https://illinoiscaselaw.com/blog/ Illinois Criminal Law Wed, 23 Nov 2022 15:15:38 +0000 en-US hourly 1 https://wordpress.org/?v=6.1.3 https://illinoiscaselaw.com/wp-content/uploads/2015/08/cropped-courthouse-32x32.png https://illinoiscaselaw.com/blog/ 32 32 Kane County State's Attorney Podcast Criminal Nuggets Podcast clean Criminal Nuggets Podcast podcast Kane County State's Attorney Podcast https://illinoiscaselaw.com/wp-content/uploads/2019/12/CriminalNuggets300.jpg https://illinoiscaselaw.com/blog/ Aurora, IL Aurora, IL bi-weekly e9cefda0-b6f4-55d4-a2a3-636ac3a9f5c7 https://illinoiscaselaw.com/birchfield-v-north-dakota-an-audio-case-summary/ Sun, 06 Sep 2020 13:37:13 +0000 http://illinoiscaselaw.com/clecourses/?p=5635 https://illinoiscaselaw.com/birchfield-v-north-dakota-an-audio-case-summary/#respond https://illinoiscaselaw.com/birchfield-v-north-dakota-an-audio-case-summary/feed/ 0 Birchfield v. North Dakota, SCOTUS No. 14–1468. Argued April 20, 2016—Decided June 23, 2016. Episode 186 (Duration 8:34). May the State criminalize the failure to comply with implied consent laws? Implied Consent Still Alive and Well, Forced Blood Draws Still Require a Warrant. Holding Because breath tests are significantly less intrusive than blood tests and in […] Birchfield v. North Dakota, SCOTUS No. 14–1468. Argued April 20, 2016—Decided June 23, 2016. Episode 186 (Duration 8:34). May the State criminalize the failure to comply with implied consent laws? Implied Consent Still Alive and Well, Birchfield v. North Dakota, SCOTUS No. 14–1468. Argued April 20, 2016—Decided June 23, 2016. Episode 186 (Duration 8:34).
May the State criminalize the failure to comply with implied consent laws? Implied Consent Still Alive and Well, Forced Blood Draws Still Require a Warrant.
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.
3 Cases
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.
Issue
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.

Illinois DUI Resource Page
Check out the Illinois DUI Resource Pageto learn more about DUI in Illinois.

Connected Issues
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 – Search Incident To Arrest Doctrine
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, 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 duly at play.
Holding
Breath Tests
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.
The impact of breath tests on privacy is slight, and the need for BAC testing is great.
Blood Tests
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 m...]]> Criminal Nuggets Podcast full 14:31 https://illinoiscaselaw.com/dui-on-a-bridge-causes-huge-jurisdiction-problem/ Fri, 26 Jun 2020 16:01:05 +0000 https://illinoiscaselaw.com/?p=14130 https://illinoiscaselaw.com/dui-on-a-bridge-causes-huge-jurisdiction-problem/#respond https://illinoiscaselaw.com/dui-on-a-bridge-causes-huge-jurisdiction-problem/feed/ 0 People v. Lampert, 2019 IL App (5th) 180248 (May). Episode 640 (Duration 16:08) Defendant crashes on the bridge from Illinois to Kentucky fun jurisdictional SNAFU ensues. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD Gist Kentucky police handled an Illinois DUI. The Illinois – Kentucky Border In Illinois v. […] People v. Lampert, 2019 IL App (5th) 180248 (May). Episode 640 (Duration 16:08) Defendant crashes on the bridge from Illinois to Kentucky fun jurisdictional SNAFU ensues. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCA...



People v. Lampert, 2019 IL App (5th) 180248 (May). Episode 640 (Duration 16:08)



Defendant crashes on the bridge from Illinois to Kentucky fun jurisdictional SNAFU ensues.











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Gist



Kentucky police handled an Illinois DUI.



The Illinois – Kentucky Border



In Illinois v. Kentucky, 500 U.S. 380, 389-90 (1991), after declaring that the boundary between the Commonwealth of Kentucky and the State of Illinois was the low-water mark along the Ohio River’s northern shore as it existed in 1792, the United States Supreme Court remanded the case “to the Special Master for such further proceedings as may be necessary to prepare and submit an appropriate decree for adoption by the Court, locating the 1792 line.”



In December 1994, after such proceedings were held, the Special Master filed a report with the Court advising that the United States Geological Survey had used 7355 geodetic coordinate points to identify the 1792 low-water mark as nearly as it could presently be determined and had prepared maps identifying a proposed boundary line based on those coordinates. Illinois v. Kentucky, Report of Special Master, Original No. 106 (1994) 6-9.



The decree ordered that copies of the decree and copies and prints of Joint Exhibits 3 through 26 be filed with the Secretary of State of Illinois, the Secretary of State of Kentucky, and the county clerk’s offices of the Kentucky and Illinois counties along the Ohio River, including Massac and McCracken. Id. In January 1995, the Court adopted the Special Master’s report and entered the proposed decree. Illinois v. Kentucky, 513 U.S. 177 (1995).



The Brookport Bridge



The bridge is about 1 mile long. 



Prior to this case, there had been an agreement with Illinois to where Kentucky would police every bit of the bridge, and Illinois would conduct maintenance on every bit of the bridge. The agreement as to the policing of the entire bridge had been abandoned after the K...]]> Criminal Nuggets Podcast full 16:08 https://illinoiscaselaw.com/when-a-perpetrator-description-can-be-so-detailed-and-so-good-it-damages-the-photo-lineup/ Wed, 10 Jun 2020 15:42:11 +0000 https://illinoiscaselaw.com/?p=14085 https://illinoiscaselaw.com/when-a-perpetrator-description-can-be-so-detailed-and-so-good-it-damages-the-photo-lineup/#respond https://illinoiscaselaw.com/when-a-perpetrator-description-can-be-so-detailed-and-so-good-it-damages-the-photo-lineup/feed/ 0 People v. Clifton, 2019 IL App (1st) 151967 (April). Episode 632 (Duration 8:20) Unduly suggestive ID, you make the call photos provided here. ** This opinion has photos. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD Charges & Sentence Defendant was found guilty of armed robbery and sentenced to 35 […] People v. Clifton, 2019 IL App (1st) 151967 (April). Episode 632 (Duration 8:20) Unduly suggestive ID, you make the call photos provided here. ** This opinion has photos. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCA...



People v. Clifton, 2019 IL App (1st) 151967 (April). Episode 632 (Duration 8:20)



Unduly suggestive ID, you make the call photos provided here. ** This opinion has photos.











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Charges & Sentence



Defendant was found guilty of armed robbery and sentenced to 35 years in prison (20 years for the underlying offense and 15 years for the mandatory firearm add-on). 



The Crime



2 men walked up to a group of 4 people (1 man & 3 women) and rob them.



One man said “you know what this is, it’s a robbery” and then pointed a gun at them. The man pointed the gun as close as one inch from one of the victim’s face.



The man took two phones from the victim’s pants pocket. The other man took items from the women. The men then got into a Jeep and drove away.



The Description



The victim described the armed offender as having long dreads, a blue hoodie, all white low top Nikes, and a black Jeep.



A second victim described the man with the gun as having “dreads” and wearing a blue or black hoodie and white shoes.



One of other lady’s said that the man with the gun wore white gym shoes, jogging pants, and a dark black or blue hoodie. Also, the man “had a scar or a tattoo” on his face.



Issue



Defendant argues that the trial court erred in denying his motion to suppress identification. He contends that the procedures used by the Chicago Police Department were unduly suggestive because he was the only participant in the lineup wearing a dark sweatshirt, white shoes, had dreadlocks and a tattoo on his face.







Defendant’s Burden



First, the defendant bears the burden to show the pretrial lineup as “impermissibly suggestive.”



If the defendant successfully makes the showing, the burden shifts to the State to present clear and convin...]]> Criminal Nuggets Podcast full 8:20 https://illinoiscaselaw.com/dui-probable-cause-and-chicken-wing-hot-sauce-in-your-beard/ Thu, 04 Jun 2020 12:53:49 +0000 https://illinoiscaselaw.com/?p=13993 https://illinoiscaselaw.com/dui-probable-cause-and-chicken-wing-hot-sauce-in-your-beard/#respond https://illinoiscaselaw.com/dui-probable-cause-and-chicken-wing-hot-sauce-in-your-beard/feed/ 0 People v. Bailey, 2019 IL App (3d) 180396 (May). Episode 631 (Duration 15:01) Food in your beard is not particularly indicative of anything. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD Charges The State charged defendant with two counts of DUI (625 ILCS 5/11-501(a)(1), (a)(2)), as well as other traffic […] People v. Bailey, 2019 IL App (3d) 180396 (May). Episode 631 (Duration 15:01) Food in your beard is not particularly indicative of anything. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY AN...



People v. Bailey, 2019 IL App (3d) 180396 (May). Episode 631 (Duration 15:01)



Food in your beard is not particularly indicative of anything.











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Charges



The State charged defendant with two counts of DUI (625 ILCS 5/11-501(a)(1), (a)(2)), as well as other traffic offenses.



Issue



Defendant filed a motion to suppress evidence, alleging that the officer did not have probable cause to arrest him.




Search & Seizure Resource Page
To see more
Illinois Search And Seizure Resources and case law go here.



Facts



Truck gets stopped for speeding.



When the officer approached defendant’s vehicle, he first noticed defendant “had an orange, greasy substance in his beard,” which appeared to be some sort of food.



The officer testified that defendant’s “hands were very slow and deliberate” as he retrieved those items, but that defendant did not drop or fumble anything. He also noticed that defendant seemed “to be staring almost through me, as if he was having a hard time focusing.”



The officer asked defendant about the substance in his beard and learned that it was sauce from Buffalo Wild Wings, a restaurant at which defendant had recently eaten. Apparently, defendant had been unaware of the sauce in his beard.



Is That Weird?



The officer found it “unusual in general” that a person would have food on their face and not know about it. Interestingly, the officer testified that he did not notice anything unusual about defendant’s eyes and did not observe anything unusual about defendant’s speech.



No red eyes or thick tongue.



He did notice a “sweet odor” emanating from the vehicle, but he did not know what the odor was.



The Cans


]]> Criminal Nuggets Podcast full 15:01 https://illinoiscaselaw.com/dropsy-smells-me-front-seating-and-other-testilying-testimony-has-to-be-weighed-on-its-own-merit/ Tue, 02 Jun 2020 13:18:32 +0000 https://illinoiscaselaw.com/?p=13981 https://illinoiscaselaw.com/dropsy-smells-me-front-seating-and-other-testilying-testimony-has-to-be-weighed-on-its-own-merit/#respond https://illinoiscaselaw.com/dropsy-smells-me-front-seating-and-other-testilying-testimony-has-to-be-weighed-on-its-own-merit/feed/ 0 People v. Campbell, 2019 IL App (1st) 161640 (April). Episode 630 (Duration 11:07) Court is not insensitive to claims of “dropsy” testimony and “testilying.” Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD Charges Campbell was charged with nine counts of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), […] People v. Campbell, 2019 IL App (1st) 161640 (April). Episode 630 (Duration 11:07) Court is not insensitive to claims of “dropsy” testimony and “testilying.” Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PO...



People v. Campbell, 2019 IL App (1st) 161640 (April). Episode 630 (Duration 11:07)



Court is not insensitive to claims of “dropsy” testimony and “testilying.”











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Charges



Campbell was charged with nine counts of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C)) stemming from a traffic stop. He got one year in prison.



Sees A Gun



Due to a spade of recent shootings police were patrolling in unmarked convert vehicles. 



Police stopped in front and behind a double parked car. Police immediately smelled cannabis. Defendant opened a rear door and started to run until told to get back in the car and he complied.



As Campbell was returning to the Durango, an officer saw him retrieve a handgun with a wooden grip, later identified as a Smith & Wesson .38-caliber revolver, from his waistband and throw it onto the floorboard of the back seat.



Campbell then got in and shut the door.



Arrested



The officer drew his service weapon and immediately began yelling “gun” to inform the other officers, who were surrounding the vehicle. Defendant was removed from the Durango and placed into custody.



The incident happened within seconds.



Defendant’s Story



Defendant did not have a firearms owner’s identification card. He was just getting a ride home and the car stopped to let him out. When he got out police yelled at him so he got back in the car. At no point did he ever have a handgun on his person.



Trial Court Believes The Officer



The court noted that every witness has a bias, but it found that the officers’ testimony was consistent and credible and the varying terminology as to how the gun arrived on the floorboard was insignificant.



Trial Court Didn’t Believe Defendant



]]> Criminal Nuggets Podcast 630 630 full 11:07 https://illinoiscaselaw.com/3-districts-all-have-said-the-smell-of-weed-still-justifies-a-car-search/ Wed, 13 May 2020 14:25:40 +0000 https://illinoiscaselaw.com/?p=13847 https://illinoiscaselaw.com/3-districts-all-have-said-the-smell-of-weed-still-justifies-a-car-search/#respond https://illinoiscaselaw.com/3-districts-all-have-said-the-smell-of-weed-still-justifies-a-car-search/feed/ 0 People v. Rice, 2019 IL App (3d) 170134 (April). Episode 623 (Duration 7:36) A strong indication from the 3rd district on what the smell of weed means for a car search. Charges Defendant Jeremiah Paige Rice was charged with one count of unlawful possession of a controlled substance (720 ILCS 646/60(b)(4) (methamphetamine possession) and was given […] People v. Rice, 2019 IL App (3d) 170134 (April). Episode 623 (Duration 7:36) A strong indication from the 3rd district on what the smell of weed means for a car search. Charges Defendant Jeremiah Paige Rice was charged with one count of unlawful posses...



People v. Rice, 2019 IL App (3d) 170134 (April). Episode 623 (Duration 7:36)



A strong indication from the 3rd district on what the smell of weed means for a car search.











Charges



Defendant Jeremiah Paige Rice was charged with one count of unlawful possession of a controlled substance (720 ILCS 646/60(b)(4) (methamphetamine possession) and was given 11 years.



Facts



Illinois State Police stopped defendant headed west on Interstate 80 for traveling 75 miles per hour in a 70-mile-per-hour zone. Defendant’s car had valid plates and was registered as a rental vehicle out of New Mexico.



When he stopped defendant, the driver of the vehicle had rolled his window down and was showing his hands.



Trooper smelled a strong odor of burnt cannabis when he approached the passenger side window of defendant’s vehicle.



Defendant provided his identification and rental agreement for the vehicle. Defendant was cooperative and handled himself in a calm and collected manner. Trooper took defendant’s documents and returned to his squad car. After running a background check, he reported that defendant’s driver’s license was valid. He then decided to run defendant’s criminal history.



Trooper called for backup because he planned to execute a search of the vehicle. 



He did not observe any weapons or drugs in plain view inside the car. Based on the smell of cannabis, he believed that he had probable cause to search the vehicle for drugs. After backup arrived, Trooper asked defendant to exit the vehicle.



The Search



He escorted him to the back of the vehicle and informed him that he was going to conduct a search of his person. Trooper located a bulge in defendant’s right pants pocket, which he believed to be contraband. He pulled out a plastic bag of a leafy substance that looked like cannabis.



Trooper placed defendant in handcuffs and put him in the squad car.



Officers searched defendant’s vehicle and found two sealed envelopes containing $37,000 in U.S. currency. During a second search of the vehicle at the police station, investigators recovered a small shoe care kit. A plastic bag inside the shoe care kit contained 1300 multicolored pills that tested positive for methamphetamine. 



Life Goes To Hell In 11 Minutes



The stop lasted approximately 11 minutes from the moment Trooper turned on his emergency lights to the time he ordered defendant out of the car.



Issue



Defendant filed a motion to quash the arrest and suppress evidence. He argued that since possession of less than 10 grams of cannabis was no longer a criminal offense under section 4 of the Act, Trooper did not have probable cause to search defendant’s vehicle based on the smell of burnt cannabis alone.



