts known to the officer at the time of the arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime.”

A person is under the influence of alcohol when he or she is less able, either mentally or physically, or both, to exercise clear judgment, and with steady hands and nerves operate an automobile with safety to himself and to the public.

In People v. Wingren, 167 Ill. App. 3d 313, 320 (1988), this court observed that “[p]robable cause to arrest a motorist for DUI has been commonly established by the testimony of the arresting officer, in spite of the defendant’s contradictory testimony, that the motorist had about him or her the odor or strong odor of alcohol, had slurred speech or had red and glassy eyes.”

Generally, these observations are supplemented by other observations apparent to the officer or inferred from his observations such as speeding, weaving, erratic driving, driving on the wrong side of the road, being stuck in a ditch or, as in the case at bar, being in a vehicle which is stuck in the mud.

People v. Motzko

Defendant’s reliance on Motzko is misplaced.

See Episode 347 – People v. Motzko, 2017 IL App (3d) 160154 (April). Episode 347 (defendant wins his motioin to supporess no probable casue for DUI). 

Here, the trial court’s determination that there was probable cause to arrest defendant for DUI was not based solely on the odor of alcohol, defendant’s slurred speech, and his bloodshot eyes. In addition, defendant improperly proceeded straight through the intersection when the green left-turn arrow came on.

Not Completely Incapacitated By Alcohol

Defendant notes that he had no apparent difficulty maneuvering his vehicle.

However, even a conviction of DUI does not require proof that the defendant “was completely incapacitated by alcohol.” People v. Tatera, 2018 IL App (2d) 160207, ¶ 29. The prosecution need prove only that the defendant “was impaired by alcohol *** to the extent that it rendered him incapable of driving safely.”

See Episode 498 – People v. Tatera, 2018 IL App (2d) 160207 (May) (bad HGN test inadmissible but jury could still consider defendant’s inability to follow instructions)

See Also

Episode 468 – People v. Meo, 2018 IL App (2d) 170135 (March) (Citizen’s Tip That Driver Almost Hit The Building Justifies Investigatory Stop For DUI & Defendant Couldn’t Follow Directions During The HGN)

He Ran A Red Light

Driving through a red light was evidence that defendant lacked the mental clarity to operate his vehicle safely.

Yet, contends that his “one instance of ‘poor driving’ was fully explained by the condition of his vehicle.” However, other than defendant’s self-serving statements, police had no reason to believe that defendant’s vehicle was not in good working order.

While defendant may offer innocent explanations for his behavior, that does not prevent the police from acting on their well-founded conclusions.

After all, the assessment of probable cause is based on the totality of the facts, and a reasonably prudent person would be aware of a defendant’s incentive to fabricate an innocent explanation in order to avoid arrest and prosecution.

While We Are At It…

Although defendant offered an excuse—a football injury—for his refusal to perform tests, but this excuse did not negate probable cause.

Defendant contends, however, that the evidence of his guilt was insufficient because he was able to drive his car through the intersection without weaving or jerking, he activated his turn signal, he properly pulled into a parking space, he exited his vehicle without hesitation and without stumbling or falling, and he was able to communicate with the officers.

Defendant’s argument is without merit. A motorist’s ability to perform a number of tasks without any indication of impairment does not necessarily create a reasonable doubt in a DUI prosecution. 

Plus He Was Swaying

Michael and Bajak also observed defendant swaying.

That observation is a factor supporting the trial court’s conclusion that there was probable cause to arrest defendant for DUI. See People v. Anderson, 2013 IL App (2d) 121346, ¶ 25.

Refusal Counts For Something

Furthermore, defendant’s refusal to perform field sobriety tests was probative of impairment. See Tatera, 2018 IL App (2d) 160207, ¶ 28 (listing defendant’s refusal to perform any field sobriety tests among factors contributing to conclusion that evidence was sufficient to sustain defendant’s DUI conviction).

Holding

We therefore conclude that there was probable cause to arrest defendant for DUI.

That conclusion disposes of defendant’s argument that the evidence seized during the search of his vehicle should have been suppressed. We note the defendant challenge the search of his vehicle after his arrest. There was no Arizona v. Gant challenge. 

Accordingly, we conclude that the evidence was sufficient to prove beyond a reasonable doubt that defendant was guilty of DUI.

See These Older Cases

In People v. Weathersby, 383 Ill. App. 3d 226 (2008), we affirmed a DUI conviction on the basis of evidence similar to the evidence in this case. In that case, the defendant’s speech was “thick-tongued,” his eyes were glassy, a three-quarters-empty bottle of malt liquor was found in his vehicle, and his breath smelled of alcohol. The defendant also refused to take a breath test.

Here, defendant’s “eyes were glassy and bloodshot” and that his speech was “thick-tongued and slurred.” See Wingren, 167 Ill. App. 3d at 320 where probable cause to arrest a motorist for DUI has been commonly established by the testimony of the arresting officer that the motorist had about him or her the odor or strong odor of alcohol, had slurred speech or had red and glassy eyes. 

The odor of alcohol on a defendant’s breath and his inadequate performance of a field sobriety test do not constitute reasonable grounds to believe that the defendant was driving under the influence. See People v. Boomer, 325 Ill. App. 3d 206, 209 (2001) (officer lacked probable cause to arrest defendant for DUI where defendant was involved in accident, admitted drinking, and had the odor of alcoholic beverage on his breath).

This Is Probably Now The Law

Episode 294 – People v. Day, 2016 IL App (3d) 150852 (January) (no probable cause for this DUI arrest, defendant passed the FST’s and he was driving nearly perfect). Where a defendant admitted to drinking, had the strong odor of alcohol on his breath, had bloodshot eyes, and slurred his speech, the trial court properly ruled that the officer lacked probable cause to arrest the defendant for DUI because any suspicions of impairment were not corroborated by other factors, such as poor driving, stumbling, falling, or an inability to communicate.

Speeding and being involved in an accident are insufficient bases upon which to support a DUI probable cause determination. See People v. O’Brien, 227 Ill. App. 3d 302, 307 (1992) (no probable cause to arrest defendant for DUI where defendant was speeding, admitted to drinking, and unsuccessfully performed sobriety test).

Episode 549 – People v. Lopez, 2018 IL App (1st) 153331 (October) (Anonymous Tip On A DUI Has Got To Be Specific Plus Identity Information Is Suppressible)

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The Best Reason To Change The "Smell Of Cannabis" Rule

Nov 7, 2018 24:34

Description:

Episode 556 (Duration 24:34). Charles Schierer of East Peoria, Illinois, explains why it's a good time to change the "smell of cannabis" rule.

Attorney Charles Schierer East Peoria Illinois
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In This Episode...

"Would it be wrong to say well maybe an officer needs to observe something: ashes, a burning joint, rolling papers, a lighter, something?" -- Charles Schierer

Attorney Charles Schierer

Charles Schierer's first love is practicing criminal law in federal court. He started in the Peoria County Public Defender's Office. It didn't take him long before he was practicing before the United States Central District District Court.

Chuck's firm handles civil personal injury claims, auto accidents, federal criminal defense, state criminal defense and appeals. Chuck is currently the CJA Central District Panel Representative. 

Contact Information

Schierer & Ritchie, LLC
1009 Illini Drive
East Peoria, IL 61611

(309) 839-2024

chuck@srtriallawyers.com

"Can't Miss" Moments:

✓ Why you have to divide the world into how things were before the Cannabis Control Act and how things are after the act. Before the act, the law clearly, unmistakably allowed police certain liberties. Anybody who did criminal defense work came across these cases. How do you defend against this kind of stop? Now the rules are up for grab. (Go to 4:30)

✓ Under 10 grams possession of cannabis is not a crime. Should the liberties we give to the police change accordingly? Jump to this section to listen to Chuck's personal opinion on what the best version of the "smell of cannabis" rule should be. The rippling-domino effect gets ignored at your own peril. (Go to 5:40)

✓ The truth about what decriminalization really means. What does it mean for us? What does it mean for the police? Do we really "get it?" How is this the same as the smell of alcohol? How is this different from the smell of alcohol? (Go to 6:18)

✓ Decriminalization means possessing minor amounts of cannabis is not a crime anymore. It means all our problems are gone and we don't have to worry about the government having their nose in our business anymore...WRONG. Decriminalization is not exactly the same as legalization.  (Go to 8:18)

✓ The burning leaves example...the difference between burning yard leaves and burning cannabis leaves...a real life practical example...The absurdity of police action...What police are really looking for in these cases. Nothing wrong with being a little  intellectually honest and consistent. (Go to 9:12)

✓ "Would it be wrong to say well maybe an officer needs to observe something: ashes, a burning joint, rolling papers, a lighter, something?" (Go to 13:10)

✓ We may have to rethink what we are doing in light of what other states are doing. See Massachusetts for a great example. Believe it or not, New York looks like it got it right. The further west you go, the more people begin to lose their minds. California, Arizona and Colorado got whacky with this, quite the opposite of what you would have expected from those weed loving states.  Here's the best way to interpret what those states have said on this issue. (Go to 14:40)

✓ Does smell equal probable cause? Is it a done deal when the whiff is in or is it just one factor in the probable cause determination? That's what courts have to figure out. What the cases do and don't say matter. For example, there's a difference between raw cannabis and burnt cannabis. (Go to 15:45)

✓ The reason why Chuck says In re O.S. was well reasoned but still wrong...It does a good job of describing a situation that will happen over and over again. The case also did this one other thing very well. (17:50)

✓ This is what will happen if the court tries to distinguish between a strong odor, a moderate odor and a faint odor of cannabis. You'll invite certain conduct by the police. Is that what we want? Lead the police down this path and don't you worry they will go down it. (Go to 19:40)

✓ More absurdity: They arrest you for being addicted to opioids, encourage you to smoke weed via the Alternative To Opioids Act, then at the first scent of cannabis they toss your life and pull you out of your car as they proceed to go through everything in it. (Go to 21:13)

Links & Resources In re O.S., 2018 IL App (1st) 171765 (June) Central District of Illinois | United States District Court CJA Central District Panel Peoria County Public Defender's Office Illinois Cannabis Control Act - Pub. Act 99-697, § 40, (eff. July 29, 2016) (amending section 4 of the Illinois Cannabis Control Act (720 ILCS 550/4) People v. Rice - Third District Appellate Court - Case No. 3-17-0134 Commonwealth v. Cruz, 945 N.E.2d 899, 908-10 (Mass. 2011) (mere odor of marijuana no longer provided reasonable suspicion of criminal activity following decriminalizing of small amounts) People v. Brukner, 25 N.Y.S. 3d 559, 572 (2015) (mere odor of marijuana emanating from a pedestrian, without more, does not create reasonable suspicion that a crime has occurred)  People v. Strasburg, 56 Cal. Rptr. 3d 306, 311 (Ct. App. 2007) (odor of marijuana in a parked car provided police officer with probable cause to search the vehicle and the occupants therein) State v. Sisco, 373 P.3d 549, 553 (Ariz. 2016) (rejecting the argument the odor of marijuana no longer provided law enforcement officers with probable cause to believe that criminal activity) People v. Zuniga, 372 P.3d 1052, 2016 CO 52 (Colo., 2016) (concluding that the odor of marijuana remains relevant to probable cause determinations and can support an inference that a crime is ongoing) Robinson v. State, 152 A.3d 661, 681 (Md. 2017) (amendment to Maryland’s marijuana statute decriminalizing, but not legalizing, the possession of less than 10 grams of marijuana did not “alter existing case law concerning the search, seizure, and forfeiture of marijuana) State v. Senna, 2013 VT 67, 194 Vt. 283, 79 A.3d 45 (concluding that the passage of Vermont’s medical marijuana law does not undermine the significance of the smell of marijuana as an indicator of criminal activity) The Illinois Alternative To Opioids Act Illinois Policy.org on the Alternative To Opioids Act See Also

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Episode 509 - Analysis of In re O.S. The Stench Of Weed Still Supports Probable Cause For A Full Vehicle Search Episode 340 - Kim Bilbrey on The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant Episode 015 - Police Car Search Legal in Illinois if They Smell Marijuana...Police Officer Describes A Faint Odor Of Marijuana Episode 276 - You Just Can't Ignore The Stench Of Weed In An Auto Accident Episode 196 - Dog Sniff Alert To Drugs Will Lead To Car Search Episode 207 – With Ken Wang – Give Us 24 Minutes And You’ll Get a Comprehensive Debriefing on The New Illinois Marijuana Law Episode 251 – With Jeffrey Hall –  On The Latest Developments And Problems With The Illinois Cannabis Decriminalization Law 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.

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Attorney Anthony Sassan | What You Need To Know About The Practical Differences Between Federal And State Criminal Court

Oct 22, 2018 47:51

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It's more than just the types of crimes that are prosecuted. There are fundamental differences between practicing in federal and state criminal court. Episode 548 (Duration 47:50)

Federal v. State With Anthony Sassan

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In This Episode...

"Federal judges get their authority from the constitution; they're article III judges. And then they have the federal rules of criminal procedure. They stick to those rules." -- Anthony Sassan

Thinking about dipping your toe into federal criminal practice. Here's everything you need to know that's different from state court...

Attorney Anthony Sassan

Attorney Anthony Sassan has an extensive federal and state law practice in Chicago and the surrounding suburban area. 

Anthony and his firm handle the following types of cases:

Estate Planning Probate Litigation Federal Criminal Defense State Criminal Defense Federal Civil Litigation State Civil Litigation  Closely Held Business Representation  Real Estate Closings Family Law Contact Information

Sassan & Sassan
161 North Clark Street Suite 1600
Chicago, IL 60601-3338

(312) 972-9050
info@sassanlaw.com
ajs@sassan.law.com

"Can't Miss" Moments:

✓ How to start a federal criminal law practice even if you have no federal experience what-so-ever. (Go to 2:30)

✓ The Criminal Justice Act (CJA) describes how "panel attorneys" are appointed to represent federal defendant's who can't afford their own attorneys. This is a way to get paid for representing indigent clients in federal court. (Go to 3:42)

✓ One big difference in federal court is that you see big conspiracy cases with multiple defendants...someone has to represent them. (Go to 4:12)

✓ In a nutshell, these two words explain most of the differences between state and federal court. Master this lesson and you'll become a federal court wizard in no time. (Go to 6:23)

✓ Illinois is just coming around to reforming it's bail system. Here's how the feds have handled pretrial detention. (They don't call it bail in federal court. It's never been about the money for them). The words may be different but some things work the same way as in state court. (Go to 7:41)

✓ There's one big thing that is 100 times easier in federal. For the most part, expect everything else to take longer, require more research, more detailed briefs, and to follow strict protocols. (Go to 11:48)

✓ You don't have to worry about a "Santiago" proffer in state court. Expect to deal with them in the federal system as part of your discovery. Plus, jump to minute (18:30) to hear more about federal discovery practice. You got to know about the "2 week" rule.

✓ There's no single bigger contrast than the difference between a trial date in federal court versus a trial date in state court. Why you'll never see more than 3 cases set for trial on the same date in federal court. What you should never do if you think you need a trial continuance. And what happens when you give federal prosecutors the right to a jury trial in criminal cases. (Go to 21:58)

✓ The one question that's the most difficult to answer when you represent individuals in federal criminal court...The 3 basic stages of every federal sentencing hearing...Why it all feels like cold pleas in federal court... (Go to 29:20)

✓ What you can expect when federal law enforcement witnesses take the stand, and the real reason why federal investigators can be perceived as more professional than local law enforcement. (Go to 43:05)

Links & Resources U.S. District Court Northern District of Illinois - Attorney Information  U.S. District Court Northern District of Illinois - Admission to the General Bar Attorney Admission Frequently Asked Questions  Frequently Asked Questions about Trial Bar Membership Instruction For Admission To The General Bar Petition for Admission to the General Bar Criminal Justice Act Information Becoming A CJA Panel Member U.S. District Court of Northern District of Illinois CJA Rules CJA Training Videos Illinois Federal Defender Program Chicago Federal Defenders Training Division Federal Defenders CJA Practitioner Resources See Also

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Episode 359 What You Need To Know About The Illinois Bail Reform Law Illinois Bail Bond Law Ten Percent Rule May Cause Heart Attack to the Uninformed Before You Go...

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Top 10 Most Recent Illinois Confession Cases (September 2018)

Sep 11, 2018 31:11

Description:

Here are the top 10 most recent Illinois criminal law confession cases in September of 2018. Episode 534 (Duration 31:11).

Illinois top 10 confession cases

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Top 10 Recent Confession Cases From The Illinois Court System (September 2018)

Here's a quick snapshot of the most important cases cases:

A Block - Coerced Confessions With "Normal" Defendants

1.  People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode 488 (Duration 18:22). Involuntary confession and improper closing arguments lead to a murder conviction that is now reversed outright. Kid kept asking for his mother. Court clearly thinks he didn’t do it.

2. People v. Phillips, 2018 IL App (3d) 130270 (February). Episode 479 (Duration 13:35). 18-year-old’s confession ruled involuntary, in part, because defendant is told baby killers get killed in prison.

B Block - Clear Wrongdoing By Police But Confession Saved

3. People v. McArthur, 2018 IL App (1st) 150626 (June). Episode 515 (Duration 8:15). 17 year old held for 73 hours before a probable cause hearing nonetheless gave a voluntary confession. It's a sex case. Time limit thing is not an absolute rule.

4. People v. Soto, 2017 IL App (1st) 140893 (January). Episode 291 (Duration 11:45). Third confession 24 hours after first Mirandaless confession was cured of the taint of the constitutional violation. This was the homeless guy who was “staying” at the station when they finally “realized” he was the main suspect.

5. People v. Mandoline, 2017 IL App (2d) 150511 (February). Episode 316 (Duration 12:31). The police misconduct here did not overbear defendant’s will so as to deprive him of the opportunity to knowingly and intelligently relinquish his rights and give statements to the police. Arson case. Wind blew the smoke into the house killing the victim sleeping inside.

C Block - Police Don't Overreact But Defendant Not "Normal"

6. In re S.W.N., 2016 IL App (3d) 160080 (July). Episode 210 (Duration 11:57). Minor had an IQ of 70, otherwise voluntary confession suppressed because minor likely didn’t understand the Miranda warnings. Forceful sexual assault case.

7. People v. Edwards, 2017 IL App (3d) 130190-B (January). Episode 300 (Duration 5:42). This 17 year old’s confession was voluntary even though he had a fifth grade reading level, suffered from various mental disorders, and that the investigating officers did not allow him to speak to his mother. Really bad violent crime. He executed a witness by putting a pillow over his face and shooting. A second victim survived.

D Block  - Overwhelming Police Presence

8. People v. Hernandez, 2017 IL App (1st) 150575 (March). Episode 332 (Duration 11:51). Confession is out; giving the defendant a fake gun residue test did not sufficiently attenuate the bad arrest. Defendant was arrested by 20 officers immediately after his ex girlfriend was found dead in her car with a shotgun wound to her head.

9. People v. Gutierrez, 2016 IL App (3d) 130619 (December). Episode 273 (Duration 9:35) Appellate court disagrees with trial court; defendant was arrested before he was transported to Kendall County thus the case is remanded for an attenuation hearing to see if the confession is out.

People v. Gutierrez, 2016 IL App (3d) 130619 (December). Episode 274 (Duration 12:33) Part 2. I also break down a bunch of older cases.

E Block - Wild Card 

10. People v. Hardimon, 2017 IL App (3d) 120772 (May). Episode 378 (Duration 9:56). Jury should not have seen that portion of the recorded interrogation where the police go at the defendant more aggressively. He didn’t confess per se but the jury got to see what the police really thought happened.

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Top 13 Illinois Supreme Court Criminal Law Cases In 2017

Aug 14, 2018 37:42

Description:

These are the top 13 most important criminal law cases released by Illinois Supreme Court in 2017. Episode 522 (Duration 37:42)

2017 Top 13 Illinois Criminal Law Cases Released By The Illinois Supreme Court

Here's a quick snapshot of the top cases:

1. People v. Holmes

Illinois Supreme Court adopts the federal rule in holding that gun arrests before Aguilar are supported by probable cause.

2. People v. Brooks

Defendant is taken to the hospital kicking and screaming literally against his will and his blood is drawn.

3. People v. Way 

This was the appellate court decision that reversed the aggravated DUI conviction.

4. People v. Hardman

Is is sufficient for a couple officers to testify they are familiar with the neighborhood and that the building is a school?

5. People v. Fort

Illinois Supreme Court says State must charge second degree murder if they want to continue with adult sentencing after they lose a first degree murder count.

6. People v. Ayres

What does defendant have to say to trigger a Krankel inquiry?

7. People v. Shinaul

State is not allowed to reinstate charges after Defendant vacates an invalidated Aguilar AUUW conviction.

8. People v. Howard

Illinois Supreme Court upholds the constitutionality of anti loitering statute for sex offenders.

9. People v. Pearse

Illinois Supreme Court acknowledges that SORA is a big bloody mess and calls for legislative clarification and police practice changes.

10. People v. Sebby

Supreme Court explains how plain error analysis works.

11. People v. Brown

Defendant plead guilty because he was told his sentence was a 50% case when in fact it was an 85% case.

12. People v. Relerford

Just a small part of the Illinois stalking statute was declared unconstitutional.

13. People v. Ringland

Prosecutors cannot designated officials with general policing power.

You Have An Expectation Of Privacy In Your Cell Site Location Information

Jul 5, 2018 17:52

Description:

Carpenter v. United  States, SCOTUS June 2018. Episode 508 (Duration 17:52)

Police need a warrant to capture your CSLI.

SCOTUS on cell site location information

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  The Charges

Defendant was charged with six counts of robbery and an additional six counts of carrying a firearm during a federal crime of violence.

He was convicted and sentenced to more than 100 years in prison.

Issue

This case presents the question whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.

Defendant argued the Government’s seizure of the records violated the Fourth Amendment because they had been obtained without a warrant supported by probable cause.

Cell Site Location Information
(The Technology)

Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site.

Most modern devices, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone’s features. Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI).

The precision of this information depends on the size of the geographic area covered by the cell site. The greater the concentration of cell sites, the smaller the coverage area. As data usage from cell phones has increased, wireless carriers have installed more cell sites to handle the traffic. That has led to increasingly compact coverage areas, especially in urban areas.

Wireless carriers collect and store CSLI for their own business purposes.

The Investigation

The FBI was investigating a series of robberies of Radio Shack and TMobile stores in Detroit.

They obtained the suspects CSLI under the Stored Communications Act. That statute, as amended in 1994, permits the Government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” 18 U. S. C. §2703(d).

That showing falls well short of the probable cause required for a warrant.

Altogether the Government obtained 12,898 location points cataloging Carpenter’s movements—an average of 101 data points per day.

His Location Convicted Him

The prosecution produced maps that placed the defendant’s phone near four of the charged robberies. In the Government’s view, the location records clinched the case: They confirmed that he was “right where the . . . robbery was at the exact time of the robbery.” 

The Fourth Amendment

 The Fourth Amendment protects

“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

The “basic purpose of this Amendment,” our cases have recognized, “is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” For much of our history, Fourth Amendment search doctrine was “tied to common-law trespass” and focused on whether the Government “obtains information by physically intruding on a constitutionally protected area.” United States v. Jones, 565 U. S. 400, 405, 406, n. 3 (2012).

More recently, the Court has recognized that “property rights are not the sole measure of Fourth Amendment violations.” Soldal v. Cook County, 506 U. S. 56, 64 (1992). In Katz v. United States, 389 U. S. 347, 351 (1967), we established that “the Fourth Amendment protects people, not places,” and expanded our conception of the Amendment to protect certain expectations of privacy as well.

Expectation of Privacy

When an individual “seeks to preserve something as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause.

Point Is To Restrict Government

Our cases have recognized some basic guideposts.

First, that the Amendment seeks to secure “the privacies of life” against “arbitrary power.” Boyd v. United States, 116 U. S. 616, 630 (1886).

Second, and relatedly, that a central aim of the Framers was “to place obstacles in the way of a too permeating police surveillance.” United States v. Di Re, 332 U. S. 581, 595 (1948).

Two Lines Of Cases

This sort of digital data—personal location information maintained by a third party—does not fit neatly under existing precedents. Instead, requests for cell-site records lie at the intersection of two lines of cases, both of which inform our understanding of the privacy interests at stake.

Expectation of Privacy In
Physical Location & Movement

The first set of cases addresses a person’s expectation of privacy in his physical location and movements.

In United States v. Jones, FBI agents installed a GPS tracking device on Jones’s vehicle and remotely monitored the vehicle’s movements for 28 days. The Court decided the case based on the Government’s physical trespass of the vehicle. 565 U. S., at 404–405.

Since GPS monitoring of a vehicle tracks “every movement” a person makes in that vehicle, the concurring Justices concluded that “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy”—regardless whether those movements were disclosed to the public at large.

Third Party Doctrine
(Shared Information Is Not Private)

In a second set of decisions, the Court has drawn a line between what a person keeps to himself and what he shares with others.

We have previously held that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith, 442 U. S., at 743–744. This third-party doctrine largely traces its roots to Miller.

Bank Records

While investigating Miller for tax evasion, the Government subpoenaed his banks, seeking several months of canceled checks, deposit slips, and monthly statements. See United States v. Miller, 425 U. S. 435, 443 (1976).

Pen Register

Three years later, Smith applied the same principles in the context of information conveyed to a telephone company. The Court ruled that the Government’s use of a pen register—a device that recorded the outgoing phone numbers dialed on a landline telephone—was not a search. See Smith v. Maryland, 442 U. S. 735.

The Court explained, such an expectation “is not one that society is prepared to recognize as reasonable.”

Intersection Of The Cases

The question we confront today is how to apply the Fourth Amendment to a new phenomenon:

the ability to chronicle a person’s past movements through the record of his cell phone signals.

Such tracking partakes of many of the qualities of the GPS monitoring we considered in Jones. Much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.

2. At the same time, the fact that the individual continuously reveals his location to his wireless carrier implicates the third-party principle of Smith and Miller. But while the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records.

After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.

Analysis-Even Greater
Privacy Concerns

The location information obtained from Carpenter’s wireless carriers was the product of a search.

A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, “what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz, 389 U. S., at 351–352.

Although such records are generated for commercial purposes, that distinction does not negate Carpenter’s anticipation of privacy in his physical location. Mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts. As with GPS information, the timestamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his “familial, political, professional, religious, and sexual associations.” These location records “hold for many Americans the ‘privacies of life.’” Riley, 573 U. S., at ___ (slip op., at 28) (quoting Boyd, 116 U. S., at 630).

In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones.

Feature of Human Anatomy

Unlike the bugged container in Knotts or the car in Jones, a cell phone—almost a “feature of human anatomy,” Riley, 573 U. S., at ___ (slip op., at 9)—tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time.

A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.

Like An Ankle Monitor
That Travels Backwards In Time

Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.

Moreover, the retrospective quality of the data here gives police access to a category of information otherwise unknowable. With access to CSLI, the Government can now travel back in time to retrace a person’s whereabouts, subject only to the retention polices of the wireless carriers, which currently maintain records for up to five years.

Everyone Is Tracked

Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation— this newfound tracking capacity runs against everyone.

Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when. Whoever the suspect turns out to be, he has effectively been tailed every moment of every day for five years, and the police may—in the Government’s view—call upon the results of that surveillance without regard to the constraints of the Fourth Amendment.

Only the few without cell phones could escape this tireless and absolute surveillance.

Seismic Shift In Technology

Accordingly, when the Government accessed CSLI from the wireless carriers, it invaded Carpenter’s reasonable expectation of privacy in the whole of his physical movements.

The Government’s position fails to contend with the seismic shifts in digital technology that made possible the tracking of not only this defendant's location but also everyone else’s, not for a short period but for years and years.

Sprint Corporation and its competitors are not your typical witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible. There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.

Holding

Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.

The Government thus is not asking for a straightforward application of the third-party doctrine, but instead a significant extension of it to a distinct category of information.

Yet this case is not about “using a phone” or a person’s movement at a particular time. It is about a detailed chronicle of a person’s physical presence compiled every day, every moment, over several years. Such a chronicle implicates privacy concerns far beyond those considered in Smith and Miller.

We therefore decline to extend Smith and Miller to the collection of CSLI. Given the unique nature of cell phone location information, the fact that the Government obtained the information from a third party does not overcome Carpenter’s claim to Fourth Amendment protection.

The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment.

Get A Warrant

Having found that the acquisition of Carpenter’s CSLI was a search, we also conclude that the Government must generally obtain a warrant supported by probable cause before acquiring such records.

The standard in the Stored Communications Act is not a permissible mechanism for accessing historical cell-site records. Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a warrant.

Subpoena Not Going To Do It

If the choice to proceed by subpoena provided a categorical limitation on Fourth Amendment protection, no type of record would ever be protected by the warrant requirement.

Under JUSTICE ALITO’s view, private letters, digital contents of a cell phone—any personal information reduced to document form, in fact—may be collected by subpoena for no reason other than “official curiosity.” This is certainly not to say that all orders compelling the production of documents will require a showing of probable cause.

The Government will be able to use subpoenas to acquire records in the overwhelming majority of investigations.

Exigent Circumstances Still Apply

We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party.

Further, even though the Government will generally need a warrant to access CSLI, case-specific exceptions may support a warrantless search of an individual’s cell-site records under certain circumstances. 

One well recognized exception applies when ‘“the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment."

Fleeing Suspect, Imminent Harm, Destruction of Evidence

Such exigencies include the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence.

As a result, if law enforcement is confronted with an urgent situation, such fact-specific threats will likely justify the warrantless collection of CSLI. Lower courts, for instance, have approved warrantless searches related to

bomb threats active shootings and child abductions.

Our decision today does not call into doubt warrantless access to CSLI in such circumstances.

This Is A Narrow Decision

Further, the decision today is a narrow one.

-We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval).

-We do not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras.

-Nor do we address other business records that might incidentally reveal location information.

-Further, our opinion does not consider other collection techniques involving foreign affairs or national security.

Conclusion

We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information. In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government’s acquisition of the cell-site records here was a search under that Amendment. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

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114 Failure To Register As A Sex Offender Reporting is Different Than Registering

Jul 2, 2018 04:25

Description:

People v. Brock, 2015 IL App (1st) 133404 (November 2015). Episode 114 (Duration: 4:24)

Reporting is different than registering, and Defendant is required to have documentation with his new address in order to register that address.

The sex offender registration act (730 ILCS 150/1 et seq.) imposes two separate requirements. The first imposes a general duty to register on all sex offenders. 730 ILCS 150/3. The second, is the duty to report. 730 ILCS 150/6. The statute also imposes a separate and additional duty on those sex offenders specifically adjudicated "dangerous" or "violent," and it is clear from the language of the statute that the legislature intended to distinguish a duty to report that does not simply duplicate the registration requirement.

Thus, the language of the statute clearly distinguishes "report" and "register" and when it requires one, or both, it does so by expressly stating such requirement. Logically, one can "report" without registering, but may not "register" without reporting, because registration requires the creation of a signed writing.

This defendant did report on time but was turned away because he could not pay the registration fee. However, defendant did violate the failure to register a new address provision because he did not have an ID or some type of documentation with the new address as is required. See 730 ILCS 150/3(c)(5).

Additionally, the defendant had only two prior felony convictions—one for aggravated criminal sexual assault and a second for indecent liberties with a child. The indictment listed defendant's prior conviction for aggravated criminal sexual assault as the basis for establishing his duty to comply with the Act. Establishing a defendant's duty to register under the Act is an element of the offense.

This conviction was also necessarily used as one of his two prior felony convictions to mandate Class X sentencing. The sentence was improper. See People v. Hall, 2014 IL App (1st) 122868.

 

A Racist, A Black Guy, And A Hammer...A Test For Criminal Justice

Jun 27, 2018 15:06

Description:

People v. Wilkinson, 2018 IL App (3d) 160173 (June). Episode 504 (Duration 15:06)

Defendant beats back a racist aggressor; now he's doing 3 years.

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The Illinois Sentencing Index

Gist

A big white dude walks up to defendant’s front door with another guy. When Defendant gets to the door the white dude punches defendant who is African American. A struggle ensues. Defendant grabs a hammer and hits defendant in the head. Either he doesn’t stop and repeatedly hits him or the struggle ensues.

Issue

On appeal, defendant argues that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that defendant did not reasonably believe that the force he used was necessary to prevent great bodily harm.

The parties on appeal limit their arguments to the reasonableness of defendant’s belief that striking the victim with a hammer was necessary to prevent great bodily harm to himself.

Facts

Big white dude was jacked up.

The victim testified that he suffered fractures to his eye socket, sinus cavity, and “nose socket” as a result of the altercation. Looks like it came from one blow with the hammer.

He required 12 staples and a number of stitches. A tendon was also severed. He continued to suffer from eye spasms and headaches.

The Verdict

The State concedes “that the record in this case supports defendant’s and trial court’s beliefs that Cook was the initial aggressor. More pointedly, the State concedes that Cook punched defendant in the face. The State, however, argues that defendant used “excessive force,” or “an amount of force far greater than needed to neutralize the threat posed by Cook.”

Here, the jury was free to conclude that defendant struck the victim repeatedly in the head with a hammer while he was on top of him and the victim was trying to get away.

It follows that the jury could rationally conclude that any belief defendant held at that point that those hammer strikes were necessary to protect himself was unreasonable.

Racist Victim

The trial court noted that “the elephant in the room” was that “this case [was] about being black.” The court found it clear that the victim did not like defendant because of his race, based on his comments that defendant was not welcome in the neighborhood. The court noted that defendant had been made well aware of that racial animosity before the physical altercation.

The victim’s untruthfulness about his initial intentions did not fatally undermine his credibility as to his later actions. Indeed, it is plausible that a hammer strike to his face, leaving a large gash between his eyes, was enough to convince the initially aggressive victim that it was time to leave.

In sum, testimony from the victim in this case tended to show that defendant continued to strike him with a hammer after any threat had subsided. The jury could reasonably have concluded that this testimony was credible and, in turn, that defendant did not reasonably believe those continued hammer strikes were necessary to prevent great bodily harm to himself.

Self Defense?

Defendant claimed self defense.

The court concluded that victim was the aggressor.

The court noted that while defendant had been initially justified in using force, the State had proven beyond a reasonable doubt that he used “excessive force in the lawful act of self-defense.” The court commented that defendant would not have been guilty if he had only struck the aggressor with the hammer “once or twice.” The court made clear that it was sentencing defendant not for initially striking the victim with the hammer, but “for not stopping.”

Police Investigation

The court also condemned the actions of the investigating officers in the case, opining:

“[T]he police already made up their mind what the charge was before they ever spoke to you. They didn’t even come and ask you what happened. They didn’t come and ask your girlfriend what happened, even though she was the one that called the police. They just went directly to the victim and got his side of the story and the case was opened, and closed, and shut.”

Sentence

The court sentenced defendant to a term of three years’ imprisonment.

Statue on Self Defense

 Section 7-1(a) of the Criminal Code of 2012 holds as follows:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

720 ILCS 5/7-1(a).

The section further provides that a person who is an “aggressor” may not invoke self-defense. Id. § 7-1(b).

Self Defense Elements

A claim that self-defense justified a use of force that was likely to cause great bodily harm contemplates six distinct elements:

(1) unlawful force was threatened against a person,
(2) the person threatened was not the aggressor,
(3) the danger of great bodily harm was imminent,
(4) the use of force was necessary,
(5) the person threatened actually and subjectively believed a danger existed that required the use of the force applied, and
(6) the beliefs of the person threatened were objectively reasonable.

Once a defendant raises the affirmative defense of self-defense, the burden shifts to the State to prove beyond a reasonable doubt that defendant did not act in self-defense.

The State satisfies this burden if it negates any of the six elements beyond a reasonable doubt.

Holding

We find the State produced evidence sufficient to prove beyond a reasonable doubt that defendant was not acting in self-defense. The judgment of the circuit court of Whiteside County is affirmed.

But See The Dissent

The dissent says he was only hit once with the hammer.

Defendant's Injuries

The photographs showed a swollen nose and a knot on defendant’s head, apparently confirming the punch to his face, and “welt-like marks on his right arm, redness and a small wound on his left arm, and scrapes on his elbow, knee, and knuckles.”

The photographic evidence in the case, including the welts and redness on the Defendant’s arms, thus casts doubt upon the victim’s testimony in two ways:

(1) How did the victim have only one significant injury to his face if he was struck in the head multiple times with a hammer while defendant was on top of him? and
(2) How did the defendant acquire such a variety of injuries if the victim was merely trying to flee?

Indeed, nothing in the victim’s version explains defendant’s injuries.

In affirming, the majority not only does not address these questions; it makes no reference to the photographs at all in its analysis.

Victim's Testimony

The victim’s testimony, the most significant basis for Wilkinson’s conviction, is precisely the type of “unreasonable, improbable, or unsatisfactory” evidence that creates a reasonable doubt as to Wilkinson’s guilt.

Just One Solid Hammer Blow

Further, the majority’s holding is that the defendant was no longer acting in self-defense when, at least according to the victim, he continued to beat the victim with the hammer outside.

Yet the evidence unequivocally shows that the major wound to the victim’s face—the wound that clearly was the source of the frontal sinus fracture referenced in the charging instrument—was the result of the first, justified hammer strike.

No Serious Injuries After First Blow

To sustain a conviction on the theory that it was defendant’s continued hammer strikes that negated the reasonableness of his belief in the necessity of his actions, the State would need to prove that defendant caused great bodily harm after the point at which he was no longer reasonably defending himself.

Even accepting as true victim’s later testimony that he was merely trying to get away when defendant repeatedly struck him with the hammer outside, the photographs show that those alleged additional hammer strikes caused—at most—some cuts, scrapes, and slight bruising.

3 SCOTUS Criminal Law Cases (Q2 2018)

Jun 19, 2018 40:37

Description:

Episode 501 (Duration 40:36) 3 criminal law cases from the Supreme Court of the United States were released in the second quarter of 2018. Here they are...

3 SCOTUS criminal law cases second quarter 2018

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In This Episode...

We discuss the following cases:

Byrd v. United States (May 2018) McCoy v. Louisiana (May 2018) Collins v. Virginia (May 2018) Byrd v. United States

Driver of a rental car not on the renting papers nonetheless has an expectation of privacy.

Gist

Defendant was driving a rental car in Pennsylvania.

When the police discovered he was not on the rental agreement they told him they didn’t need his permission to search the car. They found 49 bricks of heroin and charged him in federal court.

Issue

SCOTUS granted certiorari to address the question whether a driver has a reasonable expectation of privacy in a rental car when he is not listed as an authorized driver on the rental agreement.

Facts

Defendant was given control of the car right at the rental lot after another person rented the car. Defendant was not listed as an additional driver and was prohibited from driving the car by contract. Defendant was stopped because he was driving with his hands at the 10 and 2 position, he was seated way back and it was a rental car. Further, he was very nervous and shaking with the police and admitted he had a blunt in the car.

Police sought his consent to search the car, but then just searched it.

When they found body armor defendant started to run away from the scene. He was caught and admitted there was heroin in the car.

The search resumed and police discovered the 49 bricks.

Lower Court

The lower courts denied his motion because they said he had no standing to raise the issue. 

Property Rights

Expectations of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest. Still, “property concepts” are instructive in determining the presence or absence of the privacy interests protected by that Amendment.

Indeed, more recent Fourth Amendment cases have clarified that the test most often associated with legitimate expectations of privacy, supplements, rather than displaces, “the traditional property-based understanding of the Fourth Amendment.” See Florida v. Jardines, 569 U. S. 1, 11 (2013).

Reference to property concepts aids the Court in assessing the precise question here: Does a driver of a rental car have a reasonable expectation of privacy in the car when he or she is not listed as an authorized driver on the rental agreement?

One who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it. More difficult to define and delineate are the legitimate expectations of privacy of others.

Privacy of Others

On the one hand, as noted above, it is by now well established that a person need not always have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it.

On the other hand, it is also clear that legitimate presence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy, because it creates too broad a gauge for measurement of Fourth Amendment rights.

Although the Court has not set forth a single metric or exhaustive list of considerations to resolve the circumstances in which a person can be said to have a reasonable expectation of privacy, it has explained that legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.

Right To Exclude Others

One of the main rights attaching to property is the right to exclude others, and, in the main, one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.

This general property-based concept guides resolution of this case.

Analysis

Here, the Government contends that drivers who are not listed on rental agreements always lack an expectation of privacy in the automobile based on the rental company’s lack of authorization alone. This per se rule rests on too restrictive a view of the Fourth Amendment’s protections.

On the other hand, merely being the sole occupant of a car doesn’t always create a privacy interest. A thief wouldn’t necessarily have a reasonable expectation of privacy in a car he was caught driving away in.

The Court sees no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it. It does not seem to matter whether a friend owns or leases an apartment he is permitted to use.

Both an owner and invited guest would have the expectation of privacy that comes with the right to exclude.

Lawful Possession

The central inquiry at this point turns on the concept of lawful possession, and this is where an important qualification of Byrd’s proposed rule comes into play. No matter the degree of possession and control, the car thief would not have a reasonable expectation of privacy in a stolen car.

Though new, the fact pattern here continues a well traveled path in this Court’s Fourth Amendment jurisprudence.

Holding

Those cases support the proposition, and the Court now holds, that the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.

The Court leaves for remand two of the Government’s arguments: that one who intentionally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no better situated than a car thief; and that probable cause justified the search in any event.

The judgment of the Court of Appeals is vacated, and the case is remand.

McCoy v. Louisiana

Defendant has the right to maintain his innocence even if his attorney thinks otherwise. Defendant got the death penalty for a triple murder.

Facts

Defendant’s wife’s mother, step father and son were all shot and killed in their home. Defendant says he was out of state in Idaho at the time of the killing and that the police shot and killed the family. The defense attorney believed the evidence was overwhelming against defendant. Defendant didn’t care and wanted to proceed with his alibi defense.

Attorney Concedes Guilt

At the beginning of his opening statement at the guilt phase of the trial, the lawyer told the jury there was “no way reasonably possible” that they could hear the prosecution’s evidence and reach “any other conclusion than Robert McCoy was the cause of these individuals’ death.” McCoy protested; out of earshot of the jury, McCoy told the court that his lawyer was “selling [him] out”.

Continuing his opening statement, counsel told the jury the evidence is “unambiguous,” “my client committed three murders.”

Defendant Testified

McCoy testified in his own defense, maintaining his innocence and pressing an alibi difficult to fathom.

In his closing argument, the attorney reiterated that McCoy was the killer. At the penalty phase, he again conceded “Robert McCoy committed these crimes,” but urged mercy in view of McCoy’s “serious mental and emotional issues.”

Issue

We granted certiorari in view of a division of opinion among state courts of last resort on the question whether it is unconstitutional to allow defense counsel to concede guilt over the defendant’s intransigent and unambiguous objection.

Right To Counsel

The Sixth Amendment guarantees to each criminal defendant “the Assistance of Counsel for his defence.”

As this court has explained, the right to defend is personal, and a defendant’s choice in exercising that right must be honored out of that respect for the individual which is the lifeblood of the law.

Similarly, the right to appear pro se exists to affirm the dignity and autonomy of the accused. The choice is not all or nothing: To gain assistance, a defendant need not surrender control entirely to counsel. For the Sixth Amendment, in granting to the accused personally the right to make his defense, speaks of the assistance of counsel, and an assistant, however expert, is still an assistant.

The Sixth Amendment contemplates a norm in which the accused, and not a lawyer, is master of his own defense. Trial management is the lawyer’s province: Counsel provides his or her assistance by making decisions such as “what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.” Gonzalez v. United States, 553 U. S. 242, 248 (2008).

Decisions For Defendant Alone

Some decisions, however, are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal. See Jones v. Barnes, 463 U. S. 745, 751 (1983).

Autonomy to decide that the objective of the defense is to assert innocence belongs in this latter category.

Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial.

These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are. Counsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty, as counsel did in this case.

Defendant Has Different Motivations

But the client may not share that objective. He may wish to avoid, above all else, the opprobrium that comes with admitting he killed family members. Or he may hold life in prison not worth living and prefer to risk death for any hope, however small, of exoneration.

When a client expressly asserts that the objective of “his defence” is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.

What About Rules of Precessional Responsibility?

ABA Model Rule of Professional Conduct 1.2(a) (2016) says a “lawyer shall abide by a client’s decisions concerning the objectives of the representation”. Preserving for the defendant the ability to decide whether to maintain his innocence should not displace counsel’s, or the court’s, respective trial management roles.

Counsel, in any case, must still develop a trial strategy and discuss it with her client.

Simply stated, the rules of professional responsibility would have allowed counsel to put on defendant's defense.

The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. This attorney harbored no doubt that McCoy believed what he was sayin, the lawyer simply disbelieved McCoy’s account in view of the prosecution’s evidence.

Counsel’s express motivation for conceding guilt was not to avoid suborning perjury, but to try to build credibility with the jury, and thus obtain a sentence lesser than death.

Louisiana’s ethical rules might have stopped counsel from presenting McCoy’s alibi evidence if he knew perjury was involved. But Louisiana has identified no ethical rule requiring him to admit McCoy’s guilt over McCoy’s objection.

Defendant's Have A Right To Steer The Ship Into The Reef

If, after consultations with his attorney concerning the management of the defense, McCoy disagreed with his proposal to concede McCoy committed three murders, it was not open to the attorney to override McCoy’s objection.

Counsel could not interfere with McCoy’s telling the jury “I was not the murderer,” although counsel could, if consistent with providing effective assistance, focus his own collaboration on urging that McCoy’s mental state weighed against conviction.

Here, McCoy opposed his attorney's assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court.

If a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant’s best interest. Presented with express statements of the client’s will to maintain innocence, however, counsel may not steer the ship the other way.

These were not strategic disputes about whether to concede an element of a charged offense; they were intractable disagreements about the fundamental objective of the defendant’s representation. 

It's Structural Error

Violation of a defendant’s Sixth Amendment-secured autonomy ranks as error of the kind our decisions have called “structural”; when present, such an error is not subject to harmless-error review.

Structural error “affect[s] the framework within which the trial proceeds,” as distinguished from a lapse or flaw that is “simply an error in the trial process itself.” An error may be ranked structural, we have explained, “if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest,” such as “the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty.”

An error might also count as structural when its effects are too hard to measure, as is true of the right to counsel of choice, or where the error will inevitably signal fundamental unfairness, as we have said of a judge’s failure to tell the jury that it may not convict unless it finds the defendant’s guilt beyond a reasonable doubt.

Holding

In this stark scenario, we agree with the majority of state courts of last resort that counsel may not admit her client’s guilt of a charged crime over the client’s intransigent objection to that admission.

McCoy must therefore be accorded a new trial without any need first to show prejudice.

McCoy insistently maintained: “I did not murder my family.”

Once he communicated that to court and counsel, strenuously objecting to English’s proposed strategy, a concession of guilt should have been off the table. The trial court’s allowance of Counsel’s admission of McCoy’s guilt despite McCoy’s insistent objections was incompatible with the Sixth Amendment.

Because the error was structural, a new trial is the required corrective. For the reasons stated, the judgment of the Louisiana Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

See Also

Episode 033 - People v. Holt,  2014 IL 116989 (November) (counsel admits his client is unfit against the client's admit protest to the contrary)

Collins v. Virginia

Police need a warrant to search a vehicle on private property.

Issue

This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein.

Facts

Police were aware of a man speeding on an orange and black motorcycle but were unable to catch him. Officers learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. After discovering photographs on Collins’ Facebook profile that featured an orange and black motorcycle parked at the top of the driveway of a house, Officer Rhodes tracked down the address of the house, drove there, and parked on the street.

It was later established that Collins’ girlfriend lived in the house and that Collins stayed there a few nights per week.

From his parked position on the street, Officer Rhodes saw what appeared to be a motorcycle with an extended frame covered with a white tarp, parked at the same angle and in the same location on the driveway as in the Facebook photograph.

No Warrant

Officer Rhodes, who did not have a warrant, exited his car and walked toward the house.

He stopped to take a photograph of the covered motorcycle from the sidewalk, and then walked onto the residential property and up to the top of the driveway to where the motorcycle was parked. When Officer Rhodes searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house.

In order “to investigate further,” Officer Rhodes pulled off the tarp, revealing a motorcycle that looked like the one from the speeding incident. He then ran a search of the license plate and vehicle identification numbers, which confirmed that the motorcycle was stolen.

After gathering this information, Officer Rhodes took a photograph of the uncovered motorcycle, put the tarp back on, left the property, and returned to his car to wait for Collins.

Defendant Gets Home

Shortly thereafter, Collins returned home.

Officer Rhodes walked up to the front door of the house and knocked. Collins answered, agreed to speak with Officer Rhodes, and admitted that the motorcycle was his and that he had bought it without title.

Officer Rhodes then arrested Collins.

Charges

Collins was indicted by a Virginia grand jury for receiving stolen property.

Automobile Exception v. Warrant Requirement

This case arises at the intersection of two components of the Court’s Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home.

Automobile Exception

The Court has held that the search of an automobile can be reasonable without a warrant.

The Court first articulated the so-called automobile exception in Carroll v. United States, 267 U. S. 132 (1925). The “ready mobility” of vehicles served as the core justification for the automobile exception for many years. California v. Carney, 471 U. S. 386, 390 (1985) (citing, e.g., Cooper v. California, 386 U. S. 58, 59 (1967); Chambers v. Maroney, 399 U. S. 42, 51–52 (1970)).

Later cases then introduced an additional rationale based on “the pervasive regulation of vehicles capable of traveling on the public highways.” Carney, 471 U. S., at 392. As the Court explained in South Dakota v. Opperman, 428 U. S. 364 (1976):

“Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.”

Id., at 368.

Homes Are Different

These rationales don’t exist for houses.

Like the automobile exception, the Fourth Amendment’s protection of curtilage has long been black letter law. “[W]hen it comes to the Fourth Amendment, the home is first among equals.” Florida v. Jardines, 569 U. S. 1, 6 (2013). “At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” Ibid. (quoting Silverman v. United States, 365 U. S. 505, 511 (1961)).

Curtilage Part Of The Home

To give full practical effect to that right, the Court considers curtilage—“the area ‘immediately surrounding and associated with the home’”—to be “‘part of the home itself for Fourth Amendment purposes.’” Jardines, 569 U. S., at 6 (quoting Oliver v. United States, 466 U. S. 170, 180 (1984)). “The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.” California v. Ciraolo, 476 U. S. 207, 212–213 (1986).

When a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred. Such conduct thus is presumptively unreasonable absent a warrant.

Just like the front porch, side garden, or area outside the front window the driveway enclosure where Officer Rhodes searched the motorcycle constitutes an area adjacent to the home and to which the activity of home life extends, and so is properly considered curtilage.

State Says Expand Automobile Exception

Virginia asks the Court to expand the scope of the automobile exception to permit police to invade any space outside an automobile even if the Fourth Amendment protects that space. Nothing in our case law, however, suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant.

Expanding the scope of the automobile exception in this way would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and untether the automobile exception from the justifications underlying it. Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 10) (quoting Arizona v. Gant, 556 U. S. 332, 343 (2009)).

Surely, He Couldn't Go In The House

Had Officer Rhodes seen illegal drugs through the window of Collins’ house, for example, assuming no other warrant exception applied, he could not have entered the house to seize them without first obtaining a warrant. Similarly, it is a “settled rule that warrantless arrests in public places are valid,” but, absent another exception such as exigent circumstances, officers may not enter a home to make an arrest without a warrant, even when they have probable cause. Payton v. New York, 445 U. S. 573, 587–590 (1980).

That is because being arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home.

Likewise, searching a vehicle parked in the curtilage involves not only the invasion of the Fourth Amendment interest in the vehicle but also an invasion of the sanctity of the curtilage.

Must Have A Lawful Right To Be There

Just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant, and just as an officer must have a lawful right of access in order to arrest a person in his home, so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception.

The automobile exception does not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it does not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage.

Garages Would Have More Protection

Virginia’s proposed bright-line rule automatically would grant constitutional rights to those persons with the financial means to afford residences with garages in which to store their vehicles but deprive those persons without such resources of any individualized consideration as to whether the areas in which they store their vehicles qualify as curtilage. See United States v. Ross, 456 U. S. 798, 822 (1982) (“[T]he most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion”).

Holding

To allow an officer to rely on the automobile exception to gain entry into a house or its curtilage for the purpose of conducting a vehicle search would unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application.

Given the centrality of the Fourth Amendment interest in the home and its curtilage and the disconnect between that interest and the justifications behind the automobile exception, we decline Virginia’s invitation to extend the automobile exception to permit a warrantless intrusion on a home or its curtilage.

For the foregoing reasons, we conclude that the automobile exception does not permit an officer without a warrant to enter a home or its curtilage in order to search a vehicle therein.

The judgment of the Supreme Court of Virginia is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

See Also

People v. Smock, 2018 IL App (5th) 140449 (April). Episode 489 - This Hot Pursuit Of A Disorderly Conduct Suspect Didn’t Justify The Warrantless Entry Into The Trailer

Episode 464 - Constitutionality Based On Structure: Do Houses Have More Protection Than Apartments?

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5 Illinois Search & Seizure "Pat Down" Cases | How Not To Act In Front Of The Police

Jun 6, 2018 13:27

Description:

Episode 496 (Duration 13:26) Here's a quick summary of 5 recent "pat down" cases. 3 Go for the State, and 2 come out in favor of the defense.

5 Illinois Search & Seizure Cases - Pat Down

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In This Episode...

We discuss the following cases:

People v. Richardson, 2017 IL App (1st) 130203-B (May) People v. Evans, 2017 IL App (4th) 140672 (March) In re Jarrell C., 2017 IL App (1st) 170932 (December) People v. Gomez, 2018 IL App (1st) 150605 (April) In re D.L., 2017 IL App (1st) 171764 (December)

...and the bonus:

People v. Timmsen, 2016 IL 118181 (March) People v. Richardson

Fidgeting With Your Waistband At The Wrong Time Gonna Get You Patted Down.

This pat down was justified after Defendant was fidgeting with his waistband and reaching for something after he was told to show them his hands.

Facts

Officers stop a car matching the general description of a stolen car.

Officer Akinbusuyi approached the vehicle from the passenger's side while Officer Johnson approached the driver's side.

Officer Johnson requested that the driver exit the vehicle after the driver was unable to produce a driver's license or insurance information. As the driver exited the vehicle, Officer Akinbusuyi observed the defendant mumbling and reaching "into the center console with his right hand but with his left hand it was stuffing something in his waistband."

Kind of Fishy

Officer Akinbusuyi testified that he found the defendant's actions unusual, because "he had no reason to be doing that after I verbally told him let me see your hands."

Officer Akinbusuyi testified that his "best judgment was that he was hiding something in his waistband."

Based on his experience, he believed that "[i]t was mostly likely a weapon, drugs or something he didn't want me to find."

Defendant Ordered Out

Officer Akinbusuyi asked the defendant to exit the vehicle, and the defendant complied.

Officer Akinbusuyi handcuffed the defendant, "patted down the area" and discovered a handgun in the defendant's waistband.

The officers subsequently searched the vehicle and found the victim's culinary tools confirming it was the stolen car.

Issue

Defendant contends that his motion to suppress evidence and quash arrest should have been granted because the arresting officer's pat-down search was unconstitutional.

He argues that the pat-down search was not justified pursuant to Terry v. Ohio, 392 U.S. 1 (1968), because Officer Akinbusuyi lacked a reasonable belief that the defendant was armed and dangerous.

Law

Both the fourth amendment and the Illinois Constitution of 1970 guarantee the right of individuals to be free from unreasonable searches and seizures. See U.S. Const., amend. IV; Ill. Const. 1970, art I., section 6. Courts have divided police-citizen encounters into three tiers:

(1) arrests which must be supported by probable cause;
(2) brief investigative detentions, or 'Terry stops,' which must be supported by a reasonable, articulable suspicion of criminal activity; and
(3) encounters that involve no coercion or detention and thus do not implicate fourth amendment interests.

Terry Stop Pat Down

In Terry, the United States Supreme Court held "that a brief investigatory stop, even in the absence of probable cause, is reasonable and lawful under the fourth amendment when a totality of the circumstances reasonably lead the officer to conclude that criminal activity may be afoot and the subject is armed and dangerous."

Terry further specifies when a pat-down search for weapons during an investigative stop is permissible if:

"...nothing in the initial stages of the encounter serves to dispel [the officer’s] reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

"The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger."

Terry, 392 U.S. at 27.

Reasonableness

"[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given *** to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience."

Defendant argues that the circumstances described in that testimony did not justify a reasonable belief that the defendant was armed and dangerous. He asserts that, in reviewing the legality of the pat-down search, the court may not consider the reason why the police stopped the vehicle.

He claims: "Although the officer[s] may have suspected that the vehicle they pulled over may have been" the vehicle reported stolen 90 minutes earlier, "they had absolutely no proof of it at the time they pulled it over."

He further argues that because he was "merely the passenger" and did not control the vehicle, "the status of the car plays no part in the search of [the defendant] by Officer Akinbusuyi."

The defendant suggests that, to support a pat-down search, the officer needed to testify to a more definite belief that the defendant was armed.

Holding

Regardless of whether the officers had yet found proof that the vehicle was stolen, in considering the "totality of circumstances", it was reasonable for Officer Akinbusuyi to take into account that the vehicle matched the description of a car stolen approximately 90 minutes earlier. See People v. Simpson, 2015 IL App (1st) 130303, ¶ 25 (finding that the Terry stop of a vehicle shortly after a reported home invasion was supported by the fact that the vehicle fit the victim's description of the suspects' car).

This fact could contribute to the officer's reasonable suspicion that the occupants were involved in criminal activity and were potentially armed and dangerous.

More importantly, Officer Akinbusuyi testified that, after the driver was asked to exit the vehicle and the defendant

was asked to show his hands, the defendant reached toward the center console with one hand and used his other hand to put something into his waistband.

Officer Akinbusuyi testified that based on his experience, he believed the defendant was attempting to hide something, "most likely a weapon, drugs or something he didn't want me to find."

The officer's belief that the defendant was "mostly likely" hiding a weapon indicated a sufficient suspicion to warrant the pat-down search.

Certainty Not Required

We reiterate that an arresting officer need not be "certain" that the defendant is armed to have a reasonable suspicion, and that the officer may rely on "reasonable inferences in light of his experience."

The defendants' furtive movements —especially after being asked to keep his hands visible—could support the reasonable suspicion that the defendant was armed.

We conclude that the pat-down search was justified under the Terry standard, where

(1) the police officers encountered two individuals at night in a vehicle that matched the description of a recently stolen car and
(2) the defendant's movements in the car supported a reasonable suspicion that he was armed or had access to a weapon in the vehicle.

People v. Evans

Putting Your Hands In Your Pockets May Get You Patted-Down.

Defendant kept putting his hands in his pocket after he was repeatedly told to take them out; frisk for weapons justified.

Facts

Officer is responding to a call of a possible burglary.

He sees defendant walking.

He approached defendant for the purpose of determining whether he was involved in the burglary or saw any possible suspects or other suspicious activity.

Safety Concern

He asked where defendant was coming from, to which defendant responded he just left his friend’s house down the block. During the conversation, defendant placed his hands in his pockets, and the officer asked him to remove them several times. When asked, defendant would remove his hands and then place them back into his pockets.

Officer testified he was concerned for his safety because he was alone with defendant and defendant was much larger than he was.

Officer testified he did not know whether defendant was armed, but his concern grew after defendant refused to keep his hands visible during the conversation.

Officer testified he knew the area was a high-narcotics-crime area, and in his experience, those involved with narcotics were often armed with a firearm.

Officer specifically testified the reason he frisked defendant was to determine whether defendant had a weapon in his pocket.

Issue

On appeal, defendant argues the trial court erred by denying his “motion to quash arrest and suppress evidence.”

Defendant asserts his constitutional rights were violated because he was unlawfully searched and, therefore, the items seized during the search should have been suppressed.

The central point of inquiry is at what point was defendant seized.

Mendenhall Factors

The court adhered to the view that a person is seized only when, by means of physical force or a show of authority, his freedom of movement is restrained.

Here, defendant was walking down the street when his encounter with the police began; thus, Mendenhall applies, and the standard under Bostick (where accused stops himself) is inapplicable.

Under Mendenhall, the proper inquiry is whether “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Mendenhall, 446 U.S. at 554.

Officer's Questions

This defendant’s path of travel was not blocked or interfered with in any way.

The record suggests the officer saw defendant walking in the vicinity of a possible crime and the officer peaceably approached defendant to speak to him. There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.

No Seizure

The initial encounter here was a consensual encounter.

None of the Mendenhall factors were present, and nothing indicated defendant did not feel free to leave.

Indeed, “a seizure does not occur simply because a law enforcement officer approaches an individual and puts questions to that person if he or she is willing to listen.

First Request To Hands From Pockets

Defendant next argues he was seized at the moment the officer first requested­ he remove his hands from his pockets.

The two got into a pattern where the officer would ask him to take his hands out of his pockets he would briefly then put them back in his pockets.

Here, defendant continued to consent to the conversation with the officer even after the officer asked defendant to remove his hands from his pockets several times and never indicated an intent to terminate the conversation prior to being frisked.

The fact defendant continued to place his hands back into his pockets shows defendant did not fully submit to the officer’s request.

Defendant did not appear to believe compliance was compulsory because he did not comply with the officer’s obvious wish.

Repeated Requests

Defendant opines the repeated requests he remove his hands from his pockets may have signaled he was suspected of wrongdoing, thus impacting his willingness to continue the encounter.

Defendant’s willingness to continue the conversation is evidenced by the fact he continued speaking to the officer even after the officer asked him several times to remove his hands from his pockets.

Further, the nature of the conversation indicated defendant was not a suspect or even a witness to the possible crime the officer was investigating.

The thrust of defendant’s claim is that the officer’s request for defendant to remove his hands from his pockets was a show of authority.

Even if the request was a show of authority, defendant resisted the authority by continuing to place his hands back into his pockets.

Right To Terminate

Further, the central question remains whether a reasonable person would have felt free to terminate the encounter.

The request for defendant to keep his hands visible did not prevent him from exercising his right to terminate the encounter, and a reasonable person in his place should not have believed that right had been extinguished by the request.

The touchstone of the fourth amendment is reasonableness, and the request to keep one’s hands visible is not an unreasonable restraint of liberty. It merely serves as a protection to both officer and citizen.

Terry

The court rejected defendant’s argument he was seized when the officer requested he remove his hands from his pockets and conclude defendant was not seized until the officer frisked him.

Under Terry, the officer may conduct an investigatory frisk for weapons upon reasonable suspicion the individual is armed and dangerous. See also 725 ILCS 5/107-14, & 725 ILCS 5/108-1.01.

Armed & Dangerous

When an officer has a reasonable suspicion during an investigatory stop that the individual may be armed and dangerous, the officer is permitted to take necessary measures to determine whether the person is armed and to neutralize any threat of physical harm.

Police officers need not have reasonable suspicion of criminal activity to conduct a Terry frisk for weapons during a consensual encounter but, rather, need only have reasonable suspicion the citizen is armed and potentially dangerous.

No Suspicion of Crime Required

The fourth appellate district now holds that a police officer may conduct a Terry frisk during a consensual encounter upon developing reasonable suspicion the citizen is armed and dangerous; the officer need not develop reasonable suspicion of criminal activity. In such cases, the seizure and frisk will occur contemporaneously because a consensual encounter is, by definition, not a seizure.

Accordingly, a police officer must have reasonable suspicion the individual is armed and dangerous at the time of the frisk.

By so concluding, defendant’s arguments relating to the lack of reasonable suspicion defendant was involved in criminal activity became inapplicable. Thus, A Terry frisk during a consensual encounter must be predicated by reasonable suspicion the individual is armed with a weapon and, therefore, presently dangerous.

More Than a Hunch

To develop reasonable suspicion, the officer must have more than an “inarticulate hunch”; the officer must “point to specific and articulable facts which, taken together with rational inferences from those facts” demonstrate the suspicion is reasonable. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

Officer's Inferences

When reviewing the reasonableness of an officer’s conduct, it is appropriate to give due weight to the specific reasonable inferences which the officer is entitled to draw from the facts in light of his experience.

This is an objective standard asking if an individual of reasonable caution would believe that the action was appropriate.

Holding

This is what the officer new:

He was alone with defendant at a late hour in an area he knew was a high-narcotics crime area. He was substantially smaller than defendant. Defendant was coming from a known drug house, in the officer’s experience individuals who deal with narcotics are often armed with a weapon.

Plus, Defendant acted peculiarly by continually placing his hands in his pockets, even after being asked him to remove his hands from his pockets several times defendant ultimately refused to remove his hands and asked why he needed to.

It was objectively reasonable for the officer to suspect defendant may have been armed with a weapon. This officer did not decide to frisk defendant based solely on one fact alone; he decided to frisk defendant based on the quantum of facts he learned while speaking to defendant, coupled with defendant’s refusal to keep his hands visible.

In sum, the court concluded the totality of the circumstances known to the officer at the time of the frisk warranted the reasonable suspicion defendant was armed and thus dangerous, thereby permitting him to conduct a Terry frisk.

In re Jarrell C.

Holding Your Crotch Is Not Indicative Of Carrying A Gun.

Illinois fails to apply the exclusionary rule after police discover a warrant notwithstanding Utah v. Strieff.

See Utah v. Strieff

Episode 185 – Thomas Guts the Exclusionary Rule – Utah v. Strieff

Utah v. Strieff 

In Strieff, a law enforcement officer conducting surveillance on a suspected drug house noticed the defendant exit the house and walk away. The officer followed and eventually confronted the defendant in a nearby parking lot. Then the officer asked for and received the defendant’s identification card and conveyed the information to the police dispatcher. A warrant check revealed the defendant had an outstanding warrant, and he was placed under arrest. During a search incident to arrest, the officer discovered drugs and drug paraphernalia on the defendant’s person. The Court found that the discovery of an outstanding arrest warrant was “a critical intervening circumstance” that “broke the causal chain between an unconstitutional stop and the discovery of incriminating evidence.” See Utah v. Strieff, 579 U.S. ___, ___, 136 S. Ct. 2056, 2061 (2016).

This Case

While driving in an unmarked car, Officer Ustaszewski was showing the commander and the captain areas of concern in a high-crime area so they could determine where to best deploy resources. He observed respondent standing on Kenneth Avenue in front of a building that is a known Latin Eagles hangout, holding his waistband or the material of his shorts between the waist and the crotch area like he was “holding something” with his right hand.

Ustaszewski testified that, in his opinion as an intelligence officer familiar with different areas where street gangs hang out, when people hold their waistbands, they are concealing objects, most likely guns. Officer Ustaszewski observed respondent for a few minutes and saw him looking in the direction of the officers and then walking inside the currency exchange.

The commander and the captain followed respondent inside the currency exchange. 

The Encounter

Defendant was waiting in line to purchase a bus card.

Less than a minute and a half later, a police officer (the commander) entered the currency exchange. Respondent indicated that the police officer motioned with his finger for respondent to “come here.” Respondent replied “Who me?” The officer said “Yes, you.”

Respondent stated that the officer had his hand on his gun.

Respondent walked over to the officer at that point. Two other officers entered the currency exchange. One of officers told him to lift up his shirt. Respondent replied,

“What’s the problem, sir? I didn’t do anything.”

The officer told respondent to lift up his shirt “before we go over there and do it for you.”

Respondent lifted up his shirt while turning around.

Next, the officers told him to put his hands on the railing so they could search him. One officer unholstered his gun. Another officer searched and recovered a gun from respondent’s left side.

Respondent was then taken outside to a police car.

The police recovered some drugs from his person.

Other Police Testimony

The officer asked respondent to lift up the front of his T-shirt, but respondent only lifted up the back of the shirt slightly and turned around. Ustaszewski could not see the front of respondent. Respondent then turned around and pulled out his shirt, and the officer saw that the shirt “buckled up on the front.” Ustaszewski stated that at that point, he knew that respondent had a gun.

Ustaszewski testified that he believed respondent was behaving similarly to other gun offenders he had previously arrested based on “the nervousness, the holding of the front waistband, reluct[ance] to lift his shirt up.”

Ustaszewski had respondent place his hands on the railing while Commander Escamilla recovered a handgun from respondent’s front waistband.

He Had A Warrant

The State admitted into evidence a certified copy of a previous juvenile arrest warrant for respondent issued by the circuit court on pursuant to an unrelated case. There was no evidence presented that any of the officers were aware of the arrest warrant issued by the circuit court before or at the time respondent was stopped and searched.

Trial Judge Applies Attenuation Doctrine

After closing arguments, the trial court found that respondent holding the area between his waist and crotch did not give the officers a reasonable articulated suspicion to seize respondent. The court held there was an attenuation of the illegal seizure due to the existence of a valid arrest warrant for respondent at the time of the seizure, and the police conduct was not flagrant.

The court denied respondent’s motion to suppress the evidence.

Issue

On appeal, respondent argues that the trial court erred in denying his motion to suppress.

Respondent contends that the trial court properly determined the investigatory stop was lacking reasonable suspicion but the court erred in its application of the attenuation doctrine. According to respondent, his previous arrest warrant did not attenuate the unlawful detention from the discovery of the evidence when the officers were not aware of the existence of the warrant at the time of the search, before or during the discovery of the gun and the drugs.

Crotch Holding

The mere holding up someone’s pants or putting something in one’s pockets is not a hallmark of criminal activity. In addition, the video exhibit included in the record on appeal corroborates respondent’s testimony that he was not holding his waistband at the time respondent was inside the currency exchange.

Attenuation Doctrine

Three of the exceptions to the warrant requirement involve the causal relationship between the unconstitutional act and the discovery of evidence. 

Those exceptions are known as (1) the independent source doctrine, (2) the inevitable discovery doctrine, and (3) the attenuation doctrine. The attenuation doctrine allows for the admission of evidence obtained unlawfully when the connection between the unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.

In Utah v. Strieff, the Supreme Court considered whether the discovery of a valid existing warrant is sufficient to break the causal chain between an unlawful stop and the discovery of evidence.

The Court looked to the three factors espoused in Brown v. Illinois, 422 U.S. 590, 602 (1975) for determining whether the attenuation doctrine applied:

(1) the temporal proximity between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search, 
(2) the presence of intervening circumstances, and 
(3) the purpose and flagrancy of the official misconduct. 

Analysis

In Strieff, the officer stopped the defendant without reasonable suspicion and then conducted a warrant check, and based on the warrant he discovered, he arrested defendant. The drugs at issue were found pursuant to the search incident to the arrest.

As a result, the causal chain between the officer’s illegal action—the initial, unjustified Terry stop—and the search was “broken” by the intervening discovery of the warrant.

Unlike Strieff, the instant case presents a different situation.

Nothing in the record shows that the officers were aware of the warrant before or at the time respondent was detained and searched. Neither Officer Ustaszewski, nor Commander Escamilla investigated or learned of the existence of the warrant after stopping respondent and before searching him. In other words, there were no intervening circumstances between the initial illegal stop and the discovery of the evidence.

Indeed, an intervening circumstance is one that dissipates the taint of unconstitutional police conduct by breaking the causal connection between the illegal conduct and the evidence. Where an intervening circumstance has been held sufficient to break the causal chain it has been newly discovered information, untainted by illegality. Notably, in all these cases, there was a break in the causal chain prompted by new information or intervening event subsequent to the illegal stop and before the discovery of the evidence.

In sharp contrast, here, the arrest warrant, although a valid one, was unknown information to the police at the time of the search and the discovery of the evidence. Accordingly, the arrest warrant did not do anything to attenuate the taint of the illegal stop.

Unlike Strieff, here, the officers did not discover the arrest warrant between the unlawful stop and the discovery of the gun and the drugs.

Holding

Accordingly, since there was no intervening circumstance to cause a break between the police misconduct and the evidence recovered, we find that the second factor favors suppression of the evidence.

We reverse the court’s holding on this issue.

Based on the foregoing, we conclude that the trial court erred in denying respondent’s motion to quash arrest and suppress evidence obtained as a result of the illegal stop. Because the State cannot prevail on remand without the suppressed evidence, we reverse respondent’s adjudication of delinquency.

Reversed outright.

People v. Gomez

Acting Kooky In The Back Seat Is Going To Get You Ordered Out Of The Car.

Police roll up on a parked car and order everyone out; they find a gun.

Gist

Defendant was sentenced to 7 years for a gun.

The Car

3 officers are in an unmarked squad car when they notice the same Grand Marquis driving around the neighborhood. Eventually, the car pulls over. Defendant is in the back seat with another guy. The police talk to the driver window to window from the cars.

He asked the driver “what he was doing, [and] if he lived around there.” They did not box in the car.

The driver initially responded that he lived down the street; however, the driver admitted that he did not live down the street, but resided somewhere on the “other side of Pulaski.”

Rear Seat Passenger

As he spoke to the driver of the Grand Marquis, Detective Amato was able to observe defendant, who was seated directly behind the driver in the rear of the vehicle. When the conversation began, defendant was “seated upright” with his torso visible to the officers.

As the conversation proceeded, however, defendant began “slouching down in the car.

He just kept on like steadily slouching down as the officers were talking to the driver. So his head was, you could only see like his head at one point in time.

That seemed suspicious.

Cops Had Enough

The cops get out of their car.

As a detective stood by the driver’s side of the Grand Marquis, he observed defendant leaning away from him and toward the middle portion of the seat with his right forearm covering the waistband of his pants. Defendant’s right hand was actually under his shirt.

The detective again found defendant’s behavior to be “suspicious,” and as a result, he asked to see defendant’s hands.

Initially, defendant only raised his left hand into the air and continued positioning his right arm and hand along his waistband. He then started showing his right hand, while still attempting to use his right forearm to shield the waistband of his pants.

He Has A Gun

Based on his observations of defendant’s behavior, the detective believed that defendant had a weapon on him and ordered all three occupants of the Grand Marquis to exit the vehicle. As defendant was exiting the vehicle, he still had his arm over his waistband.

After he completely extricated himself from the car, however, he then immediately turned around and he bent his entire body over the rear of the car. In response, the Sergeant grabbed defendant by his arms and stood him upright.

When he did so, a handgun dislodged from defendant’s waistband and fell to the ground. The detective immediately recovered the gun, which was loaded, and defendant was then placed into custody.

Statements About The Gun

After the police recovered defendant’s weapon, defendant “spontaneously” explained that he had just discovered the gun in a garbage can and asked the officers to “give [him] a break.” At the police station defendant admitted that he “was holding the gun for S.D.’s from 59th Street.”

Defendant and the two other occupants of the Grand Marquis were not acting aggressively toward the officers before they were ordered out of the vehicle.

3 Tiers Of Police Contact

Courts evaluating the nature and propriety of police-citizen encounters have grouped those interactions into three tiers:

(1) an arrest or detention of an individual supported by probable cause; 
(2) brief investigative stops, commonly referred to as “Terry stops,” supported by a reasonable, articulable suspicion of criminal activity; and 
(3) consensual encounters involving neither coercion nor detention and do not implicate the fourth amendment.

See People v. Luedemann, 222 Ill. 2d 530, 544 (2006); People v. Smith, 2016 IL App (3d) 140648, ¶ 28.

Seizure

For purposes of fourth amendment analysis, a person is considered seized when a law enforcement officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.

More specifically, the relevant inquiry to determine whether an individual seated in a parked vehicle has been seized is whether a reasonable person in the defendant’s position would have believed that he was free to decline the officer’s requests or otherwise terminate the encounter.

Our supreme court has emphasized that this “test presupposes a reasonable innocent person.” Relevant factors to consider when determining whether an individual was seized and not involved in a consensual encounter include:

(1) the threatening presence of multiple officers; 
(2) the display of a weapon by an officer; 
(3) some physical touching of the individual’s person; and 
(4) the use of language or tone of voice indicating that compliance might be compelled.

United States v. Mendenhall, 446 U.S. 544, 554 (1980).

“In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.” People v. Fields, 2014 IL App (1st) 130209, ¶ 22.

Police Can Still Ask Questions

It is well-established, however, that a seizure does not occur simply because a law enforcement officer approaches and poses questions to an individual as long as that individual is willing to listen.

Indeed, even where an officer has no basis for suspecting an individual, he may nonetheless question that individual, request identification, and seek the individual’s consent to search. Importantly, “a confrontation with a police officer is not a seizure on the basis that the officer’s authority produces an inherent pressure to cooperate.

Rather, an encounter between a police officer and a civilian is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse.

Analysis

The record establishes that after the detective stopped his vehicle alongside the car, he conversed briefly with the driver while the windows of both vehicles were lowered. Although the detective was accompanied by two other officers at the time, none of the officers brandished weapons or physically touched defendant or any of the other occupants of the vehicles while he spoke to the driver.

Moreover, there is no evidence that the tone and tenor of the detective’s voice when he posed several questions to the driver was forceful or coercive. Although defendant characterizes the questioning as “relentless” and “persistent,” the record does not support that characterization.

Rather, it appears that the detective simply posed two general inquiries to the driver, asking him “what he was doing, [and] if he lived around there.” After hearing the driver’s responses, the detective testified that he then posed one follow-up question, and requested the driver to identify his “exact address.” 

A seizure does not occur simply because a law enforcement officer approaches and poses questions to an individual as long as that individual is willing to listen and the officers do not convey by their words or actions that compliance with their requests is required.

Accordingly, we find that defendant was not subject to an immediate seizure when the squad car was stopped alongside of the parked Grand Marquis and asked the driver several questions, which he was willing to answer.

The Order To Get Out Of The Car

This does not end our inquiry, however, given that “a consensual encounter will lose its consensual nature if law enforcement officers convey a message, by means of physical force or show of authority, that induces the individual to cooperate.” Gherna, 203 Ill. 2d at 179.

Although the officers approached with flashlights, the use of a flashlight is not per se coercive, especially where, as here, the police-citizen encounter took place at night and the flashlights were simply used to illuminate the scene.

Immediately after the officers approached the car, however, defendant began leaning way from the officers toward the center of the car and used his forearm to shield his waist from view. At that point, the officers ordered all of the occupants of the Grand Marquis to put their “hands up.”

When defendant did so in a manner that allowed him to continue to conceal his waistband, the occupants were then ordered to exit the vehicle. We find that the positioning of the officers around the vehicle, coupled with orders for the vehicle’s occupants to put their hands up and to exit the vehicle, constituted a show of force and authority, which transformed the consensual encounter to a seizure.

So, Was The Seizure Reasonable?

To justify a Terry stop, an officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.

Here, we find that based on the totality of the circumstances, the police had reasonable suspicion to suspect that criminal activity was afoot at the time they initiated the seizure.

The police had initially pulled alongside of the vehicle after he had noticed it in the neighborhood he was patrolling on three occasions during a short 30-40 minute period. The vehicle had been mobile on the first two viewings, but was parked when he saw it for the third time. Upon encountering the vehicle for the third time, the detective pulled up alongside of it and issued several questions to the driver, who was responsive to his questions. Although responsive, the driver admitted that he lied when he stated that he lived “down the street.”

During the course of this brief encounter, the detective observed defendant slouch further and further down in his seat until only his head was visible. At that point, the officers exited their unmarked car and approached the Grand Marquis.

Upon his approach to the driver’s side of the car, defendant immediately leaned toward the center of the vehicle with his right hand inside his shirt and his right forearm covering his waist. Based on his years of experience as a police officer, defendant found defendant’s continued furtive movements to be suspicious and became concerned with officer safety.

The Terry standard does not require an inevitable conclusion or absolute certainty; rather, it simply requires a reasonable suspicion that criminal activity is afoot.

In an effort to dispel his suspicions that criminal activity was afoot and in order to ensure officer safety, the detective ordered defendant and the other occupants of the Grand Marquis to raise their hands into the air. When defendant did so in a manner that allowed him to continue concealing his waist, the detective’s suspicion that defendant was armed was strengthened, and he subsequently ordered defendant and the other occupants of the Grand Marquis.

The gun then fell to the ground when defendant exited the vehicle.

See Also

People v. Holmes, 2017 IL 120407 (July)(notwithstanding Aguilar probable cause for an arrest exist when police see a gun) – Episode 387

The record rebuts defendant’s argument that he was seized “solely because [the officers] suspected he possessed a firearm.” As such, we need not consider his argument concerning the propriety of a hypothetical Terry stop predicated solely on an officer’s suspicion that a defendant was in possession of a firearm. Defendant emphasizes throughout his brief that mere possession of a firearm is not a crime and that the officers lacked reasonable suspicion that his possession of the firearm was unlawful until after the seizure occurred.

Although it is true that simple possession of a firearm is not itself a crime, the fact that the officers were not aware of defendant’s status as a convicted felon and parolee or his lack of a FOID card, which ultimately formed the basis for the specific criminal weapons charges filed against him in this matter, is not dispositive because defendant’s furtive behavior and repeated efforts to conceal the weapon provided the officers with reasonable suspicion that defendant was not in lawful possession of the firearm.

To accept defendant’s argument that the initial detention was invalid because the officer did not yet know the specific crime that had been committed would be directly contrary to the goals of Terry to encourage crime prevention and detection where there is reasonable suspicion that a crime has been committed.

See also Colyar, 2013 IL 111835, ¶ 49 (rejecting a defendant’s argument that police officers are required to completely eliminate any legal explanation for a defendant’s suspected possession of a firearm and establish that the defendant was committing a weapons offense before investigating further during a Terry stop).

Holding

The circuit court did not err in denying defendant’s motion to suppress.

In re D.L.

Running Away From A Shot’s Fired Scene Seems Reasonable.

Kid is seen walking away from the location of a “shots fired”, he starts to run, when they catch him he has a gun.

Gist

Respondent was charged with various gun charges in juvenile court. He filed a motion to quash defendant’s arrest and suppress evidence, alleging that he was subjected to an unreasonable search and seizure.

Shots Fired

Officer Scaduto testified that on the evening of March 28, 2017, he was working with three partners—Officers Borne, Riley, and Boubach—in an unmarked squad car. The officers were in plainclothes, wore “CPD badges” and had “police” on the back of their vests.

Around 8:20 p.m., the officers received a dispatch concerning multiple calls of shots fired on “the 117th block of Loomis.” The dispatch gave no information about the identity of the suspects or callers, other than “more than one person called in th[e] incident.”

Quick Response

Officer Scaduto and his partners, who were about “one minute away on Halsted Street,” responded to the dispatch and began to drive toward the 117th block of South Loomis Street. One minute later, while travelling westbound on 116th Street, the officers saw respondent and another male walking eastbound on the sidewalk about “two houses away from Loomis.”

Officer Scaduto did not know respondent, or see any bulges in his clothing. Officer Scaduto observed that respondent and the other male were “walking quickly” away from the area of the shots fired call. There were no other people on the street at the time, and Officer Scaduto observed respondent for approximately five seconds.

Approach The Kid

Officer Scaduto stated that, “[d]ue to the fact that it was a shots fired call in that area and [respondent] was walking quickly away from that shots fired call, we attempted to conduct a street stop *** [to] have a conversation about the shot[s] fired call and if they heard anything.”

The officers approached, and Officer Scaduto “told [respondent] to stop so we could have a conversation about the shots fired call.” When asked whether this was “a request or *** an order,” Officer Scaduto clarified that “[i]t was an order.” The male who was walking with respondent “complied” and headed toward the police car. Respondent, however, “did not comply with [Officer Scaduto’s] order and began running” northbound down an alley.

They Catch Him

Officer Scaduto pursued respondent on foot, did not lose sight of him, and detained respondent less than one minute later. Once he apprehended respondent, Officer Scaduto handcuffed respondent, “detained him[,] and placed him in custody.” Officer Scaduto conducted a pat-down because he had “reason to believe that [respondent] ran *** because he was concealing a firearm.”

Officer Scaduto denied that respondent was arrested at this point, stating that it was “part of the field interview.”

The Pat Down

During the pat-down, Officer Scaduto recovered a .380-caliber semiautomatic handgun from inside the pocket of respondent’s jacket. The handgun was “stove piped,” meaning it had a malfunction that “only happens after you actually shoot the firearm.” After he recovered the weapon, Officer Scaduto placed respondent under arrest.

Officer Scaduto explained that he performed a pat-down “[b]ased on the totality of the circumstances, the shots fired call, the minor respondent walking away from the area of the shots fired call ***, and that he and another individual were the only ones on the street at the time of the shots fired call in that area.” He further asserted that he had “reason to believe that he was concealing a firearm” based on the “shots fired call” and “that he fled from me and didn’t obey *** my verbal commands.”

Defendant’s Argument

Based on the above testimony, respondent argued that before Officer Scaduto had ordered him to stop, the officer had only observed him for five seconds, at which time he had been engaged in “normal behavior” by “walking away from a shooting scene.” Respondent pointed out that Officer Scaduto did not observe any bulges or weapons and that there was no description, eyewitness, or informant connecting respondent to the shots fired. Respondent further argued that it was not enough to be in an area where criminal activity occurred and that flight from the police was not, standing alone, sufficient to establish probable cause.

State’s Argument

The State specifically contends that the totality of the circumstances supported a reasonable articulable suspicion that respondent “may have been involved in criminal activity” and a reasonable belief that respondent was armed and dangerous.

In this case, the State argues that Officer Scaduto’s intent at the time he ordered respondent to stop is irrelevant, because respondent was only “seized” for purposes of the fourth amendment when Officer Scaduto captured him after he fled down an alley.

The State asserts that the officer was justified in stopping respondent at that point, describing the “totality of the circumstances” as “there were numerous calls of shots fired; *** respondent and his companion were walking quickly away from the crime scene of shots fired; *** no other people were in the area except for respondent and his companion; [and] *** the officers attempted to conduct a field interview but respondent turned around and fled.” ¶ 21 In so arguing, the State seemingly concedes that Officer Scaduto lacked reasonable suspicion to conduct a Terry stop of respondent at the time that he initially ordered him to stop.

We agree.

Trial Court Agrees

The circuit court granted respondent’s motion to quash arrest and suppress evidence. The court concluded that “the fact that two individuals happen to be on the street where shots are fired, does not make them subject to give up their fundamental civil rights.”

Fourth Amendment

The fourth amendment to the United States Constitution guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV. “This provision applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.” People v. Thomas, 198 Ill. 2d 103, 108 (2001).

Under the Terry exception, the police may conduct a brief investigatory stop “when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). The police officer “must be able to point to specific and articulable facts which, taken together with rational inferences therefrom, reasonably warrant that intrusion.” Thomas, 198 Ill. 2d at 109. “While ‘reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop.

The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity. [Citation.]” Wardlow, 528 U.S. at 123-24. The underlying facts are viewed “from the perspective of a reasonable officer at the time that the situation confronted him or her.” Thomas, 198 Ill. 2d at 110.

Analysis

At that time, the officer had observed respondent for five seconds as he was “walking quickly” on the sidewalk of 117th Street. Although the officer described respondent as walking “away from the area of the shots fired call,” his testimony also established that respondent was not walking on either 116th Street or Loomis Street, the intersection where the shots were reported to have originated, and instead respondent was between one and two blocks away from that location. Nevertheless, as the trial court concluded, most people would be inclined to make a quick departure from the scene of gunfire, and accordingly, such behavior would not be unusual. Even Officer Scaduto implicitly acknowledged that he had no suspicion that respondent had engaged in criminal conduct at that time, since his claimed intent was to “have a conversation” with him about whether he had “heard anything” regarding the shots fired.

Moreover, the circumstances surrounding Officer Scaduto’s order were clearly meant to exhibit a show of authority that would be indicative of a seizure. Specifically, Officer Scaduto and three other officers approached respondent, and Officer Scaduto used particular language when testifying, which indicated that he intended to convey to respondent that compliance with his request was mandatory.

Yea But He Ran

The court quoted Professor LaFave: “The flight of a person from the presence of police is not standing alone sufficient to establish probable cause, unless of course the circumstances are such that the flight from the officer itself constitutes a crime. Were it otherwise, “anyone who does not desire to talk to the police and who either walks or runs away from them would always be subject to legal arrest,” which can hardly “be countenanced under the Fourth and Fourteenth Amendments.”  (quoting 2 Wayne R. LaFave, Search and Seizure § 3.6(e), at 323-24 (3d ed. 1996)).

The State argues, without supporting authority, that a “reasonable person innocent of a crime would not flee from the police” (emphasis in original). However, the United States and Illinois Supreme Courts have held otherwise. See Wardlow, 528 U.S. at 125 (Accepting as “undoubtedly true” that “there are innocent reasons for flight from police and that, therefore, flight is not necessarily indicative of ongoing criminal activity.”)

Even considering respondent’s flight as part of the totality of the circumstances, we still conclude that Officer Scaduto lacked reasonable suspicion to conduct a Terry stop at the time that respondent was apprehended.

Although “[u]nprovoked flight in the face of a potential encounter with police may raise enough suspicion to justify the ensuing pursuit and investigatory stop” (emphasis added) (Thomas, 198 Ill. 2d at 113), there is no bright-line rule authorizing the temporary detention of anyone who flees at the mere sight of the police (see Wardlow, 528 U.S. at 126. To the contrary, it is well settled that flight alone is not sufficient to establish reasonable suspicion that a person has committed, or is about to commit, a crime.

It is only when that flight is coupled with other factors that it may support reasonable suspicion justifying a Terry stop. In this case, the trial court found no other factors supporting a finding that Officer Scaduto had reasonable suspicion that respondent committed or was about to commit a crime. As discussed above, aside from his flight, there was no testimony showing that respondent was acting suspiciously in any way. In these circumstances, we conclude that respondent’s flight alone did not justify the subsequent Terry stop.

Wardlow Rejected

In so holding, we also reject the State’s reliance on Wardlow, 528 U.S. 119. In Wardlow, the Supreme Court held that the defendant’s unprovoked, “[h]eadlong flight” was one factor among several that, taken together, supported an officer’s reasonable suspicion of criminal activity.

In particular, the Supreme Court noted that the officers saw defendant in an “area known for heavy narcotics trafficking,” where the officers expected to encounter “drug customers” and “lookouts.” The officers saw the defendant standing next to a building holding an opaque bag, and upon looking in the direction of the officers, the defendant fled through a gangway and an alley. The Supreme Court held that the above circumstances created a reasonable suspicion of criminal activity which justified a Terry stop.

Here, however, unlike in Wardlow, the trial court found no other factor supporting reasonable suspicion to justify a Terry stop when considering the totality of the circumstances. We do not find the trial court’s conclusion on this point to be manifestly erroneous.

Bad Stop Bad Pat Down

Having concluded that the police were not justified in temporarily detaining respondent, we must also conclude that the subsequent search was not justified. A police officer making a reasonable investigatory stop may conduct a protective search if he has reason to believe the suspect is armed and dangerous. Adams v. Williams, 407 U.S. 143, 146 (1972).

“The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.” However, the right to perform a protective search presupposes the right to make the stop. The police may only perform a protective search if they are entitled to stop the person in the first place.  In order for a frisk to be constitutionally reasonable, (1) the stop must be proper, (2) the officer must have reason to know that the defendant is armed and dangerous, and (3) the scope of the search must be strictly limited to a search for weapons.

Since Officer Scaduto did not provide specific and articulable facts justifying the Terry stop, the protective search performed during that stop also lacked a sound constitutional basis.

Holding

After giving the appropriate deference to the trial court’s findings of fact, we cannot conclude that the trial court was manifestly erroneous when it found the defendant had met his burden of showing that the seizure and search were unreasonable and violated his rights under the fourth amendment.

For the foregoing reasons, we affirm the decision of the circuit court of Cook County.

People v. Timmsen

Avoiding A Traffic Roadblock May Create Reasonable Suspicion Justifying a Traffic Stop.

Apparently, the police can stop you for trying to legally avoid a roadblock.

Facts

Defendant made a U-turn 50 feet from a roadblock to avoid it.

He was stopped and arrested for DWLS and possession of cannabis.

Issue

Does avoiding a traffic roadblock itself create a reasonable suspicion of criminal activity justifying a traffic stop by police?

Holding

The Illinois Supreme court held that defendant’s avoidance of the police roadblock provided reasonable suspicion for an investigatory stop.

Reasoning

The court felt that Defendant’s U-turn across railroad tracks just 50 feet before the roadblock is the type of evasive behavior that is a pertinent factor in determining reasonable suspicion.

Further, since the roadblock was well-marked, it was readily identifiable as a roadblock rather than being mistaken for an accident site or a road hazard, which one may generally desire to avoid.

Moreover, the roadblock was not busy, which suggests that a driver would not have feared a lengthy delay. When considering “the totality of the circumstances—the whole picture,” the deputy had reasonable suspicion to conduct an investigatory stop. Evasive behavior and a person’s refusal to speak with an officer when an officer approaches him are not one and the same.

Kinda-Like Head-Long Flight

This defendant was acting comparable to Wardlow who was do anything but going about his business. He was suspiciously actively avoiding contact with the police.

The court refused to adopt any bright line rules and said its always a totality of the circumstances determination. Avoidance as simply one factor in determining the existence of reasonable suspicion.

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An Illinois Wrongful Conviction Reviewing Court Says This Guy Didn't Do It

May 23, 2018 19:40

Description:

People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode 488 (Duration 18:22)

Involuntary confession and improper closing arguments lead to this Illinois wrongful murder conviction.


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Gist

In 2013 Maniac Latin Disciples, encountered several members of the Sureños, a rival street gang that operates in Wheeling.

Four gunshots rang out.

One person gets hit in the back and dies.

Holding

The court reversed the conviction due to the insufficiency of the evidence.

We hold that section 103-2.1 required the court to suppress the video recorded statements of Sanchez, made after police initiated unrecorded custodial questioning in a murder investigation, when police had not informed Sanchez of his Miranda rights. Police induced an involuntary, unreliable confession. The trial court erred when it denied the motion to quash the illegal arrest and the motion to suppress statements.

Analysis

Around 9:30 p.m. the police encountered the defendant and a codefendant being chased by Sureños. The Sureños said these two knew something about the shooting.

Defendant is handcuffed and arrested right away. This arrest was illegally and without probable cause.

After the illegal arrest, police questioned Sanchez twice about the murder, without advising Sanchez of his Miranda rights. Police also failed to record the questioning, in violation of section 103-2.1(b) of the Code of Criminal Procedure (Code). 725 ILCS 5/103­ 2.1(b).

The Code expressly places on the prosecution the burden of showing that an exception excuses them from the rule requiring recording of interrogations. 725 ILCS 5/103-2.1(e). The prosecution presented no evidence of when the victim died, and therefore the prosecution did not meet its burden of showing the statement admissible under subsection (e)(viii). 725 ILCS 5/103-2.1(e)(viii).

Due to the violation of section 103-2.1(b), the trial court had a duty to suppress all subsequent statements from Sanchez unless the State showed by a preponderance of the evidence that the subsequent statements were both voluntary and reliable. 725 ILCS 5/103­ 2.1(d), (f).

Involuntary Statement

To determine the voluntariness of a statement, the court should consider “the defendant’s age, intelligence, background, experience, mental capacity, education, and physical condition at the time of questioning; the legality and duration of the detention; the duration of the questioning; and any physical or mental abuse by police, including the existence of threats or promises.” People v. Gilliam, 172 Ill. 2d 484, 500-01 (1996).

Here, Sanchez was 18 years old, with no criminal background, at the time of the interrogation. Police arrested him without probable cause and held him for 12 hours before he confessed. Most notably, the detectives told Sanchez he could not call his mother until he told them the truth about the shooting, and they told him they already knew he shot the victim.

The court said the evidence showed that Sanchez did not voluntarily make the statements. By refusing Sanchez’s request to call his mother, the detectives also violated section 103-3(a) of the Code. 725 ILCS 5/103­ 3(a).

Even The State Didn't Believe The Statement

The prosecution conceded that the jurors should not rely on almost all of the statements Sanchez made in the lengthy interrogation.

The prosecutor argued that the jurors should not believe Sanchez’s statement about who brought the gun. Nor believe Sanchez’s statement that Sanchez had the gun between the 540 and 544 buildings when it discharged. The prosecutor argued that the jurors should not believe Sanchez’s statement that the gun discharged accidentally.