The issue is whether an officer can form probable cause to believe a crime has been committed in possessing cannabis based solely on the smell of burnt cannabis without some further evidence as to the weight of the cannabis given the change in the law.



Trial Court Ruling



“[I]t appears to the court that it’s still good law that smelling the odor of burnt cannabis gives the officer probable cause to search the vehicle, whether he finds five grams of cannabis or five tons of cannabis.”

]]> Criminal Nuggets Podcast full 7:36 https://illinoiscaselaw.com/forget-the-dog-police-can-rely-on-their-own-nose-to-detect-cannabis/ Tue, 05 May 2020 16:03:56 +0000 https://illinoiscaselaw.com/?p=13773 https://illinoiscaselaw.com/forget-the-dog-police-can-rely-on-their-own-nose-to-detect-cannabis/#respond https://illinoiscaselaw.com/forget-the-dog-police-can-rely-on-their-own-nose-to-detect-cannabis/feed/ 0 People v. Brandt, 2019 IL App (4th) 180219 (April). Episode 621 (Duration 17:08) Police use their own sense of smell to go get a warrant for a house. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD Charges Defendant was charged by information with unlawful possession with intent to deliver […] People v. Brandt, 2019 IL App (4th) 180219 (April). Episode 621 (Duration 17:08) Police use their own sense of smell to go get a warrant for a house. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS S...



People v. Brandt, 2019 IL App (4th) 180219 (April). Episode 621 (Duration 17:08)



Police use their own sense of smell to go get a warrant for a house.











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Charges



Defendant was charged by information with unlawful possession with intent to deliver a controlled substance (720 ILCS 570/401(a)(2)(B) (a substance containing cocaine)) and unlawful possession with intent to deliver cannabis (720 ILCS 550/5(d)).



Facts



The South Central Illinois Drug Task Force (Task Force) received an anonymous call that defendant was selling drugs from his home.  Inspectors decided to conduct a “knock and talk” at defendant’s home in hopes of obtaining defendant’s consent to search the home. Three agents drove to defendant’s home to conduct the “knock and talk.”



The three officers drove in separate vehicles.



Defendant lived way out in rural Jersey County. His house was the only one out there. An officer parked underneath and open window with a fan blowing air outside. She immediately smelled the odor of cannabis. Defendant refused to give consent and then he left. Police stayed, secured the outside, and went to get a warrant.



The execution of that warrant resulted, in part, in the discovery of a sandwich bag containing approximately nine grams of cannabis in a cabinet above the kitchen window.



Trial Court Grants The Motion



The trial court granted the motion to suppress holding in part that,



“Placing a trained drug task force officer near an open window of a home when the possession and sale of cannabis is suspected is, in this court’s view, akin to bringing a drug dog on a person’s front porch (Jardines, 569 U.S. 1) or on a third floor landing outside a defendant’s apartment door within a locked apartment building (Burns, 2016 IL 118973). As such, this court finds that the intrusion into the curtilage of the defendant’s home, namely the open window,]]> Criminal Nuggets Podcast full 17:08 https://illinoiscaselaw.com/court-is-taking-the-discovery-rules-seriously-in-summary-suspension-hearings/ Mon, 20 Apr 2020 14:28:59 +0000 https://illinoiscaselaw.com/?p=13691 https://illinoiscaselaw.com/court-is-taking-the-discovery-rules-seriously-in-summary-suspension-hearings/#respond https://illinoiscaselaw.com/court-is-taking-the-discovery-rules-seriously-in-summary-suspension-hearings/feed/ 0 People v. Patel, 2019 IL App (2d) 170766 (March). Episode 603 (Duration 19:01) State failed to produce discover for the SSS Hearing, they subsequently blew Trainor. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD Charges Defendant was charged with two counts of driving while under the influence of alcohol […] People v. Patel, 2019 IL App (2d) 170766 (March). Episode 603 (Duration 19:01) State failed to produce discover for the SSS Hearing, they subsequently blew Trainor. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GO...



People v. Patel, 2019 IL App (2d) 170766 (March). Episode 603 (Duration 19:01)



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











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Charges



Defendant was charged with two counts of driving while under the influence of alcohol (625 ILCS 5/11-501(a)(1), (a)(2) (West 2016)), improper lane usage (id. § 11-709(a)), and speeding (id. § 11-601(b)).



He was suspended.



Files Petition



Before his first appearance defendant petitioned to rescind the summary suspension of his driving privileges (see id. § 2-118.1(b)). Along with that petition, defendant filed and served on the State motions for discovery and notices to produce pursuant to Illinois Supreme Court Rules 214 and 237.



The discovery requests included, among other things, the booking room video and the breathalyzer accuracy-check records.



The State filed no objections to any of the requests.



The Civil Discovery Rules



Rule 201. General Discovery Provisions



(b) Scope of Discovery.



(1) Full Disclosure Required. Except as provided in these rules, a party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts. The word “documents,” as used in Part E of Article II, includes, but is not limited to, papers, photographs, films, recordings, memoranda, books, records, accounts, communications and electronically stored information as defined in Rule 201(b)(4).



(d) Time Discovery May Be Initiated. Prior to the time all defendants have appeared or are required to ap...]]> Criminal Nuggets Podcast full 19:01 https://illinoiscaselaw.com/can-the-state-compel-you-to-give-up-your-phone-passcode/ Wed, 15 Apr 2020 18:53:26 +0000 https://illinoiscaselaw.com/?p=13645 https://illinoiscaselaw.com/can-the-state-compel-you-to-give-up-your-phone-passcode/#respond https://illinoiscaselaw.com/can-the-state-compel-you-to-give-up-your-phone-passcode/feed/ 0 People v. Spicer, 2019 IL App (3d) 170814 (March). Episode 602 (Duration 11:56) Can the prosecution compel you to give up your phone password? Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD Charges Defendant was arrested for unlawful possession of a controlled substance and later also charged with knowingly […] People v. Spicer, 2019 IL App (3d) 170814 (March). Episode 602 (Duration 11:56) Can the prosecution compel you to give up your phone password? Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ...



People v. Spicer, 2019 IL App (3d) 170814 (March). Episode 602 (Duration 11:56)



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











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Charges



Defendant was arrested for unlawful possession of a controlled substance and later also charged with knowingly possessing cocaine with the intent to distribute.



Drug Dog Alert



Defendant was a passenger in a vehicle that was pulled over for a traffic stop. A drug dog alerted on the vehicle.



The officers searched the vehicle, where they found a prescription pill bottle containing cocaine inside a brown leather bag near where defendant was sitting. The bag also contained:



* A scale with * Suspected cocaine residue * A box containing 20 plastic baggies.



The Phone



When defendant was arrested police found a cell phone on his person. Defendant refused to provide the passcode to unlock it.



Warrant & Motion To Compel



Try as the might police could not access the contents of the phone. They sought and received a search warrant for the phone.



However, defendant would not provide the passcode and the State moved to compel the information.



Issue



The State argues that the fifth amendment’s privilege against self incrimination does not protect Defendant from being compelled to provide the passcode to unlock his legally seized cell phone and submits the trial court erred in denying its motion to compel.



Fifth Amendment



A person cannot be compelled to testify against himself in a criminal case. U.S. Const., amend. V. The fifth amendment applies when the defendant is compelled to make a testimonial communication that incriminates himself. Fisher v. United States, 425 U.S. 391, 408 (1976).



]]> Criminal Nuggets Podcast -4 -4 full 11:56 https://illinoiscaselaw.com/when-easily-identifiable-informants-are-treated-as-anonymous-tipsters/ Mon, 23 Mar 2020 19:27:15 +0000 https://illinoiscaselaw.com/?p=13138 https://illinoiscaselaw.com/when-easily-identifiable-informants-are-treated-as-anonymous-tipsters/#respond https://illinoiscaselaw.com/when-easily-identifiable-informants-are-treated-as-anonymous-tipsters/feed/ 0 People v. Holmes, 2019 IL App (1st) 160987 (March). Episode 601 (Duration 9:33) An essentially anonymous tip was treated as wholly unreliable resulting in an outright reversal of this gun conviction. Gist Police approach a man with a gun and pat him down. Facts A Chicago police officer received information from a sergeant, who received information […] People v. Holmes, 2019 IL App (1st) 160987 (March). Episode 601 (Duration 9:33) An essentially anonymous tip was treated as wholly unreliable resulting in an outright reversal of this gun conviction. Gist Police approach a man with a gun and pat him do...



People v. Holmes, 2019 IL App (1st) 160987 (March). Episode 601 (Duration 9:33)



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











Gist



Police approach a man with a gun and pat him down.



Facts



A Chicago police officer received information from a sergeant, who received information from an unidentified Chicago Park District security guard, whose source of information was unknown, that a man in Brainerd Park had a gun in his pocket.



The man was described as black, about five-and-a-half feet tall, wearing a purple shirt and black jeans.



Two or three minutes after talking to the sergeant, the officer and his partner saw defendant, who matched the description. There was nothing inappropriate about defendant’ conduct. Nonetheless, the officers approached defendant, and one of the officers immediately touched the pocket of his jeans.



The officer felt what he recognized as the trigger and trigger guard of a gun. The officers ordered defendant to the ground, put him in handcuffs, and placed him under arrest.



Issue



Defendant now challenges the initial seizure, before his arrest, as an unconstitutional Terry stop. He argues that the officers did not have reasonable suspicion to stop him.



In particular, both the security guard’s identity and the source of information remain unknown, “effectively” an anonymous tip, which, without more, cannot provide a reasonable suspicion of criminal activity.



Defendant asserts that the officer’s frisk of his person constituted a Terry stop sufficient to trigger the protections of the fourth amendment and that the tip lacked the requisite legal corroboration to establish reasonable suspicion for a Terry stop and frisk.



Guard Not Anonymous



The State responds that the tip was reliable and not anonymous and contained sufficient information to support the Terry stop. The State argues the tip that led to defendant’s detention came from an identifiable security guard.



The State assures us that we can rely on the security guard’s tip because it was given in person and security guards are presumptively more trustworthy reporters of crime than ordinary eyewitnesses.



Terry Stops



Broadly speaking, Terry, 392 U.S. 1, governs.



Terry gives officers a “narrowly drawn authority” to detain people and search for weapons where they reasonably believe that “criminal activity may be afoot” and that the person seized “may be armed and presently dangerous.” Id. at 27, 30.



A seizure, short of an arrest, is justified only where an officer “reasonably suspects that the person apprehended is committing or has committed a criminal offense.” Arizona v. Johnson, 555 U.S. 323, 326 (2009).



Once seized, he or she may only be frisked if an officer “reasonably suspect[s] that the person stopped is armed and dangerous.” Id.



Informant Tips



In short, the validity of the initial stop constitutes a necessary precondition to the validity of any later search. Informant tips “may vary greatly in their value and reliability.” Adams v. Williams, 407 U.S. 143, 147 (1972).



Cases involving known informants are “stronger cases” than those invol...]]> Criminal Nuggets Podcast full 9:34 https://illinoiscaselaw.com/scotts-law-in-illinois/ Wed, 18 Mar 2020 19:36:58 +0000 https://illinoiscaselaw.com/?p=12904 Scott’s Law in Illinois is the requirement that drivers slow down and move over when police cars or other emergency vehicles are stopped on the roadway. Scott’s Law Basically Says… Scott’s law requires that a driver proceed cautiously when an emergency vehicle is stopped and Move over and change lanes and/or Slow down if changing […] Scott’s Law in Illinois is the requirement that drivers slow down and move over when police cars or other emergency vehicles are stopped on the roadway. Scott’s Law Basically Says… Scott’s law requires that a driver proceed cautiously when an emergency...



Scott’s Law in Illinois is the requirement that drivers slow down and move over when police cars or other emergency vehicles are stopped on the roadway.







Scott’s Law Basically Says…



Scott’s law requires that a driver proceed cautiously when an emergency vehicle is stopped and



* Move over and change lanes and/or* Slow down if changing lanes is impossible.



The law imposes enhanced penalties, a possible driver license suspension, and even jail time for severe violations.



625 ILCS 5/11-907(c)



The exact language of the section provides that:



“(c) Upon approaching a stationary authorized emergency vehicle, when the authorized emergency vehicle is giving a signal by displaying alternately flashing red, red and white, blue, or red and blue lights or amber or yellow warning lights, a person who drives an approaching vehicle shall:



(1) proceeding with due caution, yield the right-of-way by making a lane change into a lane not adjacent to that of the authorized emergency vehicle, if possible with due regard to safety and traffic conditions, if on a highway having at least 4 lanes with not less than 2 lanes proceeding in the same direction as the approaching vehicle; or



(2) if changing lanes would be impossible or unsafe, proceeding with due caution, reduce the speed of the vehicle, maintaining a safe speed for road conditions and leaving a safe distance until safely past the stationary vehicles.”



625 ILCS 5/11-907(c).



Scott’s Law Fines



Maximum fines for a violation of Scott’s Law can be up to $10,000. The chart below outlines the minimum fine that is applicable:



Minimum $250 up to $10,000For 1st offenseMinimum $750 up to $10,000For 2nd or more offense



625 ILCS 5/11-907(d).



Suspension Of Drivers License Under Scott’s Law



A violation of Scott’s Law is considered a moving violation in Illinois. That means the secretary of state will assign points against your driving record and a discretionary suspension under 625 ILCS 5/6-206 may be incurred.



However, the chart below describes certain mandatory suspensions under Scott’s Law if there are aggravated circumstances:



90 days to 1 yearIf there is property damage180 days to 2 year If there is personal injury2 year suspensionIf there is a death to a person



625 ILCS 5/11-907(e), (f), (g).



Jail Time For A Scott’s Law Violation



An ordinary violation of Scott’s Law in Illinois is considered a business offense. That means it is punishable by fine only.



However, Scott’s Law may classified as a crime and a person may face jail time under the conditions listed below:



Class A MisdemeanorIf there is damage to anther vehicleClass 4 FelonyIf there is injury or death to another person



625 ILCS 5/11-907(d)Class A Misde...]]> Criminal Nuggets Podcast 1 1 full 13:45 https://illinoiscaselaw.com/police-search-this-property-without-a-warrant-state-concedes-some-illegality/ Fri, 13 Mar 2020 15:17:55 +0000 https://illinoiscaselaw.com/?p=12781 In re K.M., 2019 IL App (1st) 172322 (February). Episode 595 (Duration 13:05) Police entered onto private property without a warrant to retrieve stolen property, the fallout is widespread. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD Anonymous Call Sauk Village Police Department received an anonymous call on, around […] In re K.M., 2019 IL App (1st) 172322 (February). Episode 595 (Duration 13:05) Police entered onto private property without a warrant to retrieve stolen property, the fallout is widespread. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Do...



In re K.M., 2019 IL App (1st) 172322 (February). Episode 595 (Duration 13:05)



Police entered onto private property without a warrant to retrieve stolen property, the fallout is widespread.











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Anonymous Call



Sauk Village Police Department received an anonymous call on, around 12:18 p.m. from an individual who reported seeing people enter the residence at 22438 Yates Avenue, with items, particularly a television.



The caller called multiple times during the investigation directing the police to 22438 Yates Avenue.



The police department opened a burglary investigation.



The Search But No Seizure



Police arrive and conduct a search of the area surrounding the residence including the garbage cans located on the driveway and the detached garage.



The garbage can was not covered with a lid.



Home Owner Finally Called



That same afternoon, Sauk Village police received another call reporting a burglary.



The caller stated that he had returned home and discovered computer accessories, personal documents, and a large flat-screen television were missing. The items taken were documents including a passport, bank statements, a black television, a black laptop, and a black external hard drive. 