Nor can the prosecution accept as true Sanchez’s statement that before he got hold of the gun, the defendant and the codefendants walked in the area to the north and east of the shooting.

The only words Sanchez spoke that the prosecutor wanted jurors to believe came when Sanchez said he held the gun and “it went off.”

Also An Unreliable Statement

Whether defendant’s statement was reliable is a separate inquiry from whether it was voluntary.

Factors other than voluntariness have bearing on the reliability of a confession. Courts have frequently looked to corroboration as the most significant indicator of the reliability of confessions.

The court held that corroboration of a statement should be a factor in determining the reliability of a confession under section 103-2.1(f).

CoDefendant Corroborates Nothing The testifying witness said Sanchez headed toward the 540 and 544 buildings, holding the gun, shortly before he heard the shots. But most of the recanted video recorded statements shown at trial flatly contradicted Sanchez’s confession. Sanchez said Estrada brought the gun; the testifying witness said Sanchez bought the gun the week before the shooting and brought it to the scene. Sanchez described the gun as black with a black handle; the testifying witness described the gun as silver with a brown handle. Sanchez said Estrada took the gun from him and ran west from the shooting scene; the testifying witness said Sanchez took the gun, headed east, and threw the gun in the pond north of the 430 building. Eyewitness testimony and the physical evidence also contradict Sanchez’s confession. The shot came from Equestrian Drive, south of Orozco, and hit him in the back as he stood facing north. The shot did not come from anywhere near the spot where the testifying witness confirmed that Sanchez stood when he, in his recanted statement, said he heard the shots. Why Didn't He Just Run To His Car?

Moreover, if Sanchez fired the shots from Equestrian Drive and lied about it, as the prosecutor theorized, Sanchez would have stood no more than 40 yards from his car, which police found parked on the west side of the 492 building.

Why wouldn't he have just jumped in his car?

The Initial Account

The initial account of Sanchez and every other witness to police explains how Sanchez arrived north of the shooting scene. The group defendant was in was trying to go from one care to another when they began to be chased.

The evidence at trial ran counter to Sanchez’s confession.

Insufficient Evidence To Convict

No physical evidence connected Sanchez to the crime.

Police never found the gun or the casings from the fired bullets, and they found only one of the four fired bullets. The prosecutor conceded that police never found the bullet that killed the victim. No witness testified that Sanchez held a gun. No witness saw Sanchez on Equestrian Drive, where the shots came from. Sanchez’s hands and clothes bore no trace of antimony, no trace of barium, and no trace of lead. The testimony of all witnesses and all the physical evidence fits well with the initial account given to police. That account, which matched the testifying witness testimony in court, is also consistent with Miguel’s testimony that he stood on Bridle Trail, talking with Sanchez and the others, before he left  and encountered the victim when he was shot. When Sanchez and the others realized the shots hit someplace near the 490 building, they had reason to fear Miguel had been shot. Moreover, the prosecution failed to present a coherent theory of the case. Motive Not Required But State Offers No Reason For An Inexplicable Shooting

According to the prosecution,

Defendant went home to get a gun to deal with opposing gang members.

Later that evening, Sanchez was talking with some Maniac Latin Disciples and others on Bridle Trail, when Miguel left to escort a friend to the 490 building. According to the prosecution, a few minutes later, knowing that his friend and gangmate Miguel had gone toward the 490 building, Sanchez walked unseen to Equestrian Drive and fired wildly at a group that included Miguel and Miguel’s father.

Why would he shoot at his own friend?

Then, rather than run to his car, Sanchez ran around the neighborhood for half an hour, with no apparent purpose other than to work up a sweat and persuade an opposing gang to chase him.

Why Did The Jury Convict?

The overwhelming implausibility of the prosecution’s account presents us with the question:

Why did a jury of 12 ostensibly reasonable persons sign a verdict convicting Sanchez of murder?

Well, He Confessed

First, confessions have exceptional persuasive force, and as we have already concluded, the jury should not have heard Sanchez’s incriminating statements.

Prosecution Was Persuasive

Second, the prosecutor insinuated that Sanchez’s hands had gunshot residue and the Sureños accused him of shooting the victim, and the prosecutor shifted the jurors’ focus from the evidence against Sanchez to the issues of whether defense counsel had grievously insulted police and whether jurors doubted the integrity of the officers.

Sanctions Against The Police

The court recommend that if police departments again use the so-called “presumptive GSR test,” the departments should inform officers and the subjects of the tests about what the tests actually measure, and what kinds of contact can produce positive test results.

They also recommend the consideration of possible sanctions against the officers for violating section 103-3(a) of the Code, which establishes the suspect’s right to make phone calls. 725 ILCS 5/103-3(a) (West 2012).

Deception In Interrogations

While our supreme court has expressly approved the use of deception to obtain confessions, this case shows us how the use of deception in interrogations leads to false confessions.

Deceptive practices contribute to an atmosphere in which whole communities act with hostility toward police. The court said if police want the members of the community to treat them with respect and help them in their efforts to reduce crime, police should renounce the use of deceptive practices in law enforcement so that the members of the community learn that they can trust police officers to treat them honestly.

The practice of deception in interrogations and other settings can destroy the trust needed as a foundation for the relationship between police officers and the members of the communities the police officers have a duty to serve and protect.

Conclusion

● No witness saw Sanchez with a gun.

● No witness saw Sanchez near the spot from which the fatal shot came.

● The prosecution showed no connection between Sanchez and the single spent bullet found at the scene.●

●  Police found no trace of antimony, barium, or lead on Sanchez’s hands and clothes.

● The prosecutor did not present a plausible account of Sanchez’s actions around the time of the shooting, and police admitted that Sanchez and the persons with him shortly before the shooting gave a plausible, consistent, exonerating account of Sanchez’s conduct. The court held that the prosecution did not present sufficient evidence to sustain the conviction.

But here, the record leads to a further conclusion. The evidence convincingly shows that Sanchez did not murder the victim.

Accordingly, the court reversed the judgment of the trial court outright.

Defendant Arrested

About 30 minutes after police arrived, an officer saw Sanchez and his buddy, Estrada , running toward the police, chased by several members of the Sureños gang. Conway handcuffed Sanchez and Estrada and ordered them to sit on the curb. 

More Details About The Case

The codefendant who recanted was found in the bushes north of the shooting. Marked with green "FB" on the map.

Defendant and essentially everyone interviewed said defendant was originally located south of the location where the shots where fired.  See green "X.

Originally, they said the got in a car and drove north and parked it north west of the shooting. See white rectangle in upper left corner. They got out and split up  because the Sureños started chasing them. Defendant and a codefendant went left. Sanchez went up and to the right.

Eventually, police see defendant and a codefendant running south towards the are a of the shooting being chased.

GSR Testing

Defendant was given a presumptive GSR test that was positive. Police used that against defendant in his interrogation. Later GSR testing by the state lab found nothing.

Shenanigans In The Interrogation

When the detectives confronted Sanchez with the positive result of the “presumptive GSR test,” Sanchez asserted repeatedly that he had not seen or shot a gun that evening. The detectives told Sanchez that his story was “bullshit,” and repeatedly, falsely asserted that several witnesses had said they saw Sanchez carrying a gun that evening.

The detectives said the “tests don’t lie” and suggested that Sanchez was “scared [he was] going to get shot.”

The detectives suggested that Sanchez should blame Estrada for the shooting. Sanchez began crying and said repeatedly,

“I didn’t do anything.”

Police moved the table out from between them, came right next to Sanchez, and further emphasized that he would not believe Sanchez’s account.

Bush said, “This was an accident. You didn’t mean for this to happen, did you?”

Again, Sanchez said, “I didn’t do anything, sir.”

Bush answered, “[W]e’re over that. There’s too many people that saw you.” This statement was, again, false.

Again, Sanchez said, “I didn’t do anything.”

Then He Begins To Say Something...

About 10 hours after police brought Sanchez to the station, he changed his account. They asked, “Did Brian do something? *** What did Brian do? You’re almost there.”

Sanchez answered, “He’s the one that shot.” Bush asked where Estrada stood when he shot the gun. Sanchez said, “[t]he farthest parking lot.”

The detective suggested that Estrada stood on Equestrian Drive or by the tennis courts. Sanchez pointed to a spot on the map police showed him. Heaccused Sanchez of lying, and said, “Everybody’s telling me that you had the gun.”

Sanchez said, “I didn’t have anything, sir. I put it on my mom’s life right now, ’cause she’s so sick right now, that I didn’t have any gun, sir.”

Bush suggested again, “this was just self-defense?”

Sanchez said, “I didn’t shoot nobody,” “I didn’t have any gun,” and “I want to see my mom.”

The detective said, “I can let you see your mom after we talk about this and get the truth.”

Again Sanchez said, “I did not do anything.”

They again accused Sanchez of lying. The detective said, “it was an accident. Is that correct?”

Sanchez responded, “Sir, I want to see my mom.”

They limited Sanchez’s choices: “I need to hear it from you, then, if it was an accident or did you intend to hit him?”

Sanchez said, “I don’t have a gun.”

The detective persisted: “[E]verybody’s telling me it was you and plus the GSR, you gotta understand it, okay?”

Sanchez said, “Sir, if it was me, sir, I take the blame, I would say it,” and “I’m telling you the truth.”

Ok The Other Guy Did It

The Detective returned to the tactic of getting Sanchez to blame Estrada.

Sanchez eventually said, “I held it, but Brian shot it.”

Through tears he said, “I want to get out of here. My mom is worried about me.”

Sanchez explained in his new story that Estrada showed him the gun and he held it briefly, then Estrada took it back and ran off to shoot. Sanchez said his mother “just had surgery a day ago,” and “[s]he doesn’t know right now. She’s worried about me.”

The detective accused Sanchez of lying and said, “These tests only happen when you fire a weapon.”

Sanchez still said, “I didn’t fire no weapon. It was Brian. I didn’t fire anything, sir.”

Detective said, “Jesus. Unfortunately, we already know that you did.” He encouraged Sanchez to tell his side of the story.

Sanchez said, “I give you my side, sir, you still won’t believe me.”

A Different Version

A few minutes later, Sanchez tried another revised account.

He said, “It went off by itself,” and then Estrada took it from him.

Detective asked, “Is it a revolver or a semi-automatic?”

Sanchez said, “It was a revolver,” and “I want to go home to my mom.” Sanchez attempted to complete the story.

He pointed on the map to where he said the gun discharged. He found a spot between the buildings numbered 540 and 544, close to 100 yards north of where the victim stood when the bullet hit him. He explained that Estrada wanted to shoot, because “he thought they had shot Miguel.”

Estrada had the gun, and when he handed it to Sanchez, “it went off.” Sanchez said he “ran to the cops” because Sureños “told [him he] was a dead man.”

They asked Sanchez to retell the evening’s events. Sanchez said that Miguel joined Sanchez, Estrada, Flores, and Rodriguez on Bridle Trail. Rodriguez got a call, and Miguel left with Rodriguez just before Scheffler, with Brett and Leslie, stopped by in Scheffler’s white car. Sanchez, Estrada, and Flores got into Scheffler’s car, and Estrada showed Sanchez Estrada’s gun, a black revolver. Estrada said he “was gonna get those guys back.”

Estrada hopped out of the car, and Sanchez ran with him.

Sanchez showed on the map that they got out of Scheffler’s car by the 410 building.

After the gun accidentally discharged, he and Estrada ran in different directions, Estrada carrying the gun. When the Sureños chased them, they met again just before running up to the Sergeant who arrested them.

Why The Crazy Route

Police sought to clarify the route Estrada and Sanchez took when they left Scheffler’s car:

“DETECTIVE OROPEZA: —why did you guys walk around this way? Why?

MR. SANCHEZ: Brian didn’t want to go through cops. *** *** I was just trying to go to my car. I was just trying to go home.”

Earlier that day, Sanchez had parked his car in a lot on the west side of the 492 building. Police found the car there after they arrested Sanchez.

Detective said, “Listen, you did good. I’m glad you were honest with us.”

Sanchez immediately asked to see his mother.

They said the police needed to “clarify some things” first.

Sanchez pleaded, “Let me talk to her. I want to talk to my mom.”

The detective said, “You will talk to your mom, okay? All right? Just not right now, okay?”

An hour later, they asked for a repetition of the confession.

What They Want

Sanchez said Scheffler drove from Bridle Trail to Longacre Lane to Equestrian Drive to Illinois Route 83 to Palatine Road. Scheffler stopped on Palatine Road, and Estrada said he wanted to shoot Sureños because he felt disrespected in the fight that took place around 3:30 p.m. on May 1.

Scheffler drove them on Palatine Road to Wheeling Road and then to the parking lot by the 410 building.

Sanchez marked on the map where he, Estrada, and Flores stood when the gun went off, when they were between the buildings numbered 540 and 544, north of the 486 and 492 buildings near where the victim was shot.

Sanchez said that when Estrada looked ready to shoot, Sanchez tried to take the gun away from him, and it went off in his hand. After the four shots discharged, Estrada took the gun and ran west toward the park. They asked for a further description of the gun, but Sanchez said only it was black with a black handle, and Sanchez did not know the caliber.

Now Can I Talk To My Mom?

The deetective asked, “[W]as it hard to pull the trigger?”

Sanchez answered, “Yeah, it was.”

At the conclusion of the questioning, Sanchez again said, “I just want to talk to my mom.”

The detectives again told Sanchez to wait. More than an hour and a half later, Sanchez knocked on the door of the interview room. He asked, “Can I talk to my mom yet?”

Detective said, “not right now.”

Sanchez asked, “When can I talk to my mom?”

Detective said, “when *** we get to it.”

Five minutes later, Sanchez knocked again and asked again, saying, “She doesn’t know where I am. Please let me talk to her.” He was told him to wait.

Five minutes later Sanchez asked again.

This time they said, “I got food coming for you.”

Sanchez answered, “I don’t want any food. I want to talk to my mom.”

Again the response was “Not right now.”

When they brought food a few minutes later, Sanchez repeated his plea, to the same effect. After five minutes, Sanchez knocked again and asked to talk to his mother, “[j]ust a quick call.”

Detective said, “No, that cannot be done.”

Sanchez waited almost 10 minutes before knocking again, with the same result.

Then 30 minutes later, a different officer said he could call his mother “in a little bit.”

Twenty minutes later, another knock, another request, and another denial.

Fifteen minutes later, another knock, and the detective said, “what was the answer to your question?” Sanchez said only, “Officer, please.”

Police came in of their own accord 15 minutes later, at 2 p.m. on May 2 and searched Sanchez for tattoos. They took Sanchez out of the interview room, listening to Sanchez repeat his plea to call his mother.

They denied the request.

Then they questioned Sanchez anew at 5 p.m. on May 3.

Defendant Recants

Sanchez told the detectives that he had lied on May 2, that he and the others in the car never fired a gun. A member of the Spanish Gangster Disciples he knew only as “Bone Crusher” had threatened Sanchez and Leslie.

Closing Arguements

In closing argument, the prosecutor said that Sanchez’s tears during the interrogation showed that he suffered from a burden of guilt, and “you can see how that burden is in fact lifted from him after he admits being the person who shot Rafael.”

Defense counsel argued that detectives fed an account to Flores and Sanchez and pressured them into assenting to that account.

The detectives used lies about the evidence and emphasis on the words “accident” and “mistake” to induce acceptance of the false accounts. In the prosecution’s rebuttal, the jury heard the following:

“[PROSECUTOR]: It’s bad enough to insult the integrity of the law enforcement people that were involved in this case. It’s bad enough to put dishonor upon their reputations, the people that are out there saving our lives and our communities.

[DEFENDANT’S CO-COUNSEL]: Objection, Judge.

THE COURT: Overruled.

*** [PROSECUTOR]: *** I’ve never seen anybody murdered by a cupcake before. He wants his Mommy. He is nothing but a sniveling, cowardly killer. That’s what he is. What were you doing out there all day, Jesus?

[DEFENDANT’S CO-COUNSEL]: Objection, Judge.

THE COURT: Overruled.

[PROSECUTOR]: [The witness] knew because when he was asked why were you being chased, what did he say? We were being chased by the Sureños because they thought we had shot someone, and that’s why they were being chased—

MS. KOEHLER: Objection, Judge.

THE COURT: What’s your objection?

MS. KOEHLER: It was the subject of a motion—

THE COURT: Overruled.”

The Verdict

The jurors deliberated for five hours before sending a note saying, “We are split.” The judge ordered them to continue deliberating.

Five hours later, the jury returned a verdict finding Sanchez guilty of the murder of the victim but not guilty of attempting to murder.

The judge sentenced Sanchez to 45 years in prison: 20 years for murder, plus 25 years for use of a firearm. 

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Expungement And Sealing In Illinois With Paul Meyers

May 16, 2018 32:13

Description:

Episode 487 (Duration 32:12) Illinois has one of the broadest expungement and sealing laws in the country. Listen in to this 30 minute interview with an Illinois attorney who explains the issues in terms easy to understand and follow.

Paul Meyers On Expungement and Sealing

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In This Episode...

"With a stroke of the pen from Governor Rauner we became the most liberal state, I would say perhaps a better word 'permissive' state, on sealing, specifically, in the entire country ." -- Paul Meyers.

Attorney Paul Meyers

Paul Meyers graduated from the University of Tulsa law school in 2011, where he was on law review and interned for the Tulsa County Public Defender’s Office.

After passing the bar, Paul worked for the Kane County Public Defender’s office for 5 years before joining Robert Callahan & Associates in 2017.

How To Contact Paul Meyers Robert J Callahan & Associates
2500 South Drake Avenue
Chicago, IL 60623 (312) 322-9000 meyers999@gmail.com Links & Resources 20 ILCS 2630 et seq. Illinois Criminal Identification Act 20 ILCS 2630/5.2 et seq. Expungement and Sealing Illinois Supreme Court Sample Forms Illinois State Appellate Defender Resources Combined Standardized Forms List of Crimes You Can't Seal - 20 ILCS 2630/5.2(a)(3) Exclusions Factors Court Should Consider - 20 ILCS 2630/5.2(d)(7) Disclaimer The "You Can Only File Once" Rule - 20 ILCS 2630/5.2(c)(4) Other Stuff "Can't Miss" Moments:

✓ Bullet 1 (Go to 1:18)

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See Also

You may also want to check out...

Episode 026 People v. Laguna, 2014 IL APP (2d) 131145 (August) (No Right to Expungement in Illinois After a Pardon)

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When Police Investigate The Police

Apr 25, 2018 11:39

Description:

Episode 481 (Duration 11:39) Police investigations and follow up prosecutions of other police officers involve slightly different constitutional concerns. What are they?

When police arrest the police

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In This Episode...

We discuss the following case:

Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967).

Gist of the Case

The Supreme Court of New Jersey caught wind of some ticket fixing going in their court system.

They formed an investigation with the Attorney General.  This investigation interrogated other officers.

Coerced Officers

The officers under investigation were warned by the Attorney General

(1) that anything he said might be used against him in any state criminal proceeding;
(2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but
(3) that if he refused to answer he would be subject to removal from office. Appellants answered the questions.

No immunity was granted.

When the officer's statements were used against them in the subsequent prosecution they claimed the statements were coerced out of them. Their statements were coerced by reason of the fact that, if they refused to answer, they could lose their positions with the police department.   

SCOTUS Said

The Supreme Court of the United States said that the officers were not really given a choice to talk to investigators.

The fear of being discharged under for refusal to answer on the one hand and the fear of self-incrimination on the other was "a choice between the rock and the whirlpool” which made the statements products of coercion in violation of the Fourteenth Amendment.

The choice between self-incrimination or job forfeiture is no choice at all.

The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice is likely to exert such pressure upon an individual as to disable him from making a free and rational choice.

Ain't Police Work Just Like Any Other Job?

The court noted that ordinary citizens don't have constitution rights to their jobs.

To a certain degree everyone accepts employment with restrictions. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of his contract.

The servant cannot complain, as he takes the employment on the terms which are offered him. Similarly, police officers don't have a constitutional right to be police officers.

This may be true, but...

The Issue Here

The issue here is whether the State, contrary to the requirement of the Fourteenth Amendment, can use the threat of discharge to secure incriminatory evidence against an employee.

What's different here is that the employer is the police department.

The police can't force an incriminating statement from a fellow officer no more than they can coerce a statement from another citizen with a claim that they will see to it that they get fired if they don't cooperate with an investigation.

Policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.

Holding

We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.

Convictions of these officers were reversed.

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4 SORA (Sex Offender Registration Act) Cases To Know About

Apr 11, 2018 26:14

Description:

Episode 475 (Duration 26:13) Here are 4 cases on the Illinois Sex Offender Registration Act (SORA) You should know something about. 


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  In This Episode...

We discuss the following cases:

In re T.J.D., 2017 IL App (5th) 170133 (November) In re B.C., 2018 IL App (3d) 170025 (February) People v. Tetter, 2018 IL App (3d) 150243 (January) People v. Zetterlund, 2018 IL App (3d) 150435 (March) People v. Rodriguez, 2018 IL App (1st) 151938 (February) In re T.J.D.

In re T.J.D., 2017 IL App (5th) 170133 (November)

Petitioner has to prove he poses “no risk” to reoffend even though evaluators never go beyond a “low risk” assessment. Juvenile Sex Probation

The court entered an adjudication and disposition order on April 14, 2011, which required respondent to register as a juvenile sex offender under the Act. 730 ILCS 150/3-5.

Respondent was also placed on probation for five years and home electronic monitoring for 12 months. Respondent registered as a juvenile sex offender. Respondent was discharged from probation and subsequently filed filed a petition to terminate his sexual offender registration pursuant to section 3-5(d) of the Act. 730 ILCS 150/3-5(d).

Minor May Terminate Registration

Under this section of the Act, a court may terminate the registration of an adjudicated juvenile delinquent if he or she shows, by a preponderance of the evidence, that he or she “poses no risk to the community.” 730 ILCS 150/3-5(d).

In support of respondent’s contention that he posed no risk to the community, respondent asserted that he had completed a current risk assessment, which

recommends he be removed from registration he successfully completed individual sex offender treatment his sexual offender history and recommendations from counselors indicate he is a low risk and requires no supervision or restrictions he has resided and attended school in the community without any incidents; and the continued requirement of registration presents an undue burden. Sex Offender Registration Act Section 3-5(d)

The relevant section of SORA provides:

“(d) The court may upon a hearing on the petition for termination of registration, terminate registration if the court finds that the registrant poses no risk to the community by a preponderance of the evidence based upon the factors set forth in subsection (e). ***

(e) To determine whether a registrant poses a risk to the community as required by subsection (d), the court shall consider the following factors:

(1) a risk assessment performed by an evaluator licensed under the Sex Offender Evaluation and Treatment Provider Act [(225 ILCS 109/1 et seq. (West 2014))]; 
(2) the sex offender history of the adjudicated juvenile delinquent; 
(3) evidence of the adjudicated juvenile delinquent’s rehabilitation; 
(4) the age of the adjudicated juvenile delinquent at the time of the offense; 
(5) information related to the adjudicated juvenile delinquent’s mental, physical, educational, and social history; 
(6) victim impact statements; and 
(7) any other factors deemed relevant by the court.

(f) At the hearing set forth in subsections (c) and (d), a registrant shall be represented by counsel and may present a risk assessment conducted by an evaluator who is licensed under the Sex Offender Evaluation and Treatment Provider Act.”

730 ILCS 150/3-5(d), (e), (f) (West 2014).

Psychosexual Risk Assessment & Evaluation

Attached to respondent’s petition was a psychosexual risk assessment and evaluation prepared by Linda Stover, a licensed sex offender evaluator.

Based on her review of records, clinical interviews, written assessments, and stable and acute risk factors, Stover concluded that respondent should be considered a low risk to the community.

Stover opined that respondent had demonstrated he can live an offense-free life and should be given the opportunity to continue his life without having to register as a sex offender. Stover further stated that respondent had completed everything the court asked of him, he assumes full responsibility for his actions, and he “is very remorseful for all of it.” Stover strongly recommended that respondent be removed from the registration law.

The State’s Evaluator

The State’s own evaluator stated that respondent had participated in both residential and outpatient sex offense specific treatment and that he successfully completed the treatment with highly positive reports from his treatment providers. The evaluator opined that respondent had demonstrated a number of strengths in dynamic risk areas and had shown patterns of behavior associated with decreased risk for sexual offense recidivism. She found the risk of respondent’s recidivism to be very low.

Regarding registry removal requirements in Illinois, Adkerson opined:

“Illinois requires a finding that the individual pose no risk to the community to be appropriate for registry removal, which presumably would be a risk level equivalent to community members at large. A finding of no risk is not possible, as some risk for sexual offense exists even among the general population for whom no prior sexual offenses have been identified.”

In sum, the evaluator recommended that respondent be released from his sex offender registry requirements because there “is every reason to believe” respondent would not reoffend, and because remaining on the sex offender registry creates risk of destabilization in housing and employment which in turn undermines best functioning.

The Trial Judge

The court called the factual basis underlying the adjudication both “disturbing and disgusting” and observed that both of respondent’s victims were between two and four years old at the time the offenses were committed.

The court found the evidence clearly demonstrated respondent gained the trust of the victims and the victims’ parents, and after doing so, respondent repeatedly molested the children over a period of months until he “grew bored.” The court noted that respondent chose the minor victim, one of the victims, because “he could get away with it and she would be easy.”

The court further concluded that respondent’s testimony lacked credibility.

The court found there were inconsistencies regarding respondent’s testimony, which were not explained to the court’s satisfaction, and observed respondent’s manner and tone to be “well-rehearsed” and “less than forthright.

In its conclusion, the court stated, in relevant part:

“[T]he Court finds [respondent] has failed to prove by a preponderance of the evidence that he poses ‘no risk’ to the community. Both experts found him to be low risk. The Court is unwilling to give that statutory direction a lesser meaning. The Legislature chose to make the standard ‘no risk.’ Low risk is not the same as no risk. The Court finds by a preponderance of the evidence that [respondent] is a low risk to the community; however, that does not meet the standard set out in 730 ILCS 150 3/5. Based on the evidence presented, the Court cannot find the burden to prove he is no risk to the community has been met.”

Issue

Turning to the merits, respondent argues the “no risk” requirement under section 3-5(d) of the Act—which, if proven by a preponderance of the evidence, permits a court to terminate an individual’s sexual offender registration—creates an impossible burden to obtain and renders this statutory provision meaningless.

Respondent requests that this court reverse and remand this cause with directions regarding the reasonableness of “no risk” under section 3-5(d).

Analysis

In support of his argument, respondent asserts that experts in the field of sex offender treatment will never make a formal finding lower than “low risk.

Respondent contends it is irrational that a court must make a finding of “no risk” in order to terminate sexual offender registration, but must consider a risk assessment performed by a licensed evaluator pursuant to section 3-5(e) of the Act which will not label a petition lower than “low risk.” Respondent further argues the legislative history indicates the court was intended to have discretion in determining whether to grant a petition to terminate sexual offender registration, and the plain language of the statute has stripped the court of that discretion.

After careful consideration, we do not find the statutory language at issue to be ambiguous. Section 3-5(d) clearly requires the court to make a finding, by a preponderance of the evidence, that the applicant poses “no risk” to the community. 730 ILCS 150/3-5(d). Here, we find nothing which suggests “no risk” within the meaning of section 3-5(d) is ambiguous or absurd.

Further, contrary to respondent’s assertion, we do not find this provision creates an impossible burden for respondent to obtain. To obtain relief, the legislature adopted a preponderance of the evidence as the burden of proof. Our supreme court has defined a preponderance of the evidence as that evidence which renders a fact more likely than not. After careful consideration, we find this burden is not unreasonable or impossible to satisfy. If the statute employed an “impossible burden” as respondent suggests, it would be a much heavier burden of proof such as beyond a reasonable doubt or clear and convincing evidence.

By adopting a preponderance of the evidence as the burden of proof, the legislature afforded petitioners the opportunity to prove they pose “no risk” to the community.

Holding

In this case, the court, after considering the factors outlined in section 3-5(e) of the Act (which included the evaluations concluding respondent was a low risk to the community), simply determined respondent failed to meet that burden. It is clear that the burden of proof adopted by the legislature is not unreasonable or unattainable.

In sum, we do not find that the “no risk” requirement under section 3-5(d) creates an impossible burden. Although we agree the statute creates a very high burden on respondent, a showing of “no risk,” while under limited circumstances, is not unreasonable or impossible to obtain. It was possible for respondent to prove he posed no risk to the community by a preponderance of the evidence.

We further note that the offenses committed by respondent are a far cry from the “less serious sex offenses” section 3-5 is intended to protect. For these reasons, we reject respondent’s argument.

In light of the foregoing, we cannot say that the trial court’s decision denying respondent’s petition was against the manifest weight of the evidence. As a reviewing court, we will not reverse a trial court’s decision simply because we might have reached a different conclusion based on conflicting evidence. Here, although we may have weighed the evidence differently, we cannot say the court’s judgment was unreasonable, arbitrary, or not based on the evidence.

Legislative Act Required

Accordingly, we reject respondent’s argument. In sum, we conclude that section 3-5(d) of the Act clearly requires an individual to prove he poses “no risk” to the community by a preponderance of the evidence in order to permit a court to terminate his or her sexual offender registration. This is not an impossible burden to obtain. However, considering that medical experts refuse to label an offender as “no risk” (the lowest recognized category by the treatment providers in this case was “low risk” or “lowest possible risk”), we encourage the legislature to reconsider that standard. We further conclude that the court’s decision denying respondent’s petition was not against the manifest weight of the evidence. For these reasons, we affirm the order of the circuit court of Williamson County, denying respondent’s petition to terminate his sexual offender registration.

In re B.C.

In re B.C., 2018 IL App (3d) 170025 (February)

The law does allow a petitioner to establish that it is “more probable than not” that he poses no risk to the community not withstanding an evaluation that says he poses a “low risk to the community.” Gist

The minor was 14 years old when he put his penis in the mouth and anus of two 8 year old boys. He was charged in juvenile court under aggravated criminal sexual abuse and was adjudicated.

Registration Required

He had a 10 year registration requirement and it later turned into a 20 year period.

Original Evaluation

The doctor who evaluated B.C. In her report, said B.C. appeared to be making positive strides in therapy, and he had improved his social skills. She noted that assessing B.C.’s risk of reoffense was “not an easy task” because recidivism rates for adolescent sex offenders were low compared to adult sex offenders and a 100% accurate empirical risk assessment did not exist.

Nevertheless, the doctor cited the following factors that may reduce B.C.’s likelihood of reoffense:

(1) B.C. had no history of juvenile delinquency before the adjudicated offense
(2) since B.C.’s adjudication, he has not had any new involvement with the justice system
(3) B.C. consistently engaged in and demonstrated progress in treatment
(4) B.C. admitted that he committed the offenses
(5) B.C.’s level of denial had decreased
(6) B.C.’s exposure to sexually explicit material had decreased
(7) B.C. did not have a history of being victimized
(8) B.C. did not have a deviant sexual arousal pattern
(9) B.C.’s family was willing to engage in treatment
(10) B.C. was involved in a functional family system
(11) B.C. did not have a history of academic or behavioral problems
(12) B.C. had increased his involvement with peers his age and decreased his involvement with younger peers
(13) B.C. had increased parental and adult supervision
(14) B.C.’s empathy for the victims had increased but was still incomplete
(15) B.C. did not have a history of drug or alcohol use
(16) B.C.’s social skills were increasing and 
(17) B.C. was not suffering from a significant emotional or psychological problem.

The doctor also cited four factors that may increase B.C.’s likelihood of reoffense:

(1) B.C. and his parents continued to display cognitive distortions related to the offense
(2) B.C. and his family did not have sufficient knowledge of the environmental, interpersonal, and family factors that may have contributed to the abuse 
(3) B.C. and his family have yet to develop an appropriate level of victim empathy and 
(4) B.C. and his family failed to completely understand the exploitative nature of the offenses.

Finishes Probation

Five years he was discharged from probation.

…11 Years Later

11 years after that he petitioned for termination of his sex offender registration requirement. 730 ILCS 150/3-5(c).

The petition alleged that

(1) B.C. became statutorily eligible to petition for termination on September 1, 2005
(2) B.C. had successfully completed a sex offender treatment program, and 
(3) according to a different licensed professional evaluator, B.C. was a “low risk to re-offend,” had a plan for accountability, and was aware of his triggers.

What He Was Up To…

At the hearing on the petition, B.C. testified that he committed the charged offenses when he was 14 years old.

Since his convictions, B.C. had graduated from high school and attended 1½ years of community college. After high school, B.C. worked full time at several Taco Bell locations. B.C. had also worked as a manager at a Buffalo Wild Wings restaurant and was then the general manager of the Taco Bell he worked at.

He had no new arrests, no violations of probation and had met all his registration requirements.

Victim Impact Statement

The State called, the mother of the minor victim, to read a victim impact statement.

In her statement, she detailed continuing anxiety and emotional distress felt by the victim caused by B.C.’s actions. The mother acknowledged that people can change, but advocated that B.C. remain on the sex offender registry for as long as possible because of the harm B.C. had caused.

Counseling After Probation & 

Further after his probation ended he sought additional counseling to get a handle on his issues and to ensure he didn’t re offend.

He successfully completed a sex offender treatment program after his probation had ended and had a low risk to reoffend. The evaluator explained that the sex offender treatment program consisted of three phases:

(1) offender check-ins and learning accountability for the deviant behavior
(2) accountability, understanding the cognitive errors that led to the offender’s poor choices, and developing empathy and understanding the impact of the offender’s actions on the victim and society; and 
(3) managing and understanding the offender’s triggers and high risk areas.

These three phases included 18 assignments and took four years to complete.

At the end of the program, the evaluators determined whether the offender had changed his erroneous thinking or had merely moved through the steps.

The New Evaluation

The evaluator explained the biggest factor in preparing the assessment was determining whether B.C. understood his actions were wrong and how to prevent the behavior in the future. She said the following factors reflected favorably on B.C.’s risk assessment:

(1) B.C. had voluntarily undertaken the sex offender treatment program
(2) B.C. had a history of continuous employment
(3) B.C. had a positive family support network and 
(4) B.C.’s family understood the program was not about “curing” B.C., but educating and training B.C. to understand the thinking errors that led to the offenses.

Munson ultimately determined that B.C. had a “low risk to re-offend.”

You Only Get A “Low Risk”

The evaluator said that neither she nor any of the other evaluator had ever issued a “no risk to offend” opinion. The only options were “low risk, medium risk, or high risk.”

On cross-examination, she explained that the sex offender treatment program teaches offenders “to accept that there is always a possibility of re-offense. That’s a part of why we build and instill in them an understanding of what their triggers are and ways of making sure that they don’t get themselves in situations. Many of our assignments are based on looking at their cycle of behavior and then planning for exits of how to get out of that cycle. So it’s a part of our successful treatment that they understand you cannot ever say, ‘I will never re-offend.’ You have to understand that the possibility is there, but the risk factor determines how probable that is.”

The evaluator was not saying that B.C. had “no risk” to reoffend because she did not “know how the standard can have it as zero risk since that goes against all of the sex-offender-based training that [she has] had; but [she thought] it was written by lawyers, not practitioners.”

On redirect examination, she said that, based on her experience, B.C. had the “lowest risk possible.” B.C. also had fully accepted responsibility for his offenses, understood his triggers, and did not have a strong attraction to children. She reiterated “[t]here is no cure. There is only education.”

Trial Judge Denies The Motion

The trial judge denied the motion saying:

“But that’s not what the statute says, and I cannot rewrite the statute. The statute says ‘no risk.’ I don’t get to make those judgment calls. That is not my place as a trial judge. My place is to follow the statute. The word is ‘no risk.’ And, therefore, the petition—despite all of the compelling evidence with regards to the minimal nature of the risk, the statute has to be followed. And, therefore, I have to deny the petition.”

Issue

B.C. argues the court improperly interpreted section 3-5 of the Sex Offender Registration Act (Act) (730 ILCS 150/3-5 (West 2016)) and ceded responsibility for making a judgment to persons other than the court.

Specifically, B.C. contends that the trial court effectively shifted the judicial decision-making authority to the evaluator, who found that B.C. posed a “low risk” instead of the statutorily required “no risk.” Additionally, B.C. submits that the court’s interpretation nullifies section 3-5 because, according to the evaluator, all assessments will result in, at best, a “low risk” determination. B.C.’s argument is derived from the trial court’s interpretation of subsection 3-5(d) of the Act.

The Statute

This subsection provides that once a juvenile sex offender files a subsection 3-5(c) petition,

“[t]he court may upon a hearing on the petition for termination of registration, terminate registration if the court finds that the registrant poses no risk to the community by a preponderance of the evidence based upon the factors set forth in subsection (e).”

730 ILCS 150/3-5(d).

The language of subsection 3-5(d), stating that the court must find the registrant poses “no risk to the community by a preponderance of the evidence based upon the factors set forth in subsection (e),” is clear and unambiguous. T.J.D., 2017 IL App (5th) 170133, ¶ 23.

When deciding whether B.C. satisfied his burden of proof, the court was required to consider the following factors:

(1) a risk assessment performed by an evaluator licensed under the Sex Offender Evaluation and Treatment Provider Act; 
(2) the sex offender history of the adjudicated juvenile delinquent; 
(3) evidence of the adjudicated juvenile delinquent’s rehabilitation; 
(4) the age of the adjudicated juvenile delinquent at the time of the offense; 
(5) information related to the adjudicated juvenile delinquent’s mental, physical, educational, and social history; 
(6) victim impact statements; and
(7) any other factors deemed relevant by the court.

730 ILCS 150/3-5(e) (West 2016). 

High Standard

The legal “no risk” standard of subsection 3-5(d) is necessarily high because this onerous burden strikes a balance between the intent of the Act to protect the public (see People v. Bonner, 356 Ill. App. 3d 386, 388-89 (2005) (Act is intended to protect the public rather than punish sex offenders)) and the statutory ability afforded only to juvenile offenders to terminate registration (see Rufus T., 409 Ill. App. 3d at 975 (section 3-5 of the Act is “intended to protect the rights of juvenile delinquents, who have a greater likelihood of rehabilitation, by allowing them the opportunity to petition the court to remove them from the sex offender registry”)).

It must be recognized that the legislature tempered the high standard of “no risk” by incorporating a preponderance of the evidence burden of proof upon the petitioner. 730 ILCS 150/3-5(d) (West 2016). This statutory burden does not require proof beyond a reasonable doubt and can be satisfied with sufficient evidence to show that a fact is “more likely than not.” T.J.D., 2017 IL App (5th) 170133, ¶ 26.

Analysis

We agree that if the burden of proof was beyond a reasonable doubt, the burden, combined with the “no risk” standard would effectively nullify section 3-5, as it is nearly impossible for a sex offender to show no risk of reoffending. Therefore, the adoption of the preponderance of the evidence burden of proof permitted B.C. to show that he posed “no risk to the community” even though evidence of some of the factors did not weigh in his favor.

The preponderance of the evidence burden of proof requires only that B.C. show that it is “more likely than not” (T.J.D., 2017 IL App (5th) 170133, ¶ 26) that he “poses no risk to the community” (730 ILCS 150/3-5(d) (West 2016)).

This standard is less exacting than the criminal beyond a reasonable doubt standard as it does not require B.C. to prove his case beyond all doubt, but that it is “more probable than not” that he poses no risk to the community. The evaluator's testimony establishes that “low risk” is the label applied to the most successfully rehabilitated sex offender. Her explanation appears to make a “no risk” assessment, as required by subsection 3-5(d), an unattainable goal.

We note that the legal standard of “no risk,” when measured by a preponderance of the evidence, may be satisfied in spite of a “low risk” assessment by a nonjudicial professional evaluating defendant in a clinical, rather than legal, context.

Grant The Petition

Here, expert testimony indicated that B.C. earned the highest rating a clinician could provide. Thus, based on the unique facts of this case, we conclude that B.C.’s “low risk” assessment weighs in favor of granting the petition. The only factor that went against granting the petition was the severity of the offense. And the victim impact panel went against him but it’s value was undermined.

The history of his evaluations was this:

In July 2000, the first evaluation stated B.C. had a low to moderate risk to commit future sex offenses. Relevant to B.C.’s mental and social history, the moderate risk factors cited included B.C.’s failure to understand the exploitive nature of the offenses and B.C.’s negative self-esteem.

The later report, about a year and a half later, indicated B.C. had worked to remedy at least some of these issues as he had consistently engaged in and progressed in treatment, admitted that he committed the offenses, decreased his level of denial, and expressed some empathy for the victims.

The expert testimony at the hearing on B.C.’s petition to terminate registration established that B.C. had resolved these issues after he completed the sex offender treatment program. In particular, the evaluator noted that B.C. had accepted responsibility for the offenses and understood his triggers.

Holding

Based on her evaluation of B.C., the evaluator opined B.C. had the lowest risk possible. Viewed together, this evidence showed that B.C. made substantial progress in correcting the mental issues that existed at the time of the offense. Further, B.C.’s testimony of his employment history, academic history, and current career established a positive educational and social history following the offenses.

Therefore, this factor weighs in favor of granting the petition. From our review of the record, the risk assessment, evidence of rehabilitation, age at the time of the offense, and B.C.’s mental, physical, emotional, and social history factors each weigh firmly in favor of granting the petition.

The evidence supporting the denial of the petition is limited to B.C.’s sex offender history, which consists only of two, albeit very serious, offenses and the victim impact statement. Therefore, we conclude B.C. met the burden of showing, by a preponderance of the evidence, that he poses “no risk” to the community. 730 ILCS 150/3-5(d), (e)(3) (West 2016).

We conclude that the court’s denial of B.C.’s petition to terminate registration was contrary to the manifest weight of the evidence.  The judgment of the circuit court of Kankakee County is reversed and remanded with directions for the court to grant B.C.’s petition to terminate sex offender registration.

Reversed and remanded with directions.

People v. Tetter

People v. Tetter, 2018 IL App (3d) 150243 (January)

SORA declared unconstiututional as applied to this defendant. Gist

Defendant, age 21 at the time, began a relationship with a minor who represented herself to be 18.

A jury found that defendant continued this relationship after learning she was 16 and convicted him of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d) (West 2012)).

Issue

Defendant also raises, for the first time on appeal, a constitutional challenge claiming the Illinois Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2012)), Sex Offender Community Notification Law (Notification Law) (730 ILCS 152/101 et seq. (West 2012)), residence and presence restrictions within 500 feet of school zones or 100 feet of school bus stops (720 ILCS 5/11-9.3 (West 2012)), residence and presence restrictions within 500 feet of a public park (720 ILCS 5/11-9.4-1 (West 2012)), mandatory annual driver’s license renewal (730 ILCS 5/5-5-3(o) (West 2012)), and prohibiting defendant from petitioning to change his name (735 ILCS 5/21­ 101 (West 2012)) impose disproportionate punishment as applied to him.

We refer to these statutes collectively as “sex offender statutes” herein.

SORA And It’s Progeny

Our legislature subsequently passed numerous amendments imposing additional requirements and restrictions upon sex offenders.

Most importantly, it imposed specific restrictions on where sex offenders may be present or live. See 720 ILCS 5/11-9.3, 11-9.4-1 (West 2012). Sex offenders cannot have jobs where they work, at any time for any reason, within 500 feet of a school or public park or within 100 feet of a school bus stop. SORA also effectively bars offenders from working any job requiring extensive travel; sex offenders must notify, in person, both Illinois law enforcement and the destination’s law enforcement when they are away from home for three or more days. 730 ILCS 150/3(a) (West 2012).

The amendments since People v. Malchow, 193 Ill. 2d 413, 424 (2000) “directly restrict where [a sex offender] can live, work, and even move about his community.” People v. Avila-Briones, 2015 IL App (1st) 132221, ¶ 51.

Thus, we are faced with very different and more restrictive statutes than those addressed in Malchow or Smith, 538 U.S. at 98 (Alaska SORA constitutional).

After Probation

After completing sex offender probation, offenders are subject to the sex offender statutes for either 10 years or life—defendant’s conviction subjects him to lifetime registration. Under the sex offender statutes, off-parole sex offenders must register with the DOC, inform the DOC of certain life events (such as buying or using a new car, growing a beard, moving, or taking a vacation), consent to having Internet usage monitored, and most importantly, not live or be present near school zones, school bus stops, or public parks.

Parole Conditions

Because of the restrictions on movement the sex offender statutes are now akin to probation or supervised release. Probation and other forms of supervised release are considered punishment. Sex offenders, like defendant, are subject to dozens of additional parole conditions. See 730 ILCS 5/3-3-7(a)(7.5)-(7.13), (b)(7.5)-(7.6), (b-1) (West 2014). These conditions include sex offender treatment, not living in the same residential unit (including apartments or condominiums) with other known sex offenders, wearing an electronic monitoring device, not communicating with or contacting people on the Internet whom the offender believes to be under 18, consenting to searches of all devices with Internet access, not possessing prescription medications for erectile dysfunction, not “scrubbing” or erasing data on any computer device, residing only at an approved location, obtaining approval prior to accepting employment or pursuing education, not being employed or participating in any volunteer activity involving contact with children, refraining from entering designated geographic areas without approval, neither possessing nor having access to pornography or sexually stimulating material, not patronizing any adult entertainment establishment or telephone hotline, not residing near or being present in places where minors may congregate without advance approval, taking an annual polygraph exam, maintaining a travel log, and other restrictions.

After Parole

Off-parole sex offenders are more restricted in many ways than non-sex-offender parolees. While non-sex-offender parolees are monitored and prohibited from committing crimes, off-parole sex offenders may not reside or be present near places where the legislature has deemed them more likely to recidivate. Sex offender statutes restrict where defendant may live, work, or be present, in addition to the numerous obstacles imposed by the registration requirements. These requirements and restrictions, collectively, constitute an affirmative disability and restraint—defendant is restricted in most aspects of his daily life. Specifically, “safe zones” surrounding schools, school bus stops, and public parks, significantly restrict defendant’s lawful movement within the community. These zones restrict where he may live, drive, work, visit, or attend any social function for life. Although not to the same degree as prison, the sex offender statutes’ restrictions affirmatively disable and restrain offenders such as defendant. Therefore, this factor suggests that the sex offender statutes constitute punishment.

Punishment v. Civil Sanctions

However, since the legislature enacted sex offender statutes that restrict a convicted sex offender’s presence, residence, and liberty to move about society, the court has not addressed whether the sex offender statutes’ punitive effects negate the legislature’s intent to deem the laws civil.

For the reasons stated below, we find that they do. Our sex offender statutes satisfy the traditional definition of punishment.

What Is Punishment?

Citing published legal philosophy, the Snyder court defined “punishment” as involving pain or unpleasant consequences following from an offense against the law, applying to the offender, being intentionally administered by people other than the offender, and being imposed and administered by an authority constituted by a legal system against which the offense was committed.

Our sex offender statutes, like parole or MSR, satisfy this definition.

Analysis

We find that this factor also suggests that the sex offender statutes constitute punishment.

The trial court referred defendant to a licensed clinical psychologist for his evaluation. Defendant scored in the zero percentile on the child molestation, drug abuse, and alcoholism scales. In other words, a clinical psychologist chosen by the court, not defendant, concluded that he poses no greater risk than any other person to commit child sex crimes or those involving drug or alcohol abuse.

Nonetheless, the sex offender statutes require defendant to register for life and not set foot near school zones or public parks where children frequently congregate. Defendant is simply not the person at whom the sex offender statutes’ purposes are aimed. Its statutes are not tailored to regulate only dangerous offenders, those likely to recidivate, or those with little or no potential for rehabilitation; therefore, offenders like defendant must endure the statutes’ restrictions without society reaping any benefit.

These statutes go well beyond the dissemination of accurate, already-public information. We agree with the trial court’s assessment of defendant’s sentence:

“I can only say his life will never be the same. He will go through life now as a predator. He will be labeled a predator in every way. He—it will be very difficult to get a job. He’ll not be able to have a cell phone, use those apps that he uses or be on the Internet. He won’t be able to live where he wants to live. He won’t be able to associate with who he wants to be [sic]. His life will—will never be the same and—and in effect that is great punishment.”

If the sex offender statutes’ application were not irrevocable, our analysis might be different.

Disproportionate Sentence

We now address whether defendant’s punishment is unconstitutionally disproportionate to his crime.

Article I, section 11 of the Illinois Constitution provides,

“[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”

Ill. Const. 1970, art. I, § 11.

“A proportionality challenge contends that the penalty in question was not determined according to the seriousness of the offense ***.” People v. Sharpe, 216 Ill. 2d 481, 487 (2005). Our proportionate penalties clause coincides with the eighth amendment. The eighth amendment allows defendants to challenge sentences as disproportionate “given all the circumstances in a particular case.” Graham, 560 U.S. at 59.

In doing so, courts must be mindful that the eighth amendment contains a narrow proportionality principle, that does not require strict proportionality between crime and sentence but rather forbids only extreme sentences that are grossly disproportionate to the crime.

Holding

We find that the sex offender statutes constitute punishment as contemplated by the eighth amendment and the Illinois Constitution’s disproportionate penalties clause. Given defendant’s background and his virtually zero risk to recidivate, we hold that his lifetime subjection to the sex offender statutes is grossly disproportionate to his crime. As applied to him, lifetime subjection to the sex offender statutes’ registration requirements and restrictions violates the Illinois Constitution’s proportional penalties clause and the United States Constitution’s eighth amendment. For the foregoing reasons, we affirm defendant’s conviction, jail sentence, and probation term. We vacate defendant’s subjection to the sex offender statutes’ registration requirements and restrictions.

People v. Zetterlund

People v. Zetterlund, 2018 IL App (3d) 150435 (March).

Another defendant says SORA is unconstitutional; he loses. Facts

Defendant was present at a party with the victim and several other individuals. During the course of the night, the victim became severely intoxicated and lost consciousness. While the victim was unconscious, defendant removed the victim’s clothing and performed vaginal intercourse on the victim.

Defendant’s friend, was present and recorded the assault on his phone.

Sentence

The court sentenced defendant to six years’ imprisonment and an indeterminate term of three years to life of mandatory supervised release (MSR). Because of defendant’s conviction, he is subject to the restrictions and obligations set forth in the SORA statutory scheme for the remainder of his life.

Issue

Defendant challenges the constitutionality of the SORA statutory scheme, which he is now subject to because of his present conviction. Defendant makes two arguments to support his contention:

(1) the SORA statutory scheme violates the due process clauses of the United States and Illinois Constitutions (U.S. Const., amend. XIV, § 1; Ill. Const. 1970, art. I, § 2) and
(2) the SORA statutory scheme violates the proportionate penalties guarantees of the United States and Illinois Constitutions (U.S. Const., amend. VIII; Ill. Const. 1970, art. I, § 11).

Case Law Says Constitutional

Before analyzing each constitutional argument, we note that our supreme court has upheld prior versions of the SORA statutory scheme against similar constitutional challenges. See People v. Cornelius, 213 Ill. 2d 178 (2004); People v. Malchow, 193 Ill. 2d 413 (2000).

Nevertheless, defendant contends that the SORA statutory scheme is different than the prior versions determined to be constitutional because recent additions have made the SORA statutory scheme so onerous that it no longer satisfies constitutional protections.

Holding

Upon review, we find the SORA statutory scheme satisfies substantive and procedural due process requirements. Therefore, we hold the SORA statutory scheme does not violate defendant’s due process rights under the United States and Illinois Constitutions.

See also In re A.C., 2016 IL App (1st) 153047, ¶¶ 35-79, and People v. Pollard, 2016 IL App (5th) 130514, ¶ 23, the court found that the current version of the SORA statutory scheme did not violate an individual’s due process rights (substantive or procedural).

We agree with the conclusions reached in A.C. and Pollard and adopt their reasoning. In defendant’s brief, he does not specifically state which basis he is relying upon in support of his argument. Consequently, we find defendant has forfeited any argument that the SORA statutory scheme is facially unconstitutional. Despite this, we consider the substance of defendant’s argument to be an as-applied challenge. We find the record is simply insufficient to determine whether imposing lifetime registration requirements is grossly disproportionate to defendant’s crime.

People v. Rodriguez

People v. Rodriguez, 2018 IL App (1st) 151938 (February)

Unfit defendant says SORA is unconstitutional as applied to him. Gist

Defendant was found not not guilty of aggravated criminal sexual assault on the basis of unfitness. He is nonetheless required to register under SORA.

Must Still Register

We held that pursuant to People v. Cardona, 2013 IL 114076, ¶ 25, “an individual found not not guilty of a sex offense, even on the basis of being found unfit, falls within the purview of SORA” and is required to register.

Issue

Defendant now appeals arguing that the SORA statutory scheme is unconstitutional both on its face and as applied to him, an unfit defendant allegedly incapable of understanding the registration requirements. Defendant still claims he does not understand his requirements under SORA.

The sole issue on appeal is the constitutionality of subjecting unfit defendants found not not guilty of sexual assault to SORA’s “statutory scheme,” which, according to Rodriguez, encompasses the duty to register (730 ILCS 150/3), the penalty for noncompliance with the registration requirements and the failure to register (id. §§ 7, 10), the limitations on a sex offender’s residence and presence in certain locations (720 ILCS 5/11-9.3, 11-9.4-1), the requirement that a sex offender must renew his driver’s license yearly (730 ILCS 5/5­), and the prohibition on name changes for sex offenders (735 ILCS 5/21-101).

Analysis

We must first determine whether the SORA statutory scheme constitutes “punishment” at all. Our supreme court has answered that question in the negative on several occasions, most recently in 2013. Cardona, 2013 IL 114076, ¶ 24; see also People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 203 (2009); People v. Malchow, 193 Ill. 2d 413, 424 (2000).

Rodriguez acknowledges these holdings, but maintains that they are outdated, as the registration requirements and limitations imposed on sex offenders have become more onerous since these cases were decided. Specifically, today’s SORA

(1) increases the number of agencies with which a sex offender must register to include not only police departments in the county where the offender resides, but also in the county where he works or attends school (730 ILCS 150/3(a), (d))
(2) increases the amount of information a sex offender must provide when registering to include a photograph, telephone number, place of employment, employer’s telephone number, school attended, information about his qualifying offense, information about identifying marks on his body, license plate numbers for vehicles registered in his name, and all e-mail addresses, Internet identities, and Internet sites he maintains (id. § 3(a));
(3) provides less time to report changes in this information (from 10 days to 3 days) (compare id. § 3(b), with 730 ILCS 150/3(b));
(4) increases how often a sex offender must register and how often he must report in person (730 ILCS 150/6);
(5) increases the initial and annual registration fees (id. § 3(c)(6));
(6) imposes harsher penalties for noncompliance with registration requirements (id. § 10); and
(7) imposes greater restrictions on where a sex offender can live or be present (720 ILCS 5/11-9.3, 11-9.4-1).

What Is Punishment?

Even when the legislature intends to enact a civil regulatory scheme, the law may nevertheless constitute punishment if “the clearest proof” shows that it is punitive in purpose or effect.

When determining whether an ostensibly civil statute has a punitive effect, Illinois courts have applied the seven factor test first set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), which considers whether

(1) the sanction involves an affirmative disability or restraint,
(2) the sanction has historically been regarded as punishment,
(3) the sanction is applicable only upon a finding of scienter,
(4) operation of the sanction promotes retribution and deterrence,
(5) the behavior to which the sanction applies is already a crime,
(6) an alternative purpose to which the sanction may rationally be connected is assignable to it, and
(7) the sanction appears excessive in relation to the alternative purpose assigned.

See Malchow, 193 Ill. 2d at 421. We previously applied the Mendoza-Martinez factors to the 2013 SORA in Fredericks, 2014 IL App (1st) 122122, ¶ 58, and A.C., 2016 IL App (1st) 153047, ¶¶ 77-78, and determined that the changes to SORA since Malchow did not render the Act punitive.

We reach the same conclusion today.

Holding

We conclude that while the SORA statutory scheme has become more onerous since 1998, it remains nonpunitive in effect under Mendoza-Martinez.

Here, despite being in certain ways under- or overinclusive, the SORA statutory scheme is rationally related to protecting the public from sex offenders, which is a legitimate state interest. Thus, although the scheme may be imperfect, it is rationally related to the legitimate state interest of protecting the public from sex offenders and not unconstitutional on its face.

Rodriguez’s argument that the statutory scheme is unconstitutional as applied to him fares no better.

But He Aint Right...

Rodriguez maintains that his “cognitive and physical defects” “make reoffending next to impossible” and also make him unable to comprehend and comply with the SORA statutory scheme. But Rodriguez suffered from the same cognitive defects at the time he was charged with the offense that led to this proceeding; he has not alleged any new defects that would prevent him from committing a similar offense in the future.

And we rejected Rodriguez’s contention that he was incapable of understanding or complying with the registration requirements in our earlier decision. He had some level of cognitive functioning when he committed the crime. The evidence also reveals that Rodriguez had worked in a shop where his responsibilities included sweeping, putting on gloves, and gathering scrap metal and brake lining and putting them in a truck.

Rodriguez was also responsible for his own personal hygiene, had the ability to clean, do laundry, pay bills, and received a high school degree from a school that specializes in teaching individuals with cognitive deficits. Rodriguez was capable of complying with the registration requirements, and we decline to find otherwise today.

For these reasons, we affirm the constitutionality of the SORA statutory scheme both on its face and as applied to Rodriguez.

See Also Episode 321 – People v. Pearse – SORA is One Big Bloody Mess Says Illinois Supreme Court Episode 322 – People v. Gomez – State Failed To Prove Defendant Was Living In The City – Failure To Register Reversed Episode 386 – Packingham v. North Carolina – North Carolina Law Forbidden Sex Offenders From Going Online Stricken Down Episode 406 – People v. Jones – In A SORA Prosecution The Duty To Register Must Be Proven By The State Episode 407 – In re B.G. – Right To Petition To Terminate Obligation To Register As A Sex Offender Survives After A Subsequent Conviction Episode 408 – People v. McClenton – Judge Can’t Order State Police To Remove Person From Sex Offender Registry Episode 411 – People v. Jackson – SORA SORA No Time Is A Good Time For Goodbyes

Warrantless Blood Draws Coming To A Hospital Near You

Mar 28, 2018 26:45

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Episode 469 (Duration 26:45) Here's a quick summary of Illinois cases that deal with non consensual, forceable, warrantless blood draws.

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In This Episode...

We discuss the following cases:

Birchfield v. North Dakota, 136 S. Ct. 1260 (2016) Missouri v. McNeely v. 569 U.S. 141 (2013) People v. Rennie, 2014 IL App (3d) 130014 (May) People v. Brooks, 2017 IL 121413 (November) People v. Sykes, 2017 IL App (1st) 150023 (December) People v. Eubanks, 2017 IL App (1st) 142837 (December) People v. Turner, 2018 IL App (1st) 170204 (February) People v. Hayes, 2018 IL App (5th) 140223 (February) Birchfield v. North Dakota, 136 S. Ct. 1260 (2016)

May the State criminalize the failure to comply with implied consent laws? Birchfield v. North Dakota

Gist

There were actually 3 consolidated cases each of them turning on whether or not the state could criminalize the failure to comply with implied consent laws. Two defendants were threatened with prosecution for failure to give blood; one defendant was charged for not blowing.

Warrantless Blood Draw

Thus, success for all three petitioners depended on the proposition that the criminal law ordinarily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant authorizing such testing is issued by a magistrate.

If, on the other hand, such warrantless searches comport with the Fourth Amendment, it follows that a State may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant.

Issue

SCOTUS, then had to determine if the searches demanded in these cases were consistent with the Fourth Amendment. This is so because when a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search.

If such warrantless searches are constitutional, there is no obstacle under federal law to the admission of the results that they yield in either a criminal prosecution or a civil or administrative proceeding.

Analysis

The court applied the search incident to arrest doctrine and noted it is a categorical rule.

Since breath tests do not “implicate significant privacy concerns”, (no more intrusion than blowing up a party balloon). Blood tests are a different matter. Yes,  Missouri v. McNeely distinguished between “easily disposable evidence” over “which the suspect has control” and evidence, like blood alcohol evidence, that is lost through a natural process “in a gradual and relatively predictable manner."

But McNeely concerned only one exception to the usual warrant requirement, the exception for exigent circumstances, that exception has always been understood to involve an evaluation of the particular facts of each case.

Here, by contrast, the search-incident-to-arrest exception is at play. Having assessed the effect of BAC tests on privacy interests and the need for such tests, the Court concluded that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving.

What About Breath?

The impact of breath tests on privacy is slight, and the need for BAC testing is great.

Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Thus, the police generally will need a warrant to get blood from a driver.

The court said there must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.

Holding

Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, the court said that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.

People v. Brooks, 2017 IL 121413 (November)

Defendant is taken to the hospital kicking and screaming literally against his will and his blood is drawn. People v. Brooks

Gist

Police arrive to the scene of motorcycle accident. Defendant’s leg was broken because his foot was “almost upside down.” He wiped out on his motorbike. Defendant’s speech was slurred, his eyes were red, and he had an odor of alcohol emitting from his mouth when he spoke or yelled at the police. Defendant appeared agitated by the presence of law enforcement. When Webb asked defendant if he wanted to go to the hospital, defendant refused. Emergency medical services (EMS) personnel who were present at the scene told Webb defendant needed to go to the hospital and requested Webb’s assistance. Although defendant continued to decline medical services, Webb ordered defendant out of the Jeep. Defendant refused. Thereafter, Webb and another officer physically removed defendant from the Jeep, placed him on a gurney, and assisted EMS personnel in putting the gurney into the ambulance. Webb reiterated that it was EMS personnel who wanted defendant to get medical treatment and that he did not direct anyone to treat defendant. When asked. Webb testified that the ambulance stopped after traveling one or two blocks because defendant was trying to get out. EMS personnel again asked the police to help in transporting defendant. Webb stated that he was concerned at this time for the safety of EMS personnel, defendant, and himself. Webb placed defendant on the gurney, handcuffed him, and rode in the ambulance the rest of the way to the hospital. Webb then assisted EMS personnel in taking defendant into the emergency room. At the hospital, Webb read the statutory “Warning to Motorists” to defendant and asked him to consent to blood or breath testing. Defendant refused. At that point, Webb issued defendant a citation for DUI. Webb stated he did not take a sample of defendant’s blood nor did he direct anyone at the hospital to do so. Defendant briefly stated that, at the hospital, he never consented to have his blood drawn. Every time he was asked to have his blood drawn, he refused. Medical staff set his leg, which was broken. There is no dispute that a blood draw is a search within the meaning of the fourth amendment. However, the constitutional prohibition “against unreasonable searches and seizures does not apply to searches or seizures conducted by private individuals.” Where a person performs a search independently of the police, the search is considered a private one and, because state action is not present, the fourth amendment is not implicated. Where a search is conducted by a private individual, the search will be subject to constitutional guarantees when the individual conducting the search can be regarded as acting as an agent or instrument of the State. Participation by the police in and of itself, then, does not automatically invoke the application of the guarantees against unreasonable government intrusions safeguarded by the fourth and fourteenth amendments. There was no evidence that any police officer, sought or encouraged a blood draw or was even aware that one had been done. There is no question police forcibly seized defendant and helped transport him to the hospital. But defendant has never challenged the legality of the seizure. His challenge is only to the legality of a search, i.e., the blood draw that allegedly took place at St. Anthony’s. On this record, there is no evidence that a blood draw even took place, let alone that a hospital employee was acting as an instrumentality or agent of police when it was performed. This blood draw was a private search that did not implicate the fourth amendment.

People v. Sykes, 2017 IL App (1st) 150023 (December)

No state action, cops help hold her down while they force catheterize her. People v. Sykes

Ladina Sykes and her two children were leaving a beach in Evanston when the car struck a wall in the parking lot. Sykes contends her conviction should be vacated because the police violated her fourth amendment rights by holding her down while a nurse forcibly catheterized her without a warrant. The paramedics took Sykes to Evanston Hospital, where a triage nurse assessed her condition. She was stable and had no complaints but didn’t know the date or time so was deemed to have an altered mental state. Dr. Patel examined Sykes and ordered a CT scan and blood and urine tests to determine why Sykes was in an altered mental state and to decide on a proper course of treatment.  Officer Pratt was standing outside Sykes’s room when he heard her tell the nurse she had one alcoholic drink that evening. He went in her room and asked her if she had been drinking. She told Pratt she had not been drinking or taking any drugs. Pratt arrested her for driving under the influence, based on the odor of alcohol, slurred speech, bloodshot eyes, and overall demeanor. He did not ask hospital staff to obtain samples for him. Colleen Costello, the supervising nurse, asked Sykes for a urine sample. Sykes refused. Costello then decided to catheterize her. Costello said patients can refuse treatment unless, like Sykes, they have an altered mental state. When Costello began the catheter procedure, Sykes was combative, swinging her arms, kicking her legs, and moving her hips to resist catheterization. She also tried to get out of the bed. Costello called for assistance, and about nine people responded, including Evanston police officers Pratt and Magnas, who had been standing outside the room. Pratt and Magnas stood at the head of the bed and held Sykes down by her shoulders. Once Sykes was restrained, Costello extracted the urine with a catheter. The blood and urine tests were sent to the hospital lab. Sykes’s blood test showed she was well within the legal limit for alcohol, and her urine test was presumptively positive for cannabis and PCP. The fourth amendment applies only to government action. People v. Phillips, 215 Ill. 2d 554, 566 (2005). A search performed by a private person does not violate the fourth amendment. Additionally, the fourth amendment does not prohibit the government from using information discovered by a private search. Evanston Hospital staff did not perform the catheterization as the agents of the police. The test was ordered for medical purposes unrelated to any possible charges filed by the police. The fact that the officers were present, had placed Sykes under arrest, and were called on to assist did not turn the medical procedure into state action. They were in the room only because nurse Costello asked for their assistance restraining her so that she not injure herself or others. It was not unreasonable for the officers to come to the aid of a nurse seeking help with a patient who might harm herself and others. Moreover, the catheterization was not dependent on the officers’ participation. Thus, the trial court did not err in denying her motion to suppress the results of her urine test.

People v. Eubanks, 2017 IL App (1st) 142837 (December)

Defendant ran over a mom and child killing the mom when he refused to give blood or urine they held him done to draw it. People v. Eubanks

625 ILCS 5/11-501.2(c)(2) says in cases of death or personal injury a person shall submit to chemical testing. Birchfield v. North Dakota,136 S. Ct. 2160, 2174 (2016) has thrown the constitutionality of this section into question. In this case, Eubanks was arrested in connection with a hit-and-run accident that killed Maria and injured Jeremiah. The police had probable cause to arrest Eubanks for driving under the influence. At the police station, Eubanks refused to take a breathalyzer test or to submit to blood and urine tests. At 2:53 a.m., an officer took Eubanks to the hospital, telling him that he was required by law to submit to blood and urine tests. Eubanks was physically restrained by hospital security and a blood sample was taken at 4 a.m. The nurse then asked for urine, but Eubanks refused to urinate. The nurse threatened to catheterize him. As she approached him with a catheter, he urinated, and a sample was collected at 5:20 a.m. The samples were sent to the crime lab for analysis. Eubanks blood produced negative results for alcohol or any illegal substance, but his urine tested positive for cannabis, ecstasy, and cocaine metabolite. A warrantless search is per se unreasonable unless it is a search conducted pursuant to consent, a search incident to arrest, or a search predicated upon probable cause where there are exigent circumstances which make it impractical to obtain a warrant. The State bears the burden of showing the existence of exigent circumstances. Eubanks does not dispute that the police had probable cause to believe that he was driving under the influence. Rather, he argues that there were no exigent circumstances that made it impractical to obtain a warrant. More specifically, he argues that (i) causing death or personal injury to another individual does not constitute a per se exigency and (ii) the State did not sustain its burden of showing exigent circumstances in his particular case. See Missouri v. McNeely, 569 U.S. 141 (2013) (natural dissipation of chemicals in the blood is not an exigent circumstance). Under McNeely, section 11-501.2(c)(2) is unconstitutional on its face, insofar as it permits compelled chemical testing without a warrant in all cases where an officer has probable cause to believe that a driver under the influence has caused death or personal injury to another. The facts of this case are illustrative since they do not reflect any exigency that would have prevented officers from obtaining a warrant. Nearly three hours passed before he was brought to the hospital. They could have used that time to get a warrant.

 

People v. Turner, 2018 IL App (1st) 170204 (February)

Good faith exception saves this warrantless blood draw. People v. Turner

Defendant’s pickup truck collided with a motorcycle carrying two persons. The trck and motorcycle met at an intersection. The driver of the motorcycle, James McFall, was killed; his wife, Kasey McFall, sustained serious injuries. The defendant was taken to the emergency room at St. James Hospital, where two blood samples were drawn from him. The first blood draw was taken pursuant to a physician’s order as a part of his emergency room treatment, at approximately 10:46 p.m. At the request of police, nurses performed a second blood draw for inclusion in a “DUI kit” shortly after midnight on July 3, 2011. Both tests indicated that the defendant’s blood alcohol content was above the legal limit. The defendant was charged with 10 counts of aggravated driving under the influence of alcohol and reckless homicide. Before trial, the defendant moved to suppress the results of the second blood test used in the DUI kit. At a hearing on the motion, the defendant testified that at the hospital, he was asked for a blood sample “around three to four times” by nurses, in the presence of police. He stated that he “continually asked the reason why they wanted to draw blood” but was given no reason. He claimed that he never consented to the DUI kit blood draw. The trial court proceeded to find that the second blood draw was admissible under section 11-501.2(c)(2) of the Code. Officer Murphy recalled that the defendant’s “speech was slurred and mumbled” when he spoke to hospital staff and that his eyes were “glassy and bloodshot.” Officer Murphy stated that he gave a nurse a DUI test kit containing vials for blood and urine samples. He observed a nurse perform a blood draw for the DUI kit, which he placed into the evidence locker at the police station. Defendant’s various blood tests came back as .142 and .0118. The expert calculated that the motorcycle’s speed at impact was approximately 25 miles per hour. The pickup truck’s speed was between 13 and 15 miles per hour at the time of the collision. “Black box” data recorder reflected that five seconds prior to the crash, the truck’s speed was approximately 10 miles per hour. The recorder indicated that the truck’s brakes were applied five seconds before the impact. The trial court sentenced the defendant to two concurrent eight-year sentences on counts I and V. We first address the argument that the trial court erred in denying the defendant’s motion to suppress the DUI kit blood draw. The defendant argues that, because he did not consent and Officer Murphy did not attempt to obtain a warrant, the DUI kit blood draw violated his rights under the fourth amendment of the United States Constitution. The defendant argues that section 11-501.2(c) is unconstitutional in light of the United States Supreme Court decision of Missouri v. McNeely, 569 U.S. 141 (2013). The finding that this section 11-501.2(c)(2) is unconstitutional does not end the analysis. If the good-faith exception applies, it will support admission of the DUI kit blood draw, notwithstanding section 11-501.2(c)(2)’s unconstitutionality. Evidence will not be excluded where police acted with an “objectively reasonable good-faith belief that their conduct was lawful” as in such cases “there is no illicit conduct to deter.” Accordingly, under the good-faith exception, “searches conducted by police in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” In determining whether the exception applies, a court asks “the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal in light of all of the circumstances.” See People v. Harrison, 2016 IL App (5th) 150048 (February 2016) (good faith exception applies to forced blood draws before McNeely). Harrison supports application of the good-faith exception under the facts of this case. As in Harrison, the defendant’s arrest in this case occurred after our supreme court’s decision in People v. Jones, 214 Ill. 2d 187 (2005) but before the 2013 decision in McNeely. We recognize that our recent opinion in Eubanks rejected the State’s reliance on Jones to invoke the good-faith exception. Eubanks is clearly distinguishable. The defendant in Eubanks did not merely decline to consent to the tests; rather, our court emphasized that “physical force was used to obtain Eubanks blood and urine samples,” including that he was “handcuffed to the hospital bed while blood was forcibly drawn from him.” Our supreme court in Jones expressly cautioned that it did not “permit law enforcement officers to use physical force in obtaining blood, urine, and breath samples,” we concluded that the officers in Eubanks “could not have reasonably relied on Jones to authorize such conduct.” We emphasized our supreme court’s statement in Jones that “we do not suggest that a DUI arrestee’s lack of a right to refuse chemical testing permits law enforcement officers to use physical force in obtaining blood, urine, and breath samples.” Although the defendant in this case testified that he initially refused requests for a blood draw, he did not claim (and there is nothing in the record to suggest) that he was physically threatened or restrained in order to obtain the sample. The trial court specifically found that he was not coerced, and that finding is not against the manifest weight of the evidence. As the good-faith exception applies in this case, we affirm the denial of the motion to suppress the DUI kit blood draw. Conviction and sentence affirmed.

People v. Hayes, 2018 IL App (5th) 140223 (February)

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

The defendant, Chad B. Hayes, struck the boy with his vehicle when the boy rode his bicycle in front of the defendant’s vehicle. The accident took place near city hall in Sumner, Illinois. According to the defendant’s statement to police, 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. Apparently, the kid rode his bicycle between two parked cars onto the roadway. Clem did not believe that the defendant could have done anything to avoid the accident. The defendant ran into city hall asking for help. 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. The 7 year old victim died. Deputy Ash asked Chief Murray to transport the defendant to Lawrence County Memorial Hospital to provide blood and urine samples for drug screening. No one noticed anything about the defendant’s demeanor or appearance that would lead him to believe that the defendant was intoxicated. Chief Murray testified that Deputy Ash asked him to transport the defendant to Lawrence County Memorial Hospital for drug testing. Chief Murray did so. 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. Chief Murray testified that he waited with the defendant until Deputy Ash arrived to transport him from the hospital. The test indicated the presence of methamphetamine, amphetamine, THC, and naproxen, and the defendant was charged with aggravated driving under the influence (DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2010)). Chief Murray acknowledged that he did not give the defendant the warning to motorists. The results of initial tests performed by the hospital’s lab were faxed to Deputy Ash later that afternoon. After receiving these results, Deputy Ash placed the defendant under arrest for DUI. Deputy Ash asked the defendant to submit to a second drug test 2 days later. This blood tested negative for the presence of any drugs. 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)). Eventually, the defendant was charged with aggravated DUI (id. § 11-501(d)(1)(F)). The court sentenced the defendant to 54 months in prison. 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. A recognized exception to the warrant requirement is voluntary consent to a search. The validity of a warrantless search based on consent thus depends on the voluntariness of the consent. Whether consent is voluntary is a question of fact that must be determined by evaluating the totality of the circumstances. Acquiescence to apparent authority is not the same thing as consent. Consent to a search “must be received, not extracted.” Consent to a search is the waiver of a constitutional right. As such, a “defendant’s intention to surrender this valuable constitutional right should be unmistakably clear.” Consent is voluntary when it is “given freely without duress or coercion.” The State argues that the defendant unambiguously consented to the search through his conduct by getting into the vehicle. The State further argues that his consent was voluntary because there was no evidence that he objected to the request that he submit to the test. But 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. 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. Finally, we consider the parties’ arguments concerning implied consent. 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. 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. We read this section as holding that if a test is otherwise proper under the fourth amendment, its results are admissible. We 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. The results should have been excluded. Conviction reversed outright.

See Also Episode 462 - People v. Turner, 2018 IL App (1st) 170204 (February) (good faith exception applies and allows the admissibility of this warrantless blood draw) Episode 438 – People v. Eubanks, 2017 IL App (1st) 142837 (December) (really bad defendant held down in the hospital) Episode 461 – People v. Hayes, 2018 IL App (5th) 140223 (February) (defendant was not ticketed so so state could not establish consent to the blood draw) 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 186 – Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016) Episode 258 - Jeffery Hall Interview - He Discusses The Krystin Rennie Case

Constitutionality Based On Structure: Do Houses Have More Protection Than Apartments?

Mar 16, 2018 19:10

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Episode 464 (Duration 19:10) Here's a quick summary of the cases that suggest, that maybe, houses have more constitutional protection than apartments.

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In This Episode...

We discuss the following cases:

Florida v. Jardines, 133 S. Ct. at 1409 (2013) People v. Burns, 2016 IL 118973 (March) People v. Bonilla, 2017 IL App (3d) 160457 (June) People v. Martin, 2017 IL App (1st) 143255 (June)  Florida v. Jardines

Florida v. Jardines, 133 S. Ct. at 1409 (2013).

“Property based approach” holds that dog brought to the front step of a single family home constitutes a search.  Gist

The Court considered whether using a drug sniffing dog on a homeowner’s porch to investigate the contents of a home was a “search” within the meaning of the fourth amendment.

Facts

Jardines was growing the marijuana in his home. This difference is critical to the United States Supreme Court. This case began when police are told he had a growing operation in his home. DEA agent with a sniff dog knock on front door, the dog alerts to presence of drugs, police leave, and comeback with a warrant. To be clear, the police did not go into the home with the police dog. Before getting the warrant, the officers and the dog remained on the front stoop and only walked on the walkway of the stoop.

Property Rights

The Court stated that pursuant to Katz, “property rights are not the sole measure of Fourth Amendment violations.” The Court stated that the area “immediately surrounding and associated with the home,” known as curtilage, was “part of the home itself for Fourth Amendment purposes.” The Court then assessed whether the officer’s’ investigation “was accomplished through an unlicensed physical intrusion.” The Court stated that a police officer without a warrant “may approach a home and knock, precisely because that is no more than any private citizen might do.”

Holding

Ultimately, the Court found that the use of trained police dogs to investigate a home and its immediate surroundings was a “search” within the meaning of the fourth amendment. The Court commented that the Fourth Amendment actually uses the word “houses” (also known as your home) then held that: The Amendment establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has undoubtedly occurred. Jardines, 133 S.Ct. 1409 (2013); quoting United States v. Jones, 565 US 945, 132 S.Ct. 945 (2012) (this is a GPS tracking case).

The police were in his home and on his property in an investigative capacity. They did not have permission to be there.

That was a search.

What About The Other Dog Sniff Cases?

The fact that the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred. Jardines, 133 S.Ct. 1409 (2013). The Court was well aware of its own case law that said dog sniffs are not searches. However, the Court refused to play the “expectation of a privacy interest” game in this case. Instead, they took a property-based approach.

The House From Jardines In Miami Dade, Florida

Jardines House

People v. Burns

People v. Burns, 2016 IL 118973 (March).

The "no-nights visits" rule is affirmed, can't bring the sniffer dog to your front step for a little sniff action. Facts

After receiving a tip that Defendant is selling weed from her apartment, the police bring a dog to her apartment door. The dog alerts to the presence of contraband. The police then go get a warrant.

Issue

Which begs the question: does the warrantless use of a drug-detection dog at an apartment door, located within a locked apartment building, in the middle of the night, violate defendant’s fourth amendment rights?

Defendant's Argument

Defendant counters that under Jardines, a search warrant is required to conduct a dog-sniff search at the entrance to a home. Indeed, the problem in Jardines, according to Scalia, was that the cops intruded physically on defendant's property in order to conduct a search.

All the relevant factors pointed to the conclusion that this apartment stoop was part of the curtilage of Defendant's home.

Locked Apartment

The court took special note of the fact that the entrances to the apartment building were locked and the common areas were not open to the general public. The court also found that the landing to the defendant’s apartment was curtilage, noting that the landing was directly in front of the apartment and a clearly marked area within a locked building with limited use and restricted access.

The court stated that the police conduct in the case “certainly exceeded the scope of the license to approach the defendant’s apartment door,” as the officers entered a locked building in the middle of the night and remained in the building for more than a very short period of time.

Holding

This intrusion onto her locked front stoop at 3:20 a.m. was declared unconstitutional.

However, Jardines left open the middle ground between traditional apartment buildings and single-family houses, including split-level duplexes, buildings that were converted from houses to apartments, and garden apartments whose doors open directly to the outdoors.

Was the court apply a strict property-based approach? Exactly when does it apply? Was the dog dispositive? The front door?

People v. Bonilla

People v. Bonilla, 2017 IL App (3d) 160457 (June).

Constitutional violation did not depend on whether the common door to the apartment was locked. Facts

On a tip police bring a dog to an apartment complex in Moline, Illinois. The exterior doors leading into the apartment building common-area hallways were not locked, and there was no lock, pass card, entry system, or anything whatsoever on the closed exterior doors of the apartment building that would prevent any person off the street from entering into the common-area hallways of the apartment building.

More Facts

Once inside the apartment building, the canine officer walked his drug-detection dog down some of the common-area hallways. As the dog came to apartment 304, however, the dog moved back and forth in the doorway, sniffing at the bottom of the door, and signaled a positive alert for the presence of illegal drugs.

Arrested

The police officers obtained a search warrant for apartment 304 based upon the drug-detection dog’s alert. After obtaining the search warrant, the officers searched the apartment and found a quantity of cannabis and certain other items. Defendant, who lived in apartment 304, was later arrested and charged with unlawful possession of cannabis with intent to deliver.

Property Based Approach

There are two different approaches that a court may be called upon to apply when determining whether a police officer’s actions constitute a search under the fourth amendment— a property-based approach and a privacy-based approach.

If applicable, the property-based approach should be applied first.

There is no need to apply the privacy-based approach if a violation of the fourth amendment has been found under the property-based approach. The property-based approach recognizes a simple baseline of protection that is provided by the fourth amendment as it relates to the property interests specified: that when the government obtains information by physically intruding (trespassing) on a person’s house, papers, or effects, a search within the original meaning of the fourth amendment has undoubtedly occurred.

Was There An Intrusion?

The question a court must ask when applying the property-based approach is whether the police officers intruded (trespassed) upon a constitutionally protected area (one of the protected properties specified in the text of the fourth amendment) to obtain the information in question.

Privacy Based Approach

The privacy-based approach recognizes that property rights are not the sole measurement of the fourth amendment’s protections and that fourth amendment protections also extend to areas in which a person has a reasonable expectation of privacy.

Was There A Reasonable Expectation Of Privacy?

The question a court must ask when applying the privacy based approach is whether the complaining person had a reasonable expectation of privacy in the area invaded (the location or object of the alleged search) by the police.

That is so because the privacy-based approach adds to the fourth amendment protections provided under the property-based approach; it does not diminish those protections and is not a substitute for those protections.

Reexamine Jardines

Prior to the United States Supreme Court’s decision in Jardines, it was generally established that a warrantless police intrusion into a common area of an apartment building did not violate the fourth amendment rights of a defendant tenant.

In Jardines, however, the United States Supreme Court held that a police dog sniff of the front door of a single family home was a search under the fourth amendment. The Supreme Court reached that conclusion, as stated in its majority opinion, by applying a property-based approach to the police officer's’ actions and by finding that the police officers had intruded (trespassed) on the curtilage of the home (the front porch) to gather the information (the alert by the drug detection dog) that was later used as the basis for obtaining a search warrant for the home.

Reexamine Burns

The Illinois Supreme Court later applied the holding of Jardines in the context of a multi unit apartment building in Burns and found that a police dog sniff of the front door of a defendant’s apartment was a search under the fourth amendment because the police officers had intruded on the curtilage (the landing outside of defendant’s apartment door in a locked apartment building) of the defendant’s residence in the middle of the night. Burns, 2016 IL 118973, ¶¶ 32-45.

In reaching that conclusion, the supreme court emphasized that the apartment building where defendant lived was locked and that the common areas of the building were not open to the general public.

This Case

In the present case, although we are mindful of the supreme court’s comment in Burns, we nevertheless conclude that the police officer’s actions constituted a search under the fourth amendment, even though the apartment building involved was unlocked and unsecured.

Analysis

Other than the unlocked status of the building itself, the officer’s conduct in the present case was virtually identical to that of the officer in Burns. The court could not conclude that a person who lives in an unlocked apartment building is entitled to less fourth amendment protection than a person who lives in a locked apartment building.

The fourth amendment draws a firm line at the entrance to the home as the home is first among equals in the protected areas specified in the fourth amendment. At the very core of the fourth amendment is the right of a person to retreat into his or her own home and there to be free from unreasonable governmental intrusion. In providing that protection, the fourth amendment does not differentiate as to the type of home involved.

Can Ignore Privacy Right Cases

The court acknowledged that there is precedent to support the State’s assertion that a person does not have a reasonable expectation of privacy in the common area of an apartment building, that a dog sniff is not a search under the fourth amendment, and that a dog sniff is not the same as the thermal imaging scan.

Nonetheless, the state’s arguments were rejected based on the above analysis. Do we apply property-based approach to all apartments now?

Does the dog matter?

People v. Martin

People v. Martin, 2017 IL App (1st) 143255 (June).

Constitutional violation depended on whether the 2 story flat was more like a single family home or an apartment building; but this is not a sniff case.  Drug Deal

Police say they observed a man approach defendant and raise his right index finger, whereupon defendant acknowledged the gesture and entered the main door frame of a two story flat.

The door to was slightly ajar. Defendant stood on the immediate threshold and reached into the door inside of the doorframe. Defendant retrieved a blue plastic bag, manipulated it, and then retrieved a smaller unknown item from the bag. Defendant then placed the bag on top of the door and returned to the man, where he received money from and tendered the small unknown item to the man.

Defendant tendered the money to another male who was standing outside of the house. The man was arrested and he said he just purchased heroin. Police then arrested defendant.

The Search

An officer then reached above the doorframe on the inside of the door and recovered the blue bag.

The items inside the blue bag matched the suspect narcotics that were recovered from the man. The baggies were branded with a bomb logo and said “stay high imagine”. The front door was open, and it emptied into a vestibule or common area that had another door leading into the residence.

The police did not have a warrant. 

Issue

The court acquitted defendant of the hand to hand delivery and of possession with intent to deliver but found him guilty of possession of a controlled substance. On appeal defendant challenges the warrantless seizure of the drugs.

Court Takes A Privacy Rights Approach

Under Katz, to claim the protection of the fourth amendment, a person must have exhibited an actual (subjective) expectation of privacy in the place searched or thing seized, and this expectation must be one that society is willing to recognize as “reasonable.”

Jardines Left Things Unsettled

Of note, Illinois courts have found that there is no reasonable expectation of privacy in common areas of apartment buildings that are accessible to others. Although Burns applied Jardines to a multi-unit apartment building, the specific contours of Jardines are unsettled.

Jardines left open the middle ground between traditional apartment buildings and single-family houses, including split-level duplexes, buildings that were converted from houses to apartments, and garden apartments whose doors open directly to the outdoors.

Under both Katz and Jardines, the type of building at issue matters.

Privacy Rights Cases

Illinois courts have found that there is no reasonable expectation of privacy in common areas of apartment buildings that are accessible to others. See People v. Smith, 152 Ill. 2d 229, 245 (1992) (no reasonable expectation of privacy in a conversation that occurred in an apartment building’s unlocked common area that was shared by other tenants, the landlord, their social guests, and other invitees); People v. Carodine, 374 Ill. App. 3d 16, 23 (2007) (the defendant had no reasonable expectation of privacy in the dryer vent of his three-unit apartment building where dryer vent was in a common area that was accessible to the landlord and other members of the general public); People v. Lyles, 332 Ill. App. 3d 1, 7 (2002) (stating that a tenant has no reasonable expectation of privacy in common areas of an apartment building that are accessible to other tenants and their invitees).

Two Story Flat

Here, the State and defendant dispute how to characterize the two story flat, with the State asserting that it is a multi-unit apartment building and defendant contending that it is a single-family home.

Defendant's mother owned the flat, he was a guest there, and the second story was empty. Nobody was living upstairs. The court found that there is a greater expectation of privacy in duplexes owned and occupied by one family. It should be treated as a single-family home for fourth amendment purposes.

This was not a typical multi unit building where numerous tenants and members of the public were expected to enter. Rather, it was viewed as the family home. The court further stated that “a strict apartment versus single-family house distinction” was troubling because it would apportion fourth amendment protections on grounds that correlate with income, race, and ethnicity, citing data showing that a smaller percentage of African-Americans and Hispanics live in one-unit detached houses than whites and that the percentage of households that live in one-unit, detached houses rises with income.

Analysis

As “the Fourth Amendment has drawn a firm line at the entrance to the house”, the area above the inside door frame was a constitutionally protected area. Further, that area outside the door was akin to a porch, which is a “classic exemplar” of curtilage.

Clearly, the officers’ actions were accomplished through an unlicensed physical intrusion.

Here, the police went up the stairs of the flat reached above the inside door frame, and recovered a blue bag. This was well beyond what an ordinary private citizen could do. Here, the police physically intruded on the inside of the home to gather evidence. That the door was open does not change this result. A private citizen would not think that he could breach the open door of a home and investigate its contents. Any physical invasion of the home’s structure by even a fraction of an inch is too much.

Holding

Police exceeded what a private citizen was permitted to do at the front door. The court held that this was a warrantless search under Jardines. Without the suppressed evidence of the narcotics, the State cannot prove that defendant possessed the narcotics and his conviction must be reversed outright. More questions remain?

Would result be different if that was more like an apartment building?

The Two-Story Flat From Martin In Chicago, Illinois

Chicago Two Flat

Former Police Officer With A Law Degree Matthew Taylor Provides Insight And Perspective On The Criminal Law

Mar 3, 2018 54:23

Description:

Episode 459 (Duration 54:23) What do police think about the case law? Do they think about the case law? Matthew Taylor provides some insight.

Attorney Matthew Taylor 

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In This Episode...

"I think that they got it right. It shows that the courts are taking an understanding of what an officer has to do on a daily basis and they are deferring more to the officer's inherent and unique skill set..." -- Matthew Taylor

Retired officer, teacher, lawyer and mentor Matthew Taylor provides unique perspective on the criminal law.

Matthew Taylor

Matthew Taylor is retired from the Palatine Police Department. He served as a school resource officer, general patrol, and instructor to other officers on the law. While he was on the force he obtained his law degree and now practices law full time.

Learn More About Matt Taylor... mjtaylorlaw.com matt@mjtaylorlaw.com (847) 894-8038 "Can't Miss" Moments:

✓ All the important details you've forgotten about the landmark case Terry v. Ohio and why they matter. (Go to 3:10)

✓ What the court got write in 1968. Terry stops and frisks were happening before the term "reasonable suspicion" entered the lexicon. (Go to 7:50)

✓ The "perception separation" makes it hard to understand what policing was like before computers. (Did you know call boxes were invented in Cleveland?) (Go to 9:55)

✓ The reason why Terry was important to law enforcement officers. What changed for them? What reasonable suspicion really means in the streets. The beautiful words were... (Go to 12:00)

✓ The facts described in this case are a pretty common and typical scenario. How you feel about the outcome depends on how you see things. (Go to 13:38)

✓ A sure fire way to set off alarm bells in a police officer's head is to do this. "Those alarm bells is what officers call reasonable suspicion."  -Matthew Taylor (Go to 16:20)

✓ When rolling up your sleeves is the beginning of a bad day.  (Go to 18:44)

✓ "That's a green light and a Christmas gift all in one for an officer to hear that." - Matthew Taylor

✓ "Case law is littered with officers who don't care...that's the burden of every good officer out there, to overcome those officers by doing it right..." - Matthew Taylor (Go to 27:20)

✓ The right way to conduct a police-citizen encounter. What police and attorneys have in common. Why tone and attitude really matter. (Go to 30:44)

✓ The reason why a police uniform can't always be seen as an authoritarian symbol. (Go to 32:15)

✓ How a police officer got a law degree, stayed on the force and became an "officer lawyer." How love for the cases, the law and the constitution turned into a police instructor and scholar. "I'm more of a constitutional enthusiast than I am a scholar but..." - Matthew Taylor  (Go to 43:01)

Cases Mentioned Terry v. Ohio, 392 U.S. 1 (1968 People v. Smith, 2016 IL App (3d) 140648 (March) People v. Gherna, 203 Ill. 2d 165, 178 (2003) Arizona v. Gant, 556 U.S. 332 (2009) Links & Resources Palatine Police Department North East Multi-Regional Training (NEMRT) NEMERT Hostage Negotiation School FBI Crisis Negotiation Ernie Blomquist See Also

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Search & Seizure Cases  One Other Cool Thing Before You Go...

It doesn't matter where you're at in your criminal law practice. Right now you can make a decision that leads to explosive litigation growth.

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Advice From A Full Circuit Judge: The Honorable Rene Cruz

Jan 18, 2018 31:15

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Episode 442 (Duration 31:15). Judge Rene Cruz of the 16th Judicial Circuit provides practical advice for attorneys. 

Judge Rene Cruz 16th Circuit Illinois

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In This Episode

"...So I'm an army brat. My father was in the military. So we traveled. I happen to have been born in the country of Panama while my father was serving his second tour in Vietnam." -- Judge Rene Cruz.

Judge Rene Cruz

Before taking the bench, Judge Cruz practiced law in Illinois for 17 years with Ed Gil, his former law partner at Gil & Cruz (Now The Gil Law Group). He's now assigned to family court in Kane County.

Judge Cruz did have an extensive criminal law practice before his judgeship, however, we talked about

his experience in the legal community diversity the road to a judgeship and how he's currently serving the community. "Can't Miss" Moments:

✓ The Judge experienced diversity differently than the rest of us and now thinks of the diversity much differently than the rest of us do. (Go to 3:41) & (Go to 10:58)

✓ Why the judge walked away from a thriving business, a judgeship was the last thing on his radar, so what did he discover that finally motivated him to apply for judge. (Hint: It wasn't the money; he wasn't even sure how much judges get paid.)  (Go to 13:41)

✓ The  judge didn't know a few important things when he first applied for judge. Once, he figured things out the process went a lot smoother for him.  (Go to 15:44)

 ✓ "Some judges would say to me straight off from the beginning, 'I'm being told and I'm hearing that we need some Hispanics on the bench', and the first thing I would tell them is..." - Judge Rene Cruz speaking about when he was a judicial candidate (Go to 14:27)

✓ What do full circuit judges really look at and consider when they are voting for an associate judge?  (Go to 20:00)

✓ Judge Cruz is playing the long game when it comes to promoting diversity on the bench and in law. You'll never guess where he spends his time recruiting and encouraging judicial applicants.  (Go to 24:50)

See Also

You may also want to check out...

Episode 412 How To Become An Illinois State Judge With Scott J. Frankel Episode 301 Retired Judge Allen Anderson: The View From The Bench Episode 256 Interview With Judge Steigman of the Fourth Appellate District Before You Go...

It doesn't matter where you're at in your criminal law practice. Right now you can make a decision that leads to explosive litigation growth.

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, process and learn from?

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Unreasonably Prolonged Traffic Stop Masks Other Problems With The Dog

Dec 7, 2017 14:31

Description:

People v. Paddy, 20172017 IL App (2d) 160395 (October). Episode 417 (Duration 14:30)

Drug interdiction patrol officer unreasonably prolonged this traffic stop for a drug dog sniff.

 This episode was originally released on the Premium Nuggets Podcast.

Click here to go to full show notes.

Everything You Wanted To Know About The NIU College of Law Criminal Defense Clinic With Professor Cain

Nov 23, 2017 33:14

Description:

Episode 418 (Duration 33:13) The NIU College of Law Criminal Defense Clinic is essentially a law firm staffed by law students - Professor Paul J. Cain reveals how it works on the inside.

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In This Episode

"I love what I'm doing. I love the combination of academics with practice, and it's fun to see the students develop over the course of a semester or even multiple semesters ." -- Paul J. Cain

Professor Paul J. Cain

Professor Paul J. Cain has been a professor at the NIU College of Law for 14 years.  Currently, he is the clinical professor of their Defense Clinic.

The Professor is also the president of the Illinois Association of Criminal Defense Lawyers (November 2017 to November 2018).

"Can't Miss" Moments:

✓ Learn all about the Zeke Giorgi Criminal Defense Clinic. What charges are covered? How students get their cases? How'd you end up in Winnebago County and not Dekalb? Who was Zeke Giorgi? What do the local public defenders think? How do the judges treat the students? Do students do jury trials? (Go to 6:30)

✓ Track a Defense Clinic case from inception to the end. Are students allowed to handle substantive motions and litigation hearings? (Go to 14:12)

✓ There are 2 classes that are mandatory prerequisites the students have to have before being admitted into the clinic. Evidence, criminal procedure, trial advocacy, and mock trial are all just recommended but not required.  (Go to 15:20)

✓ Benefits and value offered by membership to the IACDL... (Illinois Association of Criminal Defense Lawyer) (Go to 22:20)

Links & Resources Paul J. Cain Clinical Professor NIU College of Law Criminal Defense Clinic NIU College of Law Experiential Learning NIU Today: NIU’s Zeke Giorgi Legal Clinic honors 10 years of courtroom advocacy for Rockford community WREX.com: Zeke Giorgi Legal Clinic celebrates decade of service NIU Law Clinical Programs (PDF) NIU College of Law Barbara Vella (attorney and daughter of Zeke Giorgi) See Also

You may also want to check out...