Back To The Garbage Cans



According to police, the garbage was full, but they could identify documents in the garbage that belonged to the victim. The officer did not have to manipulate the garbage in any way to see the victim’s name on the documents.



Police immediately could see a garbage can with a black box on top of the garbage can. They opened the black box and found the victim’s passport and documents with the victim’s address inside the black box. 



Into The Detached Garage

]]> Criminal Nuggets Podcast 1 1 595 595 full clean 13:05 https://illinoiscaselaw.com/defendant-says-this-was-a-dui-with-no-proof-of-driving/ Sat, 07 Mar 2020 03:30:41 +0000 https://illinoiscaselaw.com/?p=12674 People v. Day, 2019 IL App (4th) 160217 (January). Episode 588 (Duration 16:46) He wasn’t behind the wheel but state still proved he was driving. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD See also the subsequent opinion: People v. Day, 2019 IL App (4th) 160217-B  (September). Issue According to […] People v. Day, 2019 IL App (4th) 160217 (January). Episode 588 (Duration 16:46) He wasn’t behind the wheel but state still proved he was driving. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTI...



People v. Day, 2019 IL App (4th) 160217 (January). Episode 588 (Duration 16:46)



He wasn’t behind the wheel but state still proved he was driving.











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See also the subsequent opinion: People v. Day, 2019 IL App (4th) 160217-B  (September).



Issue



According to defendant, the State failed to prove, beyond a reasonable doubt, that he drove under the combined influence of alcohol and cannabis.



The Truck



At the southeast corner of the intersection, a black 1975 Chevrolet pickup truck had come to rest.



The truck had “front[-]end damage to the middle grill, bumper region,” as if it had “struck a tree or pole or something of that nature,” and leaves were entangled in the grill. The engine was off, but the headlights were still on, and the key was in the ignition.



Nobody was in the truck or anywhere in sight.



“On the driver’s seat floorboard[,] there was a black cell phone and one orange flip-flop.”



The Camper



About three-quarters of a mile north, in the 5400 block of Kruse Road, a camper, or “topper,” was on the ground.



It had sustained extensive damage to the front. Once it became separated from the vehicle, it had more or less collapsed on itself.



The Tree



The 5400 block of Kruse Road was the “original accident scene”—there police found a tree that the truck apparently had struck—and that, after the camper became separated from the vehicle, the vehicle continued south from the accident scene.



The Defendant



About 57 minutes after police arrived at the scene, a call came in from a third party, requesting a welfare check of “a white male” who was walking south on Illinois Route 121, south of the tree’s location.


]]> Criminal Nuggets Podcast full 16:46 https://illinoiscaselaw.com/when-is-a-criminal-informant-considered-a-witness-who-has-to-testify/ Wed, 26 Feb 2020 23:26:13 +0000 https://illinoiscaselaw.com/?p=12465 People v. Monroy-Jaimes, 2019 IL App (2d) 160426 (January). Episode 586 (Duration 9:38) Interesting use of an informant, how much of it was legal? Confidential Informant Police had an individual who was in custody for having possessed drugs with the intent to deliver. This confidential informant identified a person named “Chilango,” who was later identified as […] People v. Monroy-Jaimes, 2019 IL App (2d) 160426 (January). Episode 586 (Duration 9:38) Interesting use of an informant, how much of it was legal? Confidential Informant Police had an individual who was in custody for having possessed drugs with the in...



People v. Monroy-Jaimes, 2019 IL App (2d) 160426 (January). Episode 586 (Duration 9:38)



Interesting use of an informant, how much of it was legal?











Confidential Informant



Police had an individual who was in custody for having possessed drugs with the intent to deliver.



This confidential informant identified a person named “Chilango,” who was later identified as the defendant, as someone who could provide cocaine.



The First Phone Call



At an officer’s direction, the informant placed a phone call to Chilango.



The officer was able to hear both sides of the conversation. Although the conversation was in Spanish, This officer spoke fluent Spanish. The informant asked Chilango for five ounces of cocaine. Chilango stated that he could provide only two ounces right away or five ounces later.



A short time later, the informant called Chilango again and stated that he could wait to get five ounces. They also discussed meeting at a BP gas station at 149 East Ogden Avenue in Hinsdale to conduct the drug sale.



Chilango stated that he would call when he had the cocaine.



The Second Phone Call



Later, the officer directed the informant to call Chilango again.



The officer heard both sides of the conversation. Chilango told the informant that he was waiting to get the cocaine but that they could meet at the gas station in about an hour. About a half-hour later, Chilango called the informant and to say that he was on the way to the gas station.



The Gas Station



At about 7 p.m., the informant received another call from Chilango, who asked for directions to the gas station.



Chilango called again for more directions a few minutes later.



Shortly after 7 p.m., the informant and the officer were parked with a view of the gas station. The informant told the officer that he saw Chilango arriving at the gas station in a Toyota Rav 4. Police observed the defendant pull into the gas station and park at a gas pump.



The officer identified the defendant in court as the person he saw in the vehicle at the gas station. The defendant had not committed any traffic violations when he pulled into the gas station. After parking, the defendant exited his vehicle and went into the gas station.



The Third Phone Call



The informant received another call from Chilango at about 7:10 p.m.



Chilango stated that he was at the gas station. At that point, the officer with the informant alerted surveillance officers, who went into the station and placed the defendant in custody. The officer then had the informant call Chilango’s phone number, and one of the surveillance officers answered the defendant’s phone.



At the police station, the officer overheard the defendant talking and recognized the defendant’s voice as the voice of Chilango.



Issue



The defendant argues that the police did not have probable cause to arrest him.



Probable Cause



A warrantless arrest is valid only if supported by probable cause.



Probable cause to arrest exists when the facts known to the police when they make the arrest are sufficient to lead a reasonably cautious person to believe th...]]> Criminal Nuggets Podcast 1 1 full 9:38 https://illinoiscaselaw.com/traffic-stop-based-on-mistaken-identity-is-considered-a-reasonable-mistake-of-fact/ Wed, 12 Feb 2020 15:09:46 +0000 https://illinoiscaselaw.com/?p=12292 People v. Hill, 2019 IL App (4th) 180041 (January). Episode 584 (Duration 16:08) Officer sees passenger riding low in the seat and thinks it may be a guy wanted on warrant, turns out it wasn’t him. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD Issue Defendant filed a motion […] People v. Hill, 2019 IL App (4th) 180041 (January). Episode 584 (Duration 16:08) Officer sees passenger riding low in the seat and thinks it may be a guy wanted on warrant, turns out it wasn’t him. Subscribe: Apple | Google | Spotify | Android | RSS | ...



People v. Hill, 2019 IL App (4th) 180041 (January). Episode 584 (Duration 16:08)



Officer sees passenger riding low in the seat and thinks it may be a guy wanted on warrant, turns out it wasn’t him.











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Issue



Defendant filed a motion to suppress evidence of the cocaine found in the car, arguing the officer did not have reasonable suspicion for the stop and, alternatively, probable cause to search defendant’s car.



Trial judge grants the motion, in part, because the officer had no other corroborating evidence of identification.



Gist



Defendant was the driver of the car.



The car, however, was stopped because of a mistaken identity of the passenger.



The State charged the driver with unlawful possession of a substance containing less than 15 grams of cocaine.



Resolution



The court concluded the officer did nothing wrong. The constitution does not require perfection. The car was legally stopped even though the traffic stop was based on a mistaken identity.



After the stop, the officer was legally entitled to engage the occupants. When he did he realized the man was not who he thought he was, but he also noticed the odor of cannabis.



At that point, the search of the car was legally justified.



Passenger Riding Low



Officer sees a Chevrolet Monte Carlo quickly decelerated such that traffic began to back up.



As the car drove by the officer, he noticed the passenger was reclined in the car with his head mostly obstructed by the side panel, where the seatbelt is attached, referred to by the officer as the “B panel.”



The officer then drove from his parked location in order to get a better look at the passenger. It was his experience that people wanted on warrants or concerned about rival gang members frequently ride in the same manner he was observing ...]]> Criminal Nuggets Podcast full clean 16:08 https://illinoiscaselaw.com/dui-license-suspension-on-private-property/ Wed, 29 Jan 2020 18:29:26 +0000 https://illinoiscaselaw.com/?p=11988 People v. Relwani, 2019 IL 123385 (January). Episode 582 (Duration 10:18) You Can’t Be Suspended On Private Property: How To Prove A Private Property Recession of Suspension. Here’s the lower court opinion. People v. Relwani, 2018 IL App (3d) 170201 (February). Episode 471 (Duration 7:01) Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID […] How To Prove A Private Property Recession of Suspension.



People v. Relwani, 2019 IL 123385 (January). Episode 582 (Duration 10:18)



You Can’t Be Suspended On Private Property: How To Prove A Private Property Recession of Suspension.







Here’s the lower court opinion.



People v. Relwani, 2018 IL App (3d) 170201 (February). Episode 471 (Duration 7:01)







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In this Illinois DUI prosecution, Defendant loses his SSS hearing because he didn’t establish the Walgreen’s parking lot was privately maintained.



Gist



Defendant lost his motion to rescind statutory summary suspension because he needed to say something about the private nature of the Walgreen’s parking lot.




Illinois DUI Resource Page
Check out the Illinois DUI Resource Page
to learn more about DUI in Illinois.





Facts



Defendant was asleep in the driver’s seat of his vehicle in the parking lot of a Walgreens drug store in Joliet, Will County, Illinois. Defendant was the only person in the vehicle at the time. The keys to the vehicle were in the ignition, and the engine was running.



Police officers approached the vehicle, woke defendant, and subsequently arrested defendant for DUI.



No Fields



After defendant was arrested, he was taken to the police station, where he allegedly refused to submit to some form of chemical testing. Defendant’s driver’s license was later summarily suspended by the Secretary of State.



The Private Parking Lot Rule



Defendant contends further that the State did not present any evidence in this case to show that defendant was observed driving on a public street or ...]]> Criminal Nuggets Podcast full clean 10:18 https://illinoiscaselaw.com/expect-defense-attorneys-to-loose-their-mind-when-you-dont-give-them-the-body-cam-video/ Wed, 08 Jan 2020 20:26:50 +0000 https://illinoiscaselaw.com/?p=11662 Episode 724 (Duration 33:57). Chicago defense attorney Peter Lewis explains what a litigant can do… when their criminal discovery is missing the police body cam video. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD Attorney Peter Lewis Peter Lewis has been an Illinois attorney since 2004. He currently […] Episode 724 (Duration 33:57). Chicago defense attorney Peter Lewis explains what a litigant can do… when their criminal discovery is missing the police body cam video. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS...



Episode 724 (Duration 33:57). Chicago defense attorney Peter Lewis explains what a litigant can do…







when their criminal discovery is missing the police body cam video.







Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download
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Attorney Peter Lewis



Peter Lewis has been an Illinois attorney since 2004. He currently has an extensive criminal law practice. He handles cases throughout Cook County and the collar counties.



Main Areas Of Law



 In Chicago what are the three main areas of law that govern the police use of body cameras?



* United States Department of Justice & Chicago Police Department Consent Decree* Illinois Law Enforcement Officer-Worn Body Camera Act* Chicago Police Department Special Order S03-14 on Body Worn Cameras



What Does The Consent Decree Say About Body Cam?



What does the Justice Department’s Chicago Police Department Consent Decree say about the use of police body cams?



On page 6 of the report it says,



…that the Justice Department supports the City’s decision to accelerate its plan to ensure that all CPD officers have body cameras.



In the “Recommendations” section of the report, it says that CPD should “adopt use of force practices that minimize the use of fore.” Subsection (i) states,



Equip all patrol officers and supervisors, and officers who regularly interact with the public, including tactical officers, with body cameras, and develop a body camera policy delineating officers’ responsibilities regarding the consistent and appropriate use of body cameras and ...]]> Criminal Nuggets Podcast full 33:57 https://illinoiscaselaw.com/a-break-down-of-the-illinois-custodial-sexual-misconduct-statute-with-michael-wepsiec/ Tue, 12 Nov 2019 22:13:04 +0000 https://illinoiscaselaw.com/?p=11447 Episode 698 (Duration 29:54). Attorney Michael Wepsiec of Murphosboro, Illinois deconstructs the custodial sexual misconduct criminal law statute. In This Episode… “‘Hey I’m on parole, date me.’ No body says that.” — Michael Wepsiec Attorney Michael Wepsiec Attorney Michael Wepsiec has over 34 years of legal experience. He is the former elected State’s Attorney of […] Episode 698 (Duration 29:54). Attorney Michael Wepsiec of Murphosboro, Illinois deconstructs the custodial sexual misconduct criminal law statute. In This Episode… “‘Hey I’m on parole, date me.’ No body says that. Episode 698 (Duration 29:54). Attorney Michael Wepsiec of Murphosboro, Illinois deconstructs the custodial sexual misconduct criminal law statute.



In This Episode…
“‘Hey I’m on parole, date me.’ No body says that.” — Michael Wepsiec
Attorney Michael Wepsiec
Attorney Michael Wepsiec has over 34 years of legal experience.
He is the former elected State’s Attorney of Jackson County Illinois. Before that he was the Carbondale city attorney, and before that he was an assistant state’s attorney in Jackson County.
Contact Information
The Wepsiec Law Office
1502 Walnut St
Murphysboro, IL 62966
(618) 565-5206
The Illinois Custodial Sexual Misconduct Statute
In Illinois custodial sexual misconduct is found under 720 ILCS 5/11-9.2. The section provides that…

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

“Can’t Miss” Moments:
✓ The Illinois statute on custodial sexual misconduct came into effect in 1997. Before that the regular sexual assault and official misconduct charges weren’t doing the job. Here’s why…(Go to 5:14)
✓ Prisons and correctional facilities are big business down in southern Illinois. Where there are prisons there will be custodial sexual misconduct. (Go to 6:35)
✓ Really hard to imagine how this law could be stretched into unintended conduct, I mean the law is really clear on what it is trying to prevent. Nonetheless, Wepsiec found a set of facts that leave you wondering if the law was meant to go there. (Go to 7:20)
✓ This is the one thing a guy is going to keep off his online dating profile. For some people it leads to disappointment and a dud date. For others it can lead to a criminal charge. (Go to 8:20) & (Go to 11:07)
✓ How a workman’s comp claim can lead to criminal charges, and I don’t mean fraud charges. In this case, a workman’s comp claim lead to a charge of custodial sexual misconduct. (Go to 9:05)
✓ A parolee parked outside your residence on a Saturday morning just might get you charged with a crime. Push play to find out how. (Go to 9:55)
✓ The secret to getting a parolee to say anything you want to hear. (Hint: this only works if you’re a parole agent.) (Go to 10:03)
✓ Did you know, legally speaking, that a person who is on parole also called mandatory supervised release is in the custody of the Illinois Department of Corrections? (Go to 11:43)
✓ “A person commits custodial sexual misconduct when he or she is an employee of a penal system and engages in sexual conduct or sexual penetration with a person who is in the custody of THAT penal system”.]]> Criminal Nuggets Podcast full 29:54 https://illinoiscaselaw.com/what-to-do-about-fatally-flawed-criminal-charges-alan-downen-interview/ Tue, 01 Oct 2019 17:12:45 +0000 https://illinoiscaselaw.com/?p=10476 People v. Rowell, 229 Ill. 2nd 82 (May 2008). Episode 686 (Duration 31:58) What’s the best way to handle legally insufficient criminal charges? In this episode you get a feel for what it’s like working in the criminal law. NLOAD Illinois attorney Alan Downen walks us through the detailed intricacies of just one issue in […] People v. Rowell, 229 Ill. 2nd 82 (May 2008). Episode 686 (Duration 31:58) What’s the best way to handle legally insufficient criminal charges? In this episode you get a feel for what it’s like working in the criminal law. People v. Rowell, 229 Ill. 2nd 82 (May 2008). Episode 686 (Duration 31:58)
What’s the best way to handle legally insufficient criminal charges? In this episode you get a feel for what it’s like working in the criminal law.


NLOAD
Illinois attorney Alan Downen walks us through the detailed intricacies of just one issue in criminal litigation:
In This Episode…
“There’s an old saying about losing your ‘tall’. ‘Tall’ is your favorite marble.” — Alan Downen.
Illinois Attorney Alan Downen
Alan Downen has been a member of the Illinois bar since 1974. He’s a solo practitioner concentrating his practice in the areas of criminal, DUI, traffic law.
His office is in McLeansboro, Illinois.
“Can’t Miss” Moments:
✓ Here’s an example of the kind of fatally flawed or legally insufficient charging document we are talking about: A defendant charged with aggravated domestic battery is charged by information. However, the information is missing the mental state. It doesn’t state if defendant acted “knowingly” or “intentionally”. It also omits the type of battery the defendant is alleged to have done. It doesn’t say if he caused bodily harm or committed insulting or provoking contact. (Go to 3:35)
✓ What’s the law now? What does a court do when it’s confronted with a legally insufficient complaint? Well it depends. There are two legal standards. If a motion to dismiss is filed pretrial the court will adopt a “strict construction” policy and automatically dismiss the charges without prejudice. That means the state is free to refile. If the motion to dismiss if filed on appeal or after the trial is over then a defendant must show prejudice to get the charges dismissed. (Go to 5:07)
✓ Some defense attorneys say they don’t the prosecution a darn thing. There’s nothing wrong with lying in the weeds and springing the issue on the state when the time is right. (Go to 6:40)
✓ Why some judges really hate a motion to dismiss, and why they’ll accuse you of “sandbagging” and other dastardly legal things.  (Go to 7:16) & (Go to 15:40)
✓ “Like any attorney, if the judge asks you a question and you answer like this, ‘Yea – I’m ready to go’ when you know that there’s a problem. That’s kinda troublesome to me as an attorney…But that’s kinda the scenario.” (Go to 8:42)
✓ The problem with informing the state they have a bad charge. (Go to 9:20)
✓ Why it better to save your motion to dismiss until after the trial has started. Sure, you have to show prejudice but a few cases demonstrate that can be done.  (Go to 9:51)
✓ The thing about the Rowell case is that it really highlights how a defense attorney can go about demonstrating the prejudice that results to an accused with a fatally flawed charging document is filed against them.  This is the “bible” on insufficient charging instruments. (Go to 11:49)
✓ Talk about getting caught in court with your pants down. This might be every prosecutor’s worst nightmare.  (Go to 11:20)
✓ The number one lesson for prosecutors about this discussion is this. Some of them will do it. Many more won’t and that’s exactly why criminal defense can be so fun sometimes.  (Go to 13:55)
✓ Why defense attorneys sometimes win by filing “the wrong” motion against all precedent and contrary to clearly applicable laws, and why judges are quick to grant you these “meritless” motions. (Go to 17:49)
]]> Criminal Nuggets Podcast 1 1 full 31:58 https://illinoiscaselaw.com/ron-hain-kane-county-sheriff-has-an-interesting-program-in-the-jail/ Thu, 01 Aug 2019 21:03:00 +0000 https://illinoiscaselaw.com/?p=11532 Kane County Sheriff Ron Hain has instituted a series of new inmate programs. Episode 667 (Duration 34:37) The Kane County Jail’s new Diversion Program is making every effort to leave detainees better off than when they came into the jail. In This Episode… “‘Go and get that bad guy’ is actually a bad way to […] Kane County Sheriff Ron Hain is trying to leave inmates better off than when they came in to his jail.



Kane County Sheriff Ron Hain has instituted a series of new inmate programs. Episode 667 (Duration 34:37)







The Kane County Jail’s new Diversion Program is making every effort to leave detainees better off than when they came into the jail.











In This Episode…



“‘Go and get that bad guy’ is actually a bad way to look at our community.” — Sheriff Ron Hain



Sheriff Ron Hain



Ron Hain was elected Sheriff of Kane County in 2018.



As a deputy his number one focus was on gang and drug enforcement. Now, as Sheriff of Kane County, he’s tasked with managing the county jail system and must confront a complicated jail population.



How To Contact The Sheriff of Kane County



Sheriff Ron HainKane County Sheriff’s Office37W755 Route 38St.Charles, Illinois 60175



KaneSheriff.com



“Can’t Miss” Moments:



✓ How “go and get that bad guy” mentality turned into something else. It was drug and gang arrests until the work transformed into a different meaning for Sheriff Hain.  (Go to 2:50)



✓ Doing this over and over helped the Sheriff come to a new understanding about his role in law enforcement. Not everyone will react this way.   (Go to 4:08)



✓ “These are not bad guys they’re people, there citizens. And those high crime neighborhoods are also low income neighborhoods. These are people who have never been giving an opportunity in their life. How did we expect them to turn out?”  (Go to 4:50)



✓ The 3 categories of inmates that fill our jails. Understanding the reason people end up in jail is the first step to really helping them.  (Go to 5:25)



✓ 18 of the 122 corrections officers are specially trained certified officers that help triage and help identify this kind of inmate. The most important cog in the system isn’t even about providing onsite services. The real work begins with an appropriate “exit strategy”.  (Go to 7:37)



✓ When it comes to this “10 is a soft number.” When it comes to assisting others what are your practical limits?   (Go to 9:10)



✓ Lane number 1 in the system overpopulates the jail with this kind of inmate. This is the cog in the entire system. Do noble work here and watch the crime rate plummet.  (Go to 9:40)



✓ This type of inmate is 74 times more likely to die of an overdose upon release. Identifying these inmates is literally life saving information.  (Go to 10:04)



✓ How a 30 person pilot program within a month ballooned to 54 people. The Sheriff won’t say “no” to people in need. You’ll learn all about it in the “Recovery Pod.”  (Go to 10:50)



✓ Here’s a common comment the Sheriff hears: “Hey I don’t want to pay for a criminal’s recovery and addiction programs; they should be paying for it.” Go here to see what the Sheriff says in response.   (Go to 11:38)



✓ How the jailhouse commissary can be used to run down the crime rate…on the outside. No joke and it doesn’t cost Joe Tax Payer a dime.  (Go to 12:50)



✓ If inmates think they’ll take a few classes and g...]]> Criminal Nuggets Podcast full 34:37 https://illinoiscaselaw.com/ron-hain/ Thu, 01 Aug 2019 14:51:32 +0000 https://illinoiscaselaw.com/?p=9654 Kane County Sheriff Ron Hain has instituted a series of new inmate programs. Episode 667 (Duration 34:37) The Kane County Jail’s new Diversion Program is making every effort to leave detainees better off than when they came into the jail. In This Episode… “‘Go and get that bad guy’ is actually a bad way to […] Kane County Sheriff Ron Hain has instituted a series of new inmate programs. Episode 667 (Duration 34:37) The Kane County Jail’s new Diversion Program is making every effort to leave detainees better off than when they came into the jail.



Kane County Sheriff Ron Hain has instituted a series of new inmate programs. Episode 667 (Duration 34:37)



The Kane County Jail’s new Diversion Program is making every effort to leave detainees better off than when they came into the jail.



















In This Episode…



“‘Go and get that bad guy’ is actually a bad way to look at our community.” — Sheriff Ron Hain



Sheriff Ron Hain



Ron Hain was elected Sheriff of Kane County in 2018.



As a deputy his number one focus was on gang and drug enforcement. Now, as Sheriff of Kane County, he’s tasked with managing the county jail system and must confront a complicated jail population.



How To Contact The Sheriff of Kane County



Sheriff Ron HainKane County Sheriff’s Office37W755 Route 38St.Charles, Illinois 60175



KaneSheriff.com



“Can’t Miss” Moments:



✓ How “go and get that bad guy” mentality turned into something else. It was drug and gang arrests until the work transformed into a different meaning for Sheriff Hain.  (Go to 2:50)



✓ Doing this over and over helped the Sheriff come to a new understanding about his role in law enforcement. Not everyone will react this way.   (Go to 4:08)



✓ “These are not bad guys they’re people, there citizens. And those high crime neighborhoods are also low income neighborhoods. These are people who have never been giving an opportunity in their life. How did we expect them to turn out?”  (Go to 4:50)



✓ The 3 categories of inmates that fill our jails. Understanding the reason people end up in jail is the first step to really helping them.  (Go to 5:25)



✓ 18 of the 122 corrections officers are specially trained certified officers that help triage and help identify this kind of inmate. The most important cog in the system isn’t even about providing onsite services. The real work begins with an appropriate “exit strategy”.  (Go to 7:37)



✓ When it comes to this “10 is a soft number.” When it comes to assisting others what are your practical limits?   (Go to 9:10)



✓ Lane number 1 in the system overpopulates the jail with this kind of inmate. This is the cog in the entire system. Do noble work here and watch the crime rate plummet.  (Go to 9:40)



✓ This type of inmate is 74 times more likely to die of an overdose upon release. Identifying these inmates is literally life saving information.  (Go to 10:04)



✓ How a 30 person pilot program within a month ballooned to 54 people. The Sheriff won’t say “no” to people in need. You’ll learn all about it in the “Recovery Pod.”  (Go to 10:50)



✓ Here’s a common comment the Sheriff hears: “Hey I don’t want to pay for a criminal’s recovery and addiction programs; they should be paying for it.” Go here to see what the Sheriff says in response.   (Go to 11:38)



✓ How the jailhouse commissary can be used to run down the crime rate…on the outside. No joke and it doesn’t cost Joe Tax Payer a dime.  (Go to 12:50)



]]> Criminal Nuggets Podcast full 34:37 https://illinoiscaselaw.com/updates-on-cannabis-law-bail-reform-with-jamie-mosser-candidate-for-kane-county-states-attorney/ Wed, 31 Jul 2019 12:25:28 +0000 https://illinoiscaselaw.com/?p=9277 Jamie Mosser, candidate for Kane County State’s Attorney, stops by to provide an update on the new Illinois cannabis law and lets us know what’s happening with bail reform in Illinois. Episode 658 (Duration 26:11). Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD In This Episode… “What […] Jamie Mosser, candidate for Kane County State’s Attorney, stops by to provide an update on the new Illinois cannabis law and lets us know what’s happening with bail reform in Illinois. Episode 658 (Duration 26:11). Jamie Mosser, candidate for Kane County State’s Attorney, stops by to provide an update on the new Illinois cannabis law and lets us know what’s happening with bail reform in Illinois. Episode 658 (Duration 26:11).




Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download
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In This Episode…
“What I want to do is take a strong office that we already have with some amazing people, and I just want to make it better.” — Jamie Mosser.
Attorney Jamie Mosser
Jaime Mosser is a former Kane County Assistant State’s Attorney. She’s now in private practice, and is the Democratic candidate for the head Kane County State’s Attorney.
Contact Information
Legal Office
Mosser & Eisenmenger Law, LLC
525 Tyler Rd Ste Q2
St. Charles, IL 60174
(630) 549-0364
https://www.mosserlawfirm.com/
Campaign Office
Mosser For Kane County
https://mosserforkanecounty.com/
“Can’t Miss” Moments:
✓ Beginning January 1, 2020 Illinois will do away with all misdemeanor charges for possession of cannabis. However, there are some significant restrictions. (Go to 2:05) & (5:55)
✓ The law makes it quite clear there is still a certain amount you cannot exceed or you risk facing felony drug possession charges. There are exceptions for possession of cannabis for medical purposes. (Go to 2:50)
✓ The distinction between decriminalization and full blown legalization still matters. It’s not accurate to say Illinois went full legalization. It’s not legal across the board.  (Go to 3:48)
✓ The truth about cannabis decriminalization is revealed when you consider the raw logic behind the law. Minor possession is not crime anymore. Selling the stuff is a different story. The law has a pretty strict licensing requirement. (Go to 4:19)
✓ How Illinois is going to make money from all this. (Go to 5:28)
✓ The list of things you still can’t do with cannabis runs deeper than just a prohibition against selling it. Jump to this time stamp for a detailed description provided by Jamie on everything else you can’t do with cannabis. (Go to 5:55)
✓ When police get a hint of the “smell of weed” that currently has significant legal ramifications for citizens.]]> Criminal Nuggets Podcast full 26:11 https://illinoiscaselaw.com/scotus-changes-warrantless-blood-draw-cases-in-a-significant-way/ Mon, 08 Jul 2019 21:08:00 +0000 https://illinoiscaselaw.com/?p=11537 Mitchell v. Wisconsin, SCOTUS No. 18–6210, Decided June 27, 2019. Episode 647 (Duration 22:02) (Police can draw blood from unconscious DUI suspect.) Mitchell v. Wisconsin Says Warrantless Blood Draw By Police Is Legal In Some Circumstances Unconscious drivers plus natural BAC dissipation create an exigent circumstance for a blood draw. Unconscious Driver Pose An Elevated Risk The court […] You may not need a warrant to obtain a blood or urine sample from a suspect who is unconscious.



Mitchell v. Wisconsin, SCOTUS No. 18–6210, Decided June 27, 2019. Episode 647 (Duration 22:02) (Police can draw blood from unconscious DUI suspect.)







Mitchell v. Wisconsin Says Warrantless Blood Draw By Police Is Legal In Some Circumstances



Unconscious drivers plus natural BAC dissipation create an exigent circumstance for a blood draw.











Unconscious Driver Pose An Elevated Risk



The court said in the case of unconscious drivers, who cannot blow into a breathalyzer, blood tests are essential for achieving the compelling interests of stopping drunk driving.



Indeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk.



For these reasons, there clearly is a “compelling need” for a blood test of drunk-driving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test.



Exigent Circumstances Exist When There Is Injury or Unconsciousness



Thus, exigency exists when



(1) BAC evidence is dissipating and(2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application.



Both conditions are met when a drunk-driving suspect is unconscious, so such suspects, too, a warrantless blood draw is lawful.



See Also



* Mitchell v. Wisconsin, SCOTUS No. 18–6210, Decided June 27, 2019. Episode 647 (Duration 22:02) (Categorical Rule Allows Warrantless Blood Draws From Unconscious Drivers)* Episode 574 – People v. Pratt, 2018 IL App (5th) 170427 (December) (Warrantless blood draw after an accident deemed unconstitutional blood results excluded.)* Episode 469 – Warrantless Blood Draws Coming To A Hospital Near You (A Summary Of Recent Warrantless Blood Draw Cases In Illinois).* 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 558 – People v. Williams, 2018 IL App (2d) 160683 (October) (Challenging this DUI traffic stop went nowhere fast.)* full 22:02 https://illinoiscaselaw.com/in-light-of-the-new-gun-laws-can-an-illinois-officer-stop-and-detain-a-person-with-a-gun/ Tue, 04 Jun 2019 02:01:03 +0000 https://illinoiscaselaw.com/?p=11578 Episode 643 (Duration 31:51) Illinois attorney Gary True explains the risk involved for anyone who reveals their gun in public. Licensed and unlicensed gun carriers have something to worry about. In This Episode… “A law abiding person that exposes his gun too much, what ever too much is, is subject to being charged and subject to being […] Can police still stop a and search person with a gun?



Episode 643 (Duration 31:51) Illinois attorney Gary True explains the risk involved for anyone who reveals their gun in public.







Licensed and unlicensed gun carriers have something to worry about.











In This Episode…



“A law abiding person that exposes his gun too much, what ever too much is, is subject to being charged and subject to being searched .” — Gary True.



Attorney Gary True



Gary True practices in the areas of business and corporate law, mergers and acquisitions and estate planning.  He also concentrates in the area of self-defense and firearms law. 



Gary is licensed to practice law in Illinois, Missouri and Wisconsin. He also teaches a course for other Illinois conceal carry instructors.