Lighthouse Recovery Inc. Illinois Association of Criminal Defense Lawyers Before You Go...

It doesn't matter where you're at in your criminal law practice. Right now you can make a decision that leads to explosive litigation growth.

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, process and learn from?

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

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How To Become An Illinois State Judge With Scott J. Frankel

Nov 4, 2017 37:06

Description:

Episode 412 (Duration 37:05) 

What's it take to become an Illinois state judge? 

Scott J. Frankel candidate for Cook County 11th Subcircuit Judge

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In This Episode

"Always have integrity when you walk into the courtroom because the judge you're in front of may be one of the deciding votes in your campaign for associate judge." -- Scott J. Frankel

"If you're thinking of running for circuit court judge you need people, you need a committee, you can't do it by yourself." -- Tony Sasson

Scott J. Frankel

Scott J. Frankel is running for judge in the 11th Subcircuit of Cook County.

He is an Illinois attorney in federal and state court. He has experience in civil law, criminal law, state court, federal court, appeals, and has appeared before the Illinois Supreme Court.

In this 37 minute session, Scott J. Frankel, explains the process and procedure to become an Illinois state judge.

Tony Sasson

Tony Sasson is also an Illinois attorney and campaign manager for Scott J. Frankel.

• (312) 977-9050

• (224) 723-2040

• tony@frankelforjudge.com

"Can't Miss" Moments:

✓ Interested in being a judge some day? You'll have to know the real differences between being an associate judge and circuit judge. (Go to 3:47), (Go to 29:15) & (Go to 30:22)

✓ There's an "application" for some judicial positions. The things you're doing today will effect what goes on that application tomorrow. What can you do now to position yourself for a strong judicial candidacy? (Go to 5:03) & (Go to 9:44)

✓ Winning the vote: Lawyers may have to run a different kind of "campaign". A campaign that seeks to woo other judges. (Go to 6:05)

✓ Where do the lawyer ratings ("not qualified", "qualified", and "highly qualified") come from? (Go to 7:22)

✓ Why you don't want to play dirty or dishonorably even with your less ethical adversaires. (Go to 9:44)

✓ What your colleagues and attorneys down in the trenches talk about when they're discussing future judges. (Go to 11:17)

✓ Thought a full circuit position is what you wanted? Just know that full circuit judges have to run a full electoral and political campaign with all the bells and whistles. (Go to 12:15)

✓ The differences between a sub-circuit election and a county wide judicial election. (Go to 13:07)

✓ BE CAREFUL: Judicial candidates running a full fledged electoral campaign for circuit judge can't run a traditional political campaign. You have to be careful you are following the special rules created for judicial candidates. (Go to 19:05) & (Go to 28:05)

 ✓ The truth about how much money it costs to run for judge. (19:57) & (Go to 26:12)

✓ "Young attorneys should be willing to talk to judges about their experiences on the bench and what route did they take to get the position. It doesn't matter what county you're in. There's always a certain amount of insight the judges can give you about the process in that county." -- Scott J. Frankel (Go to 31:35) 

Links & Resources Scott J. Frankel For Judge Frankel & Cohen Learn More About Scott J. Frankel The Judiciary  - Constitution of the State of Illinois Illinois Code of Judicial Conduct - Canon 7 Illinois Board of Elections Illinois Board of Elections Judicial Guide Illinois Election Code See Also

You may also want to check out...

Episode 301 Retired Judge Allen Anderson: The View From The Bench Episode 256 Interview With Judge Steigman of the Fourth Appellate District Before You Go...

It doesn't matter where you're at in your criminal law practice. Right now you can make a decision that leads to explosive litigation growth.

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, process and learn from?

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

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What You Don’t Know About The Jason Stockley Shooting Why This Former St. Louis Officer Was Acquitted Of Murder

Oct 3, 2017 39:08

Description:

Missouri v. Stockley, 1622 CR 02213-01 (September 2017). Episode 397 (Duration 39:07)

Former St. Louis Officer Jason Stockley acquitted of Murder. Here's what they didn't tell you.

In This Episode

"It seems more reasonable to conclude that what the State characterizes as a 'puff of smoke' was in reality exhaled breath in cold air. Puffs of smoke are seen multiple times on the dash cam video unrelated to the firing of any gun, but coming from the mouths of officers in cold air." -- Judge Timothy J. Wilson

In This Episode

✓ A law enforcement officer need not retreat or desist from efforts to arrest or prevent  the escape of a person the officer believes to have committed an offense. A law enforcement officer is entitled to use deadly force where the officer reasonably believes the use of deadly force is necessary to effect the arrest and reasonably believes the person is attempting to escape by the use of a deadly weapon or may otherwise endanger life or inflict serious physical injury.  (Go to page 19)

✓ There was also no evidence that Stockley even knew who was being pursued. (Go to page 20)

✓ The Court does not believe Stockley's conduct immediately following the end of the pursuit is consistent with the conduct of a person intentionally killing another person unlawfully. (Go to page 21)

✓ Stockley admitted he was in possession of an AK-47 pistol, he testified he knew his possession of such a weapon was in violation of department policy, but he said he had it with him to use as a deterrent in situations in which he (and other officers) might be facing persons armed with more dangerous weapons than a Baretta service revolver. (Go to page 23)

✓ In regards to the gun the prosecution says Stockley planted in the victim's car: The gun was a full size revolver and not a small gun, such as a derringer, that n fit in the palm of one's hand or into the side pocket on a pair of pants without being obvious. Stockley was not wearing a jacket; if he had such  a gun in his possession it would have been visible on the cell phone video. The tun was too large to fit entirely within any of the pockets on the pants he was wearing, there was no bulge in any pocket indicating a gun within the pocket, and the gun would have been visible if it was tucked into his belt. Three were several officers standing around adjacent to the driver's side of the Buick and not one of them was called to testify that the saw Stockley plant a gun in the Buick. (Go to page 25)

Links & Resources Judicial Findings & Verdict In The Jason Stockley Trial A breakdown of the judge's ruling in Jason Stockley murder case - St. Louis Post-Dispatch Stockley case transcripts reveal misstatements to grand jury - St. Louis Post-Dispatch Terrifying dash cam footage shows a St. Louis police officer shooting and killing a driver - The Sun Laquan McDonald death: Officer indicted on 16 new charges - CNN Prosecutors can use what Officer Van Dyke told union rep at Laquan McDonald shooting - Chicago Tribune Three Chicago cops indicted in alleged cover-up of Laquan McDonald shooting details - Chicago Tribune Dashcam Video of Officer Jason Van Dyke Shooting Laquan McDonald - YouTube Before You Go...

Case law mastery is crucial to zealous and effective advocacy.

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If you're looking for the easiest way to keep up with the cases and ready to begin having a litigation advantage over your opponents then hit the link below.

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238.mp3

Sep 22, 2017 08:47

Description:

Making His Own Way An Attorney Profile Featuring Shady Yassin

Sep 15, 2017 20:46

Description:

Criminal Law Attorney Shady Yassin in Episode 390 (Duration 20:45) describes how he's making his way as a criminal law attorney in Illinois.

Illinois Attorney Shady Yassin

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In This Episode

"It was a cool thing that our friendship merged into a business partnership and it was one that became stronger..." -- Illinois Attorney Shady Yassin.

Attorney Shady Yassin

Shady Yassin is a former Cook County Public Defender 711 Intern.  

He's been licensed since 2010, and currently is a partner at Abdallah Law located in Tinley Park, Illinois.

In This Episode:

✓ Discover how a first generation Palestinian American finds himself in a firm with other first generation Palestinian Americans.  You'll be surprised to learn Shady's parents started out in Puerto Rico.

✓ Ever wonder if the Illinois criminal justice system is welcoming to Muslims? What happens to the daily prayer requirement when you're in the middle of a trial? 

✓ On Shady's first day as a 711 for the Cook County Public Defender he was the only one of his kind. As a test he was asked to go into the lock-up to talk to a pretty intimidating defendant. It was a test. Listen in to see if Shady past the test.  

✓ "Everybody who is not an attorney is telling me, 'Oh, why are you trying to do criminal defense? There's no money there. Why don't you do business? Why don't you do corporate?' That's all I heard."

✓ Any government sector lawyer with the tiniest thought of going "private" needs to see what Shady means when he talks about the "hustler mentality". Shady has some wise advice on receiving other's advice; we can all benefit from this tip.

Links & Resources Abdallah Law Shady Yassin Shady's Partners Above The Law - Law Student of the Day: Shady Yassin More About Shady Yassin Before You Go...

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention to the cases can increase any attorney's litigation skills.

If you're looking for the easiest way to keep up with the cases and ready to begin having a litigation advantage over your opponents then hit the link below.

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Nrupa Patel Helps Dissect Conflict Of Interest Confronting Former Prosecutors

Aug 10, 2017 23:21

Description:

Episode 375 (Duration 23:20) - Former prosecutors who leave their office face uniques circumstances when they represent individuals charged by the same prosecutor's office. 

Attorney Nrupa Patel

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In This Episode

"If there can be any possible conflict you get it in writing..." -- Illinois Attorney Nrupa Patel.

Attorney Nrupa Patel

Attorney Nrupa Patel is a former Assistant State's Attorney from Macon County, Illinois. 

Since June 2017, she has been a partner at the firm of Bolen Robinson & Ellis in Decatur, Illinois where she represents individuals in criminal court.

"Can't Miss" Moments:

✓ Do you know the 3 per se conflicts of interest defense attorneys have to worry about? Relax. Here they are: (1) Where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution (2) Where defense counsel contemporaneously represents a prosecution witness; and (3) Where defense counsel was a former prosecutor who had been personally involved in the prosecution of defendant.

✓ In Nrupa's real life scenario a prospective client was charged while she was still at the prosecutor's office. However, she did not prosecute the case, had no involvement and was pretty sure she didn't discuss the case with anyone. Should she or shouldn't she take the case? What other factors would you like to know about? 

✓ There's one thing most attorneys aren't doing that Nrupa is doing to avoid finding herself in sticky conflict of interest situations. Listen in to discover what she's doing different.

✓ In this area of the law the case law says one thing and the professional rules of responsibility say something else. Listen in to see how the cases and the rules relate to each other.

✓ Nrupa divulges her ultimate decision in an actual case. She also lets us know what details would have changed her decision. And she explains why she resolved an almost identical scenario quite differently. 

Links & Resources Bolen Robinson & Ellis LLP Contacting Nrupa Patel People v. Fields, 2012 IL 112438 Rule 1.11(a)(2) - Special Conflicts Of Interest For Former And Current Government Officers And Employee People v. Schutz, 2017 IL App (4th) 140956 (July) See Also

You may also want to check out...

Episode 039 Is It A Per Se Conflict of Interest When Trial Attorney Raises Ineffective Assistance on Himself? Episode 106 Did Drew Peterson’s Attorney Have A Conflict Of Interest When He Signed a Publicity Contract? Episode 176 Prosecutor Probably Had A Conflict of Interest (People v. Kibbons, 2016 IL App (3d) 150090 (April) Episode 056 Ethical Violation After Meeting With Prosecutor Before You Go...

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention to the cases can increase any attorney's litigation skills.

If you're looking for the easiest way to keep up with the cases and ready to begin having a litigation advantage over your opponents then hit the link below.

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Is It Time To Kill The Brady Rule? And Other Big Discovery Issues With Evan Bruno

Aug 3, 2017 33:26

Description:

In Episode 372 (Duration 33:25), Evan Bruno of Urbana, Illinois dives into some of the current problems with modern discovery rules and procedures.

urbana illinois attorney evan bruno

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In This Episode

"Don't tell me what's exculpatory or not. I may know something you don't know." -- Evan Bruno

Some of the most basic rules of discovery may not be fair nor make much sense. Hit play above to see what I mean.

Illinois Attorney Evan Bruno

Evan Bruno is a criminal law attorney in the Bruno Law Office in Urbana, Illinois.

Evan has clerked for Judge Robert Steigmann of the Illinois Fourth Appellate District. Evan credits the Judge for giving him "the law hook" and the "legal bug."

Evan now works alongside his father and his brother defending the criminally accused in federal and state court.  This aptly named legal office was founded by his father in 1980.

"Can't Miss" Moments:

✓ "The fact that the police and the prosecution are the ones that make the judgment call as as to what is exculpatory, I have a real problem with that." 

✓ Defense attorneys as babysitters - not a good idea.

✓ Here's something you may not have thought about in cases where the accused is housed far away from his attorney's office and the court. 

✓ Why often the accused knows more than his attorney - and how the rules completely ignore the perspective of the person whose rights we're suppose to be protecting. 

✓ The reason why Rule 415 exists can be picked apart and recognized as ridiculous by a three year old. Yet, the rule persists, perhaps for other reasons.

✓ Thought experiment: Imagine before a big trial we lock up the prosecution team in a utility closet with no computers, phones, or electronic equipment of any kind and force them to prepare for trial in there...AND we allow the defense team to pace back and forth outside the door of the closet. Would that feel fair? 

✓ Has Evan identified one area where state court actually get it right and the federal court has it all wrong? 

✓ In almost every case where there is a disagreement the losing side can take it up with the appellate court as the final arbiter. Sometimes this is inadequate and most unfair.

✓ This "pink Cadillac" problem reveals exactly how the current rule has a huge gaping hole in its coverage.

✓ ...and finally, this often overlooked problem with the Brady rule of discovery has quite devastating consequences. Has the rule outlived it's usefulness? Its time may have come, and it's replacement is actually much simpler.

Links & Resources Learn More About Evan Bruno Evan in the news Bruno Law Office Illinois Supreme Court Rule 415. Regulation of Discovery, "Any materials furnished to an attorney pursuant to these rules shall remain in his exclusive custody and..." See Also

You may also want to check out...

Episode 369 Part I With Evan Bruno - A Peek Behind The Illinois Appellate Court System With Evan Bruno Episode 020 Reasonable Doubt Demystified With Evan Bruno Episode 256  How Judge Steigmann Really Feels About Impeachment, Prior Inconsistent Statements, And 725 ILCS 5/115-10.1 Before You Go...

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention to the cases can increase any attorney's litigation skills.

If you're looking for the easiest way to keep up with the cases and ready to begin having a litigation advantage over your opponents then hit the link below.

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A Peek Behind The Illinois Appellate Court System With Evan Bruno

Jul 27, 2017 29:57

Description:

In Episode 369 (Duration 29:56), Evan Bruno of Urbana, Illinois describes his experience working as a clerk in the Illinois Appellate Court system.


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In This Episode

"It's not cockiness...If you're willing to put in the work and do the research, sometimes the answer is just totally clear." -- Evan Bruno

Beware: By listening to this episode with Evan Bruno you shall be entering into a world of legal geek-ery unlike any other.

Illinois Attorney Evan Bruno

Evan Bruno is a criminal law attorney in the Bruno Law Office in Urbana, Illinois.

Evan has clerked for Judge Robert Steigman of the Illinois Fourth Appellate District. Evan credits the Judge for giving him "the law hook" and the "legal bug."

Evan now works alongside his father and his brother defending the criminally accused in federal and state court.  This aptly named legal office was founded by his father in 1980.

"Can't Miss" Moments:

✓ "It's not about the subject matter. It's about the puzzles." 

What it's like to work for the man who knows the most about Illinois law? Sometimes there's guided instruction. Sometimes there's not. But the opinion is always based on the pure as driven snow, black-letter law.

✓ "Steigmann stage craft" revealed, and other appellate court processes unveiled.

✓ Here's some advice the judge once gave to Evan: "Sometimes you're gonna read an opinion, Evan, and whether you know it or not the judge who wrote it might have been full of crap." [language was cleaned up a bit]

✓ The one golden rule and the one mantra every appellate court tries to live by...We readers of their opinions should be grateful they follow this rule. 

✓ The criminal law attorney's dirty little secret: We don't have the time to keep up with the cases. Very few lawyers have the luxury of being able to envelope themselves in every legal issue they may confront. Evan divulges the solution.

✓ How the "game of telephone" method for setting precedent gets laid out, untangled, and turned inside out. When they're done the rest of us can stop pulling our hair out from the frustration of dealing with confusing legal precedent.

✓ The best way to get your legal juices flowing.

✓ The single most important thing that Evan learned by clerking for Judge Robert Steigmann of the Fourth Appellate District was this...

✓ ...and finally, Evan confesses to doing this one thing that only is done by true legal junkies and goes beyond any legal geek-ery ever demonstrated by the rest of us. (Hint: This involves accessing certain information made available on the web, and Evan has zero shame in doing it.)

Links & Resources Learn More About Evan Bruno Evan in the news Bruno Law Office See Also

You may also want to check out...

Episode 372 Part II With Evan Bruno - Is It Time To Kill The Brady Rule? And Other Big Discovery Issues With Evan Bruno Episode 020 Reasonable Doubt Demystified With Evan Bruno Episode 256  How Judge Steigmann Really Feels About Impeachment, Prior Inconsistent Statements, And 725 ILCS 5/115-10.1 Before You Go...

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention to the cases can increase any attorney's litigation skills.

If you're looking for the easiest way to keep up with the cases and ready to begin having a litigation advantage over your opponents then hit the link below.

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In Legal News: College Dean Resigns Amid Allegations of Sexual...

Jul 21, 2017 24:20

Description:

Episode 366 (Duration 24:20) In Legal News...College Dean Resigns Amid Allegations of Sexual Harassment...Cook County Bail Reform...Investigation of Drug Money in LaSalle County...

In Legal News With Samuel Partida, Jr.

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In This Episode 

✓ College dean makes a pass at young female employee and gets rejected, but still manages to squeeze $95,000 from the law school before quitting. 

✓ Cook county wants to send text messages to defendants to remind them to come to court. Yeah, that's gonna work. 

✓ Investigation continues into whether or not confiscated drug money was misappropriated. I ask: "Can dirty money ever really be cleaned? Ever? Really?"

Links & Resources ABA Journal | NIU gives former law dean $95K for off-campus research - Stephanie Francis Ward Dean's Resignation Letter Daily Chronicle | Dannenmaier's conduct: See the documents leading to NIU dean's administrative leave - Drew Zimmerman WBEZ | Cook County Judge: Bail Can't Be Too High For Poor To Pay - Associated Press The New York Times | Defendants Can’t Be Jailed Solely Because of Inability to Post Bail, Judge Says - Richard A. Oppel Jr. Circuit Court of Cook County Press Release | Evans changes cash-bail process for more pretrial release The Chief Judge's Bail Reform Order The Times | Donnelly defends right to investigate, prosecute Towne See Also

You may also want to check out...

Episode 359 IllinoisCaseLaw.com | What You Need To Know About The Illinois Bail Reform Law  Episode 360 PremiumNuggets.com | 102 Additional Police Forces Statewide Directed By A State’s Attorney Not What We Need Episode 081 IllinoisCaseLaw.com | State’s Attorney Power | This Prosecutor Misuses Investigator Before You Go...

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention to the cases can increase any attorney's litigation skills.

If you're looking for the easiest way to keep up with the cases and ready to begin having a litigation advantage over your opponents then hit the link below.

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What You Need To Know About The Illinois Bail Reform Law

Jul 8, 2017 20:22

Description:

Episode 359 (Duration 20:21) Illinois has taken a crack at bail reform. Here are the dirty little details on the new Illinois Bail Reform Law. 

Illinois Bail Reform Law

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In This Episode

"Same old song." -- Anonymous Lawyer.

Let's take a closer look at the new Illinois bail reform law...

I think it's fair to say the goal was to empty the jails of a certain class offender, the so called, "class B" offenders.

Class B offenders are defined in the newly minted 725 ILCS 5/102-7.2.

The main prong of the law is covered in 725 ILCS 5/110-5(a-5). That's where they put the provision saying that there shall be a presumption that class B offenders get a "non-monetary" bail condition.

Section 725 ILCS 5/110-6(a-5) then describes this "automatic" hearing where detainees get an automatic bail-bond review to see why the heck they're still in jail.

And finally, they invented a $30 credit that can be applied towards any inmates "monetary bail" - whatever the heck that means. See 725 ILCS 5/110-14. 

Links & Resources Bail law a good measure you don't want to use - by Burt Constable Illinois Bail Bond Law Ten Percent Rule May Cause Heart Attack to the Uninformed How Do Bail Bonds Work? Sample Bail Bond Related Criminal Law Motions Illinois bail reform law draws mixed reviews Article 110 BAIL Meaning of Words and Phrases 725 ILCS 5/102-7.2 Before You Go...

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention to the cases can increase any attorney's litigation skills.

If you're looking for the easiest way to keep up with the cases and ready to begin having a litigation advantage over your opponents then hit the link below.

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How To File And Win A Change In Venue Motion With Professor Beckett

Jun 20, 2017 54:42

Description:

In Episode 357 (Duration 54:41), trial attorney and Professor Steve Beckett of the University of Illinois School of law reveals his secrets when litigating a change in venue motion.

Professor J Steven Beckett

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Download A Sample Motion &
Sample Survey Data Report 

DUI and Search & Seizure Case Lists
Change in venue motions can be a little tricky.
Download these documents to take a peek
at a winning motion and sample survey report.

Download Sample Motion & Data

Download Sample Motion & Data

 

In This Episode

"Fair and impartial doesn't mean you're ignorant." -- Professor Beckett

Professor J. Steven Beckett reveals his litigation secrets as he unfolds the intricacies of a motion to change venue...I mean a motion to change place of trial.

Professor J. Steven Beckett

Professor J. Steven Beckett has been a trial attorney in Illinois for 44 years.

In 1987, The Professor began teaching trial advocacy at the University of Illinois College of Law. He has taught various other law classes over the years. He's currently retired from his practice and the law school.

The Professor cut his teeth with public opinion polls when he litigated several high profile obscenity cases.

"Can't Miss" Moments:

✓ This was the very first question the Professor was asking himself after he saw the charges against Curtis Lovelace. It is not a coincidence that Curtis was charged in Adams county but tried in Sangamon County. (Go to 5:50)

✓ The little known history of the law around moving a trial. We go from territory days to modern times...and even cover a few famous Abraham Lincoln cases. (Go to 7:35)

✓ When it comes to motions for change in venue (change the place of trial) there is one specific area that if overlooked can cost you the motion. If this issue is present in your case it can practically guarantee you'll win the motion. (Go to 15:25)

✓ What's your hunch on how modern social media influences this issue? (Go to 17:21)

✓ Everything you need to know about professional public opinion polls and how to use this powerful legal weapon in your litigation. How are they done? What do they cost? Where to find a good polster? How long do they take? (Go to 17:52) & (Go to 31:45)

✓ Listen real close around minute 21:20, the Professor drops a real gem about jury bias and impartiality. This nugget is worth some real money, and the Professor gave it to you for free! Understanding this will change how you handle these motions in the future and ratchet up your chances of winning them. (Go to 21:20)

✓ Here are the exact questions to ask during voir dire when you're probing this topic. If the judge let's you, the Professor lays out a logical and efficient way to conduct the questioning (Hint: the Professor explains how to lure the judge into doing it your way.) (Go to 22:22) & (Go to 40:53)

✓ Be prepared to ask for these two things in the unfortunate scenario where you lose the motion to change place of trial. (Go to 37:52)

Links & Resources The Professor's Book: Illinois Criminal Law And Procedure A Law Enforcement Perspective/Statutes, Cases, and Commentary Sound Jury Consulting (the firm used by the Professor in the Curtis Lovelace case) 725 ILCS 5/114-6 - Motion To Change Place of Trial William "Duff" Armstrong Case (Famous Lincoln Case: The Almanac Case) Father Chiniquy Slander Case (Famous Lincoln Case: Peter Spink v. Charles Chiniquy) Adams v. Texas (SCOTUS case on impartial jury) Sheppard v. Maxwell (SCOTUS case on impartial jury) More SCOTUS on Impartial Jury People v. Taylor (great Illinois case mentioned by The Professor where attorney kind of manages his own poll) People v. Hall (old obscenity case handled by Beckett where poll data was used) See Also

You may also want to check out...

Episode 334 The Curtis Lovelace Case  Episode 320 Evan Parke On The Curtis Lovelace Case Episode 013 Change of Venue Due To Pretrial Publicity Hard To Win Before You Go...

Make sure to download the materials discussed by the Professor in the podcast.

He mentioned how he helped file and win a motion to change venue in a recent high profile case.

Hit the link below to take a peek at the documents that were actually filed in the case:

Download A Sample Motion &
Sample Survey Data Report 

DUI and Search & Seizure Case Lists
Change in venue motions can be a little tricky.
Download these documents to take a peek
at a winning motion and sample survey report.

Download Sample Motion & Data

Download Sample Motion & Data

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

May 17, 2017 14:18

Description:

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. 

Public Defender Kim Bilbrey

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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 Illinois Association of Criminal Defense Lawyers Drug Seminar Learn More About The IACDL Police Car Search Legal in Illinois if They Smell Marijuana, So Why is There an Illegal Traffic Stop Here? Ball-Hitch "Obstructing" Case - Traffic Stop Based on Reasonable Mistake of Law is Not Illegal 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).

Terry Hake And The Graylord Investigation Turn "Crook County" Into Cook County

May 10, 2017 30:31

Description:

Terry Hake talks about Greylord In Episode 337 (Duration 30:31). Operation Greylord was a massive undercover sting operation that targeted corrupt judges and court officials in Cook County in the early 1980's. 

Terry Hake Operation Greylord

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Show Me The Secret.

 

In This Episode

"I saw funny things going on. I saw attorneys meeting with judges before their cases were tried behind closed doors for 20 minutes, and then I'd go out and lose the case." -- Terry Hake

Meet Terry Hake, the former attorney turned FBI agent who helped clean-up courthouse corruption.

When Terry Hake became an assistant Cook County State's Attorney in in 1977 the legal landscape in the courthouse was not like we know it today.

No case was immune from the fix. This was not just going on in misdemeanor rooms where the stakes weren't as high. Every case could be bought including:

Murders Rapes and Child Molestations

In this interview you'll learn how a young, inexperienced - completely disillusioned - prosecutor turns state's evidence, works undercover and starts recording corrupt conversations.

"Can't Miss" Moments:

✓ If you think the criminal courtrooms were a cesspool of corruption, you should have seen the divorce rooms. You won't believe what they were buying and selling there.

✓ There's a very practical reason why life for honest lawyers was tough during this time period. Even honest attorneys had their reputation tarnished in certain circles.

✓ There was one thing the feds told Terry he had to think long and hard about before deciding to go undercover against judges. Terry took a week and balanced his biggest fear with his disgust for the system and decided to do it. For the next 3 years he worked undercover and...

✓ In 2014, Terry came full circle and came back to the Cook County State's Attorney's office as an assistant prosecutor. He was either going to be hailed as a hero by his peers or condemned as a snitch. Listen in to hear how Terry describes his experience when he came back.

✓ The truth about working undercover for the FBI. Newly minted FBI agents train and get sworn in at Quantico. Not Terry. He was sworn in a garage in Addison, Illinois. 

Buy Terry's Book Amazon Books Barnes & Noble Target Audible Amazon Audio Book American Bar Association  Links & Resources TerryHake.com Jerri Williams Interview Part I Jerri Williams Interview Part II FBI Archives Before You Go…

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention the cases can increase any attorney's litigation skills no matter where they currently at.

If you're looking for the easiest way to keep up with the cases and ready to begin having a systematic-steady litigation advantage over your opponents then hit the link below.

Earn CLE And Win More Cases
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Easily identify winning scenarios. 
And get the most recent case law updates.

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Show Me The Secret.

What Criminal Law Lawyers Need To Know About The Curtis Lovelace Trial With Curtis Lovelace

May 5, 2017 51:51

Description:

 

On March 10, 2017, Curtis Lovelace was acquitted of his first wife's murder. In Episode 334 (Duration 51:50) of the Criminal Nuggets Podcast, Curtis Lovelace lays out the legal lessons from his experience.

Curtis Lovelace

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He was falsely accused of killing his wife, was acquitted, and now he's talking about it.

About Curtis Lovelace

Curtis Lovelace is former star football player at the University of Illinois where he was the team captain. He was an Adams County prosecutor from 2005 through 2012. 

In 2014 his life changed dramatically when he was indicted for murder.

Bullet History of His Case

Here's a brief summary of the Curtis Lovelace case:

Former star football player Former prosecutor First Wife Dies Autopsy Inconclusive Lead detective closes the case Nothing Happens for 8 years Remarries Estranged second wife says Curtis killed first wife Estranged second wife talks to police New detective takes the case New examiner recruited New cause of death determined Homicide First trial is a hung jury First defense team quits Exoneration Project and Evan Parke join the defense Released on $350,000 bond after 651 days in custody Undisclosed emails discovered Appears detective was "coroner shopping" Detective admits he destroyed emails Prosecutors admit detective lied Found not guilty in second trial To Learn More... Death on Valentine's Day - The Curtis Lovelace Story on CBS forty eight hours Lovelace Case from WGEM.com Lovelace attorneys claim evidence knowingly withheld by prosecution - WGEM.com Ex-Prosecutor Found Not Guilty in Retrial for Wife's Alleged Suffocation - People Magazine Former prosecutor and U. of I. football captain found not guilty in wife's death - Chicago Tribune Lovelace found not guilty - IllinoisTimes What's Inside This Episode

✓ What's worse than your wife dieing on Valentine's Day? For Curtis it was when he was subsequently charged with her murder. 651 days is the time he lost away from his family. (Go to 1:18)

✓ A case study in what can go wrong when a pathologist lists the cause of death as undetermined. Seriously, can't they come up with box to check that says undetermined, but not homicide? (Go to case 2:18) & (Go to 8:40)

✓ The world's worst example of "a woman scorned". (Go to 3:40) & (Go to 11:24) & (Go to 23:31)

✓ How an elder care officer makes detective and stumbles upon his first case. (Go to 4:38)

✓ What do you do when your pathologists keep saying the cause of death is something other than a homicide? Naturally, you keep looking until until you find one who says it's a homicide. (Go to 7:25)  

✓ When a pathologist opined a women was suffocated completely ignoring the facts as reported by a respected lead detective and other witnesses. (Go to 10:06)

✓ The very first person you'd think a new detective on a case would interview and talk to would be this person. Unfortunately for Curtis, this interview was skipped. (Go to 11:54)

✓ Did the trial court inappropriately admit prior bad acts? Was this a proper application of the law to protect victims of domestic violence or just mud slinging by the prosecution? (Go to 13:27)

✓ The significance of the stolen computer. (Go to 19:20)

✓ For prosecutors the mother-of-all "caught with your pants down" moments came days before the second trial and forced them to tell the judge their lead detective withheld critical evidence. (Go to 25:25)

✓ When criminal litigation is like peeling an onion. (Go to 27:56)

✓ The detective said he turned over the documents to the prosecution, but said he was told to take it back. The prosecutor says he's a big fat liar. (Go to 30:54)

✓ In the end, it was the new detective versus the old detective. (Go to 34:01)

✓ The single biggest lesson here is not for the defense bar but for prosecutors who take law enforcement at their word and don't...(Go to 35:34) 

✓ The scary thing here is that the prosecution was an extremely experienced murder trial team. If tunnel vision plagued the investigators then the prosecution added to the fiasco by doing this. (36:52)

✓ The single biggest takeaway and legal lesson for this former prosecutor and criminal law lawyer that has now been permanently chiseled into his legal brain is the following. (Go to 39:59)

✓ Why it's problematic when pathologist know who's paying the bill. (Go to 42:34)

See Also...

Episode 320 With Evan Parke - Behind The Scenes Of The Curtis Lovelace Trial | Attorney Evan Parke Discloses How The Defense Team Made Use Of FOIA

Before You Go…

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention the cases can take any attorney to the next level. 

If you're looking for the easiest way to keep up with the cases and ready to master any Illinois criminal courtroom then hit the link below.

Earn CLE And Win More Cases
With The Premium Nuggets Podcast

Increase your litigation skills.
Easily identify winning scenarios. 
And get the most recent case law updates.

Subscribe Now

Show Me The Secret.

Litigating "Knock And Talk" Warrantless Entries With Alana De Leon

Apr 26, 2017 43:21

Description:


Alana De Leon is an Illinois criminal law litigator worth keeping an eye on. In episode 328 (Duration 43:21) of the Criminal Nuggets Podcast she helps us explore some of the intricacies of "knock and talk" warrantless entries. 

Alana De Leon

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Are You Ready To Consistently Outmatch & Outgun Your Criminal Litigation Opposition?

Samuel Partida, Jr. Case Law NinjaHow do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret

Show Me The Secret.

 

There is a certain amount of timidness often seen in young criminal law litigators. 

An uncertainty and apprehension that only melts away with raw experience.

Well, Alana De Leon, has none of that.

She's built her experience and insight on warrantless entries into homes, so called "knock and talks",  by rolling up her sleeves and challenging them in court.

About Alana De Leon

Alana is the daughter of John De Leon. Her father has a long career as a Cook County attorney.

After graduating from De Paul Law School she was sworn in as an Illinois attorney in November of 2015. 

She focuses her practice on federal and state criminal defense where she's developed a passion for constitutional issues. If it involves crime, murder and mayhem then it has her attention.

Find Out More

To find out more About Alana De Leon go here:

Facebook Avvo Website Contact

To contact Alana send her a message here:

alana.m.deleon(AT)gmail(dot)com

What's In This Episode

✓ The "Knock and Talk" is the weird little cousin of the three types of police-citizen contacts. It's not quite a Terry stop but something else. (Go to 6:39)

✓ How is a "knock and talk" related to a "stop and frisk"? With a "stop and frisk" you are out in the open a lot more vulnerable, but a "knock and talk" involves this most sacred structure. (Go to 9:15)

✓ The most common scenarios leading up to a "knock and talk".  Surveillance details and itchy officers may not be patient enough to wait for a warrant or.... (Go to 11:06)

✓ All "knock and talks" rely on this one type of exception to the warrant requirement. This is the number one reason police say they don't need a warrant. (Go to 12:07)

✓ Are you aware of the biggest factors that can sway a judge when you're running a "knock and talk" motion? (Go to 14:05)

✓ You'll be surprised how often the "foot in the door" scenario turns up in these cases. Here's how to handle them. (Go to 15:52)

✓ When the entire S.W.A.T. team is waiting outside the home, that says a lot about the intent of the "knock and talker". (Go to 16:56)

✓ Here's what you need to know about written consent forms. I'll say this though, generally, the consent form should come before the actual search.  (Go to 18:05)

✓ When expressed written consent does not mean consent. (Go to 19:43)

✓ If the police enter your home and start searching you have an affirmative duty to tell them to stop...WRONG! Failure to speak is not equated with acquiescing to a search. The police alway have the burden to prove they had permission. (Go to 22:57)

✓ The real reason attorneys should think about vigorously litigating these cases. (Go to 26:36)

✓ O.K. - Here's the second main reason attorneys should think about litigating these issues. (Go to 30:43)

✓Did you know the case law outlines the proper course of conduct for police who are met with resistance when they attempt to gain entry without a warrant? (Go to 34:09)

✓ Alana has yet to come across a case where a client is saying these things and using this type of language. Somehow, though, police reports say defendant's use these words all the time. (Go to 35:14)

✓ Remarkably, police may get on the stand and not have an answer for this one most important somewhat obvious question. Encountering these cops on these cases is when the fun really begins. (Go to 37:25)

See Also

You may also want to check out podcast episode 014

This was the last time we talked about "knock and talks".

Many of the issues highlighted by Alana are front and center here. Particularly, it's a great example of how police should not conduct a "knock and talk."

Before You Go…

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention the cases can take any attorney to the next level. 

If you're interested in taking the first step towards mastering your Illinois criminal courtroom then hit the link below.

Are You Ready To Consistently Outmatch & Outgun Your Criminal Litigation Opponent?

Samuel Partida, Jr. Case Law NinjaHow do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret

Show Me The Secret.

Behind The Scenes Of The Curtis Lovelace Trial | Attorney Evan Parke Discloses How The Defense Team Made Use Of FOIA

Apr 21, 2017 52:39

Description:

Evan Parke made extensive use of Illinois FOIA requests in the defense of Curtis Lovelace. In Episode 320 (Duration 52:38) we look at how he did it.

Evan Parke

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Are You Ready To Consistently Outmatch & Outgun Your Criminal Litigation Opposition?

Samuel Partida, Jr. Case Law NinjaHow do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret

Show Me The Secret.

 

About Evan Parke

Evan is from the same general area in Quincy, Illinois that Curtis Lovelace and his first wife, Cory, lived. Now he practices law primarily in Washington, D.C. where his firm ---Parke PLLC---handles complex and sophisticated white collar, civil and regulatory matters for companies and individuals.

In the Curtis Lovelace case, Evan performed extensive FOIA inquiries pro bono. 

At all times, his FOIA efforts remained independent of and were not influenced by the Exoneration Project defense team.

Curtis Lovelace Case

Here's a 3-minute summary of the Curtis Lovelace case:

Former star football player Former prosecutor First Wife Dies Autopsy Inconclusive Nothing Happens for 8 years Remarries Estranged second wife says Curtis killed first wife Estranged second wife talks to police New detective takes the case New examiner gets involved New cause of death determined Homicide First trial is a hung jury First Defense team quits Exoneration Project and Evan Parke join the defense Undisclosed emails discovered Appears detective was "coroner shopping" Detective admits he destroyed emails Curtis found not guilty See Also... Lovelace Case from WGEM.com Lovelace attorneys claim evidence knowingly withheld by prosecution - WGEM.com NOT GUILTY: Firm client acquitted of murder charges in high profile case - LinkedIn Publishing Ex-Prosecutor Found Not Guilty in Retrial for Wife's Alleged Suffocation - People Magazine Former prosecutor and U. of I. football captain found not guilty in wife's death - Chicago Tribune Lovelace found not guilty - IllinoisTimes Links & Resources Illinois FOIA Illinois Attorney General On FOIA Frequently Asked Questions Sample FOIA Request What's In This Episode

✓ Have you ever used the FOIA in a criminal defense case? FOIA rules don't prohibit it's use to strictly "civil" cases. Do you know what you can and what you can't get through FOIA?  (Go to 4:33)

✓ The one government agency that's excluded from the FOIA and the weird little exception to this exception. Plus, the number one reason agencies cite to avoid having to comply with a FOIA request. (Go to 6:08)

✓ Why sometimes in a FOIA request you actually don't want the agency to tender documents and you'd much rather prefer they claim a certain exemption. (Go to 8:08)

✓ How a Federal Communications Commission investigations attorney gets involved in a state murder trial that doesn't smell right. (Go to 10:40)

✓ How do you start a FOIA request? What are its goals? Who can execute them? What do you ask for? (Go to 14:13) & (Go to 46:11)

✓ The most typical and common response you'll get in a FOIA request and how not to react to it. (Go to 15:42)

✓ An extremely simple practice tip that's going to maximize your FOIA results and arm you with powerful weapons you can use to squeeze what you need from the agency in question. (18:17)

✓ Evan Parke discovered what the lead detective was really thinking and was able to uncover things the detective wanted buried and kept far away from the lead defense team. (Go to 19:42)

✓ The crazy things, never disclosed to the defense team, that Evan uncovered about one key prosecutorial witness. (23:10) & (Go to 32:43)

✓ This is one of the main things you're looking for in your FOIA requests. When you got this you know you're in business. (27:22)

✓ The tipping point that caused Evan to go all in on the Quincy Police Department and what made him just ask for the mother load. (31:00)

✓ Evan: "We all were thinking: 'there's some there there.'" (Go to 31:44)

✓ Evan: "But I was not expecting what I received a couple weeks later." (Go to 34:23)

✓ Lead detective caught red handed in an email admitting he deleted other emails. (Hint: the defense team was not suppose to ever read this email) (Go to 35:09)

✓ Perhaps the most damning emails to the prosecution's case was the back and forth between the detective and the pathologists that made it clear and obvious the detective was "coroner shopping" (Go to 36:32)

✓ How these FOIA requests affected this trial. (39:46)

✓ More practical tips for criminal law attorneys. These tips are wise, prudent activities to be followed in non FOIA settings. (Go to 42:02)

✓ FOIA ain't for sissies. They are labor intensive and require real legal work and pressure. If you go down this track prepare to roll up your sleeves and expect friction. A lot of friction. (43:18)

✓ When you need to find yourself a FOIA "buddie". (Go to 47:37)

See Also...

Episode 334 With Curtis Lovelace - What Criminal Law Lawyers Need To Know About The Curtis Lovelace Trial With Curtis Lovelace

Before You Go…

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention the cases can take any attorney to the next level. 

If you're interested in taking the first step towards mastering your Illinois criminal courtroom then hit the link below.

Are You Ready To Consistently Outmatch & Outgun Your Criminal Litigation Opponent?

Samuel Partida, Jr. Case Law NinjaHow do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret

Show Me The Secret.

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

Apr 12, 2017 35:33

Description:

In Episode 319 (Duration 35:33), Anthony Cameron sits down with us to talk about how police can enforce a warrant for a suspect's blood.

More and more DUI's will be proven based on the chemicals in a person's blood. 

Anthony Cameron Interview

Subscribe: iTunes | Google PlayAndroid | RSS | DIRECT DOWNLOAD

Are You Ready To Consistently Outmatch & Outgun Your Criminal Litigation Opposition?

Samuel Partida, Jr. Case Law NinjaHow do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret

Show Me The Secret.

 

Which begs the question: What exactly happens when a person refuses to give up their blood even though there's a warrant?

Well, Anthony Cameron helps us figure this out.

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.

Important Links & Resources Birchfield v. North Dakota  Birchfield v. North Dakota (audio summary) Driving Under The Influence of Drugs People v. Brooks 2016 IL App (5th) 150095-U What's In This Episode

✓ What is a blood draw? (7:13)

✓ Why contempt of court is a horrible way to force someone to give up their blood. (Go to  8:06)

✓ The truth about hospital medical staff when they encounter an individual absolutely refusing to submit to a blood sample withdrawal. (Go to 9:20)

✓ An anecdotal account of a case where an officer was looking for the one state that was willing to strap a guy down to take his blood. (Go to 10:21)

✓ Illinois has chosen its remedy to force DUI suspects to give up their blood. It's not contempt of court or a criminal charge but this. (Go to 10:41)

✓ "What is the State's remedy when the defendant says, 'I'm sorry sir. I know you have this warrant, but I'm not giving you permission to take my blood.'?" (Go to 11:27)

✓ The only crime where the defendant gets to control the crime scene. (Go to 11:58)

✓ How Illinois implied consent law works. (Go to 13:18)

✓ The story in Birchfield begins with police getting a warrant for a DUI suspect's blood. (Go to 15:27)

✓ Illinois can absolutely choose to criminalize refusing to give up a biological sample. For now, they have chosen this other route. (Go to 17:11)

✓ The thing I didn't understand about charging someone with obstruction of justice when they refuse to comply with a warrant for their blood. (Go to 17:52)

✓ Respiration and absorption are biological processes, do you "knowingly" perform them? (Go to 19:03)

✓ The one time Anthony bit his lip and held back during a "bogus" plea deal. (Go to 20:13)

✓ This former state's attorneys says he's looked through the code and he doesn't see a charge that would allow authorities to charge, penalize or otherwise coerce a hypothetical defendant who refuses to give blood after a warrant. (For now, that is.) (Go to 21:17)

✓ Yea, but what about a simple charge of obstructing for "interfering" with lawful police activity? (Go to 21:41)

✓ The problem with the use of force in the execution of any warrant for biological material...This is the number one thing a hospital supervisor is thinking about. (Hint: It ain't worrying about your health.) (Go to 22:43)

✓ "Defensive medicine" has been a term for more than 50 years. (Go to 23:25)

✓ The right way to get yourself charged and convicted of obstruction of justice. (Go to 23:35)

✓ Why we think we'll be seeing more and more "blood" cases. (Hint: Benevolent and compassionate cannabis is on the rise) (Go to 27:24)

✓ WARNING: This scared the crap out of Anthony when he was going through his own physical rehab and got a taste of those pain killers. (Go to 28:12)

✓ A little prediction about what Anthony thinks we'll see from law enforcement in this area. (Go to 30:23)

✓ The seminal case on many of these blood cases is before the Illinois Supreme Court. You bet we'll be following it here. You never know when a case is going to walk through your doors, and it turns out to be the "big one". (Go to 31:34)

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How Double Jeopardy Really Works

Apr 6, 2017 21:50

Description:

People v. Staple, 2016 IL App (4th) 160061 (December). Episode 317 (Duration 21:49)

This case does a great job of digging down into the very basics of double jeopardy.

How Double Jeopardy Really Works

You Ever Notice...

You ever notice how at the end of a case that has been reversed and remanded for a new trial judges are very careful to include a line that says that Defendant was proven guilty beyond a reasonable doubt.

What's that all about?

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The answer lies in the doctrine of double jeopardy.

In this broadcast I republished an episode that was previously only available to Premium Nugget subscribers is now made available to everyone for free.

Two DUI Charges

The case begins with the fact that the defendant was simultaneously charged with misdemeanor DUI and felony DUI charges exact same course of conduct.

He had both a “DT” file and a “CF” file.

Dismissal

He plead guilty to the misdemeanor and moved the trial court to dismiss the felony charges, claiming double jeopardy had attached when he plead to the misdemeanor.

The trial court granted defendant’s motion to dismiss.

The reviewing court reversed this decision.

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.

Lesser Included

Notably, double jeopardy clause did not prohibit the State from prosecuting lesser included offenses along with the more serious charges.

When a defendant pleads guilty to lesser included offenses he has not been exposed to conviction on the charges to which he pleaded not guilty, nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial.

The acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending, moreover, has none of the implications of an implied acquittal which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses.

There simply isn’t any of the governmental overreaching that double jeopardy is supposed to prevent.

Shield Not A Sword

On the other hand, ending prosecution would deny the State its right to one full and fair opportunity to convict those who have violated its laws.

In this case, it is clear defendant was aware of the pending felony charges when he pleaded guilty to the misdemeanor charges.

As the United State Supreme Court stated, a defendant should not be entitled to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution on the remaining charges.

This case presents none of the interests double jeopardy seeks to protect.

Holding

Defendant was well aware of the pending felony charges when he pleaded guilty to the misdemeanor charges. Additionally, the State has not marshaled its resources and evidence more than once or honed its presentation of the case through a trial on the misdemeanor charges.

Accordingly, the court concluded double jeopardy does not bar the State from pursuing the felony charges that were pending at the time defendant pleaded guilty to the lesser-included misdemeanor charges.

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Murder Conviction Reversed Twice Because Of The Same Hearsay Mistake

Apr 3, 2017 29:56

Description:

People v. Ochoa, 2017 IL App (1st) 140204 (February). Episode 315 (Duration 29:55)

Defendant's murder conviction is reversed a second time for the same reason it was reversed the first time (Cameron Hearing Problem).

Facts

Defendant was accused of being the shooter in gang killing that killed a 15 year old girl.

The intended victim was her boyfriend who was standing right next to her. Two codefendants were arrested near the scene. They were interrogated and they gave up the defendant.

The investigation then shifted to identifying and finding the defendant.

Eventually, defendant was also arrested and he too confessed to being the shooter.

Hearsay Evidence

First of all, hearsay is an out-of-court statement offered to prove the truth of the matter asserted.

Testimony by a third party as to statements made by another non testifying party identifying an accused as the perpetrator of a crime constitutes hearsay testimony and is inadmissible.

Codefendant Statements

Therefore, a codefendant’s statement incriminating a defendant is inherently unreliable, particularly when the co-defendant does not testify at trial and cannot be cross-examined.