Contact Information 



Gary True515 St. Louis Street, Suite 203Edwardsville, Illinois 62025



Tel: 314.872.0331Fax: 314.872.0321gtrue@summerscomptonwells.com




http://www.summerscomptonwells.com




“Can’t Miss” Moments:



✓ What does the Illinois Concealed Carry law say about exposing your gun in public? What every properly licensed gun carrier has to be worried about. (Go to 3:58)



✓ This two-word adjective has become a term of art for lawyers and gun owners. Funny how the term is not defined anywhere in the code, and reasonable minds can invent their own working definitions. This is the term we are all waiting for the court to define. (Go to 5:12)



✓ Like it or not, properly licensed gun carriers can still get arrested for carrying a gun if this happens. Here’s a clear example of how not to carry your gun in public…when just a few seconds can get you arrested. (Go to 5:49) & (9:42)



✓ A certain group of gun instructors believe this legal term means something else entirely different than what some Illinois judges say it means. The consequences may be dire for certain people if we don’t all get on the same page. (Go to 7:15)



✓ The absurdity of it…Guy walking down the street and a gust of wind blows his jacket open a bit exposing the butt of his gun. Some say a crime has just been committed.  (Go to 8:25) & (10:00)



✓ This “ordinary common sense” standard is dead. Why the old rules before the current laws existed don’t help us, and in fact, might hurt us. (Go to 8:39)



✓ The real reason you’re likely to get arrested if you are seen with a gun in public.  (Go to 10:00)



✓ WARNING – All gun owners licensed to conceal carry better make sure they understand the “traffic stop” rule. If the officer says these magic words a gun carrier has to respond in the right way or risk getting arrested for providing the wrong answer. (Go to 11:55)



✓ What is NOT in the statute is as important as what is in the statute. Knowing what’s not in there can save you some hassle. There are a lot of unanswered questions about the law, but Gary says there are some clear-cut examples of when an officer cannot stop you even when they know for sure you have a gun.  (Go to 13:16)



✓ 3 serious hints are out there, if you know where to look,]]> Criminal Nuggets Podcast full 31:51 https://illinoiscaselaw.com/gary-true-on-what-happens-when-police-see-your-gun-in-public/ Mon, 03 Jun 2019 11:00:04 +0000 https://illinoiscaselaw.com/?p=9023 Episode 643 (Duration 31:51) Illinois attorney Gary True explains the risk involved for anyone who reveals their gun in public. Licensed and unlicensed gun carriers have something to worry about. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD In This Episode… “A law abiding person that exposes his […] Episode 643 (Duration 31:51) Illinois attorney Gary True explains the risk involved for anyone who reveals their gun in public. Licensed and unlicensed gun carriers have something to worry about. Subscribe: Apple | Google | Spotify | Android | RSS | Di... Episode 643 (Duration 31:51) Illinois attorney Gary True explains the risk involved for anyone who reveals their gun in public. Licensed and unlicensed gun carriers have something to worry about.



Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download
APPLE PODCASTS GOOGLE PODCASTS
SPOTIFY ANDROID RSS
DIRECT DOWNLOAD
In This Episode…
“A law abiding person that exposes his gun too much, what ever too much is, is subject to being charged and subject to being searched .” — Gary True.
Attorney Gary True
Gary True practices in the areas of business and corporate law, mergers and acquisitions and estate planning.  He also concentrates in the area of self-defense and firearms law.
Gary is licensed to practice law in Illinois, Missouri and Wisconsin. He also teaches a course for other Illinois conceal carry instructors.
Contact Information 
Gary True
515 St. Louis Street, Suite 203
Edwardsville, Illinois 62025
Tel: 314.872.0331
Fax: 314.872.0321
gtrue@summerscomptonwells.com
http://www.summerscomptonwells.com
“Can’t Miss” Moments:
✓ What does the Illinois Concealed Carry law say about exposing your gun in public? What every properly licensed gun carrier has to be worried about. (Go to 3:58)
✓ This two-word adjective has become a term of art for lawyers and gun owners. Funny how the term is not defined anywhere in the code, and reasonable minds can invent their own working definitions. This is the term we are all waiting for the court to define. (Go to 5:12)
✓ Like it or not, properly licensed gun carriers can still get arrested for carrying a gun if this happens. Here’s a clear example of how not to carry your gun in public…when just a few seconds can get you arrested. (Go to 5:49) & (9:42)
✓ A certain group of gun instructors believe this legal term means something else entirely different than what some Illinois judges say it means. The consequences may be dire for certain people if we don’t all get on the same page. (Go to 7:15)
✓ The absurdity of it…Guy walking down the street and a gust of wind blows his jacket open a bit exposing the butt of his gun. Some say a crime has just been committed.  (Go to 8:25) & (10:00)
✓ This “ordinary common sense” standard is d...]]> Criminal Nuggets Podcast full 31:51 https://illinoiscaselaw.com/how-defense-attorneys-convince-a-judge-that-a-traffic-stop-is-bad/ Wed, 15 May 2019 02:27:49 +0000 https://illinoiscaselaw.com/?p=11583 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 […] How 2 Defense Attorney Break Down And Scrutinize A Traffic Stop



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 & Vandersnick4709 44th Street Ste 1Rock 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” determines if a search is likely to be upheld or stricken down…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, in fact, happening. It feels much differently to the driver. (Hint: profiling and pretextual stops are 100% legal.) (Go to 13:38)



✓ Drug interdiction officers are NOT 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, it was 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.]]> Criminal Nuggets Podcast full 31:43 https://illinoiscaselaw.com/matthew-paulson-larry-vandersnick-explain-exactly-what-is-happening-during-this-common-kind-of-traffic-stop/ Wed, 15 May 2019 02:25:39 +0000 https://illinoiscaselaw.com/?p=8983 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 […] 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. 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” determines if a search is likely to be upheld or stricken down…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, in fact, happening. It feels much differently to the driver. (Hint: profiling and pretextual stops are 100% legal.) (Go to 13:38)
✓ Drug interdiction officers are NOT 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, it was 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”. Whether 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)
]]> Criminal Nuggets Podcast full 31:43 https://illinoiscaselaw.com/double-jeopardy-concern-means-there-will-be-a-second-trial-in-this-case/ Wed, 24 Apr 2019 15:27:12 +0000 https://illinoiscaselaw.com/?p=8973 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD While Supplies Last Get These FREE Gifts… Not your typical legal […] 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download... 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.


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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.]]> Criminal Nuggets Podcast full clean https://illinoiscaselaw.com/butt-in-the-box-rule-means-your-available-for-cross-examination/ Tue, 23 Apr 2019 15:34:51 +0000 https://illinoiscaselaw.com/?p=8969 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD While Supplies Last Get These FREE Gifts… Not your typical legal […] 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE... 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.


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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.

Illinois Rules Of Evidence
Check out the Illinois Rules of Evidence Resource Page
to learn more about this topic.
 
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.
]]> Criminal Nuggets Podcast full clean https://illinoiscaselaw.com/eyewitness-expert-aint-allowed-to-get-into-individual-witnesses-reliability/ Mon, 22 Apr 2019 15:49:12 +0000 https://illinoiscaselaw.com/?p=8963 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD […] 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. 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.


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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 involve...]]> Criminal Nuggets Podcast full clean https://illinoiscaselaw.com/police-officers-breathalyzer-certification-was-expired-becomes-a-big-problem-in-this-dui/ Fri, 19 Apr 2019 20:58:00 +0000 https://illinoiscaselaw.com/?p=11892 People v. Caraballo, 2019 IL App (1st) 171993 (March). Episode 613 (Duration 12:55) (Officer was not certified at the time of the breathalyzer, but was he substantially certified?) This is a DUI stop with an arrest. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD Gist The jury found defendant […] Police Officer's Breathalyzer Certificate Was Expired



People v. Caraballo, 2019 IL App (1st) 171993 (March). Episode 613 (Duration 12:55) (Officer was not certified at the time of the breathalyzer, but was he substantially certified?)







This is a DUI stop with an arrest.







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Gist



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



]]> Criminal Nuggets Podcast full clean 10:42 https://illinoiscaselaw.com/be-careful-with-admissions-by-omissions/ Wed, 17 Apr 2019 14:40:06 +0000 https://illinoiscaselaw.com/?p=8957 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 too far. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD While Supplies Last Get These FREE Gifts… Not your […] 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 too far. Subscribe: Apple | Google | Spotify | Android | RSS | Dir... 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 too far.


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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,]]> Criminal Nuggets Podcast full clean https://illinoiscaselaw.com/officers-have-to-be-very-careful-about-how-they-answer-questions-in-the-grand-jury-room/ Wed, 17 Apr 2019 02:47:12 +0000 https://illinoiscaselaw.com/?p=11588 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD Facts Defendant and his buddy […] Officers Have To Be Very Careful About What They Say In The Grand Jury Room



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.







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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,]]> Criminal Nuggets Podcast full clean 12:24 https://illinoiscaselaw.com/prosecutors-questions-could-have-been-presented-more-clearly-and-completely-in-the-grand-jury-room/ Tue, 16 Apr 2019 16:41:43 +0000 https://illinoiscaselaw.com/?p=8953 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD How To File A […] 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. 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.

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How To File A Motion To Dismiss
In A Criminal Case
See also this Handy Guide On Filing A Motion To Dismiss in a criminal case to discover more on this topic.


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,]]> Criminal Nuggets Podcast 1 1 full 15:29 https://illinoiscaselaw.com/an-example-of-inartful-closing-argument-and-how-to-fix-it/ Mon, 15 Apr 2019 15:41:57 +0000 https://illinoiscaselaw.com/?p=8947 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD While Supplies Last Get These FREE Gifts… Not your typical legal book. Search & […] 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE ... 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.



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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 peppered 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 prosector 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,]]> Criminal Nuggets Podcast full clean https://illinoiscaselaw.com/its-structural-error-to-proceed-with-a-bench-trial-without-a-knowing-waiver-in-open-court/ Wed, 10 Apr 2019 15:33:11 +0000 https://illinoiscaselaw.com/?p=8941 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD While Supplies Last Get These FREE Gifts… Not your typical legal book. Search & […] 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS G... 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.



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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 S...]]> Criminal Nuggets Podcast full clean https://illinoiscaselaw.com/in-this-dui-the-officer-substantially-complies-with-his-breathalyzer-certification/ Tue, 09 Apr 2019 14:44:33 +0000 https://illinoiscaselaw.com/?p=8933 People v. Caraballo, 2019 IL App (1st) 171993 (March). Episode 613 (Duration 12:55) Officer was not certified at the time of the breathalyzer, but he was substantially certified. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD While Supplies Last Get These FREE Gifts… Not your typical legal book. […] People v. Caraballo, 2019 IL App (1st) 171993 (March). Episode 613 (Duration 12:55) Officer was not certified at the time of the breathalyzer, but he was substantially certified. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APP... People v. Caraballo, 2019 IL App (1st) 171993 (March). Episode 613 (Duration 12:55)
Officer was not certified at the time of the breathalyzer, but he was substantially certified.



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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 t...]]> Criminal Nuggets Podcast full clean https://illinoiscaselaw.com/march-2019-speed-round-the-illinois-criminal-case-law-round-up/ Mon, 08 Apr 2019 20:48:33 +0000 https://illinoiscaselaw.com/?p=8918  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 […]  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. 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 ...]]> Criminal Nuggets Podcast full 44:19 https://illinoiscaselaw.com/its-completely-legal-to-gan-guns-from-public-housing/ Fri, 05 Apr 2019 03:02:00 +0000 https://illinoiscaselaw.com/?p=11591 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD See Also These Prior Constitutionality Cases Episode 610 – […] It's Completely Legal To Ban Guns From Public Housing



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.







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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 ...]]> Criminal Nuggets Podcast full clean 11:05 https://illinoiscaselaw.com/is-it-constitutional-to-ban-guns-from-public-housing/ Thu, 04 Apr 2019 16:31:12 +0000 https://illinoiscaselaw.com/?p=8911 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD While Supplies Last Get These FREE Gifts… Not […] 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. Subscribe: Apple | Google | Spotify | Android | RSS | D... 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.



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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 – https://illinoiscaselaw.com/?p=8902 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD While Supplies Last Get These FREE Gifts… Not your typical legal book. Search & Seizure Special […] 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODC... 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.



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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[.]”
https://illinoiscaselaw.com/?p=11995 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD First See Episode 552 – People v. Bonilla, 2018 IL 122484 (October) (Supreme Court […] 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOG...



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.











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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 643 – Gary True On What Happens When Police See Your Gun In Public



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,]]> Criminal Nuggets Podcast full clean 18:15 https://illinoiscaselaw.com/police-chase-some-men-see-a-gun-and-arrest-them-is-that-legal/ Tue, 02 Apr 2019 16:02:14 +0000 https://illinoiscaselaw.com/?p=8896  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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD While Supplies Last Get A FREE Copy Of The Book… […]  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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GO... 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.

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Busy lawyer’s guide to explosive litigation growth.
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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 643 – Gary True On What Happens When Police See Your Gun In Public


More Search & Seizure Resources 
Check out these out:

* https://illinoiscaselaw.com/?p=8751 Timbs v Indiana Timbs v. Indiana, 2019 SCOTUS (February). Episode 594 (Duration 24:32) Eighth Amendment ban on excessive fines and forfeitures extends to the states. 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 […] How does Timbs v. Indiana effect Illinois forfeitures? Timbs v Indiana
Timbs v. Indiana, 2019 SCOTUS (February). Episode 594 (Duration 24:32)
Eighth Amendment ban on excessive fines and forfeitures extends to the states.
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, “excessive 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 ...]]> Criminal Nuggets Podcast full 24:32 https://illinoiscaselaw.com/this-feels-a-little-like-sheriff-rosco-p-coltrane/ Mon, 18 Feb 2019 20:26:48 +0000 https://illinoiscaselaw.com/?p=8742 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD   Search & Seizure Resource Page Check out the Illinois Search And […] 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Downloa... 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.


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Search & Seizure Resource Page
Check out the
Illinois Search And Seizure Resource Page 
to learn more about the 4th amendment. 
 
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
]]> Criminal Nuggets Podcast full clean https://illinoiscaselaw.com/downstate-police-department-takes-advantage-of-this-weird-traffic-line-to-stop-cars/ Mon, 18 Feb 2019 05:03:15 +0000 https://illinoiscaselaw.com/?p=11602 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD Facts The officer was following defendant’s vehicle, in Carthage, Illinois, in the westbound […] Downstate police department take advantage of this weird traffic line



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.







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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 int...]]> Criminal Nuggets Podcast full clean 13:45 https://illinoiscaselaw.com/an-update-on-the-barney-fife-traffic-stop/ Mon, 14 Jan 2019 16:59:30 +0000 https://illinoiscaselaw.com/?p=8717 Episode 579 (Duration 16:25) What is happening in Illinois with the mistake of law doctrine? Search & Seizure Resource Page Check out the Illinois Search And Seizure Resource Page to learn more about the 4th amendment. In Re Maurice J. In re Maurice J., 2018 IL App (1st) 172123 (June). Episode 506 (Duration 8:18) Officer not knowing the traffic […] Episode 579 (Duration 16:25) What is happening in Illinois with the mistake of law doctrine? Search & Seizure Resource Page Check out the Illinois Search And Seizure Resource Page to learn more about the 4th amendment. In Re Maurice J. Episode 579 (Duration 16:25) What is happening in Illinois with the mistake of law doctrine?




Search & Seizure Resource Page
Check out the
Illinois Search And Seizure Resource Page
to learn more about the 4th amendment.

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.
]]> Criminal Nuggets Podcast full 30:31 https://illinoiscaselaw.com/mistake-of-law-doctrine/ Mon, 14 Jan 2019 15:40:00 +0000 https://illinoiscaselaw.com/?p=11611 Episode 579 (Duration 16:25) What is happening in Illinois with the mistake of law doctrine? Here is a round up of recent mistake of law cases. 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 […] Illinois Mistake Of Law Cases Explain What Happens When Police Misinterpret A Traffic Law And Stop A Car Based On That



Episode 579 (Duration 16:25) What is happening in Illinois with the mistake of law doctrine?







Here is a round up of recent mistake of law cases.







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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...]]> Criminal Nuggets Podcast full 16:25 https://illinoiscaselaw.com/police-have-to-be-reminded-to-go-get-a-warrant-before-they-draw-dudes-blood/ Tue, 01 Jan 2019 23:04:43 +0000 https://illinoiscaselaw.com/?p=10375 People v. Pratt, 2018 IL App (5th) 170427 (December). Episode 574 (Duration 6:41) Warrantless blood draw after an accident deemed unconstitutional blood results excluded. Gist The Ford Expedition he was driving struck a tractor trailer, causing extensive damage to the defendant’s vehicle. Daniel Tutor, a passenger in the defendant’s vehicle, died at the scene. The defendant sustained […] People v. Pratt, 2018 IL App (5th) 170427 (December). Episode 574 (Duration 6:41) Warrantless blood draw after an accident deemed unconstitutional blood results excluded. Gist The Ford Expedition he was driving struck a tractor trailer, People v. Pratt, 2018 IL App (5th) 170427 (December). Episode 574 (Duration 6:41)
Warrantless blood draw after an accident deemed unconstitutional blood results excluded.
Gist
The Ford Expedition he was driving struck a tractor trailer, causing extensive damage to the defendant’s vehicle. Daniel Tutor, a passenger in the defendant’s vehicle, died at the scene. The defendant sustained serious injuries to his face.
An emergency room nurse drew blood from the defendant at a detective’s request.
The defendant was subsequently charged with aggravated DUI.
Issue
The defendant filed a motion to suppress the results of the blood test, arguing that it violated his right to be free from unreasonable searches under the fourth amendment to the United States Constitution (U.S. Const., amend. IV).
Defendant’s Testimony
At a hearing on the motion, the defendant testified that he was treated at St. Louis University Hospital for injuries sustained in a motor vehicle accident. He testified that he did not give any police officer permission to have his blood drawn while he was there. Asked if he spoke to any officers from the Sauget Police Department while he was in the hospital, the defendant testified that he did not remember even seeing any officers at the hospital.
On cross-examination, the defendant testified that he did not remember having blood drawn that night.
He explained that he was “out of it” that night and noted that he lost enough blood that he required a blood transfusion. The court shifted the burden.
Officer At The Scene
One officer testified that he “thought [the defendant] could have been under the influence.” He explained that the defendant had slurred speech and he was unable “to answer straight questions.” When the defendant exited his vehicle, he needed help getting out of the vehicle and walking. This officer didn’t know what kind of injury the driver had sustained.
Defendant was not placed under arrest at the scene of the accident.
This officer found an open bottle of Crown Royal on the driver’s seat under debris. There was still some alcohol in the bottle.
Detective At The Hospital
After nurses were done treating defendant the detective read the defendant the warning to motorists (see 625 ILCS 5/11-501.1(c), 11-501.6(c)) and asked the defendant if he understood. Defendant “just gave [him] a grunt.” He then approached the defendant to ask him to provide a blood sample, but the defendant did not respond. He stated that the defendant appeared to be “either unconscious or in a deep, deep sleep.”
The detective then asked one of the nurses to take a blood sample from the defendant.
Detective did not observe the defendant displaying any signs of intoxication. Asked to describe the defendant’s injuries, the detective replied, “His nose was just laid open.” A nurse obtained a blood sample from the defendant and gave it to the detective.
Trial Court Excluded The Blood
The court stated that, after reviewing the pertinent statutes and applicable case law, it found that “the sole path to admissibility” of the defendant’s blood test results was the exigent circumstances exception to the requirement of a warrant. The court further found that the State’s evidence did not satisfy the requirements for this exception. The court therefore granted the defendant’s motion to suppress the evidence.
Should The Trial Court Have Shifted The Burden?
The State correctly argues that the defendant bore the initial burden of proving both that a search occurred and that the search was not valid.
In this case, the State points out, the defendant testified that he did not remember the emergency room nurse drawing his blood,]]> Criminal Nuggets Podcast full clean 6:41 https://illinoiscaselaw.com/in-this-search-warrant-application-the-nexus-to-defendants-house-was-bare-bones-lacking/ Mon, 31 Dec 2018 22:54:47 +0000 https://illinoiscaselaw.com/?p=10372 People v. Manzo, 2018 IL 122761 (December). Episode 573 (Duration 10:14) This one will be controversial: Illinois Supreme Court holds their was no nexus to the house justifying the search warrant. Gist 3 buys from a guy is used for a search warrant into the house the guy came from. None of the buys occurred at the […] People v. Manzo, 2018 IL 122761 (December). Episode 573 (Duration 10:14) This one will be controversial: Illinois Supreme Court holds their was no nexus to the house justifying the search warrant. Gist 3 buys from a guy is used for a search warrant int... People v. Manzo, 2018 IL 122761 (December). Episode 573 (Duration 10:14)
This one will be controversial: Illinois Supreme Court holds their was no nexus to the house justifying the search warrant.
Gist
3 buys from a guy is used for a search warrant into the house the guy came from. None of the buys occurred at the house. Defendant was not the target, but it was his house. 
3 Buys
An undercover had purchased from the cousin 3 times over 20 days. 2 purchases were near the vicinity of the home. 
Purchase #1 – Police purchase $150 of cocaine from Defendant’s girlfriend’s cousin. Deal goes down at a supermarket. Police see the target getting out of a black Ford Explorer. Defendant drives away in the same black Ford Explorer. The Explorer came back registered to Defendant’s girlfriend listed at residing in Defendant’s house.
Purchase #2 – Police arrange for the purchase of $300 of cocaine. This time the sale occurs at a liquor store.
Purchase #3 – Arrangement for purchase of $150 worth of cocaine is made. This time police are watching the house. They see the cousin leave the house and walk to the liquor store. Then the cousin called the officer to change locations, and had him walk to a grocery store where the deal went down.
The Cousin
Not sure if police knew the target was Defendant’s girlfriend’s cousin. They only know he is “associated” with her, and they know where she lives. Defendant is not known to police at this time.
Police never established where he lived.
Police never established how long he was at the house before he left for the last deal.
Police never established where he was before the first and second deals.
Police never established if he really had access to larger amounts.
The Search
Police find 348 grams of cocaine, a handgun, ammunition, a digital scale, a box of plastic bags, over $9000 in United States currency, and proof of residency for both defendant and the target.
The cocaine, the handgun, the ammunition, the digital scale, and the box of plastic bags were found in a safe inside the master bedroom closet.
The cash was found in the pockets of two jackets in the master bedroom closet. Defendant’s proof of residency was found in a bedroom drawer and elsewhere in the house. None of the paperwork concerning the cousin’s residency indicated that house was his address.
The Verdict
Defendant was found not guilty of the drug charges but was convicted of the gun charge.
Issue
Prior to trial, defendant filed a motion to quash arrest and suppress evidence, arguing that the officers lacked probable cause to search his home. The motion argued that, prior to the execution of the search warrant, no corroborating information was sought or found by the responding police officers to verify that the target ever resided at the residence.
The four corners of the search warrant completely lacked sufficient probable cause to conduct the search that led to defendant’s arrest and to the seizure of certain items of purported evidence.
Probable Cause
Probable cause exists in a particular case when the totality of the facts and circumstances within the affiant’s knowledge at the time the warrant is applied for “was sufficient to warrant a person of reasonable caution to believe that the law was violated and evidence of it is on the premises to be searched.” People v. Griffin, 178 Ill. 2d 65, 77 (1997). It is the probability of criminal activity, rather than proof beyond a reasonable doubt, that is the standard for determining whether probable cause is present. Tisler, 103 Ill. 2d at 236.
Whether the necessary probability exists is governed by commonsense considerat...]]> Criminal Nuggets Podcast full clean 10:14 https://illinoiscaselaw.com/what-if-you-just-touch-the-line-but-dont-cross-it-can-you-be-stopped/ Wed, 19 Dec 2018 22:47:37 +0000 https://illinoiscaselaw.com/?p=10370 People v. Mueller, 2018 IL App (2d) 170863 (December). Episode 572 (Duration 8:47) Jeep touches the traffic lines 3 times and gets stopped, reasonable? Charges Defendant 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 […] People v. Mueller, 2018 IL App (2d) 170863 (December). Episode 572 (Duration 8:47) Jeep touches the traffic lines 3 times and gets stopped, reasonable? Charges Defendant was charged with driving under the influence of alcohol (625 ILCS 5/11-501(a)(1), People v. Mueller, 2018 IL App (2d) 170863 (December). Episode 572 (Duration 8:47)
Jeep touches the traffic lines 3 times and gets stopped, reasonable?
Charges
Defendant 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 road. 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 “ent...]]> Criminal Nuggets Podcast full clean 8:47 https://illinoiscaselaw.com/the-top-10-criminal-law-cases-in-2018/ Mon, 10 Dec 2018 16:53:31 +0000 https://illinoiscaselaw.com/?p=8644 Here are the top 10 criminal opinions released in 2018 by the Illinois court system. Episode 567 (Duration 22:57) Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD Listen To The 2018 “Top 10” Premium Nuggets Podcast Episodes Totally FREE… Hit the button below and get instant access to […] Here are the top 10 criminal opinions released in 2018 by the Illinois court system. Episode 567 (Duration 22:57) Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD L... Here are the top 10 criminal opinions released in 2018 by the Illinois court system. Episode 567 (Duration 22:57)



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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.]]> Criminal Nuggets Podcast full 22:57 https://illinoiscaselaw.com/defendant-argued-his-hospital-blood-could-not-be-used-against-him-in-a-civil-suspension-hearing/ Tue, 04 Dec 2018 21:26:12 +0000 https://illinoiscaselaw.com/?p=10358 People v. Quigley, 2018 IL App (1st) 172560 (November). Episode 565 (Duration 9:50) He was plastered and sends his car air born on the expressway, nonetheless, he says his hospital blood can’t be considered in a civil suspension hearing. Gist Defendant was involved in a multi-car collision and was transported from the scene by ambulance to […] People v. Quigley, 2018 IL App (1st) 172560 (November). Episode 565 (Duration 9:50) He was plastered and sends his car air born on the expressway, nonetheless, he says his hospital blood can’t be considered in a civil suspension hearing. People v. Quigley, 2018 IL App (1st) 172560 (November). Episode 565 (Duration 9:50)
He was plastered and sends his car air born on the expressway, nonetheless, he says his hospital blood can’t be considered in a civil suspension hearing.
Gist
Defendant was involved in a multi-car collision and was transported from the scene by ambulance to a hospital emergency room. At the hospital, a blood alcohol test was performed on defendant, and a doctor informed an Illinois state trooper of the results. The trooper placed defendant under arrest and issued him citations for driving under the influence of alcohol in violation of section 11-501(a)(2) of the Illinois Vehicle Code (Code) (625 ILCS 5/11-501(a)(2)) and other traffic violations.
In addition, defendant was subsequently charged with driving while his blood alcohol level was 0.08 or greater under section 11-501(a)(1) of the Code. Id. § 11-501(a)(1).
The Accident
Defendant’s driver’s license was, thereafter, summarily suspended by the Secretary of State.
The trooper arrived to the scene of a three car accident on a ramp of the Dan Ryan Expressway. Apparently, defendant swung across traffic in an effort to get on the exit ramp. He made it, then suddenly attempted to cross from the ramp to the local lanes, lost control, struck the barrier that separates the exit ramp from the local lanes, went airborne, and then struck 1 other  vehicle which in turn hit a third car. 
Talk To Defendant
Defendant, the sole occupant of the car that went airborne, was bleeding from lacerations on his forehead and face. The trooper asked defendant what had happened and if he was all right. Defendant gave the trooper his name and driver’s license but stated that he “wasn’t involved in any crash.” The trooper noticed that a “strong odor of alcoholic beverage was emanating from his breath.” 
When fire department personnel asked defendant to exit his vehicle, defendant refused, stating that he was uninjured.
During a second conversation, the trooper asked defendant if he had been drinking alcohol, and defendant did not answer. He asked him again what had happened in the crash and defendant replied:
“What crash? I wasn’t involved in any crash. I didn’t hit anybody.”
At this point, fire department personnel joined in assisting defendant out of his vehicle and onto a gurney. Defendant repeatedly refused to leave his vehicle and said that he did not want to go to the hospital but wanted to call his parents and go home. 
Eventually, defendant was taken by ambulance to the emergency room of Stroger Hospital.
At The Hospital
After defendant received treatment, the trooper spoke with defendant in his hospital room. Again, he smelled “a strong odor of alcoholic beverage emanating from his breath.”
A physician told the trooper that lab work had been done, the results of which indicated defendant’s whole blood alcohol content was 0.297. That number converted to a serum blood alcohol content of 0.251, which was over the legal limit of 0.08.
The trooper confirmed that the police had not directed anyone at the hospital to take defendant’s blood. After receiving this information, defendant was placed under arrest and read defendant the warnings to motorist.
Issue
Defendant filed a petition to rescind the statutory summary suspension.
On appeal, defendant first contends that the trial court erred when it allowed “into evidence,” over his objection, the results of the blood alcohol test conducted at the hospital. He argues that those test results were protected by the physician-patient privilege and that no exception to that privilege applies in proceedings to rescind a statutory summary suspension.
]]> Criminal Nuggets Podcast full clean 9:50 https://illinoiscaselaw.com/drivers-nervousness-justified-the-delay-for-the-drug-dog-to-come-out/ Wed, 28 Nov 2018 21:13:17 +0000 https://illinoiscaselaw.com/?p=10354 People v. Sadeq, 2018 IL App (4th) 160105 (November). Episode 563 (Duration 15:18) Steigmann says the delay to have the drug dog come out was justified because defendant was, in part, extremely nervous. Gist Traffic stop leads to a dog sniff and a car search. Stolen cigarettes destined for resale were discovered in the car. The Trooper […] People v. Sadeq, 2018 IL App (4th) 160105 (November). Episode 563 (Duration 15:18) Steigmann says the delay to have the drug dog come out was justified because defendant was, in part, extremely nervous. Gist Traffic stop leads to a dog sniff and a car ... People v. Sadeq, 2018 IL App (4th) 160105 (November). Episode 563 (Duration 15:18)
Steigmann says the delay to have the drug dog come out was justified because defendant was, in part, extremely nervous.
Gist
Traffic stop leads to a dog sniff and a car search. Stolen cigarettes destined for resale were discovered in the car.
The Trooper
The trooper was a trained drug interdiction investigator. Interstate transportation of narcotics was his thing.
Part of this training includes traffic stops, behavior classes, interviewing techniques, and other ­training to recognize possible drug activities during traffic stops.
The Stop
Around 10:45 p.m., he was on patrol on Interstate 55 just south of Springfield. He observed a Ford Taurus traveling 75 miles per hour in a 70 mile-per-hour zone. He caught up to it, which maintained a speed of 75 miles per hour, and followed it north.
The trooper initiated a traffic stop by turning on his emergency lights. The car came to a stop in the middle of the right lane, which immediately raised the trooper’s suspicion.
In his experience, the vast majority of stops do not involve the car stopping in a lane of traffic. He testified that people who stop in the middle of a lane do so because they are nervous, and, in his experience, every time a car stopped in a lane of traffic, he discovered something that resulted in an arrest.
Using his police car’s external public address (PA) system, the trooper instructed the driver of the Taurus to pull over onto the shoulder.
The Men
Two men were in the car.
The Trooper thought they were extremely nervous right from the get-go. Their hands shook, they had rapid heartbeats viewed by the throbbing carotid artery and a “bouncing” stomach. The trooper also saw twitching eyes and a leg was bouncing up and down.
The Conversation
Just 15 seconds into the stop, the men were told they were going to receive a “quick warning.”
The trooper learned they rented the car from Avis at the Chicago airport. They were from Missouri. They stuttered when they spoke and had a heavy accent. The trooper thought the long pausing and stuttering meant they were making up the answer on the spot.
Back To The Squad
Once back in his police car, the trooper confirmed with dispatch that the rented Taurus was “clear.” The men had no warrants
Four minutes and forty-five seconds into the stop, the trooper directed the driver over the police car’s PA system to “come here,” meaning the police car. He explained that he typically invites every driver to whom he issues a written warning to sit in his police car as he fills out the warning because it is safer than filling it out on the side of the road and because he is a “friendly guy.”
This gave the trooper an opportunity to talk and ask more questions.
The man couldn’t explain where in Missouri they were coming from, he said they were at his cousin’s friends house. The trooper asked about how long they visited and how long they had been traveling. He learned the family business was in a gas station with a grocery store.
Seven minutes and forty-five seconds into the stop, the trooper radioed for backup. The man remained extremely nervous throughout their conversation, even though the trooper repeatedly told him he would only receive a warning, which would not cost him anything. In his experience, drivers relax significantly when they know they are not getting a ticket.
The trooper asked again about the trip, where they went, why no bags, who they visited, ect…
11 minutes and 20 seconds into the stop backup arrives.
Back To Talk To The Passenger
The trooper said he didn’t believe the drivers story and he wanted t...]]> Criminal Nuggets Podcast full clean 15:18 https://illinoiscaselaw.com/what-constitutes-probable-cause-for-a-dui-arrest-in-illinois/ Tue, 20 Nov 2018 17:22:55 +0000 https://illinoiscaselaw.com/?p=8548 What Constitutes Probable Cause For DUI Arrest In Illinois? 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. Probable cause to arrest […] What Constitutes Probable Cause For DUI Arrest In Illinois? 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 automobi... What Constitutes Probable Cause For DUI Arrest In Illinois?