The introduction of a co-offender’s hearsay statement implicating the defendant violates the defendant’s sixth amendment right to confrontation. U.S. Const., amend. VI.

Steps In The Investigation

When it comes to testimony outlining the steps in an investigation the case law goes both ways.

Pro

Our supreme court has held that law enforcement officers “may recount the steps taken in the investigation of a crime, and may describe the events leading up to the defendant’s arrest, where such testimony is necessary and important to fully explain the State’s case to the trier of fact.” People v. Simms, 143 Ill. 2d 154, 174 (1991).

In addition, a law enforcement officer “may testify about his conversations with others, such as victims or witnesses, when such testimony is not offered to prove the truth of the matter asserted by the other, but is used to show the investigative steps taken by the officer.” Simms, 143 Ill. 2d at 174.

“Testimony describing the progress of the investigation is admissible even if it suggests that a non testifying witness implicated the defendant.” Simms, 143 Ill. 2d at 174. The gist of this argument is that the steps in an investigation is not hearsay. Because the testimony is not being used to prove the matter asserted, but instead is being used to explain the step in an investigation.

Against

Then there is People v. Boling, 2014 IL App (4th) 120634 which counsels that out-of-court statements that explain a course of conduct should be admitted only to the extent necessary to provide that explanation and should not be admitted if they reveal unnecessary and prejudicial information.

An officer may not testify to information beyond what is necessary to explain his or her actions.

The trick here is to make sure that the State not use the limited investigatory procedure exception to place into evidence the substance of any out-of-court statement that the officer hears during his investigation, and only elicits such evidence to establish the police investigative process.

This is a very fine line to walk.

Fine Line

Case law clearly says there is a distinction between an officer testifying to the fact that he spoke to a witness without disclosing the contents of that conversation and an officer testifying to the contents of the conversation.

Under the investigatory procedure exception, the officer’s testimony must be limited to show how the investigation was conducted, not to place into evidence the substance of any out-of-court statement or conversations for the purpose of establishing the truth of their contents. The police officer should not testify to the contents of the conversation, since such testimony is inadmissible hearsay.

This Case

On appeal, defendant first contends that he was denied a fair trial where the trial court allowed two police officers to testify to the substance of the co-defendants’ statements implicating defendant as the shooter.

According to defendant, the State’s actions on retrial mirrored its actions at defendant’s first trial for which this court reversed and remanded the cause for a new trial.

The Exact Testimony

The State responds that there was, in fact, no error; that the detectives’ testimony was properly admitted for the limited purpose of showing the course of their investigation; and that any error that did occur was cured by the trial court’s limiting of the testimony.

The specific testimony with which defendant takes issue is the following testimony by Detective Garcia:

ASA [Q]: After these line-ups, Simon and Bentazos were still in custody at Area 4, correct?

DETECTIVE GARCIA [A]: Yes.

Q: After dealing with Bentazos and Simon, what did you do next in this investigation?

A: We obtained information of two additional offenders.

[ASSISTANT PUBLIC DEFENDER]: Objection.

THE COURT: Sustained. Disregard that answer, ladies and gentlemen. Ladies and gentlemen, you are to disregard the last question and answer.

The court also admonished Detective Garcia not to mention the fact that he had any conversations with Simon and Bentazos.

The following testimony then transpired:

Q: After these line-ups, Detective, what is the next thing you did in your investigation?

A: We—we had information on two additional persons.

[ASSISTANT PUBLIC DEFENDER]: Objection.

THE COURT: Disregard that question and that answer. Ask your next question.

Q: What is the next thing you did in this investigation?

A: We were looking for two other subjects.

Q: What information did you initially have about these two subjects?

A: We had nicknames.

Q: What were the nicknames?

A. One by the name of Chilango (phonetic) and the other by the name of Spook.

Defendant also takes issue with the following testimony by Detective Lopez:

Q: When that investigation was turned over to you was anybody in custody for that murder at area four?

A: Yes, sir.

Q: Who was that?

A: Mr. Bentazos and Mr. Simon.

Q: And when the investigation was turned over to you, did you look for any additional offenders besides the two in custody?

A: Yes.

Q: Who were you looking for?

A: Torres and a subject by the name of Chilango.

Q: And did Eduardo Torres also have the nickname of Spook?

A: He did, yes.

Q: Did you and Detective Schleder take steps that evening and the night of December 18th to try and locate Eduardo, Spook, Torres?

A: Yes, sir.

Q: Were you successful that evening?

A: No, not at that time.

Q: Did you share any information with uniformed officers in the district that comprised area four?

A: Yes, with the tenth district, correct.

Q: And specifically what did you share with them?

A: Eduardo Torres’s IR number, his internal record number, his description, and that was passed along to the beat officers.

Q: And did you and Detective Schleder attempt to develop information on Chilango?

A: Yes.

Q: Were you still working just after midnight and into the morning on December 19th 2002?

A: Yes, I was.

Q: Did you learn that Torres was arrested at 12:10 a.m. on December 19th on the street at 2501 South Drake by uniformed officers?

A: Yes.

Q: And was Eduardo Torres subsequently brought to area four [police station]? [DETECTIVE LOPEZ:]

A: He was.

Q: Did you continue your investigation into Marilou’s murder at that time?

A: Yes.

Q: Did you have an opportunity to leave area four at [3:45 that morning?]

A: Yes.

Q: When you left area four were you going to a specific location?

A: Yes.

Q: Where were you going?

A: The tenth district 2448—the 2400 block of south Spaulding I believe it was.

Q: Okay, did you subsequently relocate to 2442 South Saint Louis, first floor?

A: Saint Louis, yes, sir.

Q: Okay. And were you looking for a specific person at that address?

A: Yes, sir.

Q: Who were you looking for?

A: Male, Hispanic by the—with the nickname of [Chilango] or [Beto].

Q: And did you have any other identifiers of that individual?

A: Medium height 5'6'' with a tattoo on his arm.

[ASSISTANT PUBLIC DEFENDER]: Objection.

THE COURT: Basis.

[ASSISTANT PUBLIC DEFENDER CHRISTL]: Hearsay.

THE COURT: Overruled.

Q. You may continue.

A: Yes, sir. That was the approximate description.

The First Trial

Defendant argues that the testimony at the second trial was nearly identical to that at the first trial and, therefore, the same reversible error occurred.

This is the reversible error from the first trial:

In defendant’s first trial, the State asked Detective Garcia if codefendants Simon and Bentazos were at the police station, prompting the following exchange:

A: Yes, they were, ma’am.

Q: Were interviews conducted in the late night hours of December 17th and the early morning hours of December 18, 2002?

A: Yes, they were.

Q: After interviews were conducted, did your investigation continue?

A: Yes, it did, ma’am.

Q: Were you looking for any other offenders in this shooting?

A: Yes, due to our interviews with Mr. Simon and Mr. Bentazo, we were able to obtain two nicknames also involved in the shooting which they gave us so—

DEFENSE COUNSEL: Judge, objection.

THE COURT: Sustained.

Rephrase your question. The question asked of the Detective and the answer will be stricken.

Q: After interviews were conducted were you looking for any other offenders or possible offenders?

A: Yes, we were looking for two subjects. One by the street name of Chilango. Chilango was later determined to be defendant.

Additionally, in the first trial, Detective Lopez said these things:

Q: Did you see Eduardo Torres when he was brought to Area 4 in the early morning hours of December 19, 2002?

A: I did.

Q: Did your investigation continue into the homicide of 15 year old Marila Soscha at this point?

A: Yes.

Q: Were interviews conducted?

A: Yes.

Q: After interviews were conducted at approximately 3:30 to 3:45 A.M. still on December 19, 2002, did you have occasion to leave Area 4?

A: Yes.

Q: When you left Area 4, were you going to a specific location?

A: Yes. We were directed to 2442 South St. Louis on the first floor.

Q: When you say you were directed to 2442 South St. Louis on the first floor, were you specifically looking for someone at that address?

A: Yes. I was looking for a male Hispanic named Chilango who also went by— who also had a first name of Alberto who was a male Hispanic approximately five-six, medium build, with a tattoo on his arm that said Beto.

The First Reversal

In the first appeal the reviewing court held that the State repeatedly elicited testimony that contained a strong inference that the co-defendants implicated defendant in their statements.

This exchange went beyond mere questioning concerning the investigatory process, and included serial questions to build the inference that defendant was named by his criminal cohorts.

Furthermore, rather than limiting testimony to the actions within the investigatory process, the jury was told that, after interviewing co-defendants at the police station, police knew the defendant’s home address, his first name, his nickname, his ethnicity, height and build, and that he had a very specific tattoo.

This testimony was inadmissible hearsay, as it went beyond the mere steps that the police took in their investigation, and instead placed into evidence the substance of the co-defendants’ out-of-court statements for the purpose of establishing their truth.

Moreover, the State reinforced this evidence by reminding the jury multiple times during closing arguments that, after police interviewed the codefendants, they knew they were looking for a person with the precise characteristics of defendant.

The reasonable inference to be drawn by the jury was that this information came from the co-defendants.

Analysis In This Case
(The Second Trial)

In this later trial, the reviewing court said the same thing happened.

The series of questions and answers established that “after dealing with” the co-defendants, Detective Garcia then had specific identifying information about defendant. From this testimony, then, the jury learned that, after talking with the co-defendants, the police were then looking for a suspect nicknamed “Chilango.”

It was never disputed at trial that defendant’s nickname was Chilango.

When the additional suspect was brought in to the police station and, very soon thereafter, Detective Lopez knew to search for a specific individual with defendant’s specific identifiers of nickname, height, build, ethnicity, gender, and tattoo.

The jury could easily infer from this series of questions that co-defendant Torres implicated defendant in the crime.

Same Error

Again, the reviewing court found the detectives’ testimony was inadmissible hearsay.

The State repeatedly elicited testimony with the strong inference that defendant’s co-defendants implicated him to the police.

The jury witnessed this exchange, which went beyond mere questioning concerning the investigatory process and, like in the first trial, included serial questions to build the inference that defendant was named by his criminal cohorts.

Testimony regarding the steps of an investigation may not include the substance of a conversation with nontestifying witnesses.

Again, as in the first trial, this testimony was in no way limited to the actions police took as part of their investigatory process, but instead the jury was informed that, with co-defendants Simon, Bentazos, and Torres at the police station, the detectives discovered:

the defendant’s home address

nickname gender ethnicity height and build and information about his tattoo.

There was no material difference between the substantive contents of the detectives’ testimony between defendant’s first and second trials.

The Steps In The Investigation

The steps in the investigation were that that Simon and Bentazos were arrested, that Torres was arrested the following day, and that defendant was arrested later that day.

Instead, the reasonable inference to be drawn by the jury from the information provided at trial was that defendant’s co-defendants implicated him in the crime. Again like the first trial, the State reinforced this evidence by reminding the jury during closing arguments that defendant’s co-defendants had implicated him in the crime.

In discussing defendant’s inculpatory statement to the police, the prosecutor told the jury:

“And you know why he gave it up as soon as he sat down with Sergeant Lopez? He gave it up because he knew the game was over. He knew the three co-defendants were in custody at that station. He knew the police— [DEFENSE COUNSEL Objection was overruled.]: Had solved this crime. And you know what? He knew at that point there was no reason to deny it. You heard from Sergeant Lopez, he didn’t deny it. He started talking immediately.”

Holding

The reviewing court concluded that this statement to the jury linked the reason defendant allegedly provided an inculpatory statement to the fact that his co-defendants had already been arrested and were in custody upon his arrival to the station, and it provided further reason for the jury to infer that the information obtained by police—including defendant’s gender, ethnicity, nickname, build, and home address—was provided to them by the co-defendants.

The central warning of People v. Boling is particularly pressing here.

Investigatory steps taken by a police officer are rarely more than marginally relevant at best, while the risk of jury misuse of the information at great expense to the accused is substantial.

This evidence linking defendant to the crime was so crucial to the State’s case that its admission prejudiced defendant.

Reversed and remanded.

On Remand

On remand, the State was instructed to use more caution in its examination of the detectives such that the detectives’ testimony does not bolster the State’s case against defendant.

The State should understand more fully the strictures of the investigatory procedure exception and should steer clear of any testimony that goes beyond an officer “reconstructing the steps taken in a crime’s investigation” and “describing the events leading up to the defendant’s arrest where such testimony is necessary and important to fully explain the State’s case to the jury,” being mindful that “there is a distinction between an officer testifying to the fact that he spoke to a witness without disclosing the contents of that conversation and an officer testifying to the contents of the conversation.”

But the trial court also said that what happened in the previous trial is not what happened here. The court and the state both believed that if they stayed away from the direct conversations with the co defendants they were fine.

They didn’t understand that it was the implications from those conversations is where the damage was being done.

See Also Episode 057 - Prosecutorial Misconduct Example | They All Do This

Racial Bigotry In The Jury | Should The Rules Allow It?

Mar 22, 2017 06:59

Description:


Should the rules allow judges to do something about bigotry that's discovered during jury deliberations?

Your browser does not support the audio element.

The recent opinion from the Supreme Court of the United States, Pena-Rodriguez v. Colorado, SCOTUS (March 2017) poses a dilemma for trial judges.

What to do when it becomes apparent that a bigot was allowed to deliberate in a criminal case?

What Happened

The defendant was convicted by jury trial in Colarado of sexaually contact with minors. Two jurors told defense counsel that, during deliberations, another juror had expressed anti-Hispanic bias toward petitioner and petitioner’s alibi witness.

Defendant’s counsel reported this to the court and, with the court’s supervision, obtained sworn affidavits from the two jurors.

Here are some of things the third juror (biased juror) told the other jurors:

● He “believed the defendant was guilty because, in the biased juror’s experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.”

● Dude said Mexican men are physically controlling of women because of their sense of entitlement, and further stated, “I think he did it because he’s Mexican and Mexican men take whatever they want.”

● The biased juror further explained that, in his experience, “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.”

● Finally, the guy said that he did not find petitioner’s alibi witness credible because, among other things, the witness was “an illegal.”

Ultimately, though, the judge didn't do anything about this bigotry in the jury deliberation room.

The reason was because of something called the...

The "No-Impeachment" Rule

A general rule has evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations.

This principle, itself centuries old, is often referred to as the "no-impeachment" rule.

Origins of the Rule

The original idea behind the rule was that a juror could not “impeach” their verdict by talking about their deliberation.

So the rule did not allow them to testify about their subjective mental process or about objective events that occurred during deliberations.

The rule morphed from there. 

Federal Rule 606(b)

The common-law development of the no-impeachment rule reached a milestone in 1975, when Congress adopted the Federal Rules of Evidence, including Rule 606(b).

Congress, endorsed a broad "no-impeachment" rule, with only limited exceptions for outside extraneous influences on the jurors. The current version of Rule 606(b) states as follows:

“(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters. (2) Exceptions. A juror may testify about whether: (A) extraneous prejudicial information was improperly brought to the jury’s attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form."

Illinois Rule 606(b) - Inquiry Into Validity or Verdict or Indictment

The Illinois Rules says,

"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify (1) whether any extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received concerning a matter about which the juror would be precluded from testifying."

Illinois Rule of Evidence 606(b)

Issue

The instant case presents the question whether there is an exception to the no-impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.

In this case, the Court must decide whether the Constitution requires an exception to the no-impeachment rule when a juror’s statements indicate that racial animus was a significant motivating factor in his or her finding of guilt.

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State Not Allowed To Re-Open Old Counts When Aguilar UUW Is Vacated

Mar 21, 2017 04:53

Description:

People v. Shinaul, 2017 IL 120162 (February). Episode 311 (Duration 4:52)

State is not allowed to reinstate charges after Defendant vacates an invalidated Aguilar AUUW conviction.

Issue

This case looks at whether or not the State will be allowed to reinstate dismissed charges after a defendant files a civil petition to vacate an invalidated Aguilar AUUW conviction.

In this case, the issues before the circuit court were limited to whether the AUUW count to which defendant had pled guilty should be vacated, whether he should be allowed to withdraw his negotiated guilty plea, and whether the State should be allowed to reinstate the counts it had nol-prossed as part of that negotiated plea agreement.

Civil Petition

A civil remedy that extends to criminal cases, section 2-1401 of the Code of Civil Procedure outlines a comprehensive, statutory procedure by which final orders and judgments may be vacated by the circuit court more than 30 days following their entry.

See 735 ILCS 5/2-1401 et seq.

A section 2-1401 proceeding is a new and separate cause of action that is subject to the usual rules of civil procedure.

This Case

In this case, defendant attacked his conviction under the plea agreement because the offense to which he pled guilty was declared unconstitutional and void ab initio by this court in Aguilar.

It is undisputed that defendant’s section 2-1401 petition correctly asserted that his conviction as part of the negotiated plea should be vacated in light of this court’s decision in People v. Aguilar, 2013 IL 112116.

Further, the State properly filed its motion to reinstate the prior nol-prossed charges by proceeding under this court’s alternative method of reinstating once nol-prossed charges. See People v. Hughes, 2012 IL 112817, ¶¶ 24-25 (identifying two mechanisms by which the State can reinstate once nol-prossed charges: the State may file a new information or indictment, or the State can alternatively move to vacate the nolle prosequi and reinstate the original charges).

Defendant May Vacate

 In light of Aguilar’s holding, defendant correctly notes that he essentially pled guilty to something that was never a crime.

To receive relief from his void conviction, defendant properly understood that the only way to vacate a conviction after a judgment has been entered on a guilty plea is to hold that the plea was defective and that his conviction should be vacated through the filing of a section 2-1401 petition. See Episode 187 - People v. McFadden, 2016 IL 117424, ¶¶ 20, 31-32. 

When a circuit court vacates and sets aside a judgment, as it has done here, the prior judgment is eliminated, and the case thereby returns to its status before the judgment was made.

Original Position Before The Plea

In many circumstances, this will leave a case in a procedural posture such that it requires further proceedings.

For the reasons stated below, however, the facts of this case prevent reinstatement of the nol-prossed charges.

Statute of Limitations

The criminal statute of limitations serves two primary purposes: to avoid the use of stale evidence and to provide an incentive for swift governmental action in criminal cases.

Limitations are designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past.

The high court said there is no provision in the Code that permits the tolling of the statute of limitations in the circumstances before this court.

While the statute of limitations may benefit some wrongdoers it declined to create a prophylactic rule or read into the statute of limitations a nonexistent exception in order to benefit the State.

To do so would be precisely contrary to the central purpose of the statute of limitations and inconsistent with this court’s general principles of statutory interpretation.

Holding

The court held that the statute of limitations serves as an absolute bar to the State’s motion to reinstate the charges it nol-prossed.

So defendants can use the 2-1401 petition to vacate these Aguilar gun convictions, and the State may not be put back in it's original position before the plea.

See also Episode 188 - People v. Billups, 2016 IL App (1st) 134006 (May).

SCOTUS Says Racial Bias Intolerable In Jury Deliberation Room

Mar 20, 2017 22:11

Description:

Pena-Rodriguez v. Colorado, SCOTUS (March 2017). Episode 310 (Duration 22:11)

The constitution must allow for some form of judicial inquiry when it becomes clear that a juror has allowed racial bias to influence their verdict.

Facts

Defendant was convicted by jury trial in Colarado of sexaually contact with minors. Two jurors told defense counsel that, during deliberations, another juror had expressed anti-Hispanic bias toward petitioner and petitioner’s alibi witness.

Petitioner’s counsel reported this to the court and, with the court’s supervision, obtained sworn affidavits from the two jurors.

Here are some of things the third juror (biased juror) told the other jurors:

● He “believed the defendant was guilty because, in the biased juror's experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.”

● Dude said Mexican men are physically controlling of women because of their sense of entitlement, and further stated, “I think he did it because he’s Mexican and Mexican men take whatever they want.”

● The biased juror further explained that, in his experience, “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.”

● Finally, the guy said that he did not find petitioner’s alibi witness credible because, among other things, the witness was “an illegal.”

The judge denied defendant any relief citing the Colorado “no-impeachment” rule.

The "No-Impeachment" Rule

Like all human institutions, the jury system has its flaws, yet experience shows that fair and impartial verdicts can be reached if the jury follows the court’s instructions and undertakes deliberations that are honest, candid, robust, and based on common sense.

A general rule has evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations.

This principle, itself centuries old, is often referred to as the "no-impeachment" rule.

More on The "No-Impeachment" Rule

The original idea behind the rule was that a juror could not “impeach” their verdict by talking about their deliberation.

So the rule did not allow them to testify about their subjective mental process or about objective events that occurred during deliberations.

The rule morphed from there. 

Federal Rule 606(b)

The common-law development of the no-impeachment rule reached a milestone in 1975, when Congress adopted the Federal Rules of Evidence, including Rule 606(b).

Congress, like the McDonald Court, rejected the Iowa rule.

Instead it endorsed a broad no-impeachment rule, with only limited exceptions for outside extraneous influences on the jurors. The current version of Rule 606(b) states as follows:

“(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters. (2) Exceptions. A juror may testify about whether: (A) extraneous prejudicial information was improperly brought to the jury’s attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form."

Illinois Rule 606(b) - Inquiry Into Validity or Verdict or Indictment

The Illinois Rules says,

"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify (1) whether any extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received concerning a matter about which the juror would be precluded from testifying."

Illinois Rule of Evidence 606(b)

Issue

The instant case presents the question whether there is an exception to the no-impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.

In this case, the Court must decide whether the Constitution requires an exception to the no-impeachment rule when a juror’s statements indicate that racial animus was a significant motivating factor in his or her finding of guilt.

Analysis Fancy Talk

It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons. This imperative to purge racial prejudice from the administration of justice was given new force and direction by the ratification of the Civil War Amendments.

The central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States.

In the years before and after the ratification of the Fourteenth Amendment, it became clear that racial discrimination in the jury system posed a particular threat both to the promise of the Amendment and to the integrity of the jury trial.

The duty to confront racial animus in the justice system is not the legislature’s alone. Time and again, this Court has been called upon to enforce the Constitution’s guarantee against state-sponsored racial discrimination in the jury system.

Back To This Case

The unmistakable principle underlying these precedents is that discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.

Permitting racial prejudice in the jury system damages both the fact and the perception of the jury’s role as “a vital check against the wrongful exercise of power by the State.

This case lies at the intersection of the Court’s decisions endorsing the no-impeachment rule and its decisions seeking to eliminate racial bias in the jury system.

Prior Precedent

The two lines of precedent, however, need not conflict.

An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy.

Voir Dire Doesn't Work

For instance, this Court has noted the dilemma faced by trial court judges and counsel in deciding whether to explore potential racial bias at voir dire.

Generic questions about juror impartiality may not expose specific attitudes or biases that can poison jury deliberations. Yet more pointed questions could well exacerbate whatever prejudice might exist without substantially aiding in exposing it.

Thus, there is a sound basis to treat racial bias with added precaution.

Natural Limits

Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry.

For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.

To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict. Whether that threshold showing has been satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence.

States Will Figure It Out

The states and the their court’s should figure out the details. This case does not ask, and the Court need not address, what procedures a trial court must follow when confronted with a motion for a new trial based on juror testimony of racial bias.

The Court also does not decide the appropriate standard for determining when evidence of racial bias is sufficient to require that the verdict be set aside and a new trial be granted.

Holding

A constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.

For the reasons explained above, the Court now holds that where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

"No-Impeachment" Rule Has One Exception

The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general bar of the no-impeachment rule.

It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history.

The Court now seeks to strengthen the broader principle that society can and must move forward by achieving the thoughtful, rational dialogue at the foundation of both the jury system and the free society that sustains our Constitution.

Reversed and remanded.

Here's A DUI Discovery Sanction With No Teeth (It's Not The Civil Inference Thing)

Mar 15, 2017 06:09

Description:

People v. Acevedo, 2017 App (3d) 150750 (March). Episode 309 (Duration 6:09)

Discovery sanction in this rescission hearing consisted of a finding that the defendant met his initial burden, then the State was allowed to have the officer testify to the probable cause for the DUI arrest.

DUI Arrest

Case begins with a car accident.

Defendant failed the fields and blew a .183 on the PBT.

When the officer got to the scene the defendant had difficulty removing his license from his wallet. She testified that the defendant told her he had been at a union meeting and that he had 4 to 5 beers. Defendant was stumbling and swaying.

Discovery Violation

In this DUI case the State was ordered to turn over the squad car video.

The video did exist at one time. The officer made a copy of the DVD from the recording system in her squad car and turned it in with her report. However, it was later found that the DVD was cracked and would not play.

When the officer went to make another copy she discovered it had been recorded over.

The Sanction

The trial court found that a discovery violation had occurred and, as a sanction, imputed that the defendant had sustained his burden of proof and shifted the burden to the State to show cause why the suspension should be sustained.

The trial court declined to bar the officer’s testimony of the arrest, her observations, and the SFSTs as a sanction. 

Issue

The defendant argues that the trial court erred by not barring the testimony of the arresting officer as sanctions for a discovery violation.

The defendant argues that, as a sanction, the arresting officer should have been barred from testifying to the events that would have been seen on the DVD.

Analysis

This reviewing court did not read People v. Kladis, 2011 IL 110920 as broadly as defendant did.

Despite the defendant’s argument that Kladis stands for the proposition that testimony must be barred whenever there is a discovery violation that results in missing evidence, the court concluded that Kladis does not dictate such a hard and fast rule.

Holding

There was no abuse of discretion here.

In this case, the trial court considered available options for sanctions and determined that imputing that the defendant had met his burden of proof regarding a prima facie case for rescission was the appropriate sanction, rather than completely barring the arresting officer’s testimony regarding the stop.

PBT Side Note

Also, attorneys should take note of the proper way to admit a PBT result in a rescission hearing.

Under section 11-501.5 of the Illinois Vehicle Code, a PBT, like other field sobriety tests, is admissible to establish that probable cause existed to arrest the defendant for driving under the influence, even though the PBT is not admissible as evidence of intoxication in a criminal proceeding. 625 ILCS 5/11-501.5.

In order to lay a proper foundation for the admission of the results of 5 the PBT, the witness must testify that the PBT machine is one approved for use by police officers, and that the device was checked for accuracy every 93 days by a person specially trained to perform such tasks. 20 Ill. Adm. Code 1286.240; 20 Ill. Adm. Code 1286.250 (2011).

In addition, the witness must testify that the test was administered according to an operational procedure programmed into the instrument and that the test consisted of only one breath analysis reading, based on the instrument’s internal operational calculations. 20 Ill. Adm. Code 1286.260 (2007).

February 2017 Illinois Criminal Case Law Summary - The Audio Round-Up

Mar 15, 2017 05:42

Description:

This is the February 2017 Illinois criminal case law audio summary. Episode 303 (Duration 20:28)

February 2017 Illinois Criminal Case Law Summary

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Second Degree Murder Is Not An Automatic Transfer Offense So What Happens When Minor is "Acquitted" of First Degree Murder?

Mar 14, 2017 09:26

Description:

People v. Fort, 2017 IL 118966 (February). Episode 308 (Duration 9:57)

Illinois Supreme Court says State must charge second degree murder if they want to continue with adult sentencing after they lose a first degree murder count.

Issue

At issue in this appeal is whether a minor who is tried in adult court under the “automatic transfer” provision of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-130) but is later not convicted of the charges which brought him into adult court is subject to mandatory adult sentencing under the Act.

Facts

Because defendant was charged with first degree murder, an offense specified in section 5-130 of the Act (705 ILCS 405/5-130(1)(a)), also known as the “automatic transfer” statute, defendant was tried as an adult. 705 ILCS 405/5-130(1)(b)(ii).

Defendant was 16 when he shot at a group of people.

He said he thought the victim had a gun and was going to shoot him.

The trial court reduced the offense of first degree murder to second degree murder based on the mitigating factor of an unreasonable belief in self-defense. The court entered judgment on a conviction of second degree murder (720 ILCS 5/9-2(a)(2).

No Motion Filed

Although defendant was a minor, the State never filed a written motion requesting that defendant be sentenced as an adult pursuant to section 5-130(1)(c)(ii) of the Act (705 ILCS 405/5-130(1)(c)(ii). Instead, the trial court and the parties proceeded directly to a sentencing hearing under the Unified Code of Corrections (730 ILCS 5/1-1-1 et seq.) pursuant to section 5-130(1)(c)(i) of the Act.

Defendant was sentenced to 18 years’ imprisonment.

Automatic Transfer Section

The automatic transfer provision in section 5-130 of the Act is an exception to the juvenile court’s exclusive jurisdiction over minors charged with a crime. 705 ILCS 405/5-130.

At the time of defendant’s offense, the automatic transfer statute provided, in pertinent part:

Ҥ 5-130. Excluded jurisdiction. (1)(a) The definition of delinquent minor under Section 5-120 of this Article shall not apply to any minor who at the time of an offense was at least 15 years of age and who is charged with:

(i) first degree murder,
(ii) aggravated criminal sexual assault,
(iii) aggravated battery with a firearm where the minor personally discharged a firearm as defined in Section 2-15.5 of the Criminal Code of 1961,
(iv) armed robbery when the armed robbery was committed with a firearm, or
(v) aggravated vehicular hijacking when the hijacking was committed with a firearm.

These charges and all other charges arising out of the same incident shall be prosecuted under the criminal laws of this State...

(c)(i) If after trial or plea the minor is convicted of any offense covered by paragraph (a) of this subsection (1), then, in sentencing the minor, the court shall sentence the minor under Section 5-4.5-105 of the Unified Code of Corrections. (ii) If after trial or plea the court finds that the minor committed an offense not covered by paragraph (a) of this subsection (1), that finding shall not invalidate the verdict or the prosecution of the minor under the criminal laws of the State; however, unless the State requests a hearing for the purpose of sentencing the minor under Chapter V of the Unified Code of Corrections, the Court must proceed under Sections 5-705 and 5-710 of this Article.

To request a hearing, the State must file a written motion within 10 days following the entry of a finding or the return of a verdict. Reasonable notice of the motion shall be given to the minor or his or her counsel. If the motion is made by the State, the court shall conduct a hearing to determine if the minor should be sentenced under Chapter V of the Unified Code of Corrections.

In making its determination, the court shall consider among other matters:

(a) whether there is evidence that the offense was committed in an aggressive and premeditated manner;
(b) the age of the minor;
(c) the previous history of the minor;
(d) whether there are facilities particularly available to the Juvenile Court or the Department of Juvenile Justice for the treatment and rehabilitation of the minor;
(e) whether the security of the public requires sentencing under Chapter V of the Unified Code of Corrections; and
(f) whether the minor possessed a deadly weapon when committing the offense.

The rules of evidence shall be the same as if at trial. If after the hearing the court finds that the minor should be sentenced under Chapter V of the Unified Code of Corrections, then the court shall sentence the minor accordingly having available to it any or all dispositions so prescribed.”

705 ILCS 405/5-130(1).

Holding

Defendant argued that his conviction for second degree murder was “not covered by” section 5-130(1)(a) because second degree murder was not a “charge[ ] arising out of the same incident” as the first degree murder charges. 705 ILCS 405/5-130(1)(a), (1)(c)(i) (West 2008). Therefore, defendant argues, he should have been sentenced as a juvenile pursuant to section 5-130(1)(c)(ii) unless the State specifically requested a hearing to sentence him as an adult. 705 ILCS 405/5-130(1)(c)(ii).

The Illinois Supreme Court agreed with defendant that his adult sentence was imposed in violation of the statute, based on the fact that he was convicted of second degree murder, an uncharged non-automatic transfer offense, and not convicted of all first degree murder charges.  

Analysis Adult Court

The statutory language clearly requires that a minor be tried in adult court if he is charged with one of the offenses listed in section 5-130(1)(a) of the statute. Moreover, a minor is properly tried in adult court on all of the charged offenses “arising out of the same incident,” even if some of those charges are not listed in section 5-130(1)(a).

This procedure obviously benefits the State and the court system by avoiding separate trials in criminal court and juvenile court for the same incident.

Lose The Transfer Count

However, the same logic does not apply to sentencing when a defendant is not convicted of the charges that brought him into adult court and ultimately convicted of a less serious, uncharged offense.

The plain language in section 5-130(1)(c)(ii) evinces the legislative intent that when a minor is convicted only of an uncharged, non-automatic transfer offense, the court must proceed under the Juvenile Court Act for sentencing unless the State moves for adult sentencing and that request is granted. Mandatory adult sentencing under section 5-130(1)(c)(i) only applies when a minor is convicted of an offense “covered by” section 5-130(1)(a). 705 ILCS 405/5-130(1)(c)(i).

Motion Not Required if Actually Charged With Other Offenses

Section 5-130(1)(a) lists four specific charges and provides that “[t]hese charges and all other charges arising out of the same incident shall be prosecuted under the criminal laws of this State.” 705 ILCS 405/5-130(1)(a). Thus, in order for a conviction to be “covered by” section 5-130(1)(a), it must be for a charged offense, whether one of the enumerated charges or a separate charge arising out of one of the enumerated charges.

This court has recognized that the framework of the Act turns on the offenses in the charging instrument.

Thus, it is the charging instrument that determines whether the minor has the right to have the proceedings in juvenile court.

Wasn't Charged With Second Degree Murder

In this case, defendant was charged and tried for first degree murder but was not charged with second degree murder. Second degree murder is a separate offense from first degree murder. 720 ILCS 5/9-1, 9-2. The State chose to proceed to trial on only the first degree murder charges.

Therefore, the offense of second degree murder did not qualify as an “other charge[ ] arising out of the same incident” as the charged offenses. 705 ILCS 405/5-130(1)(a).

Under the plain language of the statute, defendant’s conviction on an uncharged offense was not “covered by” section 5-130(1)(a). 705 ILCS 405/5-130(1)(a), (1)(c).

Thus, sentencing should have proceeded under section 5-130(1)(c)(ii) rather than section 5-130(1)(c)(i). In the absence of a request by the State for adult sentencing, defendant’s adult sentence is contrary to the express statutory language and must be vacated. See 705 ILCS 405/5-130(1)(c)(ii).

State's Argument

The State argues that defendant was not “acquitted” of first degree murder because second degree murder is considered a “lesser mitigated offense” of first degree murder. See Episode 260.

In convicting defendant, the trial court found that the State had proved all of the necessary elements for first degree murder but the evidence supported a mitigating factor, which reduced the crime to second degree murder.

According to the State, then, defendant’s second degree murder conviction was “covered by” section 5-130(1)(a) because it arose out of the same incident as the proven first degree murder charge. See 705 ILCS 405/5-130(1)(a), (1)(c)(i). The high court said this argument as both factually and legally incorrect.

Holding

But here the conviction in the books is for second degree murder not first degree murder. For the foregoing reasons, the judgments of the lower courts are reversed. The cause is remanded to the trial court with directions to vacate defendant’s sentence and allow the State to file a petition requesting a hearing pursuant to section 5-130(1)(c)(ii) of the Juvenile Court Act. 705 ILCS 405/5-130(1)(c)(ii).

In accord with the timeline provided in the statute, the State must file its motion within 10 days of the date the trial court vacates defendant’s sentence.

Strong Dissent

The dissent stressed that second degree murder is not a separate crime from first degree murder. It is not an “alternative to first degree murder.” It is not a lesser-included offense of first degree murder. Rather, it is a mitigated form of the same crime.

Second Degree is Part of First Degree

Correspondingly, a charge of second degree murder is incorporated into every charge of first degree murder. The elements of the two offenses are the same. The only thing that distinguishes them is that for a defendant to be convicted of second degree murder, he or she must have met the burden of establishing a mitigating factor after the State has proven the charge of first degree murder beyond a reasonable doubt.

The first degree murder charge were not rejected; rather, the trier of fact found that the State successfully proved the charge of first degree murder but also found that defendant proved the existence of a mitigating factor.

Variant Charge

Because the charge of first degree murder was sufficient to trigger the automatic transfer provision of section 5-130 and because the charge for which defendant was ultimately found guilty—second degree murder—was merely a variant of that same qualifying offense and not a different or lesser-included offense, it therefore cannot be said that the defendant here was convicted of an offense for which he had not been charged.

To the contrary, he quite clearly was.

Defendant was found guilty of second degree murder, and the State had leveled a charge of second degree murder against him when it charged him with first degree murder. The trial court was therefore entirely correct when it sentenced defendant as an adult.

Silly To Require State To Charge Second Degree

Under the majority’s view, in order to avoid the issue here, the State would have been required to expressly and simultaneously charge first degree murder and second degree murder. In sum, a charge of second degree murder is incorporated in every charge of first degree murder. Defendant was thus convicted of a charged offense arising out of section 5-130 of the Act and was properly sentenced under the Unified Code of Corrections.

See Also

People v. Ingram, 2018 IL App (4th) 160099 (July). (minor plead to the lesser charge)

Episode 260 - People v. Staake, 2016 IL App (4th) 140638 (November) (Originally Charged With Second Degree Murder, Then Amended To First Degree Murder, Problem?) 

Exactly What Does Defendant Have To Say To Trigger A Krankel Inquiry?

Mar 13, 2017 05:42

Description:

People v. Ayres, 2017 IL 120162 (February). Episode 307 (Duration 5:41)

What does defendant have to say to trigger a Krankel inquiry?

Facts

Defendant mailed a pro se petition to withdraw guilty plea and vacate sentence, alleging “ineffective assistance of counsel” and nothing more.

This motion was ignored by the trial court.

Issue

The issue in this case is whether defendant’s allegation of “ineffective assistance of counsel” without any factual support was sufficient to trigger a Krankel inquiry.

There is a split in the appellate court on this question.

Some decisions hold a bare claim warrants inquiry. Conversely, other decisions hold a bare allegation is insufficient and that a defendant must meet minimal requirements by asserting supporting facts or specific claims.

Krankel Inquiry Raising The Issue

The common-law procedure, which has evolved from our decision in Krankel, is triggered when a defendant raises a pro se post trial claim of ineffective assistance of trial counsel. People v. Jolly, 2014 IL 117142, ¶ 29.

This procedure “serves the narrow purpose of allowing the trial court to decide whether to appoint independent counsel to argue a defendant’s pro se post trial ineffective assistance claims.”

Defendant can raise the issue through a motion, orally or in a letter.

New Counsel?

However, the trial court is not required to automatically appoint new counsel when a defendant raises such a claim.

The Inquiry

Rather, the law requires the trial court to conduct some type of inquiry into the underlying factual basis, if any, of a defendant’s pro se post trial claim of ineffective assistance of counsel.

Specifically, the trial court must conduct an adequate inquiry, that is, inquiry sufficient to determine the factual basis of the claim.

If the trial court determines that the claim lacks merit or pertains only to matters of trial strategy, then the court need not appoint new counsel and may deny the pro se motion.

However, if the allegations show possible neglect of the case, new counsel should be appointed. In making the inquiry, some interchange between the trial court and trial counsel regarding the facts and circumstances surrounding the allegedly ineffective representation is permissible and usually necessary in assessing what further action, if any, is warranted on a defendant’s claim.

Accordingly, the trial court is permitted to inquire of trial counsel about the defendant’s allegations.

Likewise, the court is permitted to discuss the allegations with defendant.

Lastly, the trial court is permitted to make its determination based on its knowledge of defense counsel’s performance at trial and the insufficiency of the defendant’s allegations.

Analysis

Here, the Illinois Supreme Court held that, when a defendant brings a clear claim asserting ineffective assistance of counsel, either orally or in writing, this is sufficient to trigger the trial court’s duty to conduct a Krankel inquiry.

The court agreed with defendant in saying that the whole point and primary purpose of the preliminary inquiry is to give the defendant an opportunity to flesh out his claim of ineffective assistance so the court can determine whether appointment of new counsel is necessary.

Plus, judicial economy is served by holding an express claim of ineffective assistance of counsel is all that is necessary to trigger a Krankel inquiry.

The goal of Krankel is to facilitate the trial court’s full consideration of a defendant’s pro se claims of ineffective assistance of trial counsel and thereby potentially limit issues on appeal.

Moreover, by initially evaluating the defendant’s claims in a preliminary Krankel inquiry, the circuit court will create the necessary record for any claims raised on appeal. Absent such a record, as in the case at bar, appellate review is precluded. The inquiry is not burdensome upon the circuit court, and the facts and circumstances surrounding the claim will be much clearer in the minds of all involved when the inquiry is made just subsequent to trial or plea, as opposed to years later on appeal.

The Full Blown Hearing

A full blown Krankel procedure is limited to post trial motions.

So general concerns that full blown inquiries will be triggered each and every time a defendant claims ineffectiveness are not a concern.

After a trial, in a post trial motion the purpose of the preliminary inquiry is to ascertain the underlying factual basis for the ineffective assistance claim and to afford a defendant an opportunity to explain and support his claim.

In this way, the circuit court will have the necessary information to determine whether new counsel should be appointed to argue the claim of ineffective assistance of counsel.

Holding

A defendant need only bring his claim to the court’s attention, post trial, whether orally or in writing.

Here, defendant properly filed a pro se petition to withdraw his guilty plea and vacate sentence in which defendant claimed he received ineffective assistance of counsel.

Despite this, the circuit court never addressed defendant’s petition. Defendant was not present at the post trial hearing and, therefore, was unable to ask the court to rule on his petition.

Reversed and remanded for a preliminary Krankel inquiry.

See Also

People v. Jindra, 2018 IL App (2d) 160225 (July).

This "Heat Run" Was No Innocent Drive In The City

Mar 9, 2017 09:05

Description:

People v. Hernandez, 2017 IL App (2d) 150731 (January). Episode 306 (Duration 9:04)

Defendant is accountable for this 7 kilogram heroin deal (he did the heat run).

Facts

Defendant was tried on the theory that he was accountable for the actions of his father and brother who had conducted a 7 kilogram heroin drug deal in a Wal-Mart parking lot.

Defendant drove a seperate car to the parking lot and parked it in a way that allowed him to act as a “look out.”

The trial court found defendant guilty.

The court noted that it was undisputed that a drug transaction occurred, the only question being whether defendant knowingly participated in it or was merely present.

The court then extensively recounted the evidence and concluded that defendant was a knowing participant.

Drive To The House

Had the evidence of the drug delivery itself been the only evidence, the court stated, it might well have been insufficient to prove that defendant knowingly participated.

However, the State presented extensive evidence of the events preceding it. The court referred to evidence of the heat run, noting that there was:

“...inexplicable stopping, pulling over, pulling forward, turning around, coming back, going north of the home, going south of the home, crossing the river in Elgin on the one side only to then turn around and come back, and then to park the vehicle with no apparent reason other than to somehow disconnect the vehicle from the address by parking down the street and around the corner. *** All of which leads to the conclusion that the defendant knew that he needed to know if he was under surveillance or [if] that vehicle was under surveillance. It’s the only viable explanation, the only reasonable inference to be drawn from that. Rather this is not like you drove around the corner and re parked [sic] the car. He drove a considerable distance over a considerable period of time looking for any law enforcement surveillance.”

Drive Away From The House

The court then recounted the evidence that defendant drove to a condominium complex in Elgin and that his car emerged in tandem with another car containing defendant’s father and brother.

The court found it significant that the other two men were defendant’s close relatives, rather than “two individuals who may or may not have some connection to him.”

“So the question is, does all of that evidence show that defendant was merely present and in some sort of coincidental fashion with his father and his brother doing the seven kilogram transaction, and that he did not know, and did not attempt to aid or abet them in the commission of this offense, and that he was merely as was suggested on his way to join them for a meal and this was done along the way. *** There is no innocent explanation for why the three would be traveling from Elgin to the restaurant in two separate cars. There’s no innocent explanation why he would position his car[ ] the way he did in relation to the transaction, the reasonable inferences and positions of his vehicle so as to act as the lookout, to lookout for any potential problems. The evidence was that each of the three individuals, the father, the brother and the defendant all had two cell phones and likely could communicate in regard to the use of any of those cell phones.”

A defendant’s intent may be inferred from the nature of his or her actions and the circumstances surrounding the criminal conduct.

Accountability

Words of agreement are not necessary to establish a common purpose to commit a crime, and accountability may be established through a defendant’s knowledge of and participation in the criminal scheme, even though there is no evidence that he or she directly participated in the criminal act itself.

However, mere presence at the scene of a crime, even when joined with flight from the scene or knowledge of the crime, is insufficient to establish accountability.

“Accountability focuses on the degree of culpability of the offender and seeks to deter persons from intentionally aiding or encouraging the commission of offenses.”

Here, the evidence sufficiently proved that defendant served as a lookout while his father and brother conducted a drug transaction.

Police Expert

The police drug expert described how defendant conducted a heat run, driving a circuitous route around Elgin with no apparent destination in mind.

Participating in a heat run has been recognized as an important piece of evidence that a defendant was knowingly involved in a drug transaction.

Additional evidence showed that, when defendant returned from the heat run, he parked more than a block away from the house, although parking was available closer to the house.

Several hours later, he left the house with another man and drove to a condominium complex in Elgin.

Three men left the complex in two cars and drove in tandem, in a circuitous route, to a Wal-Mart parking lot.

The cars parked several spaces from each other, with defendant parking in a spot where he could see anyone approaching.

The men in the other car were met by another man.

They gave him a black bag that later proved to contain heroin.

Afterward, the three men again drove in tandem to a restaurant.

No Innocent Explanations

As the trial court observed, it is difficult to imagine any legitimate purpose for such activity.

Had they merely been running an innocent errand, there was no need to drive in two separate cars from Elgin to a Wal-Mart in Addison, park in the parking lot without ever entering the store, and then drive back toward Elgin to a restaurant in Hanover Park.

Additional evidence showed that defendant possessed two cell phones.

Moreover, the car he was driving contained a hidden compartment that could have been used for hiding drugs. All of these factors point to defendant’s knowing participation in the drug delivery and render extremely unlikely any innocent explanation for his conduct.

The trier of fact is not required to disregard inferences that flow from the evidence, nor is it required to search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt.

Indeed, it is highly unlikely that two of defendant’s close relatives engaged in a transaction involving drugs worth more than $1 million while defendant, who was in close proximity to them the entire time, was completely uninvolved.

The fact that no physical evidence directly tied defendant to the drug transaction is not fatal. The detective's’ testimony regarding defendant’s actions was sufficient to establish his knowledge of, and participation in, the transaction.

When Warrant Issues On a New Case And You're Already Sitting In Jail Do You Get Credit?

Mar 8, 2017 03:42

Description:

People v. Brown, 2017 IL App (3d) 140907 (January). Episode 305 (Duration 3:42)

Defendant entitled to more credit for time served because he was in jail on another matter in a different county when the new charges and arrest warrant were issued.

Facts

Defendant was in Cook County Jail when they charged him with a home invasion in Will County.

41 Days later they transport him to Will County.

When he plead guilty to the Will County case he received credit for time served for all the time he was detained in Cook minus the 41 days.

Defendant was charged and a warrant was issued while defendant was in the custody of Cook County. Defendant never posted a bond on the warrant.

Issue

He says he is entitled to credit beginning when the warrant was issued.

Code of Corrections

The Unified Code of Corrections states, that "[an] offender shall be given credit on the determinate sentence or maximum term and the minimum period of imprisonment for the number of days spent in custody as a result of the offense for which the sentence was imposed." 730 ILCS 5/5-4.5-100(b).

Analysis

Sentencing credit for time served is mandatory and a claim of error in calculating such credit cannot be forfeited.  

The reviewing court said he was in simultaneous custody for his Cook and Will cases starting from the date Will County issued the charges and their warrant.

An offender who is in simultaneous custody on two offenses is entitled to presentence custody credit on the newer offense beginning on the date he or she was charged and became subject to arrest.

Therefore, defendant is entitled to an additional 41 days of presentence custody credit.

But Warrant Was Never Served

In People v. Robinson, 172 Ill. 2d 452, 463 (1996), the court determined that a defendant is entitled to sentencing credit for both offenses when he is incarcerated on one charge and his bond is withdrawn or revoked on another charge as he is in simultaneous custody on both charges.

This court has extended the Robinson rule to give sentencing credit to a defendant at the time the defendant is charged and the arrest warrant is issued.

But the Fifth District has a case saying the warrant must be served before defendant can start to accrue credit. See People v. Seesengood, 266 Ill. App. 3d 351, 360 (1994).

See Also

Episode 234 - People v. Nesbit, 2016 IL App (3d) 140591 (September) (This Defendant Is Not Entitled To Credit Because He Never Revoked The Bond)

January 2017 Illinois Criminal Case List - An Audio Review Of The January Cases

Mar 7, 2017 03:20

Description:

This is the January 2017 Illinois criminal case law audio summary. Episode 302 (Duration 16:53)

January 2017 Illinois Criminal Case Law
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Use This Modified IPI 3.14 With Domestic Violence Other Crimes Cases

Mar 7, 2017 05:23

Description:

People v. Heller, 2017 IL App (4th) 140658 (January). Episode 304 (Duration 5:23)

Use this modified IPI 3.14 when other crimes evidence is admitted in a domestic battery pursuant to 725 ILCS 5/115-7.4.

Facts

Defendant punched his ex-wife in the face 10 times and told her he would “slit my throat”.

In the trial the victim recanted. She testified nothing happened the night of the incident.

The state impeached here with a recorded statement she made to police. On the recording, she was seen and heard telling police that defendant sat on top of her while she was on the bed and choked her twice—once using his hands and once using his forearm.

The victim also told police that defendant punched her in the chest and jaw.

Other Crimes Evidence

In this domestic battery the state admitted a prior domestic battery pursuant to 725 ILCS 5/115-7.4.

The other-crimes evidence may be introduced for any relevant purpose, including to establish the defendant’s propensity to commit the charged offense.

As required by section 115-7.4, the trial court must—as with any evidence—balance the probative value of the proffered evidence against its prejudicial effect. 725 ILCS 5/115-7.4(b).

In conducting that balancing test, the court should consider, in particular, the other crime’s

(1) proximity in time and
(2) degree of factual similarity to the charged offense,

in addition to any other relevant facts and circumstances.

To be admissible under section 115-7.4, the other-crimes evidence must bear merely “general similarity” to the charged offense.

Not His First Time

In this case, the other crime and the charged offense were similar enough to support admitting the other-crimes evidence.

During both alleged offenses, defendant positioned himself on top of his victim and struck her on the face.

In addition, both offenses were a reaction by defendant to the prospect of another romantic partner being involved with the victims, who had both been romantic partners with defendant.

Both attacks occurred in the home of the victim.

The differences between the offenses highlighted by defendant are not so significant as to bar the other-crimes evidence.

Not Really That Different

Defendant points to the following differences to support his argument that the other-crimes evidence should not have been admitted: the charged offenses involved choking instead of punching; defendant was married to the other crimes victim but merely dating this victim; the incident with his ex wife resulted from a long argument, while the attack on his finance was spontaneous; a child was present during the attack on the ex, but nobody witnessed the incident with this victim.

Basically The Same

Defendant’s acts of violence both resulted from the possibility that his victims were involved romantically with another person.

During both incidents, defendant responded to that perceived threat by violently assaulting his victim in her home. Those key facts established a level of similarity between the offenses that is not undone by the minor differences noted by defendant.

The trial court did not abuse its discretion by admitting the other-crimes evidence.

Further, the State did not focus unduly on the other-crimes evidence, such that the trial became a “mini-trial.” Instead, the State properly focused its case on both the other-crimes testimony and the impeachment of the victim with her prior inconsistent statements.

The trial court’s decision to admit the evidence was not arbitrary, fanciful, or unreasonable.

Modified IPE 3.14

A modified IPI 3.14 is recommended.

Other-crimes evidence admitted pursuant to section 115-7.4 of the Code (725 ILCS 5/115-7.4) may be considered by the jury for any relevant matter, including the defendant’s propensity to commit the charged crime.

A recent unpublished order from the First District illustrates an example of how to adapt IPI Criminal 4th No. 3.14 to instruct the jury on the proper use of other-crimes evidence admitted pursuant to either section 115-7.4 or section 115-7.3 of the Code.

In People v. Banks, 2016 IL App (1st) 131009, ¶ 116, the trial court gave the jury the following instruction concerning other-crimes testimony admitted pursuant to section 115-7.3 of the Code:

“Evidence has been received that the Defendant has been involved in an offense other than those charged in the indictment. This evidence has been received on the issue of the Defendant’s propensity and may be considered by you only for that limited purpose. It is for you to determine what weight should be given to this evidence on the issue of propensity.”

The instruction given here was wrong but harmless.

In this case, the jury instruction informed the jury that the other-crimes evidence could be considered only “on the issues of the factual similarity and proximity in time.”

That instruction was incorrect.

The issues of factual similarity and proximity in time are to be considered by the trial court when determining whether the other-crimes evidence should be admitted. Once admitted, the evidence may be used by the jury for “any relevant matter.”

To say that the evidence may be used by the jury only on the issues of factual similarity and proximity in time confuses the role of the jury with that of the trial court.

February 2017 Illinois Criminal Case Law Summary - The Audio Round-Up

Mar 6, 2017 20:29

Description:

This is the February 2017 Illinois criminal case law audio summary. Episode 303 (Duration 20:28)

February 2017 Illinois Criminal Case Law Summary

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Retired Judge Allen Anderson: The View From The Bench

Mar 1, 2017 01:01:21

Description:

Episode 301 (Duration 1:01:21) features an inside view on what judges really think. 

Retired Judge Allen Anderson provides useful insight both new and experienced criminal law attorneys will find extremely valuable.

Retired Judge Allen Anderson

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Are You Ready To Consistently Outmatch & Outgun Your Criminal Litigation Opposition?

Samuel Partida, Jr. Case Law NinjaHow do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret Now

Show Me The Secret.

 

Before I left the Kane County State's Attorney's Office my last assignment was in courtroom 311 before Judge Allen Anderson. 

Judge Anderson was one of those judge's that just made you better. I like to think there is only 2 things to do when you are in front of a judge like Judge Anderson. 

You either:

Grow as an attorney and get better Or you complain about "all the work" 

I like to think I went with option 1.

About Jude Anderson

In 1972 Allen Anderson was sworn in as an Illinois attorney.

He graduated from the John Marshall Law School in Chicago, and was admitted before he had even taken the LSAT.

By January of 2000 he was sworn in as a Kane County, Illinois Judge. 

What's In This Episode

✓ (14:11) The single most important ability that stood out and really separated the best attorneys from the rest of the herd. The most experienced courtroom litigators could do this one thing consistently and always improved their clients chances of winning the best possible outcome.

✓ (18:38) Discover the kind of attorney the judge respected the most and appreciated having in his courtroom. These were not always the most talented or skilled attorneys.

✓ (20:45) The Judge explains how police officers, and for that matter all other witnesses on the stand, could have been more effective. (Hint: 100% of the blame goes to the attorney when this wasn't done. There is a super simple remedy you can start implementing right away.)

✓ (25:20) Talking to the jury after a trial was one of the most enjoyable parts of being a judge. Find out the most common question the jury had for the judge, how he answered it, and how the Judge feels about our jury system.

✓ (28:50) What to do if you want to be a great trial attorney. The best lawyers in front of a jury were rarely the most flamboyant or animated attorneys. The judge knew he had an amature on the case when he saw this.

✓ (33:03) The Judge shares deep insight and raw experience extremely helpful in deciding between the a bench or a jury trial. Any attorney who tries cases will appreciate this frank discussion on when it's best to ditch the jury.

✓ (36:49) "One size doesn't really fit all." Listen up: The Judge explains how rational judges think about sentencing. If you really want to make a difference at sentencing you and your client can do one thing. Character witnesses have their place, but there's something way more effective you can be doing that gives you the best shot at keeping your client out of prison. Plus, the Judge reveals an underutilized resource that can be having a huge impact in your sentencing hearings right now.

✓ (39:44) Sometimes well thought out and thourough legal briefs hurt your case. Sometimes citations and resources up the yazoo just don't help. There is a way to tell if your research and argument is good enough. This advice alone can sky rocket your litigation results and save you priceless research time. (Hint: Judges actually read, actively weigh, and appreciate your written arguments and case citations.)

✓ (40:52) How to know if the criminal law is for you.

Before You Go…

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention the cases can take any attorney to the next level. 

If you're interested in taking the first step towards mastering your Illinois criminal courtroom then hit the link below.

Are You Ready To Consistently Outmatch & Outgun Your Criminal Litigation Opponent?

Samuel Partida, Jr. Case Law NinjaHow do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret Now

Show Me The Secret.

17 Year Old With 5th Grade Reading Level And Mental Disorders Gives A Voluntary Statement

Feb 27, 2017 05:42

Description:

People v. Edwards, 2017 IL App (3d) 130190-B (January). Episode 300 (Duration 5:42)

This 17 year old's confession was voluntary even though he had a fifth grade reading level, suffered from various mental disorders, and that the investigating officers did not allow him to speak to his mother.

Facts

Defendant executed a victim during a home invasion.

Defendant was sentenced to 90 total years. He and a co defendant broke into a home to steal drugs and money. Defendant put a pillow over the face of the man and shot and killed him.

He did the same thing to the woman but she did not die.

The Confession

Prior to trial, defendant filed a motion to suppress, claiming his confession to police was involuntary based on the fact that he was:

17 years old at the time had a fifth grade reading level suffered from mood disorder bipolar disorder and depression not taking his Depakote (prescribed medication) in special education classes and that the investigating officers did not allow him to speak to his mother or another concerned adult

despite his request to do so.

The trial court denied the motion.

Juvenile Confessions

Illinois courts have long recognized that receiving a confession from a juvenile is a “sensitive concern.”

As a consequence, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.

Thus, in determining whether a juvenile’s confession was voluntarily given, relevant considerations include

(1) the juvenile’s age, intelligence, background, experience, education, mental capacity, and physical condition at the time of questioning;
(2) the duration of the detention, including whether the police physically or mentally abused the juvenile or employed trickery or deceit in obtaining the confession; and
(3) whether the juvenile had an opportunity to speak with a parent or other concerned adult prior to or during the interrogation, including 13 whether the police prevented or frustrated such opportunities.

No single factor is dispositive; rather, the courts must consider the totality of the circumstances surrounding the confession.

Trial Court

The trial court thoroughly and methodically considered the factors of...

defendant’s age intelligence background experience mental capacity education and physical condition at the time of questioning.

Defendant was no wide-eyed, 17-year-old that appeared immature.

Quite the opposite, defendant responded appropriately to questioning and was articulate, both during the interview and in his testimony during the suppression hearing.

Officers Played It Straight

While there was some allusion to force and deception on the part of officers in Westmorland, there was no such behavior exhibited by officers here.

The officers here were all trained juvenile officers.

Since this case was an “adult” case, the police did not have to contact his mother.

Youthful Offender Sentencing

The reviewing court side swiped the sentencing issue by noting that defendant was attacking the minimum sentence of 76 years, but he did not get the minimum.

He got more than the minimum. The court rejected defendant’s attempts to attack the constitutionality of sentences he did not receive.

Defendant received discretionary sentences. Kind of a weird way to handle this issue.

Why don’t they just say after balancing the crime with his history that he was not entitled to anything less?

See Also

Episode 210 - In re S.W.N., 2016 IL App (3d) 160080 (July)(This Voluntary Confession is Suppressed, Minor With IQ 70)

Mental Health Records Are Sensitive | Get Them This Way

Feb 22, 2017 05:53

Description:

People v. Viramontes, 2017 IL App (1st) 142085 (January).
People v.  Jones, 2017 IL App (1st) 143403  (January) Episode 299 (Duration 5:53)

Defendant has a right to in camera inspection of mental health records, but he has to ask for it.

Viramontes - Facts

Defendant and his codefendant robbed two ladies.

He swung his bat at the first victim, striking her in the head.

He then struck the other victim, also hitting her in the head.

He then struck the first victim a second time in the neck before making off with their valuables.

Both victims spent weeks in the hospital and suffered permanent injuries. One of the victim’s injuries were so extensive she will require 24-hour care for the rest of her life. He was convicted of 2 counts of attempt murder and armed robbery.

They were caught because they used the victim’s phones and credit cards.

Mental Health Record

Defendant challenges the trial court’s decision to limit the disclosure of his codefendant’s mental health records.

It had become known to the defense that she was taking psychotropic drugs and had recently been evaluated by Forensic Clinical Services.

Prior to trial, the trial court conducted an in camera review of all of Cruz’s mental health records.

The court determined several more recent records were discoverable. The court refused to tender the older mental health records.

On appeal, defendant contends he was entitled to all of Cruz’s mental health records in order to adequately test her credibility.

Rule 415(f)

It is well established under Illinois law “evidence of a witness’ mental condition is admissible to the extent it bears upon the credibility of the witness’ testimony.”

Illinois supreme court rule 415(f) provides a procedure for allowing documents reviewed in camera to be a part of the appellate record. Ill. S. Ct. R. 415(f).

Rule 415(f) provides:

“(f) In Camera Proceedings. Upon request of any person, the court may permit any showing of cause for denial or regulation of disclosures, or portion of such showing, to be made in camera. A record shall be made of such proceedings. If the court enters an order granting relief following a showing in camera, the entire record of such showing shall be sealed, impounded, and preserved in the records of the court, to be made available to the reviewing court in the event of an appeal.”

What It Means

A defendant need only file a motion pursuant to Rule 415(f) before the trial court in order to ensure the documents which were reviewed in camera are available to the appellate court.

A defendant has the responsibility to ensure compliance with Rule 415(f).

A review of the record that is before this court shows no abuse of discretion.

After receiving all of the mental health records, the trial court conducted an in camera review in the presence of a court reporter. The trial court proceeded to identify each record it was viewing, detailing the nature of the record and the reason it was or was not being tendered to the defendant.

The court found many of the older records contained irrelevant information.

Further, the court concluded relevant material in the older records was contained in the disclosed material.

The trial court’s statements on the record indicate the vast majority of the records concerned depression, anxiety, and an eating disorder, none of which would be relevant to testing Cruz’s credibility.

Not Ordering An Exam

See 725 ILCS 5/115-7.1 - Court may not order mental examination of sex victim.

"Except where explicitly authorized by this Code or by the Rules of the Supreme Court of Illinois, no court may require or order a witness who is the victim of an alleged sex offense to submit to or undergo either a psychiatric or psychological examination."

Jones - Facts

Defendant was convicted of aggravated domestic battery for stabbing his girlfriend in the chest.

He claims his constitutional right to confront her were violated when the trial court denied his request to admit her mental health records.

As a result, he was precluded from probing her history of mental illness during cross-examination.

These mental health records, however, are not part of the record on appeal.

In Camera Inspection

The trial judge did receive the records and held that were not relevant to any of the current allegations against defendant. I don't see how in any way they would be helpful to either party.

At the hearing on the motion, counsel argued that the defense at trial would be that the victim stabbed herself, and her mental health records would help us determine her mental state and to possibly lead us to any other records in preparation for confronting the victim at trial.

The trial court noted that the records were from 2009, and detail an incident that occurred four years prior to the allegations that are before me.

And although the complaining witness did in fact receive that mental health treatment for a short period of time, it ended in 2009 with respect to that particular incident. Nothing about that incident seems to me to be in any way relevant to the incident at hand here.

On Cross

On cross-examination, the victim was asked if she had been diagnosed with bipolar disorder. She answered, Wrong.

I don't know how you;all diagnosed me with that because I'm not bipolar and they cannot make no diagnosis off of me.

The trial court sustained the State's objection and held a sidebar to hear argument on the issue.

Were They Relevant?

Defense counsel argued that the defense's theory is that the victim stabbed herself, and the medical records showing she had been treated for bipolar disorder is relevant to their theory because it would show her state of mind at the time this stabbing occurred.

This exchange followed:

THE COURT: Do you have any reason to believe by way of evidence that [she] stabbed herself.

MS. PAYETTE [defense attorney]: Other than there's two people in the room and I have strong medical evidence to show that [defendant] is physically incapable of doing it. I think that that would be sufficient, Judge.

THE COURT: So your answer is no, you don't have any evidence that you're going to be putting on?

MS. PAYETTE: Not that I'm going to be putting on, Judge.

THE COURT: Your objection will be sustained. The trial court viewed the records in camera on the State's motion.

Rule 415(f)

Illinois Supreme Court Rule 415(f) (eff. Oct. 1, 1971) states that if the court enters an order granting relief following a showing in camera, the entire record of such showing shall be sealed, impounded, and preserved in the records of the court, to be made available to the reviewing court in the event of an appeal.

It is the defendant's burden, as the complaining party, to request that the records involved are sealed, impounded, and preserved for appeal.

Absent a request for such compliance, any deficiency in the record will be attributable to that party.

Third District Declares The Crime Of Being a Sexual Offender In A Park Unconstitutional

Feb 21, 2017 04:34

Description:

People v. Pepitone, 2017 IL App (3d) 140627 (February). Episode 298 (Duration 4:34)

Third District finds the charge of being a child sex offender in park to be facially unconstitutional.

Facts

Defendant was walking his dog on a public park.

He has a prior predatory criminal sexual assault of a child conviction.

He came to the police's attention because he parked across 3 parking spots.

He was convicted of being a sexual offender in a public park (720 ILCS 5/11-9.4-1(b) - A class A misdemeanor for first offense).

Issue

Defendant challenges the constitutionality of the charge and asks whether it is a reasonable means of achieving the legislature’s stated goal of protecting users of public parks from child sex offenders and sexual predators.

His claim is that section 11-9.4-1(b) sweeps too broadly and must, therefore, be struck down.

Rational Basis Test

Where the statute does not affect a fundamental constitutional right, the test for determining whether the statute complies with substantive due process is the rational basis test.

To satisfy this test, a statute need only bear a rational relationship to the purpose the legislature sought to accomplish in enacting the statute.

Pursuant to this test, a statute will be upheld if it bears a reasonable relationship to a public interest to be served, and the means adopted are a reasonable method of accomplishing the desired objective.

To pass constitutional muster under rational basis review, a statute must not be arbitrary or unreasonable.

Sexual Offender In A Park

Section 11-9.4-1(b) of the Criminal Code of 2012 provides that:

“[i]t is unlawful for a sexual predator or a child sex offender to knowingly be present in any public park building or on real property comprising any public park.”

720 ILCS 5/11-9.4-1(b).

Analysis

Other challenges to this law that have been struck down under a violation of due process claim and have not addressed the rational basis directly.

The court found the lack of any culpable mental state and the reach to countless types of innocent conduct, like say, walking a dog to be very problematic.

In addition, the instant statute cannot be reasonably construed as aimed at preventing a substantial step toward the commission of a sex offense against a child or any offense that would result in an individual qualifying as a sexual predator (see 730 ILCS 150/2(E).

Mere presence in a public park building or public park, without more, is not unlawful conduct.

The Previous Law

The previous version of this law was different.

The predecessor statute not only limited the prohibition against being in the park to times when children are present on the premises, it also required that the offender “approach, contact, or communicate with” the child.

By contrast, the sweep of the current iteration of the statutory prohibition is extraordinary. At most, section 11-9.4-1(b) could be premised on a vague notion that a child or other “target” may be present in a public park building or on public park property.

But the presence of such a person in a public park building or public park is certainly not guaranteed, and, in light of the particular circumstances, may not even be likely.

Section 11-9.4-1(b) is an outright ban on all individuals with certain sex offense convictions from public park buildings and public park property without any requirement that anyone—particularly a child—be actually, or even probably, present.

Another Problem With This Law

The statute also obviously makes no attempt to assess the dangerousness of a particular individual.

Further, the statute also criminalizes substantial amounts of innocent conduct, including the walking of a dog.

As appellate counsel for the defendant pointed out during oral arguments, the list of activities that routinely occur in public park buildings or on public park property, and in which individuals subject to this statute’s ban cannot partake is extensive.

These can include:

attending concerts picnics rallies Chicago Bears games at Soldier Field Expeditions to the Field Museum The Shedd Aquarium The Art Institute The Adler Planetarium or The Museum of Science and Industry

all of which are public buildings on park land; bird-watching;  photography; hunting; fishing; swimming at a public beach; walking along riverwalks; cycling on bike trails; hiking at Starved Rock; and the list goes on and on.

We believe that this statute contains the type of overly broad sweep that doomed other statutes.

In those other cases, statutes that potentially punish innocent conduct violate due process principles because they are not reasonably designed to achieve their purposes.

Holding

The court held that section 11-9.4-1(b) is facially unconstitutional because it is not reasonably related to its goal of protecting the public, especially children, from individuals fitting the definition of a child sex offender or a sexual predator.

Nor is it drafted in such a way as to effect that goal without arbitrarily stripping a wide swath of innocent conduct and rights he has as a citizen and taxpayer from a person who has paid the penalty for his crime and is compliant with “collateral consequences” requirements established by the General Assembly.

Take Down Lights Not A Show Of Force Without Other Coercive Act

Feb 20, 2017 08:24

Description:

People v. Biagi, 2017 IL App (5th) 150244 (January). Episode 297 (Duration 8:23)

Trial court errored in granting this petition to rescind the statutory summary suspension in this drug based DUI arrest.

Facts

Defendant is driving really slow when he pulls over and stops. There is, of course, a State trooper following him. 

The trooper pulls in behind him because he thinks defendant has car trouble.

- Right away the trooper notices the defendant really can’t follow instructions is acting kinda spacy.
- His speech was slow.
- He said “good afternoon” when it was just after midnight.
- He was slumped down in his seat.
- His movements were deliberate and delayed, and...
- his pants are also undone and falling down to his thighs.

He fails the FST’s including the HGN.

The trooper is trained in detecting drugged driving.

After he is arrested, police find some pills in his pocket.

There is no odor of alcohol and defendant denied taking any narcotics or prescription pills.

Trial Court Ruling

Here, the circuit court found that the trooper activated his “take down” lights, being white lights to illuminate the area, and exited his vehicle. These actions would be seen by a defendant as a command to stay put.

Therefore, defendant was detained by the trooper.

Reversed

The appellate court said otherwise. In People v. Luedemann, the Illinois Supreme Court held that shining a light on a vehicle is not a seizure where there is no coercion or a threat of coercion present.

Accordingly, this trooper’s use of the flashlight and takedown lights did not constitute a seizure of the defendant without the presence of some form of coercion.

Coercion

In determining whether coercion is present–thereby resulting in a seizure–courts examine the following factors, which were established by the United States Supreme Court in United States v. Mendenhall, 446 U.S. 544, 554 (1980):

"(1) the threatening presence of several officers;
(2) the display of a weapon by an officer;
(3) some physical touching of the person of the citizen; and
(4) the use of language or tone of voice indicating that compliance with the officer's request might be compelled."

The Mendenhall factors "are not exhaustive and *** a seizure can be found on the basis of other coercive police behavior that is similar.

The Video

A review of the video in the record reveals...

no other officers present no display of a weapon no physical touching of the defendant's person, and no language or tone of voice to indicate that compliance was compelled.

Regarding the Mendenhall factors, there must be some such evidence; otherwise, any inoffensive contact between a citizen and a police officer cannot, as a matter of law, constitute a seizure of the citizen.

There was no coercive behavior by the trooper, nor any threat thereof, nor was there any physical force or show of authority to restrain the defendant's liberty.

For these reasons, we find the encounter between the defendant and the trooper prior to the observation of signs that the defendant was under the influence–was consensual and not a seizure, thereby rendering inapplicable any fourth amendment implications.

As a result, the circuit court erred by finding that a seizure had occurred.

Community Caretaking

Additionally, this encounter legitimately began as a community caretaking function.

More Than Just Crime Investigation

The United States Supreme Court established that local law enforcement officers 'frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

Most people who appear to be in distress would welcome a genuine offer of police assistance.

But permitting police to search or seize whenever they might be pursuing community-caretaking goals risks undermining constitutional protections.

Thin Line

The challenge of the community-caretaking doctrine is to permit helpful police to fulfill their function of assisting the public, while ensuring that searches for law enforcement purposes satisfy the requirements of the Fourth Amendment.

The Standard

There are two general criteria a court must find in determining whether the community caretaker exception applies.

First, law enforcement officers must be performing some function other than the investigation of a crime. In making this determination, a court views the officer's actions objectively.

Second, the search or seizure must be reasonable because it was undertaken to protect the safety of the general public.

Balancing

The court must balance a citizen's interest in going about his business free from police interference against the public's interest in having police officers perform services in addition to strictly law enforcement.

For Example

Community caretaking tasks include but are not limited to

helping children find their parents mediating noise disputes responding to calls about missing persons or sick neighbors helping inebriates find their way home or approaching a vehicle that is pulled over on the side of the road to offer assistance. Cars Stopped in Traffic

The public has a substantial interest in ensuring that police offer assistance to motorists who may be stranded on the side of a highway, especially after dark and in areas where assistance may not be close at hand.

Moreover, an officer has the right to make a reasonable investigation of vehicles parked along roadways to offer such assistance as might be needed and to inquire into the physical condition of persons in vehicles because the occupant of a parked vehicle may be intoxicated, suffering from sudden illness, or may be only asleep.

The court held that, under such circumstances, it is within a responsible law enforcement officer's authority to determine whether assistance is needed.

Finding

Therefore, any alleged seizure was reasonable under the community caretaking doctrine and resulted in no fourth amendment violation.

In applying the actual established law to the fact of this case, first, the evidence shows that the trooper was performing a function other than the investigation of a crime.

Defendant was traveling over 20 miles per hour under the speed limit.

The defendant parked on the shoulder of a rural road in the middle of the night.

The road was poorly lit and sparsely populated. These facts could prompt any reasonable police officer to have genuine concern for the welfare of the defendant. There was also a public safety concern. Because defendant stopped in a place that could have caused an accident. He stopped at the top of a hill making it difficult to see around him.

The facts in the record fall under the community caretaking exception to the fourth amendment, thereby making any alleged seizure of the defendant reasonable.

Holding

Trial court’s decision to grant the petition to rescind the SSS and the motion to suppress were reversed.

When Well Motivated Good Intentioned People Do The WRONG Thing

Feb 17, 2017 16:21

Description:

One of my biggest fears as a criminal law attorney is knowing my representation failed to prevent a wrongful conviction. Episode 296 (Duration 16:21)Center on Wrongful Convictions Free Symposium

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The Bluhm Legal Clinic Center on Wrongful Convictions from the Northwestern Pritzker School of Law is conducting its Spring 2017  Symposium on Friday, March 10, 2017. 

This program, entitled "Hot Topics in Criminal Justice: What You Need To Know",  is Free and provides approved CLE for Illinois attorneys. 

Bonus

Any attorney who emails me at partidasam@IllinoisCaseLaw.com and lets me know that you've registered for this Symposium will receive an additional 1.75 hours of pre-approved CLE credit.

Just let me know that you've registered for the Symposium and I'll send you your bonus ethics CLE mp3 file.

For a limited time after you register, I’ll offer you my “Better Call Saul” Ethics Hour course for FREE. This course takes a fun and relaxed approach as it examines the wacky scenarios the fictional character Saul Goodman finds himself in.

Register Now For The Center on Wrongful Convictions Spring 2017 Symposium

This is FREE CLE for Illinois Attorneys.

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Register Now (March 10).

 

Symposium Highlights

✓ The Cook County Public Defender AND The Cook County State's Attorney will participate in the same discussion panel discussing implicit racial bias and decision making in the criminal justice. Tell me you don't want to be in the room when that goes down?

✓ Dana Holland is a real life, wrongfully convicted exoneree. He'll be in another panel discussion with the appellate prosecutor who litigated the appeal of the landmark decision People v. Lerma. This was the case that finally recognized eyewitness identification expert witnesses as litigate and appropriate evidence in certain cases. 

✓ There's something here for everyone. Firearm and toolmark identification expert believes this area of forensic science is not completely lost. He thinks it has a place in a courtroom. You just have to know exactly where that place is at. 

✓ Be there when a real life big city homicide detective confesses to eliciting at least one false confession in his career. No cover up, denial or blaming the defendant ensued. Instead he dug deep to figure out why heck it happened. He'll share his findings with you...if you are there.

✓ Come on dude, clear your calendar take the day off and come hang out with me. It's FREE. We'll be hanging out at the Northwestern School of Law in Chicago, and be learning from A-list presenters. I'll let you take me out to lunch. I just figured, you know...since the symposium is free.

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(remember to email me for your FREE bonus CLE)

No Probable Cause For This DUI Arrest

Feb 14, 2017 10:57

Description:

People v. Day, 2016 IL App (3d) 150852 (January). Episode 294 (Duration 10:56)

Statutory summary suspension is rescinded after improper SFSTs fail to establish probable cause for DUI arrest.

Facts

The officer in this DUI arrest administered the field sobriety tests in an improper fashion by requesting the defendant perform them on a wet surface while it was raining.

This improper administration alone significantly impairs the probative weight that can be given to those tests.

He Passed The SFSTs

Even further, despite the weather conditions, the defendant’s performance on the tests was reasonable, standing on one foot for 30 seconds without using his arms for balance and walking a straight line for 18 steps without stepping off the line.

Trial Judge Ruling

Those results would not lead a reasonably cautious person to believe that the defendant was impaired by alcohol.

Issue

The ultimate question is whether the arrest was supported by probable cause. 

This cases addresses head on exactly what weight should be given to SFSTs when the NHTSA standards are not exactly followed.

Probable Cause

Probable cause to arrest exists when the facts known to the officer at the time of the arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime. Such a determination must be based upon the totality of the circumstances.

Probable cause must rise to a level higher than mere suspicion.

It must also rise to a level higher than “reasonable, articulable suspicion,” the lesser standard required to justify an investigatory stop, rather than a full arrest.

The State Pointed To...

The State lists a number of factors that, it argues, would reasonably have led the officer to believe that the defendant was driving while under the influence of alcohol.

Specifically, the State relies heavily on the fact that the defendant “failed to perform both field sobriety tests as instructed.”

The State also points out that the defendant admitted to drinking, “had the strong odor of alcohol on his breath,” had bloodshot eyes, and slurred his speech.

Analysis

Upon closer examination, however, the State’s purported laundry list of factors breaks down.

Here the officer testified—explicitly and repeatedly—that he did not administer those tests (one-leg stand and walk-and-turn) properly.

He admitted that it was improper to administer those tests on wet pavement and improper to administer them while it was raining.

He admitted that the field sobriety tests should not be administered in even a drizzle.

He even agreed that the improper administration of those tests rendered them “invalid.”

Officer Had Credibility Issues

Notably, the officer initially could not remember the weather on the night in question.

After checking his report, however, the officer agreed that it was raining. Still later, the officer apparently had an independent recollection that it was only drizzling.

The defendant testified that the roadway was wet and slick.

While the officer testified that the defendant briefly lost his balance in walking from his vehicle, the defendant denied this accusation.

The trial court was within its right to settle credibility issues in favor of the defendant.

Clearly, the court gave little weight to the officer’s testimony that defendant as slurring his speech.

Unreliable SFSTs

The improper administration of the field sobriety tests in this case rendered the “results” of those tests inherently less reliable, and the trial court rightly gave the officer's observations of those tests less evidentiary weight.

The evidence here affirmatively showed that those tests were not administered correctly.

Probable Cause

In terms of a probable cause determination: a reasonably cautious person would give very little, if any, weight to the test results that the person knew to be invalid.

What little probative value the “invalid” and improper testing might have is further eroded when we look to that actual substance underlying the officer's descriptions.

While the officer and the State broadly described the defendant as having “failed” the tests, the trial court—and this court, in applying de novo review—must look to the actual observations that led to his conclusions.

...But He "Failed" The SFSTs

Such an analysis shows that the defendant’s “failures” on the field sobriety tests in question were technical in nature and few in amount.

Regarding the one-leg stand test, the officer testified that the defendant dropped his foot once while counting to 30 and “swayed” but did not move his arms.

On the walk-and-turn test, the officer testified that the defendant did not place his heel directly to his toe, did not count his steps out loud, and made a “large turn” instead of a small turn.

Indeed, we find that none of the purported “clues” on those tests could indicate to a reasonable person that the defendant was impaired by alcohol.

The defendant stood on one foot for 30 seconds in the cold and rain, without using his arms to keep his balance, and only put his foot down once.

What the officer described as a failure, others might describe as an impressive achievement.

On the walk-and-turn test, the defendant exhibited no signs of physical impairment, such as the loss of balance or coordination. He remained on the line for each of the required 18 steps, and never used his arms for balance.

Each of his apparent shortcomings dealt only with the officer’s directions, and two of those—the placement of his feet and his “large turn”—could have related to the wet and slick conditions in which the defendant was performing the test, the very conditions that the officer testified rendered the tests invalid.

Bloodshot & Glassy Eyes

In the present case, any suspicions of impairment that may have been raised by the defendant’s admitted consumption of alcohol and bloodshot and glassy eyes were not corroborated in any significant way by any other factors.

By all accounts, the defendant’s driving on the night in question had been nothing short of perfect.

He had not been involved in any sort of accident.

He was able to communicate clearly and effectively with the officer.

The field sobriety tests, improperly administered on a wet, slick surface while it was raining, gave no indication that the defendant was suffering from any sort of physical impairment.

Holding

The trial court was affirmed.

The fact that the defendant consumed alcohol and had glassy and bloodshot eyes is certainly probative of impairment. To a lesser extent, so too is the defendant’s failure to perfectly follow test instructions.

The reviewing court agreed with the trial court, however, that those factors are not enough to lead a reasonably cautious person to believe that the defendant had committed the crime of DUI. That is, any suspicions aroused by bloodshot and glassy eyes, unless confirmed by some other factor—such as poor driving, stumbling, falling, or an inability to communicate clearly—do not rise to the level of probable cause.

All evidence gathered past that point is suppressed.

How Ed Walters & Phil Rosenthal Democratized Legal Research: Now With Fastcase 7 They Made It Gorgeous

Feb 7, 2017 34:28

Description:

Here's what litigators need to know about developments in legal research. Episode 290 (Duration 34:28)

What would you build if you discovered your neighbor was a genius physicist?

Ed Walters on Fastcase 7
Subscribe: iTunes | Google PlayAndroid | RSS | Direct Down load

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Well, Ed Walters decided to revolutionize legal research. In this episode, Ed Walters, co-founder and chief executive officer of fastcase, stops by the Criminal Nuggets to tell his story.

...and the topic of legal research may have also come up.

How To Become The Smartest Lawyer In The Courtroom

Samuel Partida, Jr. Case Law NinjaHow do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret Now

Show Me The Secret Mast.

 

Legal research software has come a long way. 

Fastcase is currently in the process of rolling out its latest version, fastcase 7. No matter how frequently or infrequently you "hit the books" and dive into a legal research project, fastcase 7 promises to make the experience as painless as possible. 

About Ed Walters

 In 1999, Ed Walters was telling his neighbor about how a big corporate client was complaining about the legal research fees his firm and other law offices were racking up.

Ed's neighbor just so happened to be a brilliant physicist who taught physics with Stephen Hawking at Caltech. So when the neighbor asked him what he wanted to do about it,

...things got real.

Many work nights and weekends later, fastcase was born. What Ed and his neighbor, Phil Rosenthal, did was revolutionize legal research. To see how they did it, listen to this 34 minute podcast.

fastcase 7

Fastcase 7 has been designed to democratize legal research. Ed Walters also said one of the goals was to "make legal research less stupid." One of the ways they met their goals was by taking advantage of the horizontal, high aspect ratio and high definition features of modern computing screens.

Give it a test run and see for yourself. Have they managed to...

(1) Make modern legal research easily accessible 
(2) While balancing simplicity of use with robust and powerful features?

If your mission is to find what you need fast and easy then you'll want to listen to this interview.  

Important Links & Resources About Ed Walters fastcase fastcase.com/education LawSitesBlog | Exclusive First Look: All New Version of Fastcase Out Today in Beta | by Robert Ambrogi LawSitesBlog | Fastcase Begins Broad Rollout Of Its All-New Fastcase 7 Platform | by Robert Ambrogi DeweyBStretgic | Meet Fastcase 7: The (not so) Little (search) Engine That Could and Did! | by  Jean P. O'Grady Legal Rebels | For Fastcase founders, the message is: Change, and do it faster! (podcast) | by Stephanie F. Ward Internet for Lawyers | Fastcase 7: Better Than a Tesla | by Carole Levitt [DOWNLOAD] the fastcase app for iPhone [DOWNLOAD] the fastcase app for Android What's In This Episode

✓ From Ed's own lips: the story of how in 1999 even big corporate clients with deep pockets were crying about expensive legal research fees, and what they wanted Ed to do about it. This is about the time Ed discovered his next door neighbor was a Caltech physicist. - Go to 1:19 

✓ Beautiful and gorgeous, fast and accessible...I almost forgot we were talking about legal software.

✓ Modern software has to be beautiful - even gorgeous - to the user, it has to have enough functionality to be worth it's while, yet remain simple to use and accessible. Yet true democratization only happens when the price point becomes reasonable. The legacy legal research companies could not square this circle. - Go to 4:02 to see how fastcase did it.

✓ And get this: fastcase didn't just pick one state or one jurisdiction in 1999, to figure things out, they went big right from the get-go across all 50 states and jurisdictions. Listen in to discover how they made it work. - Go to 5:38

✓ The paradox of legal research is that the data bases draw from free public domain sources. Why the hell was it so expensive then? - Go to 6:01

✓ Do you know the difference between an editorial research structure versus an arithmetic strategy? Ed & Phil sure did. - Go to 6:09

✓ fastcase has become one of the biggest law libraries in the world. It has one of the largest subscriptions services in the United States. There you can read every single law review article ever written in America. If you are any kind of legal researcher, I think you'll find what you need there. - Go to 7:10

✓ In 1994, Yahoo was indexing the web by hand. Google came along and did it better and faster with machine learning. - Go to 7:58

✓ Legacy legal research firms still depend on people to fulfill important aspects of their service. The fastcase system relies on software, machine learning, and results of prior searches. - Go to 9:15

✓ 2/3 of every lawyer in the United States has access to fastcase. Are you taking advantage of it? Here's how to make the most of it. - Go to 10:36

✓ [DOWNLOAD] the fastcase app. It's FREE!! Never get blindsided by an opponent's case in court. With the app you can instantly see the thing without leaving the courtroom. Sync the app to your desktop account and you'll unlock even more powerful features. - Go to 10:50

✓ The "quantum interface" technology that allows fastcase to live up to its name by actually making it blazing fast. - Go to 13:01

✓ The nuts & bolts of using fastcase: How to quickly find what you need and filter out the noise by using "libraries."  - Go to 15:19

✓ REVEALED: The valuable information contained in the "interactive timeline." There are shaded circles plotted over time at the bottom of a search. (Hint: There's valuable information in there that may reveal exactly what you're looking for.) - Go to 17:12

✓ Sometimes your legal research can be lead astray when you spend hours in the woods in a fruitless search simply because you use one wrong word. Use the "tag cloud" to find the right words. - Go to 18:05

✓ Your first search often reports every relevant case your looking for, right? You know it doesn't work like that. Learn how fastcase "forecite" can save your butt. - Go to 20:35

✓ "If you can search Google, you can search fastcase." - Go to 22:19

✓ Why you won't see a "terms and connectors" or a boolean search in fastcase 7. (Note: Feel free to use a natural language or boolean search. Both will work.) - Go to 22:57

✓ The best way to move cheese. - Go to 23:44

✓ The easiest way to save time is to search multiple data sets or libraries simultaneously. Some legal research firms haven't figured this out yet. This feature is 100% supported on fastcase 7. - Go to 26:29

✓ How accessibility, democratization, and affordability of the law all mean the same thing. - Go to 29:29

Before You Go…

Access to the law is crucial to zealous and effective advocacy. And I'm extremely confident most Illinois criminal law attorneys have access to fastcase 7 through their membership of a bar association.

Digging in and truly mastering one area of the law is another thing.

If you're interested in taking the first step towards mastering your Illinois criminal courtroom then hit the link below.

How To Become The Smartest Lawyer In The Courtroom

Samuel Partida, Jr. Case Law NinjaHow do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret Now

Show Me The Secret.

Defendant Had A Right To Know The Surveillance Location

Feb 6, 2017 11:45

Description:

People v. Flournoy, 2016 IL App (1st) 142356 (November). Episode 259 (Duration 11:44)

Abuse of discretion to apply the surveillance location privilege in this case.

Facts

An officer testified that he observed defendant commit an open air hand to hand drug transaction. The officer was about 20 feet from defendant, it was daylight, nothing obstructed his view, and he had a clear line of sight.

Then he could see defendant in an alley with 2 women who gave him money for drugs.

Defendant was arrested and found to be in possession of 8 smaller ziplock bags of with heroin.

Interestingly, no money is found on defendant.

Surveillance Location

Defendant asked for the exact location but the judge refused to tell him claiming he found that the State had made a preliminary showing that disclosure of the surveillance location would harm the public interest and should remain privileged.

On cross-examination, the officer confirmed that his surveillance location was within 20 feet of the vacant lot, to the north, and stated that he was in an elevated position, “approximately” two stories from the ground. 

Issue

On appeal, defendant contends that this court should reverse his conviction and remand for a new trial because the trial court improperly denied his request for disclosure of the surveillance location. 

Surveillance Privilege Rationale

Illinois courts have recognized a qualified privilege regarding the disclosure of secret surveillance locations. See People v. Britton, 2012 IL App (1st) 102322, ¶ 26.

This privilege was first recognized in People v. Criss, 294 Ill. App. 3d 276 (1998), in which the Fourth District held that in certain circumstances, surveillance officers are not required to disclose their exact surveillance locations on cross-examination.

The court relied on the rationale behind the privilege protecting law enforcement informants, and held that “the State may refuse to disclose the identity of law enforcement informants, so long as the nondisclosure will not deny an accused his constitutional rights.”

The supreme court has never confronted this issue.

The Standard

It is well established by Criss and its progeny that whether disclosure is required is determined on a case-by-case basis.

A trial court must balance the public interest in keeping the location secret against the defendant’s interest in preparing a defense. The more important a State’s witness is to the State’s case, the more important the defendant’s right to cross-examination concerning the surveillance location becomes.

Where the State’s case depends almost exclusively on one police officer’s testimony, disclosure must “almost always” be required.

In contrast, where there is no question about the surveillance officer’s ability to observe, or where evidence appears on a contemporaneous video recording, disclosure would not be required.

The Test

The State bears the initial burden of proof in demonstrating that the surveillance privilege should apply in a given case. See People v. Price, 404 Ill. App. 3d 324, 331 (2010).

The State carries this burden of proof by presenting evidence to the trial court that the surveillance location was either

(1) on private property with the permission of the owner, or
(2) in a location that is useful and whose utility would be compromised by disclosure.

In order to evaluate whether the privilege applies, the trial court should hold an in camera hearing, outside the presence of the defendant and defense counsel, in which the State’s witness must reveal the surveillance location and make a preliminary showing that disclosure of the location would harm the public interest.

The trial court should then weigh the defendant’s need for the surveillance location against the public’s interest in nondisclosure.

The Factors

The factors the court should consider regarding the public interest in nondisclosure are the crime charged, the possible defenses, and the potential significance of the privileged information.

Burden Shifting

If the State carries its burden at the in camera hearing, the burden of persuasion shifts to the defendant to overcome the privilege.

“A trial court has more discretion in declining to order the disclosure of an informant’s identity during a preliminary hearing than it does at trial.”

In the context of a pretrial hearing, the defendant must make a strong showing that the disclosure of the location is material or necessary to his defense and that his need for the information outweighs the public’s interest in keeping the location secret in order to compel disclosure.

However, where the State seeks to invoke the privilege in the trial context, due process requires that at trial the defendant need only show that the location is “relevant and helpful to the defense of an accused, or is essential to the fair determination of a cause” in order to overcome the privilege.

Analysis

Even assuming the trial court was correct that the State met its initial burden at the in camera hearing in this case, the trial court did not proceed from that point to determine whether defendant had overcome the privilege.

Although a trial court enjoys broad discretion to limit the scope of cross-examination, failing to conduct any balancing inquiry constitutes an abuse of that discretion.

Even where the State properly claims privilege, the trial court must still determine whether the defense has overcome the State’s claim.

Holding

Here, disclosure was warranted here because the officer's testimony concerning what he saw from his surveillance location was the linchpin of the State’s case.

The State did not present any additional occurrence witnesses, inculpatory statements, or contemporaneous video recordings.

Moreover, although the officer reported that he saw defendant receive paper currency from three separate buyers and represented that he never lost sight of defendant, no money was recovered from defendant.

This circumstance seriously calls into question the officer's ability to observe, and in turn, his account of events.

Where a case turns almost exclusively on an officer’s testimony, a defendant’s need for location information is great and disclosure must almost always be ordered.

This is just such a case.

Additionally, our case law is consistent that when the surveillance location privilege is invoked, the State bears the initial burden of proof that the privilege should be applied. The State carries its burden of proof by disclosing the surveillance location in camera and presenting evidence that the surveillance location was either on private property with the permission of the owner or in a useful location that would be compromised by disclosure.

Transcripts A Good Idea

We hold that where, as here, the State requests the invocation of the surveillance location privilege, the trial court should not only hold an in camera hearing, but should also ensure that a transcript of that hearing is created, and preserved for appellate review. Ensuring that the in camera hearing is transcribed should be, at most, a minor inconvenience for the trial court, since criminal proceedings are routinely transcribed.

December 2016: Two Fundamental Principles Rang Through Loud And Clear

Jan 27, 2017 25:30

Description:

This month featured two fundamental principles that rang through loud and clear.

It's an open question if December 2016 marks the beginning of a new paradigm in Illinois sentencing...or will the Illinois Supreme Court knock down this "experiment" in sentencing by the appellate courts.

Plus, we relearned a hard lesson about widespread police misconduct.

Download the December Case List Now

Why read the cases when you can listen?

This is where you quickly and efficiently get up to speed with the cases.

Don't forget to download your copy of the case list to peruse when you feel good and ready...or you can listen to the cases by pushing "play" and subscribing now.

Click below to save your PDF copy now.

Download Your Copy
December 2016 Case List
(Now Available)

Give yourself a head start and stay current with the cases. Who has time to read all the cases? Download this clickable quick summary and get up to speed in no time. 

Add To My Library Nowscript

Add To My Library Nowscript The Top Criminal Cases For December 2016

Here's a quick snapshot of what's included in the podcast and the December case list:

1. People v. Harris

This 18 year old gets a new sentencing hearing because he had a 76 year de facto life sentence  

2. People v. Horta

This 18 year old does not get a new sentencing hearing even though he had a 59 year de facto sentence.  Hmmm? 

3. People v. Busse

How do you steal quarters out of a vending machine without breaking the machine? Why this is the case to have in your back pocket for every single nonviolent sentencing hearing you have to do.

4. People v. Smith

How do you measure 21 years of age when it comes to mandatory X sentencing?

5. People v. Gonzalez

Notorious corrupt detective handled this defendant's witness identification. The witness changed her tune after the detective was done with her...but defendant is entitled to no appellate relief.

6. People v. Hauad

This murder defendant likely did not commit the murder....appellate relief denied! 

7. People v. McDonald

Why you shouldn't overlook the standard of review for lesser includes. It 100%  effects what you should argue to get your lesser included admitted. 

8. People v. Evans

This step-grand mother was treated badly by the trial judge. Now he get's to retry the case. 

9. People v. Fernandez

Sometimes your ID and passport don't prove a freak-en thing. See how this defendant's identification discovered in "his" bedroom failed to establish it was "his" bedroom.

10. People v. Burnett

Never jump on the floorboard of your van when it's being stolen. Even if the defendant is not suffering from hallucinations, disorganized thinking, and drug addiction; it can't turn out good for you.

11. People v. Wiggins

How does Texas's lack gun laws effect a Texans liability for gun possession in Illinois?

12. People v. Gutierrez

This defendant went to bed with the wrong girl. Soon thereafter the police where in the bedroom and he was in handcuffs. See how this cases touches on almost everything we ever talk about on the podcast.

13. People v. Cielak

Let's nitpick the observation period, just for the reviewing court to tell us "substantial" compliance means we haven't proven a thing.

14. People v. Kavanaugh

There's no reward for acing the field sobriety tests.

15. People v. Parker

This defendant actually asked her, "Do you think I'm going to rape you." You replied, "Yes!". How do you think this affected the consent issue?

16. People v. Vara

A peek behind the relatively new anti-"grooming" statute.

17. People v. Applewhite

What happens when 115-10 statements collide with Rule 613(c)?