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.







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 driver committed a DUI.



In People v. Wingren, 167 Ill. App. 3d 313, 320 (1988), this court observed that “probable 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 * Any other sign of inebriation.



In People v. Weathersby, 383 Ill. App. 3d 226 (2008), the court affirmed a DUI conviction on the following basis of evidence:



* 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.



Examples Of No Probable Cause For A DUI



But see also People v. Day, 2016 IL App (3d) 150852 (January) 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).



People v. Williams



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.







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.



]]> Criminal Nuggets Podcast full 11:25 https://illinoiscaselaw.com/dui-arrest-what-is-the-minimum-amount-of-evidence-required/ Tue, 20 Nov 2018 15:57:00 +0000 https://illinoiscaselaw.com/?p=11616 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD The Stop […] What Is The Minimum Amount Of Evidence That Justifies A DUI Arrest?



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.







Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download
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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,]]> Criminal Nuggets Podcast full clean 11:25 https://illinoiscaselaw.com/small-of-cannabis-rule-survives-an-assault/ Wed, 07 Nov 2018 16:53:00 +0000 https://illinoiscaselaw.com/?p=11618 Interview with attorney Charles Schierer. 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. 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 […] An Assault On The Smell Of Cannabis Rule



Interview with attorney Charles Schierer. 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.







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, LLC1009 Illini DriveEast 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)
]]> Criminal Nuggets Podcast full 24:34 https://illinoiscaselaw.com/the-best-reason-to-change-the-smell-of-cannabis-rule/ Wed, 07 Nov 2018 13:24:53 +0000 https://illinoiscaselaw.com/?p=8450 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. While Supplies Last Get A FREE Copy Of The Book… Not your typical legal book. Easily identify winning scenarios. Busy lawyer’s guide to explosive litigation growth. Get Free Book Now! Click Here […] 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. While Supplies Last Get A FREE Copy Of The Book… Not your typical legal book. 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.


While Supplies Last
Get A FREE Copy Of
The Book…
Not your typical legal book.
Easily identify winning scenarios.
Busy lawyer’s guide to explosive litigation growth.
Get Free Book Now!
Click Here For Free Book.

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,]]> Criminal Nuggets Podcast full 24:34 https://illinoiscaselaw.com/what-to-do-what-to-do-about-lost-destroyed-or-missing-video/ Tue, 06 Nov 2018 20:20:52 +0000 https://illinoiscaselaw.com/?p=10340 People v. Montgomery, 2018 IL App (2d) 160541 (October). Episode 555 (Duration 14:02) It’s unclear if the video ever existed, regardless, it was not tendered to defense counsel, and it’s unclear what’s the best remedy. Gist Defendant was cited for DUI involving alcohol, DUI involving drugs, and various traffic offenses. Before trial, the state was ordered […] People v. Montgomery, 2018 IL App (2d) 160541 (October). Episode 555 (Duration 14:02) It’s unclear if the video ever existed, regardless, it was not tendered to defense counsel, and it’s unclear what’s the best remedy. People v. Montgomery, 2018 IL App (2d) 160541 (October). Episode 555 (Duration 14:02)
It’s unclear if the video ever existed, regardless, it was not tendered to defense counsel, and it’s unclear what’s the best remedy.
Gist
Defendant was cited for DUI involving alcohol, DUI involving drugs, and various traffic offenses. Before trial, the state was ordered to provide defendant with a squad-car video of the traffic stop. It failed to do so, and defendant moved to bar evidence of the events captured by the video, as a sanction.
The trial court denied the motion.
What Happened To The Video?
The parties stipulated that the deputy would testify that he recorded the stop, the video was never uploaded to the system where videos were stored, he could not explain why it was not uploaded, and he was unsure if the recording was still “in the cloud.”
According to the deputy, the video equipment was not malfunctioning, but, when he checked the system where the videos were stored, he noticed that it was not there, so no video was ever uploaded. He thought the video entered the cloud, because he saw space for video on his computer free up after uploading, but that, since there were multiple videos, he could not say for sure whether the video from defendant’s stop was uploaded.
When he tried to download the video, he was unable to find defendant’s stop or any of the other stops that he had uploaded. The video either did not exist or was irretrievable.
The court sought to clarify by asking, “It was not sent to the [c]loud and unretrieved? It was actually not sent anywhere?”
The state responded that, because of a malfunction in the computer, the video was not sent to the cloud.
The court then stated that there was nothing to indicate that the video ever existed and was destroyed.
Motion For Sanctions
Defendant moved in limine for the following nonpattern jury instruction:
“If you find that the State has allowed to be destroyed or lost any evidence whose content or quality are in issue, you may infer that the true fact is against the State’s interest.”
The court denied the motion, noting that nothing showed that the State intentionally destroyed evidence. See People v. Danielly, 274 Ill. App. 3d 358, 367 (1995), and Arizona v. Youngblood, 488 U.S. 51 (1988) (officers failed to refrigerate clothing of a rape victim, later resulting in the inability to perform serological tests no denial of due process absent a showing of bad faith on the part of the police).
See Also Civil JI 5.01
Here a jury is told that it may infer that missing evidence that was within a party’s power to produce would have been adverse to that party.
Civil JI 5.01.
See also Illinois Discovery Law.
The DUI Case
At around 11 p.m., the deputy saw defendant make a wide right turn and cross over the centerline multiple times. Defendant was driving 59 miles per hour in a 45-mile-per-hour zone. Car pulled over. The squad car had an audiovisual system that automatically turned on at that time.
The deputy approached from the passenger side of the vehicle, observing that there was also a person in the passenger seat.
Defendant gave his driver’s license but could not locate his insurance card. The deputy observed that defendant’s movements were slow and lethargic. The deputy also smelled alcohol coming from the vehicle, and the odor got stronger when defendant spoke.
]]> Criminal Nuggets Podcast full 14:02 https://illinoiscaselaw.com/drug-dog-case-supreme-court-is-pushed-to-decide-if-apartments-have-less-constitutional-protection-than-houses/ Tue, 30 Oct 2018 18:30:02 +0000 https://illinoiscaselaw.com/?p=10332 People v. Bonilla, 2018 IL 122484 (October). Episode 552 (Duration 8:50) Constitutional violation did not depend on whether the common door to the apartment was locked. See Also Episode 364 – People v. Bonilla – Do Single Family Homes Have More Constitutional Protection Than Apartment Buildings? Episode 464 – Constitutionality Based On Structure: Do Houses Have More Protection Than […] People v. Bonilla, 2018 IL 122484 (October). Episode 552 (Duration 8:50) Constitutional violation did not depend on whether the common door to the apartment was locked. See Also Episode 364 – People v. Bonilla – Do Single Family Homes Have More Constit... People v. Bonilla, 2018 IL 122484 (October). Episode 552 (Duration 8:50)
Constitutional violation did not depend on whether the common door to the apartment was locked.

See Also

* Episode 364 – People v. Bonilla – Do Single Family Homes Have More Constitutional Protection Than Apartment Buildings?
* Episode 464 – Constitutionality Based On Structure: Do Houses Have More Protection Than Apartments? – A review of:
– 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)

Issue
The question of law at issue in this appeal is whether the warrantless use of a drug-detection dog at the threshold of an apartment door, located on the third floor of an unlocked apartment building containing four apartments on each floor, violated defendant’s fourth amendment rights.
Facts
Defendant, Derrick Bonilla, lived in an apartment at Pheasant Ridge Apartment Complex in Moline, Illinois.

The East Moline Police Department received a tip that defendant was selling drugs from his apartment. Acting on that tip officers brought a trained drug-detection dog to defendant’s apartment building. The exterior doors to the apartment building were not locked. The three-floor apartment building contained four apartments on each floor.
Once inside the building, the canine officer walked his drug-detection dog through the second-floor common area. The dog showed no interest in the second-floor common area and did not alert on any of the apartment thresholds. The officer then walked his dog through the third-floor common area. The dog showed no interest in units 301, 302, or 303. As the dog came to defendant’s apartment, unit 304, however, it moved back and forth in the doorway, sniffed at the bottom of the door, and signaled a positive alert for the presence of narcotics.
Got A Warrant
Officers obtained a search warrant for defendant’s apartment based on the drug-detection dog’s alert.
Officers searched defendant’s apartment and found cannabis.
Was The Use Of The Dog Legal?
The State argues that use of the drug-detection dog did not violate defendant’s fourth amendment rights because the common-area hallway in front of defendant’s apartment door did not constitute curtilage.
Defendant counters that use of the drug-detection dog at the threshold of his apartment door violated the fourth amendment to the United States Constitution (U.S. Const., amend. IV). According to defendant, “a citizen’s home is first among equals in Fourth Amendment jurisprudence, and the threshold is part of the home as a matter of law.”
Burns & Jardines
The State argues that this case is distinguishable from Burns because, here, the officers conducted a dog sniff in the unlocked common-area hallway outside of defendant’s apartment door and the landing was not part of the defendant’s curtilage under the “property-based” analysis announced in Jardines.
According to the State, under Burns, an unlocked apartment common area is not curtilage.
Defendant counters that under Burns and Jardines, the threshold of defendant’s apartment is constitutionally protected curtilage. Here,]]> Criminal Nuggets Podcast full clean 8:50 https://illinoiscaselaw.com/anonymous-tip-on-a-dui-has-got-to-be-specific-plus-identity-information-is-suppressible/ Tue, 23 Oct 2018 16:49:06 +0000 https://illinoiscaselaw.com/?p=10325 People v. Lopez, 2018 IL App (1st) 153331 (October). Episode 549 (Duration 12:56) Is the identity of a driver subject to suppression after an illegal traffic stop? Gist On appeal, defendant contends that the court erred in denying his motion to quash arrest and suppress evidence. Specifically, he argues that the anonymous tip relied upon by […] People v. Lopez, 2018 IL App (1st) 153331 (October). Episode 549 (Duration 12:56) Is the identity of a driver subject to suppression after an illegal traffic stop? Gist On appeal, defendant contends that the court erred in denying his motion to quash a... People v. Lopez, 2018 IL App (1st) 153331 (October). Episode 549 (Duration 12:56)
Is the identity of a driver subject to suppression after an illegal traffic stop?

Gist
On appeal, defendant contends that the court erred in denying his motion to quash arrest and suppress evidence. Specifically, he argues that the anonymous tip relied upon by the arresting officer was unreliable and inadequate to establish reasonable suspicion of drunk driving.
We reverse.
Charges
Defendant was charged with DWLS under section 6-303(a) of the Illinois Vehicle Code, stemming from a traffic stop. The court found defendant guilty and sentenced him to 24 months’ probation and 30 days’ imprisonment.
The Tip
The arresting officer testified that at around 8:00 p.m., he was on duty near the intersection of Pulaski Road and 50th Street in Chicago.
He received a message from another police vehicle that there “was a DUI driver heading outbound on Pulaski from 43rd Street.” The vehicle was described as a black Expedition with a partial license plate number NZ 1. The driver was described as “a male Hispanic.”
The officer did not know the identity of the person who reported the alleged drunk driver, nor did he know how much time elapsed between the initial report and the eventual traffic stop. He “guessed” that two minutes passed between the time the tip was reported and the time he identified the vehicle. This guess was based on the time it would take a car to travel from 43rd Street to 50th Street.
The Stop
The officer then spotted a black Expedition, with a license plate starting with N 211 driving southbound on Pulaski Road. He pulled up behind the Expedition at the intersection of Pulaski Road and 50th Street. He did not observe any traffic violations or improper lane usage.
After the light turned green, he activated his emergency lights, and the Expedition immediately pulled over. He did not have a warrant. Defendant was quickly identified and the officer determined that defendant’s license was not valid. He then arrested defendant for driving without a valid license.
Later defendant was charged with DWLS.
Issue
Defendant contends that the circuit court erred in denying his motion to quash arrest and suppress evidence because the officer lacked reasonable, articulable suspicion of criminal activity to perform the traffic stop.
Informant’s Tip
When analyzing whether an informant’s tip is sufficient to justify an investigatory stop, the court first assesses the reliability of the tip. Navarette v. California, 572 U.S. ___, ___, 134 S. Ct. 1683, 1688 (2014). If the tip is found to be reliable, the court then analyzes whether the tip “created reasonable suspicion of an ongoing crime *** as opposed to an isolated episode of past [wrongdoing].”
Informant’s DUI Tip
This court has had many opportunities to review the question of how reliable and detailed an informant’s tip about an allegedly drunk driver must be to justify an investigatory stop. See, e.g., Village of Gurnee v. Gross, 174 Ill. App. 3d 66, 69 (1988) (“reckless driving complaint, standing alone, did not provide articulable facts sufficient to justify an investigatory stop”); Village of Mundelein v. Minx, 352 Ill. App. 3d 216, 222 (2004) (finding “report[ ] that defendant was ‘driving recklessly,’ without indicating what observations led [the tipster] to this conclusion, e.g., whether defendant was speeding, running red lights, weaving between lanes, etc.” insufficient to justify stop); People v. Shafer, 372 Ill. App. 3d 1044, 1054 (2007) (finding tip from restaurant employee about a customer who was “creating a disturbance an...]]> Criminal Nuggets Podcast full clean 12:56 https://illinoiscaselaw.com/attorney-anthony-sassan-what-you-need-to-know-about-the-practical-differences-between-federal-and-state-criminal-court/ Mon, 22 Oct 2018 10:00:18 +0000 https://illinoiscaselaw.com/?p=8399 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) While Supplies LastGet A FREE Copy Of The Book… Not your typical legal book.Easily identify winning scenarios. Busy lawyer’s guide to explosive litigation growth. Get Free Book Now! Click Here For […] 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) While Supplies LastGet A FREE Copy Of The Book… Not your typical legal b... 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)



While Supplies LastGet A FREE Copy Of The Book…
Not your typical legal book.Easily identify winning scenarios. Busy lawyer’s guide to explosive litigation growth.
Get Free Book Now!
Click Here For Free Book.