18. People v. Staple

The rule against double jeopardy is intended to be a shield and not a sword. At the trial level, defendant quite effectively destroyed the State in this fencing match.  

Before You Go...

The hard work has already been done for you. To get your hands on the December 2016 Illinois criminal case list just click the orange button below.

Download Your Copy
December 2016 Case List
(Now Available)

Give yourself a head start and stay current with the cases. Who has time to read all the cases? Download this clickable quick summary and get up to speed in no time. 

Add To My Library Nowscript

Add To My Library Nowscript

Mandatory X Sentencing & Custodial Interrogations Of Inmates

Jan 25, 2017 08:07

Description:

People v. Smith, 2016 IL 119659 (December). Episode 288 (Duration 8:06) 

Defendant is eligible for mandatory x sentencing because he turned 21 by the time the court found him guilty even though he was under 21 at the time he was charged.

“Any Evidence” Justifies A Lesser Included Instruction (Not Any “Credible” Evidence)

Jan 25, 2017 04:46

Description:

People v. McDonald, 2016 IL 118882 (December). Episode 287 (Duration 4:45)

What's the appropriate standard a reviewing court should follow when deciding whether there was error in not giving a lesser included instruction: Abuse of discretion or de novo review?

Insanity Defense Can’t Depend On The Outcome Of The Fitness Report

Jan 25, 2017 07:59

Description:

People v. Burnett, 2016 IL App (1st) 141033 (December). Episode 286 (Duration 7:59)

Trial judge denies an insanity defense to a defendant with recognized schizophrenia, psychotic disorder, suffering from hallucinations, “disorganized thinking,” drug addiction, and an IQ of 72, placing him within a “borderline range of cognitive functioning.”

115-10 Statements Trump Rule 613(c) Statements

Jan 24, 2017 05:50

Description:

People v. Applewhite, 2016 IL App (4th) 140558 (December). Episode 285 (Duration 5:49)

115-10 statements trumps Rule 613(c) which prohibits prior consistent statements. 

Defendant Likely Tortured Into Confessing: Relief Not Warranted

Jan 19, 2017 05:45

Description:

People v. Hauad, 2016 IL App (1st) 150583 (December). Episode 284 (Duration 5:44)

The Torture Commission Report constitutes only a reassessment of evidence available to defendant before he filed his prior postconviction petitions, and thus it does not qualify as new evidence.

Insufficient Evidence Of Habitation In This Search Warrant Case

Jan 18, 2017 03:57

Description:

People v. Fernandez, 2016 IL App (1st) 141667 (December). Episode 283 (Duration 3:57)

17 years of for possession with intent to deliver reversed in this search warrant case.

Corrupt Officer Not A Good Enough Reason For Appellate Relief

Jan 17, 2017 07:52

Description:

People v. Gonzalez, 2016 IL App (1st) 141660 (December). Episode 282 (Duration 7:51)

Defendant not entitled to a third stage evidentiary hearing even though a notoriously corrupt detective handled the witness identifications in his case.

Two Youthful Offenders Two Different Sentences

Jan 13, 2017 12:33

Description:

People v. Harris, 2016 IL App (1st) 141744 (December) & People v. Horta, 2016 IL App (2nd)140714 (December). Episode 281 (Duration 12:32)

18 year old shooter gets a de facto life sentence of 76 years which shock the moral sense of the community (according to this appellate panel). While another 18 year old receives 59 years for a heinous murder that sticks.

People v. Harris Facts

Defendant shot and killed one person at a gas station.

He shot another person but that person survived. Then he pointed his gun at a third person and pulled the trigger. But he had run out of bullets. Defendant was 18 years old and this appeared to be some kind of dispute between defendant and the victims.

Sentence

The aggregate sentence was 76 years: 45 years of imprisonment on the murder conviction (20 years for the offense plus 25 years for the mandatory firearm enhancement), 26 years for one attempt murder (6 years plus 20 years for the mandatory firearm enhancement); and 31 years for the other attempt murder (6 years plus 25 years enhancement).

The attempted murder counts were to run concurrently with each other, but consecutively to the murder sentence.

Issue

Defendant alleges that this lengthy term is actually a “mandatory de facto life sentence,” and the interaction of these statutes prevented the trial court from exercising any discretion or taking into account his youth or rehabilitative potential. This statutory scheme, according to defendant, violates both the federal and state constitutions as applied to him. He challenges these statutes under both the eighth amendment of the federal constitution and the “proportionate penalties” clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11).

The Constitution

The Illinois constitution provides, “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11.

This clause is generally referred to as the “proportionate penalties” clause, but the second half of the section would be better considered as its own concept: the “rehabilitation” clause.

The mandate that all criminal penalties be determined “with the objective of restoring the offender to useful citizenship” is no less a requirement than the rest of the section, and has yet to receive the scrutiny and attention it properly deserves as a distinctive component of Illinois’ constitution. Defendant may show a violation of this clause if his sentence is “cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community.”

As society evolves, “so too do our concepts of elemental decency and fairness which shape the moral sense of the community.” So we must consider objective evidence and “the community’s changing standard of moral decency.”

De Facto Life Sentence

The court concluded this was a de facto life sentence; at best, he would be released at age 89.

Interestingly, the court saw there was no Eighth Amendment violation here as illustrated by the Roper, Grahm, Miller trilogy. The Court drew a line between juveniles and adults at the age of 18 years; while it acknowledged that the line was arbitrary, it “must be drawn.”

However, the court held that this 76-year sentence violates article I, section 11 of the Illinois Constitution, with its language mandating that penalties should have “the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11.

Youthful Offenders

The court noted that the new statutory language after Roper, Graham, and Miller “stand for the proposition that a sentencing body must have a chance to take into account mitigating circumstances, i.e., a juvenile’s age and attendant circumstances, before sentencing the juvenile to the harshest possibility penalty.”

The new statutory scheme and the preceding case law incorporate the separation of powers doctrine and reinstate judicial discretion in juvenile sentencing. Research in neurobiology and developmental psychology has shown that the brain doesn’t finish developing until the mid-20s, far later than was previously thought. Young adults are more similar to adolescents than fully mature adults in important ways.

They are more susceptible to peer pressure, less future-oriented and more volatile in emotionally charged settings.

Further, the Illinois Supreme Court has recognized that research on juvenile maturity and brain development might also apply to young adults. Many of the concerns and policies underlying our juvenile court system apply with equal force to a person of defendant’s age.

Holding

The confluence of sentencing statutes, which the trial court was required to apply, is absolutely contrary to that constitutional objective of the rehabilitation clause.

The reviewing court was saying that his sentencing should have been similarly specific to his own circumstances, to effectuate the constitutional mandate of restoring Harris to useful citizenship.

The court said it shocks the moral sense of the community to send this young adult to prison for the remainder of his life, with no chance to rehabilitate himself into a useful member of society.

The application of these enhancements prevented the trial court from constructing a sentence that had any chance of returning Harris to society, even if the court thought that Harris was a good candidate to rehabilitate himself.

Strip Judicial Discretion

The court urged the legislature to consider the research regarding brain development in young adults who are not legally juveniles when analyzing the sentencing statutes for adults, including consecutive sentencing, truth in sentencing, and mandatory sentencing enhancements.

These statutory provisions strip judicial discretion when our criminal justice system would be better served by a case-by-case analysis in which the sentence imposed is individualized to the offender and the offense.

The Dissent

See the dissent who wrote that the trial court could have imposed a life sentence, but exercised its discretion to instead impose the minimum term authorized by law.

The dissent rightly argued that defendant’s stable home life is not a mitigating factor; however, that evidence, along with his educational achievements, does support the notion that he might be able to rehabilitate himself if given the opportunity. Or, in the words of our constitution, might be able to restore himself to “useful citizenship.”

The trial court is simply not at liberty to impose a lesser sentence on remand. And while I share the majority’s concern over the length of Harris’ minimum prison sentence, the remedy lies with the legislature, not in ad hoc determinations made by this court or by trial judges. The same proportionate penalties clause argument could be advanced by a 20-year-old, a 25-year-old or a 30-year-old defendant who had no prior criminal convictions.

And while a compelling argument can be made that vesting greater sentencing discretion in trial courts would result in fewer de facto life sentences for young offenders, the legislature has not chosen to do so.

People v. Horta Facts

Defendant was 18 years old with no juvenile record and one adult Class 4 felony for which he had received probation.

The trial established that he was not a principal but an accomplice to the murder; he did not plan it, contact the other participants, or participate in the strangulation.

The victim was tortured, beat, and bags placed over his head and tied closed. His role was only to hold a gun. One Codefendant convicted of first degree murder was sentenced to 29 years’ imprisonment. He had a serious criminal history and had been involved in a large drug distribution scheme. One flipper pleaded guilty to obstructing justice, a Class 4 felony, and had not yet been sentenced. Two other codefendants received 35 years and 40 years.

Defendant challenged his conviction and 59 year sentence.

This was some kind of vigilantism, with no evidence that the victim he had been involved in a prior kidnapping and rape of a girl. Defendant, “without hesitation,” agreed to participate in the murder. Defendant told the police that he not only pointed a gun at the victim but ordered him to get on his knees and asked him whether he would like defendant to put a bullet into his head.

Moreover, he helped to dispose of the body and accepted $1000 from the victim’s pockets as compensation for his role in the murder.

Wasn't Life

Defendant concedes that his sentence is within the statutory limits; indeed, it could easily have been much longer.

The trial court could have imposed life imprisonment, based on the jury’s finding of exceptionally brutal or heinous conduct. Even after declining this option, the court could have imposed a total of 75 years’ imprisonment—the maximum of the base range plus the mandatory 15-year add-on.

Instead, defendant received a total of 59 years’ imprisonment—24 years more than the effective minimum, but only 14 years more than what he himself requested.

Analysis

The court held that the trial court’s weighing of the various factors in aggravation and mitigation did not exceed its broad discretion or that defendant’s sentence, although unquestionably severe, departed from the spirit and purpose of the law or was manifestly disproportionate to the offense.

There were several factors in aggravation that the trial court properly considered.

For one, although the court did not use the jury’s finding of exceptionally brutal or heinous conduct to sentence defendant to life, it quite reasonably considered the premeditation and extreme brutality of the victim’s torture-murder, as well as its utter gratuitousness.

Defendant attached himself to a group that planned this execution with only the flimsiest grounds to suspect the victim of any basis for their revenge.

He died not immediately but slowly (how slowly is uncertain) from strangulation or asphyxiation. And, before he died, he suffered severe external and internal wounds from blows to his head, neck, and chest, and from the application of the blowtorch to his genitalia and legs.

Seriousness of the Offense

The seriousness of the offense has been called the most important consideration in sentencing. The crime here was premeditated, gratuitous, and sadistic to a degree that must be considered extraordinary even for a first-degree murder. The extreme heinousness of the offense was not the only aggravating factor on which the trial court properly relied. The court also considered that defendant was compensated for the offense, receiving $1000 for one evening’s work.

Youthful Offender

Defendant returns to the theme that his youth and relatively light criminal record militate against a sentence that, in effect, treated his rehabilitative potential as deserving no weight in the determination of his punishment. He concludes that, in effect, the mandatory 15-year add-on prevented the trial court from following its constitutional obligation to base his sentence not only on the seriousness of his crime but also on the objective of restoring him to useful citizenship.

The recent Supreme Court and Illinois Supreme Court precedents are of no aid to defendant.

Although he contends that the reasoning on which they are based should apply to his case, in which he was less than a year past his eighteenth birthday when he committed his offense, those opinions explicitly limit their scope to the sentencing of those who were under 18 years old at the time of their crimes.

A line must be drawn.

The age of 18 is the point where society draws the line for many purposes between childhood and adulthood.

Not a Life Sentence

In any event, the Court’s eighth-amendment jurisprudence would be of no help to defendant. He did not receive the harshest possible penalty for his crime, and the sentencing scheme, considered as a whole, gave the trial court the discretion to impose a prison term of as little as 35 years.

That is not a de facto life sentence.

In the Illinois precedents mandatory enhancements (including mandatory consecutive sentences) drastically limited the trial judges’ latitude in applying factors in mitigation.

And, in those cases, there was reason to believe that the mandatory enhancements frustrated the trial judges’ intentions by imposing sweeping legislative mandates that had draconian consequences and restricted or nearly neutralized the judges’ application of individualized attention to the circumstances of the particular defendants.

That is far from the situation here.

Sentence Appropriate

Defendant faced a minimum sentence of 20 years without the mandatory enhancement and 35 years with it. The trial court, finding numerous factors in aggravation and little in mitigation, sentenced him to 44 years’ imprisonment plus the 15-year add-on.

To the extent that he received a de facto life sentence, it was less the result of the add-on and more the result of the trial court’s exercise of its still considerable discretion. Based on its individualized assessment of defendant’s criminal conduct, character, and background, the court chose a base sentence that was 24 years more than the minimum—but 16 years less than the maximum, even discounting the available option of life imprisonment based on exceptionally brutal or heinous conduct.

These realities do not support any contention that the application of the mandatory addon resulted in a sentence that shocks the conscience of the community or is inconsistent with precedent from either the Supreme Court or our state’s courts. Defendant’s proportionate penalties claim fails.

Paltry Crime For Paltry Sum Leads To Un-Paltry Sentence

Jan 11, 2017 08:27

Description:

People v. Busse, 2016 IL App (1st) 142941 (December). Episode 280 (Duration 8:27)

A paltry crime for a paltry sum does not warrant the paltry sentence of 12 years.

DUI Dismissal Does Not Implicate Double Jeopardy

Jan 11, 2017 08:36

Description:

People v. Staple, 2016 IL App (4th) 160061 (December). Episode 279 (Duration 8:36)

Defendant plead guilty to misdemeanor DUI, so the trial judge dismissed the felony DUI.

Charges

Defendant was simultaneously charged with misdemeanor DUI and felony DUI for the exact same course of conduct.

He had both a “DT” file and a “CF” file.

Dismissal

He plead guilty to the misdemeanor and moved the trial court to dismiss the felony charges, claiming double jeopardy had attached when he plead to the misdemeanor.

The trial court granted defendant’s motion to dismiss.

The reviewing court reversed this decision.

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.

Lesser Included

Notably, double jeopardy clause did not prohibit the State from prosecuting lesser included offenses along with the more serious charges.

When a defendant pleads guilty to lesser included offenses he has not been exposed to conviction on the charges to which he pleaded not guilty, nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial.

The acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending, moreover, has none of the implications of an implied acquittal which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses.

There simply isn’t any of the governmental overreaching that double jeopardy is supposed to prevent.

Shield Not A Sword

On the other hand, ending prosecution would deny the State its right to one full and fair opportunity to convict those who have violated its laws.

In this case, it is clear defendant was aware of the pending felony charges when he pleaded guilty to the misdemeanor charges.

As the United State Supreme Court stated, a defendant should not be entitled to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution on the remaining charges.

This case presents none of the interests double jeopardy seeks to protect.

Holding

Defendant was well aware of the pending felony charges when he pleaded guilty to the misdemeanor charges. Additionally, the State has not marshaled its resources and evidence more than once or honed its presentation of the case through a trial on the misdemeanor charges.

Accordingly, the court concluded double jeopardy does not bar the State from pursuing the felony charges that were pending at the time defendant pleaded guilty to the lesser-included misdemeanor charges.

How To Win A Motion For Funds With Joshua Kutnick

Jan 10, 2017 21:28

Description:

Criminal law attorney Joshua B. Kutnick has seen some success with a motion for funds. Episode 278 (Duration 23:42)

If you're not quite sure exactly what this is then buckle down and listen up because Josh will have you winning this motion in no time.
Motion For Funds


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Not only does Joshua Kutnick walk us through the litigation steps of this type of motion, he also provided a sample motion for you to add to your own arsenal. You can download it below.

Download This Sample
Motion For Funds
(Now Available)

sample motion for fundsLerma plus Kinion equals a Motion For Funds For Eyewitness Expert Fees. Add this sample motion to your library right now. Thanks Joshua!

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Joshua B. Kutnick

Joshua B. Kutnick is a sole practitioner who limits his practice to the criminal law. He's been at it for 17 years and handles cases in both federal and state court. To find out more about his practice visit his website at www.kutnicklaw.com. Additionally, he is always available to answer questions at the following phone number: 1 (312) 441-0211.

Lerma plus Kinion

Here's the thing: People v. Lerma says in some cases a criminal defendant should be allowed to call an eyewitness expert in their defense. But what if your client can't afford to pay for one? Is your client just out of luck? Not necessarily.

Maybe the state or the court can pay for it. Attorney Kutnick steps in and gives us the foundation for a Motion For Funds...

Then he circles back and illustrates how such a motion can come in handy to help hire an eyewitness expert.

There is something useful and practical here for everyone.

Important Links & Resources 725 ILCS 5/113-3(d) - Expert Witness Fees People v. Kinion, 97 Ill.2d 322 (1983) People v. Lawson, 163 Ill.2d 187 (1994) In re T.W., 402 Ill. App (3d) 981 (2010) People v. Lerma, 2016 IL 118496 (January) Sample Motion For Funds See Also Professor Karen Daniel For More Insight On Eyewitness Expert Litigation See Also Real Life Eyewitness Identification Expert Professor Shari Berkowitz In This Episode

✓ What's better than winning a motion to admit an eyewitness expert in your defense? Getting the State to pay for it.

✓ What every criminal law attorney needs to know about paying for an expert.

✓ WARNING: Don't just read and rely on the funds statute. It's 100% misleading and contradictory. Josh explains how the Illinois Supreme Court has come in and completely reinterpreted that section. 

✓ When 250 dollars doesn't mean $250.

✓ Do you know the 3 prongs you need to cover for a successful Motion For Funds?

✓ The secret to getting the court to pay your expert fees even though your client could afford to pay your own attorney fees. 

✓ The quickest way to a reversal is to deny the defendant the opportunity to fully defend himself. Denial of a desperately needed expert simply because you lack the funds affects this fundamental right.

✓ Establishing that an expert witness helps your case is enough to win this motion...Wrong! You're going to have to do a little more work for the money. You'll also have to establish...

✓ What you can do to help increase your odds of winning this motion. It's like "juicing" the hearing before you get started, and it completely improves your chances of getting the court to release some funds on your client's behalf (Hint: it involves a little seed money.)

✓ Practical real life examples from Joshua's practice. How he used a motion for funds to pay for two experts in the same case! One was a video expert who was allowed to examine a videotape and assess it for tampering. The other was a firearms expert. In a third successes story, Joshua petitioned the court for fees to obtain a psychologist who helped him make sense of some psychological records. 

✓ What an "opinion letter" reveals and how to use it in court. 

✓ Joshua reveals the correct approach to picking a winning case to make sure you don't lose this motion.

✓ The reason why the decision, People v. Lerma, can help you petition the court for funds even though the opinion says zilch about the court paying for a defense expert. 

✓ How the court can help you get deeper insight into your own case by agreeing to release some funds (Don't forget. Experts are also available for a consult. Think: DNA cases.)

Before You Go...

This sample motion specifically address an eyewitness expert witness. However, this sample motion is easily adaptable to your own needs. Add it to your collection now.

Download This Sample
Motion For Funds
(Now Available)

sample motion for fundsLerma plus Kinion equals a Motion For Funds For Eyewitness Expert Fees. Add this sample motion to your library right now. Thanks Joshua!

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Add To My Library Now.

Difference Between Grooming And Solicitation Of A Child

Jan 5, 2017 09:42

Description:

People v. Vara, 2016 IL App (2d) 140849 (December). Episode 277 (Duration 9:42)

There is a difference between grooming and solicitation charges, clever reading of the code goes nowhere.

You Just Can’t Ignore The Stench Of Weed…And An Accident

Jan 4, 2017 04:50

Description:

People v. Kavanaugh, 2016 IL App (3d) 150806 (December). Episode 276 (Duration 4:49)

Trial judge reversed for rescinding this SSS; you just can't ignore the traffic accident and the stench of weed. 

Multiple Officers In Your Bedroom…Part 2

Dec 28, 2016 12:33

Description:

People v. Gutierrez, 2016 IL App (3d) 130619 (December). Episode 274 (Duration 12:33)

Appellate court disagrees with trial court; defendant was arrested before he was transported to Kendall County thus the case is remanded for an attenuation hearing to see if the confession is out.

Multiple Officers In Your Bedroom In The Dead of Night Leads To Custodial Interrogation

Dec 28, 2016 09:36

Description:

People v. Gutierrez, 2016 IL App (3d) 130619 (December). Episode 273 (Duration 9:35)

Appellate court disagrees with trial court; defendant was arrested before he was transported to Kendall County thus the case is remanded for an attenuation hearing to see if the confession is out.

What To Tell Your Clients About Immigration

Dec 22, 2016 41:18

Description:

People v. Valdez, 2016 IL 119860 (September). Episode 272 (Duration 41:18).

The Illinois Supreme Court has reset the obligation on criminal lawyers to inform their clients about immigration consequences of convictions.
Two experienced immigration attorneys walk us through the decision.


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Attorney David Richmond and Attorney Omar Salguero are primarily immigration law attorneys. This made them the perfect guests to help the criminal defense bar slog through these issues.

Download Your Copy
1-Page Immigration Checklist
(Now Available)

This 1-Page checklist helps you quickly spot the charges with succinct, clear, and explicit immigration consequences. (Hint: You better advise your client removal or deportation is required. )

Add To My Library Now

Add To My Library Now

 

David Richmond

David Richmond runs the Latino Immigration & Legal Center in Aurora, Illinois. He concentrates his practice on deportation, removal and other immigration related issues.  David can be reached by phone or email. He is always happy to help other attorneys with immigration questions.

LatinoImmigration911@yahoo.com (630) 897-5992 Omar A. Salguero-Duarte

Omar Salguero also focuses his law practice on immigration related cases. He has legal offices in DeKalb, Rockford and Aurora, Illinois. He too is always eager to answer questions from civilians and the defense bar.

omar@omarsalguerolaw.com (815) 446-0770 People v. Valdez

The Illinois Supreme Court has described certain criminal convictions that carry "succinct, clear, and explicit" immigration consequences. For these types of cases defense attorneys have an affirmative obligation to inform their non-citizen clients of dire immigration consequences. Dave and Omar help pinpoint these cases.

Additionally, they provide other tips and pointers for criminal lawyers defending non-citizens.

Important Links & Resources People v. Valdez, 2016 IL 119860 (September) Padilla v. Kentucky, 559 U.S. 356 (2010) 1-Page Immigration Checklist Immigrant Defense Project American Immigration Lawyers Association (AILA) - Crimmigration 101 crImmigration Blog by Professor Cesar C. Garcia-Hernandez Defending Immigrants Partnership Immigrant Legal Resource Center In This Episode

3:59 -  We begin with a refresher on Padilla v. Kentucky, 559 U.S. 356 (2010). Dave likes to think of Valdez as an evolution of Padilla. 

5:20 - This was the advice from the Padilla attorney that SCOTUS said was entirely ineffective. 

5:30 - Here is the number one difference between Padilla (where counsel was found ineffective) and Valdez (where counsel was not found ineffective). Note: Valdez still did something wrong, but he got away with one because the second prong of the Strickland standard was not met.

6:17 - A quick and easy  way to discover which criminal convictions carry "succinct, clear, and explicit" immigration consequences. These convictions mandate deportation and/or removal. (Hint: Make sure to download the checklist at top or bottom of this page.)

6:41 - You'll be shocked to hear what Dave says about the definition of CIMTs (crimes involving moral turpitude). Nonetheless, there are two critical components that persuade judges they may be looking at a CIMT.

7:36 - This is the final word on whether or not Illinois criminal defense attorneys also have to become experts in immigration law. 

8:19 - How the Valdez attorney kind of dropped the ball on this immigration consequences issue. Good thing the Strickland standard has two prongs. Also, we learn that the "generic" immigration admonishment looks like this. 

9:10 - Why crimes with "succinct, clear, and explicit" immigration consequences require a more definite admonishment from defense counsel. Defense counsel has to step-up in these situations and be more direct about disastrous immigration consequences attached to these types of crimes. (The Good News: the most damning of these charges have been listed and identified as the "aggravated felonies".)

10:28 - Where to find the aggravated felonies in the federal code. Please Note: These sections in the Immigration and Nationality Act and the United States Code are horribly written. Download the 1-Page checklist if you have not done so already. 

11:19 - Do not ignore the 1 year imprisonment requirement attached to some of these aggravated felonies. If the defendant is not sentenced to more than a year of prison for these charges then it's not an "aggravated felony".

11:44 - Did you know not all killings are considered aggravated felonies? Murder, yes. Manslaughter and reckless homicide, no.

11:56 - Don't even mess with drug cases. Even just a "pinch" of cocaine is a big problem for a non-citizen. However, there is a one time "weed" exception.

13:14- What about drug paraphernalia?

14:39 - What should we tell clients when they are charged with an aggravated felony.

15:09 - This is absolutely the very first thing you have to do when you are defending a non-citizen. The second thing is to get an immigration lawyer involved.

16:34 - WARNING: Don't make this common mistake when representing non-citizens. LPR (lawful permanent residents) are still in the immigration process. Even clients with legit papers have to worry about removability & inadmissibility and how a charge can effect these.

20:12 - Common concerns and issues with domestic violence cases. Why (a)(2) is better than (a)(1).

23:13 - Common problems with differred prosecutions, special probations, and second change programs. Why the Kane County Second Chance Program sucks for non-citizens. Why the DuPage and Cook County programs are way better...Is your home county program more like Kane or Cook?

26:23 - Common concerns and issues with DUI charges.

28:52 - The problem with credit for time served & disorderly conduct.

Before You Go...

The hard work has already been done for you. To get your hands on the 1-Page Immigration Checklist just click the orange button below.

Download Your Copy
1-Page Immigration Checklist
(Now Available)

This 1-Page checklist helps you quickly spot the charges with succinct, clear, and explicit immigration consequences. (Hint: You better advise your client removal or deportation is required. )

Add To My Library Now

Add To My Library Now

19 Minute Observation Period-Is Rescission Warranted?

Dec 20, 2016 04:38

Description:

People v. Cielak, 2016 IL App (2d) 150944 (December). Episode 271 (Duration 4:38)

Observation period lasted only 19 minutes rather than 20. Is rescission of SSS proper?

270.mp3

Dec 20, 2016 07:02

Description:

269.mp3

Dec 15, 2016 07:43

Description:

The Perils of Accomplice Testimony

Dec 13, 2016 08:34

Description:

People v. Hunt, 2016 IL App (2d) 140786 (November). Episode 268 (Duration 8:34)

Even the state called the accomplice “a liar” and warned the jury to question her credibility.

Facts

Accomplice with serious credibility issues implicates her boyfriend in a robbery. 

Defendant’s girlfriend said he did it, and he asked her to scope out the place before he went in with a mask to rob an apartment manager's office.

However, both the State and the defense argued that the girlfriend had serious credibility issues.

Accomplice Testimony

IPI 3.17 on accomplice testimony was not given.

The instruction’s purpose is to warn the jury that the witness might have a strong motivation to provide false testimony for the State in exchange for immunity or some other lenient treatment.

When accomplices testify, courts have found no valid reason for not requesting IPI Criminal 4th No. 3.17.

Accomplice testimony must be cautiously scrutinized, especially considering this case where her plea deal allowed her to avoid the possibility of at least 21 years imprisonment for armed robbery.

Accomplice testimony should be viewed with suspicion and accepted only with great caution, especially if the witness was promised leniency or immunity.

Corroboration, Corroboration, Corroboration

Here the testimony was corroborated by the victim's testimony and by physical evidence.

Items from the robbery were found in the girlfriend’s apartment and defendant had a ring taken taken from the robbery on his person when he was arrested.

Analysis

The evidence against defendant cannot be characterized as overwhelming, but considering her testimony, along with the corroborating evidence mentioned, a rational trier of fact could have determined that defendant committed the crime beyond a reasonable doubt.

While subject to careful scrutiny, the testimony of an accomplice, whether it is corroborated or uncorroborated, is sufficient to sustain a criminal conviction if it convinces the jury of the defendant’s guilt beyond a reasonable doubt.

Holding

Nonetheless, defendant cannot show that he was prejudiced by his counsel’s failure to tender the instruction on accomplice-witness testimony.

However, defendant has failed to sufficiently establish that the results of the trial would have been different had defense counsel tendered the accomplice-witness instruction. 

Deal With The Devil Ends In Reversal

Dec 13, 2016 15:19

Description:

People v. Casciaro, 2015 IL App (2d) 131291 (September). Episode 267 (Duration 15:19)

The State went out on a limb and charged defendant with a felony murder predicated on intimidation. The real risk was relying on, what has to be, this year’s “worst State’s witness.”

 

November 2016 Illinois Criminal Case List Features The Craziest Case Ever

Dec 8, 2016 25:29

Description:

This is the November 2016 Illinois criminal case list podcast rundown. Episode 266 (Duration 25:29) features what has to be the craziest case for 2016. 

November 2016 Illinois Criminal Case List
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Why read the cases when you can listen?

This is where we quickly and efficiently outline the most important opinions every criminal law practitioner must know about.

Subscribe to the podcast or push play above. Don't forget to download your copy of the case list to peruse the cases when you feel good and ready. Click below to save your PDF copy now.

Download Your Copy
November 2016 Case List
(Now Available)

Give yourself a head start and stay current with the cases. Who has time to read all the cases? Download this clickable quick summary and get up to speed in no time. 

Add To My Library Now

Add To My Library Now Top 10 Criminal Cases For November 2016

Here's a quick snapshot of what's included in the podcast and the November case list:

1. People v. Burgund

The supernatural power of "discernment" coerces  a false confession. Can't make this stuff up. There's jealousy, sex, and a trip to the police station in this one. This has to be the craziest case ever. Oh yea, the legal issue deals with false confessions.  Go to 1:04

2. People v. Staake

Defendant was originally charged with Second Degree Murder. Then the State amended to First Degree Murder. This sneaky little one-two punch is entirely legal. Find out why.  Go to 2:53

3. People v. Bond

Right when you thought you knew everything about extraterritorial traffic stops (Cop from city A stops a car in City B) along comes this case.  Go to 4:12

4. People v. Flournoy

Discovery rules say the defense is entitled to all material information about a case possessed by the prosecution. Wrong! Turns out the surveillance privilege allows the state to hide some pretty important information. The facts can be found here...Go to 5:45

5. People v. Doolan

NEVER EVER NEVER EVER NEVER pick a fight with a man with an enlarged heart. This defendant and his buddies did not follow this advice, and it ended badly for them.  Go to 8:25

6. People v. Teper

Have you heard of the "overdose immunity" defense that can be used to prevent a drug possession charge? Well, it may not matter because this second district case may have just gutted the thing.  Go to 9:44

7. People v. Winchester

When extending your middle finger to an officer and saying “no policia” means lack of consent. When gripping the steering wheel tightly, leaning forward and extremely focused driving means nothing constitutionally significant. When staying in your car 5 minutes too long means...Go to 14:44

8. People v. Brantley

What exactly is the DUI rule when you are driving while taking prescription medication? Can they suspend your driver's license for that? Go to 17:17

9. People v. Hunt

How to win a conviction with absolutely the worst state's witness. She was so bad even the prosecution argued to the jury she was a liar. Go to 19:31

10. Special Bonus...Compare Hunt to People v. Casciaro

This case also featured a pretty bad state's witness, but it was released in September of 2015. Why was this conviction reversed where as the Hunt conviction was allowed? What was the key missing ingredient?  Go to 22:12

Before You Go...

The hard work has already been done for you. To get your hands on the November 2016 Illinois criminal case list just click the orange button below.

Download Your Copy
November 2016 Case List
(Now Available)

Give yourself a head start and stay current with the cases. Who has time to read all the cases? Download this clickable quick summary and get up to speed in no time. 

Add To My Library Now

Add To My Library Now

Crazy Wife And Mother-In-Law Coerce A False Confession

Dec 6, 2016 22:49

Description:

eople v. Burgund, 2016 IL App (5th) 130119 (November). Episode 265 (Duration 22:49)

Predatory convictions and life sentence reversed because defendant was not allowed to use an expert witness on false confessions. 

When Is “Overdose Immunity” Applicable?

Dec 1, 2016 10:51

Description:

People v. Teper,2016 IL App (2d) 160063 (November). Episode 264 (Duration 10:51)

Defendant overdosed on heroin, and was slumped over in her car, can she be prosecuted?

Slumped Over

Police were notified that defendant was slumped over in her car.

They found her and administered narcan because it looked like a heroine overdose. When she came to they charged with class 4 possession for the items they find in the car with her.

Overdose Limited Immunity

Part of the Drug Act says that,

“A person who is experiencing an overdose shall not be charged or prosecuted for Class 4 felony possession of a controlled, counterfeit, or look-alike substance or a controlled substance analog if evidence for the Class 4 felony possession charge was acquired as a result of the person seeking or obtaining emergency medical assistance and providing the amount of substance recovered is within the amount identified in subsection (d) of this Section.”

720 ILCS 570/414(c).

However, section (e) says that,

“The limited immunity described in subsections (b) and (c) of this Section shall not be extended if law enforcement has reasonable suspicion or probable cause to detain, arrest, or search the person described in subsection (b) or (c) of this Section for criminal activity and the reasonable suspicion or probable cause is based on information obtained prior to or independent of the individual described in subsection (b) or (c) taking action to seek or obtain emergency medical assistance and not obtained as a direct result of the action of seeking or obtaining emergency medical assistance. Nothing in this Section is intended to interfere with or prevent the investigation, arrest, or prosecution of any person for the delivery or distribution of cannabis, methamphetamine or other controlled substances, drug-induced homicide, or any other crime.”

720 ILCS 570/414(e).

She Says She Can't Be Prosecuted

Defendant argued that she was not required to have sought medical assistance for herself, as it would be difficult for anyone experiencing an overdose to seek such assistance, and the statute uses the phrase “seek or otain”.

Both “seek” and “obtain” require affirmative action.

Defendant takes the position that she “obtained” emergency medical assistance when the officers first arrived at the scene, as opposed to when they administered Narcan.

The reviewing court said she was wrong.

State's A Little Wrong Too

The State said that to “seek” requires proactivity, and here defendant was unconscious, so she could not be said to have “sought” emergency medical attention.

However, the definition of “obtain” is “to gain or get (something)” (id.), and here defendant “got” emergency medical attention. The definition further states that the gaining or getting is “usually by effort,” but it does not state or imply that it must be by effort.

Accordingly, defendant “obtained” emergency medical assistance from the police officers, in that they injected her with Narcan and revived her. As such, contrary to the State’s argument, section 414(c) can cover situations in which individuals passively obtain emergency medical assistance.

Court Takes A Narrow View

Reviewing court said defendant got the emergency medical assistance only after the police viewed her, confirmed that she was unresponsive, and saw suspected drugs and drug paraphernalia in the car.

At that point, they believed that she was suffering from a drug overdose, and they provided emergency medical assistance in the form of Narcan.

In other words, the officers obtained evidence of defendant’s drug use and possession by viewing objects in plain sight in the car when they arrived, and they did not acquire the evidence “as a result of” providing defendant with emergency medical assistance.

They said, the officers provided emergency medical assistance as a result of viewing evidence of drug use and possession, not the reverse.

Really? That's a real narrow view of things.

Holding

For immunity to apply under section 414(c), the evidence of drug possession must be “acquired as a result of the person seeking or obtaining emergency medical assistance,” which did not occur here.

And even if section 414(c) initially provided defendant with immunity, section 414(e) prohibited the application of that immunity. Because before rendering emergency medical assistance in the form of the Narcan injection, the officers here had probable cause to arrest defendant for unlawful possession of a controlled substance, because they viewed defendant’s condition and saw suspected drugs and drug paraphernalia.

Stated differently, the officers’ probable cause was based on information they acquired before defendant obtained emergency medical assistance from them, and the evidence was not a direct result of defendant obtaining emergency medical assistance. See 720 ILCS 570/414(e).

Don’t Beat-Up A Person With An Enlarged Heart

Nov 30, 2016 06:47

Description:

People v. Doolan, 2016 IL App (1st) 141780 (November). Episode 263 (Duration 6:47)

Defendant is accountable for first degree murder because him and his buddies decided to start a fight with a victim with an enlarged heart.

262.mp3

Nov 29, 2016 08:00

Description:

October 2016 Illinois Criminal Case List - The Quick Rundown That Keeps You Updated

Nov 23, 2016 16:24

Description:

Podcast Episode 261 (Duration 16:23) of the Criminal Nuggets Podcast features a quick rundown of the October 2016 Illinois criminal case list. 18 published opinions were released for your perusing. This is where well informed litigators get their updates.

October 2016 Illinois criminal case list


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Listen to the audio round-up in under 20 minutes or download your copy of the case list to peruse the cases when you feel good and ready. Click below to save your PDF copy of the cases now.

Download Your Copy
October 2016 Case List
(Now Available)

Give yourself a head start and stay current with the cases. Who has time to read all the cases? Download this clickable quick summary and get up to speed in no time. 

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Download This Case List Now.

Here is where you easily get caught up with the top October cases for 2016. Here's a quick snapshot of what you missed:

1. People v. Jones

How you can treat juvenile adjudications just like criminal convictions without getting into Aprendi problems.  (Go to 0:31)

2. People v. Wall

Outrageous blatant lie told by police to coerce defendant into signing this "consent to search".  (Go to 2:04)

3. People v. Jones

Prosecutor kept using the same word in his opening and managed to inflame the passions and prejudice of the jury. Retrial ordered.  (Go to 3:33)

4. People v. Duran

Traffic stop begins with defendant being pulled from the car and handcuffed. Court says sometimes that's a reasonable thing to do.  (Go to 4:08)

5. In re A.S.

Discover how this judge completely abdicated his one and only responsibility during this Batson challenge. As a byproduct, defense attorneys get this nice little case to cite in the future.  (Go to 5:26)

6. People v. Swift

Defendant smacks his car into a trailer truck pulled over to the side of the road. He has some weed in his system. Crime or no crime?  (Go to 6:41)

7. People v. Taylor

Judge completely misreads this sentencing provision. Defendant entitled to some serious mitigation.  (Go to 8:18)

8. People v. Jackson

Imagine a guy orders 10 clowns from one mini-car and drives away with the mini-car? How many vehicular hijackings just occurred? 10 or 1?  (Go to 10:30)

9. People v. Sandifer

Deceased rape victims get to benefit from the protections offered by rape shield statutes. Kind of slimey to argue that they don't.  (Go to 11:20)

10. People v. Dominguez

Counsel didn't quite tell defendant he would get deported with a conviction. But reviewing court ain't buying defendant didn't know he was  screwed.  (Go to 11:59) 

11. People v. Dorsey

Defendant attempts a "Point Break" type police escape. He manages to totally destroy an apartment, scare the hell out a lady and her kids, and - oh yea - get caught.  (Go to 13:17 )

Before You Go...

The hard work has already been done for you. To get your hands on the October 2016 Illinois criminal case list just click the orange button below.

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October 2016 Case List
(Now Available)

Download the most recent Illinois monthly case list. Give yourself a head start and stay current with the cases. Download this clickable quick summary and get up to speed in no time.

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Download This Case List Now.

Originally Charged With Second Degree Murder, Then Amended To First Degree Murder, Problem?

Nov 22, 2016 09:52

Description:

People v. Staake, 2016 IL App (4th) 140638 (November). Episode 260 (Duration 9:52)

Second degree murder is not a lesser included offense of first degree murder; it is a lesser mitigated offense of first degree murder.

Background

Defendant is originally charged with second degree murder for stabbing a carnival worker who had punched him in the face.

5 months later the state dropped the second degree murder and charged defendant with an intentional first degree murder.

One month after that they added a second count of strong probability of death or great bodily harm count.

Speedy & Joinder Issues

The Williams rule holds that if the initial and subsequent charges filed against the defendant are subject to compulsory joinder, delays attributable to the defendant on the initial charges are not attributable to the defendant on the subsequent charges. See People v. Williams, 204 Ill. 2d 191 (2003).

The rule only applies when the subsequent charge filed by the State is “new and additional,” thereby hindering the defendant’s ability to prepare for trial on the subsequent charge.

Issue Then…

The “critical point” is whether the original indictment gave defendant adequate notice to prepare his defense to the subsequent charge.

Murder v. Second Degree Murder

The elements of the crimes of first degree murder and second degree murder are the same.

In other words, to convict a defendant of either first degree murder or second degree murder, the State must prove beyond a reasonable doubt the elements which constitute the crime of first degree murder.

Only after the trier of fact has concluded that the State has done so may the trier of fact then consider whether a mitigating factor is present so as to reduce the defendant’s conviction from first degree murder to second degree murder.

What is Second Degree Murder?

Accordingly, when the State chooses to charge a defendant with second degree murder, all it is doing is conceding the existence of a mitigating factor, thereby removing from defendant the burden of proving a mitigating factors existence.

When the State charges a defendant with second degree murder, it must still prove all of the elements that underlie the offense of first degree murder. However, if the jury finds that the State has proved those elements beyond a reasonable doubt, the verdict of the jury would be that the defendant is guilty of second degree murder, not first degree murder.

This result occurs because the State had effectively conceded the existence of the mitigating factor by charging the defendant only with second degree murder, not first degree murder.

Therefore, first degree murder is not a “new and additional” charge to second degree murder.

That is because the criminal behavior the State alleges the defendant engaged in regarding both charges—that is, first degree murder and second degree murder—is the same. The only difference between the two charges is the existence of a mitigating factor.

If the State initially decides to concede the existence of a mitigating factor by charging the defendant with second degree murder and then changes its position by charging first degree murder, the only change is that the State no longer concedes the existence of a mitigating factor.

That does not constitute a “new and additional” charge.

This Case

All of this matters because after the amendment to the charges in this case there was no joinder, speedy or preliminary hearing problem.

Defendant could claim no credible surprise or inability to properly defend the charges.

What About New Preliminary Hearing?

Also, note that the requirement for a preliminary hearing under article I, Section 7 of our constitution and 725 ILCS 5/111-2(e) only requires probable cause for any for at least one felony charged not all of the felonies.

This means that once a trial court, after conducting a preliminary hearing, has determined that probable cause exists for any felony offense with which the defendant is charged, that is all the trial court need determine before concluding that (1) the State has met its burden at the preliminary hearing and (2) the defendant should be held for trial on all of the charges then pending against him.

259.mp3

Nov 22, 2016 11:44

Description:

Death, Tragedy & An Attorney Who Couldn't Stand It Anymore

Nov 16, 2016 29:55

Description:


A behind the scenes look at the legislative process including the good, the bad, and the ugly. 

Episode 258 (Duration 29:55).  Today we get a little personal, as Jeff explains his motivation for getting involved in lawmaking.

Illinois Legislative Process

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We last spoke to Jeffrey Hall in Episode 251 where he gave us an update to the Illinois Cannabis / DUI decriminalization law.

Jeffrey Hall

Jeffrey R. Hall is a former Assistant State’s Attorney from Tazewell County, Illinois. He has been practicing criminal law since 2004. Currently, Jeff continues to concentrate his practice on criminal law and driver’s license issues. He is a partner of Hall, Rustom & Fritz, LLC. 

The Legislative Process

Why would any rationally thinking attorney ever get involved in the legislative process? It's political and messy, yet Jeff dove right in. Here's what we talked about:

Why Jeff spent years working on reforming the DUI-Cannabis law What it means to seek justice How Arizona (that's right crazy Arizona) had a more logical law Examples of prosecutorial discretion run-a-muck What motivations and the deep-seated reasons we have for some laws Krystin Rennie Story

Jeff began talking about one of his own cases that involved death and tragedy. This case involved a 16 year old driver who misjudged the traffic in a construction zone.

Her car caused an accident with a biker. The biker's wife died in the accident, and the biker was seriously injured. Krystin had a cannabis derivative in her blood, and was found guilty (under the old law) of aggravated driving while under the influence of cannabis. 

In many ways, this case was the final straw that pushed Jeff to seek relief in Springfield.

In Episode 251...

The last time we talked to Jeff, he talked about some of the changes he saw happening in the courts after the new law he helped pass became effective. You can listen to that discussion by clicking this sentence and download the copy of the motion Jeff uses to help ensure his clients can benefit from the new possession of cannabis provisions.

You can download the motion below.

Download Jeff's Sample
"Motion For Admonishments...And Notice Of Election".

Download this sample motion Jeff uses to ensure his clients charged with possession of cannabis before the law change are able to benefit from the change in the law.


Add To My Library Now

Download This Sample Motion Now! Important Links Krystin Rennie Story IDOC Inmate R88453 - RENNIE, KRYSTIN People v. Rennie Attorney Jeffrey R. Hall Jeff Hall’s Blog Hall, Rustom & Fritz, Inc. "Extraordinary Circumstances" in DUI Death Cases People v. Martin, 2011 IL 109102 (April) The Scott Shirey Case Why You Should Listen

✓ Out of the gate you get to hear the gripping tale of Krystin Rennie. A wife is killed and a husband loses his arm. A stone sober teenager is charged, and a lawyer finally has enough. (Go to 2:04)

✓ Discover that "extraordinary circumstances" in DUI death cases is as elusive a concept as the North American Yetti. (Got to 4:46)

✓ An absurd example of criminal liability that existed under the old law. (Go to 5:59)

✓ Was there ever a logical basis to criminalize having cannabis substrates in your body while driving? Did Anti-DUI groups take things too far? Was People v. Martin, 2011 IL 109102 (April) the worst Illinois Supreme court decision of the modern era?(Go to 8:00)

✓ Under the old paradigm having a culpable mental state, an actus rea, went right out the window. (Go to 8:30)

✓ How 33 other states including Arizona thought strict liability for driving with cannabis derivatives in your body, without evidence of any intoxication was absurd on its face. (Go to 10:20)

✓ Why you should never believe supporters of harsh criminal laws when they tell you we can rely on a prosecutor's ethical obligation to seek justice and depend on their wise application of prosecutorial discretion. (Go to 9:50)

✓ The truth about the Scott Shirey case. (Go to 12:06)

✓ How we almost had a DUI petty offense called Diving While Drugs In Your System. It would have been punishable by fine only (no jail), and listed under 625 ILCS 5/11-501(a)(8). But don't look there now, you won't find it. Jeff explains what the heck happened to that idea. (Go to 15:01)

✓ Cannabis can kill. Jeff explains exactly how. (Go to 17:14)

✓ Discover the reason why we ended up with a strict liability law requiring a threshold amount of THC in the body. Furthermore, if everyone agreed to a 15 ng/ml THC threshold, and the bill passed that way, how did we end up with a law requiring either 5 nanograms or more of THC per milliliter of whole blood or 10 nanograms or more of THC per milliliter of other bodily substance? (Go to 18:07)

✓ Did you know that in Colorado they also have a 10 ng/ml threshold. However, betcha didn't know it's not exactly strict liability there. It's merely a presumption that is rebuttable by the defense. It goes something like this: "Yes, I had that much THC in m blood, but here is the evidence that demonstrates I was not intoxicated." (Go to 21:01)

✓ The weird interplay of politics and law making that results in the original sponsors of a bill, in fact its strongest proponents, in the end not supporting their own bill. (Go to 23:10)

✓ We may all have to rethink what it means for prosecutors to seek justice. Maybe, sometimes prosecutorial discretion means not prosecuting some cases. Hmmm? Naw, that's crazy! (23:32-26:30)

Prosecutor Made The Statements But Trial Judge Gets Slapped Around

Nov 15, 2016 07:00

Description:

People v. Jones, 2016 IL App (1st) 141008 (October). Episode 257 (Duration 6:59)

Big problems with this prosecutor's opening statement. 

What They Said

The State began its opening statement as follows:

“The greatest danger that a police officer can face during his tour of duty is a gun and a criminal who’s willing to use that gun to shoot and kill that police officer. Ladies and gentlemen, each of your juries has sitting before you one such criminal…“[The police] learned that behind that door were two cold-blooded criminals who had reasons to keep those police out…[Y]ou must remember the criminal controls the crime scene. These two defendants were in that house for quite some time with that evidence before they ultimately came out.”

And finally, the State concluded:

“The law recognizes that what one criminal may not be brave enough to do alone, two criminals just might be. So it’s as if defendant Jo