 
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 & Sassan161 North Clark Street Suite 1600 Chicago, IL 60601-3338
(312) 972-9050info@sassanlaw.comajs@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.]]> Criminal Nuggets Podcast full 30:31 https://illinoiscaselaw.com/what-is-criminal-causation-in-illinois/ Wed, 26 Sep 2018 15:46:23 +0000 https://illinoiscaselaw.com/?p=10305 People v. Nere, 2018 IL 122566 (September). Episode 541 (Duration 26:58) Prepare for a PhD on criminal causation in this drug overdose case. Gist Defendant was charged with drug-induced homicide after her friend overdosed. Facts The victim died in the bathroom of her mother’s apartment in Wheaton. Friends and family had gathered to celebrate her release from prison. […] People v. Nere, 2018 IL 122566 (September). Episode 541 (Duration 26:58) Prepare for a PhD on criminal causation in this drug overdose case. Gist Defendant was charged with drug-induced homicide after her friend overdosed. People v. Nere, 2018 IL 122566 (September). Episode 541 (Duration 26:58)
Prepare for a PhD on criminal causation in this drug overdose case.
Gist
Defendant was charged with drug-induced homicide after her friend overdosed.
Facts
The victim died in the bathroom of her mother’s apartment in Wheaton.
Friends and family had gathered to celebrate her release from prison. Taylor and other family members had gathered there to celebrate Taylor’s release from prison the previous day. The victim called defendant to arrange a ride home for the victim’s girlfriend.
Defendant gave heroin, crack cocaine, a syringe, and a crack pipe to the victim when she arrived at the residence. The pipe and syringe were wrapped in a dirty sock that had blood on it. Taylor then went back into the apartment, told her children that she was going to take a shower, and told her nephew that he needed to get out of the bathroom. Taylor went into the bathroom and, approximately 15 minutes later, turned on the shower.
The Bathroom
After talking to the victim’s girlfriend over the phone the nephew alerted his grandmother and other family members, and several of them began trying to enter the locked bathroom.
They eventually removed the doorknob but still could not open the door. Joshua called 911. Officers arrived and forced the door open. Victim was unresponsive. The officers carried her to the living room and performed CPR. Paramedics arrived a few minutes later and transported her to the hospital, where she was pronounced dead.
Physical Evidence
The officers collected from the bathroom a bloodstained sock, a glass pipe, a small plastic bag, cigarettes, a lighter, a drug-cooking spoon, a syringe, and two foil bindles containing heroin residue. A DNA analysis of the blood on the sock came back as a match for defendant.
The Cause of Death
The forensic pathologist who performed the autopsy testified that the victim died of heroin and cocaine intoxication due to intravenous drug use. The victim had fresh needle puncture wounds on her arm.
The pathologist testified that it was clear that she had recently ingested heroin. When 6-MAM and morphine are found in the blood, the conclusion is usually that they both came from ingesting heroin. If enough time has passed, only morphine will appear in the blood. The significance of 6-MAM is that it shows recent use of heroin.
There is no “safe” amount of heroin to ingest, and a person can die from taking their usual amount. The amount of heroin ingested by the victim could have been fatal by itself. It was also possible that the victim had consumed drugs earlier in the day.
Sentence
A DuPage County jury convicted defendant of drug-induced homicide (720 ILCS 5/9-3.3(a)). She was sentenced to 9 years.
Issue
The main issue in this case revolves around how we define causation in a drug-induced homicide and exactly what the jury instructions should say about this.
Specifically, the reviewing court had to consider whether the trial court erred in using IPI Criminal 4th No. 7.15 (Supp. 2011) to define causation rather than instructing the jury according to the principles set forth by the Supreme Court in Burrage. See Burrage v. United States, 571 U.S. ___, 134 S. Ct. 881 (2014).
The trial court was required to use this instruction rather than defendant’s proposed causation instructions if it contained a correct statement of the law. The principal question we must address, therefore, is whether IPI Criminal 4th No. 7.15 (Supp. 2011) properly sets forth the law of causation applicable to defendant’s case.
“Cause In Fact” v. “Proximate Cause”
Generally, when a crime requires both an act by defendant and a speci...]]> Criminal Nuggets Podcast full clean 26:58 https://illinoiscaselaw.com/expert-testimony-on-drug-use-is-not-always-required-sometimes-any-joe-shmoe-can-identify-impairment-from-drug-use/ Tue, 25 Sep 2018 15:38:36 +0000 https://illinoiscaselaw.com/?p=10303 People v. Gocmen, 2018 IL 122388 (September). Episode 540 (Duration 14:15) In obvious cases an officer need not be a drug detection expert to conclude a driver is under the influence of drugs. Lower Case Opinion People v. Gocmen, 2017 IL App (3d) 160025 (March). Episode 331 (Duration 7:57) Officer untrained in the use of narcotics doesn’t know […] People v. Gocmen, 2018 IL 122388 (September). Episode 540 (Duration 14:15) In obvious cases an officer need not be a drug detection expert to conclude a driver is under the influence of drugs. Lower Case Opinion People v. Gocmen, People v. Gocmen, 2018 IL 122388 (September). Episode 540 (Duration 14:15)
In obvious cases an officer need not be a drug detection expert to conclude a driver is under the influence of drugs.
Lower Case Opinion
People v. Gocmen, 2017 IL App (3d) 160025 (March). Episode 331 (Duration 7:57)
Officer untrained in the use of narcotics doesn’t know enough to make this DUI drug arrest.
The trial court found that the officer lacked probable cause to arrest defendant for DUI/drugs because he was not qualified as an expert on the effects of drug use. Similarly, the appellate court concluded that a person with no specialized training could not properly opine on the “detection of controlled substances,” unlike the detection of alcohol use, the effects of which are “commonly known.”  2017 IL App (3d) 160025, ¶ 16.
In reaching this conclusion, the appellate court relied, in part, on People v. Shelton, 303 Ill. App. 3d 915 (1999), and People v. Stout, 106 Ill. 2d 77 (1985).
Facts
The officer had no specific DUI/drug detection training.
He responded to a motorist’s call reporting an unconscious person in a vehicle, possibly having a seizure. When he arrived, paramedics were already on the scene. Defendant’s Ford Explorer was in the eastbound lane of Route 52, with the passenger side tires on the grass and the driver’s side tires on the road. The vehicle’s transmission was in park, and the motor was running.
The officer observed defendant behind the wheel, with his foot on the brake and his left hand on the steering wheel.
Initially, defendant did not respond to the paramedics’ commands to exit the vehicle. He insisted that he was able to drive and said, incorrectly, that he was northbound on Route 59. Eventually, the paramedics convinced him to leave the vehicle; they placed him in the ambulance and transported him to the hospital.
Officer’s Observations
The officer saw a Red Bull can “on the passenger’s side in plain view.”
The can had been cut or torn in half and had burn marks on its interior. On the outside bottom surface of the can, he saw a brown residue. He performed a “NARK swipe” test of the residue, which, he said, showed the presence of “opiates.” He also saw an uncapped one-milliliter syringe on the passenger seat. He described the syringe as having been “used.” He also found a small plastic bag containing a brown granular substance in defendant’s wallet in the center console.
Results of testing of this substance were not available at the time of the hearing.
He did not conduct any field sobriety tests. At the hospital, the officer observed that defendant was “tired and lethargic.”
He also testified that prior to the arrest defendant told him that he was diabetic.
Fresh Track Marks
On cross-examination, the officer testified that he spoke to the paramedics at the scene to ask if they had seen any signs of intoxication. They reported that defendant did not smell of alcohol, but they did observe a “fresh track mark” on his arm where a needle had been used.
Paramedics also reported that defendant was sweating, had pinpoint pupils, had a rapid heart rate of 144 beats per minute, and was drifting in and out of consciousness.
Suspension Recession Hearing
A motorist may request a judicial hearing for rescission of a statutory summary suspension in a civil proceeding, subject to civil procedure rules. 625 ILCS 5/2-118.1(a).
The scope of the hearing is limited to four specific statutory g...]]> Criminal Nuggets Podcast 1 1 full 14:15 https://illinoiscaselaw.com/one-hand-to-hand-justifies-the-stop-but-it-was-a-close-one/ Mon, 24 Sep 2018 15:33:05 +0000 https://illinoiscaselaw.com/?p=10300 People v. Dailey, 2018 IL App (1st) 152882 (September). Episode 539 (Duration 7:14) One hand to hand creates reasonable suspicion for a traffic stop. Charges Defendant was charged by information with the offense of being an armed habitual criminal, possession of a controlled substance with intent to deliver, unlawful use or possession of a weapon by a felon, […] People v. Dailey, 2018 IL App (1st) 152882 (September). Episode 539 (Duration 7:14) One hand to hand creates reasonable suspicion for a traffic stop. Charges Defendant was charged by information with the offense of being an armed habitual criminal, People v. Dailey, 2018 IL App (1st) 152882 (September). Episode 539 (Duration 7:14)
One hand to hand creates reasonable suspicion for a traffic stop.
Charges
Defendant was charged by information with the offense of being an armed habitual criminal, possession of a controlled substance with intent to deliver, unlawful use or possession of a weapon by a felon, and possession of a controlled substance.
Issue
Prior to trial, defendant moved to quash his arrest and suppress evidence, alleging, in pertinent part, that police officers lacked probable cause to believe that defendant or anyone else in the vehicle had committed a crime “from within the vehicle.”
Sentence
The trial court denied the motion and sentenced defendant to 30 months in prison.
One Hand-To Hand
A Chicago police officer and two other officers were driving southbound when he saw a van that was stopped in the middle of the street.
The officer watched a “male black citizen” run from the sidewalk to the driver’s side window, hand the van’s driver currency, and receive “small items” in return. The person who received the items looked in the officer’s direction and then fled in one direction, while the van went in the other direction “at kind of a high rate of speed.”
The Officer testified that he observed a “very quick exchange” of “small items” and could not determine what the items were or their consistency. Although he saw currency being given to the driver of the van, he could not determine the amount. The officer acknowledged that he did not see any movement inside the van; rather, he observed defendant stick an arm out of the van and hand over small items.
The officer, who had been a police officer for 20 years, believed that he had observed a narcotics transaction.
Stop The Van
The police followed the van and curbed it.
Defendant, then exited the van. He had not been ordered to exit the vehicle. As defendant walked toward the officer, he stated “ ‘I ain’t got shit.’ ” The officers exited their vehicle at the same time. As defendant continued to approach the officers, the officer observed a “marble-size object” drop from defendant’s right hand and fall to the ground. This was 1.3 grams and contained heroin.
The officer walked past defendant and picked up the object while another officer detained defendant. He described the object as a plastic bag that had seven smaller Ziploc Baggies containing suspect heroin. This item was subsequently inventoried.
Defendant’s Statement
After defendant was placed in custody, Carey informed him of the Miranda warnings. Defendant indicated that he understood his rights and then made a statement.
Defendant stated that his mother had just passed away and that he was trying to make some money to keep his buildings. Defendant further stated that he had “a drug case in the morning” and that his attorney told him to “do anything he could to stay out of trouble.”
Defendant also stated that he had “a gun by a garage” and asked whether the officers would let him go if he showed them the gun’s location. The police and his partners then followed defendant’s directions to a certain backyard. There, defendant indicated that a gun was inside a grill. The officer exited his vehicle, walked over, reached through the fence, and opened a grill. Inside the grill was a loaded .45-caliber gun.
During a subsequent conversation, defendant was asked why he had the handgun. He indicated that “the Nashes were mad that he was making money and he was afraid they were going to pop him off.”
Terry Stop
We analyze the reasonableness of traffic stops pursuant to the princip...]]> Criminal Nuggets Podcast full clean 7:14 https://illinoiscaselaw.com/illinois-traffic-rule-for-making-a-proper-left-hand-turn-what-can-get-you-stopped-by-police/ Mon, 17 Sep 2018 14:28:52 +0000 https://illinoiscaselaw.com/?p=10293 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). He filed a motion to suppress evidence from the […] 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 l... 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).
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).
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 ...]]> Criminal Nuggets Podcast full 10:58 https://illinoiscaselaw.com/top-10-most-recent-illinois-confession-cases-september-2018/ Tue, 11 Sep 2018 16:02:00 +0000 https://illinoiscaselaw.com/?p=8364 Here are the top 10 most recent Illinois criminal law confession cases in September of 2018. Episode 534 (Duration 31:11). While Supplies Last Get A FREE Copy Of The Book… Not your typical legal book. Easily identify winning scenarios. Busy lawyer’s guide to explosive litigation growth. Get Free Book Now! Click Here For Free Book. […] Here are the top 10 most recent Illinois criminal law confession cases in September of 2018. Episode 534 (Duration 31:11). While Supplies Last Get A FREE Copy Of The Book… Not your typical legal book. Easily identify winning scenarios. Here are the top 10 most recent Illinois criminal law confession cases in September of 2018. Episode 534 (Duration 31:11).


While Supplies Last
Get A FREE Copy Of
The Book…
Not your typical legal book.
Easily identify winning scenarios.
Busy lawyer’s guide to explosive litigation growth.
Get Free Book Now!
Click Here For Free Book.

Top 10 Recent Confession Cases From The Illinois Court System (September 2018)
Here’s a quick snapshot of the most important cases cases:
See also the Illinois Evidence Resource Page.
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,]]> Criminal Nuggets Podcast full 31:11 https://illinoiscaselaw.com/unreasonable-delay-for-a-drug-dog-sniff-accumulation-of-road-trash-is-not-reasonable-suspicion/ Mon, 10 Sep 2018 12:53:22 +0000 https://illinoiscaselaw.com/?p=10283 People v. Thomas, 2018 IL App (4th) 170440 (August). Episode 533 (Duration 18:57) The court takes the time to go through the signs of drug trafficking interdiction officers are trained to look for. Charges Count I charged defendant with trafficking in cannabis (more than 2500 grams) (720 ILCS 550/5.1(a)), count II charged him with unlawful possession of cannabis […] People v. Thomas, 2018 IL App (4th) 170440 (August). Episode 533 (Duration 18:57) The court takes the time to go through the signs of drug trafficking interdiction officers are trained to look for. Charges Count I charged defendant with trafficking in ... People v. Thomas, 2018 IL App (4th) 170440 (August). Episode 533 (Duration 18:57)
The court takes the time to go through the signs of drug trafficking interdiction officers are trained to look for.
Charges
Count I charged defendant with trafficking in cannabis (more than 2500 grams) (720 ILCS 550/5.1(a)), count II charged him with unlawful possession of cannabis with the intent to deliver it (more than 5000 grams) (id. § 5(g)), and count III charged him with unlawful possession of cannabis (more than 5000 grams) (id. § 4(g)).
Issue
Defendant moved to suppress the introduction of the cannabis as evidence against him. His motion argued that the police officer who pulled him over for an obstructed windshield “unreasonably prolonged the duration of the stop,” thereby subjecting him to an “unlawful seizure.”
The Video
The video shows that when the Deputy walks up to the driver’s side of the SUV, he first requests defendant’s driver’s license and proof of insurance.
He asks defendant, “You from Washington?”
Then tells him to take the bandana off the rearview mirror because it obstructs his vision. Defendant removes the bandana. 
The deputy asks defendant, “Where you headin’?” and “Travellin’ straight through?” A semi goes by on the highway, drowning out defendant’s answer. Then he asks defendant, “How long you plan on bein’ there?”
It is still difficult to hear defendant, but he seems to answer either “a few days” or “two days.”
He asks defendant, “[unintelligible] know you’re coming?” and then, “Anybody know you’re comin’?” Defendant answers, “Yeah.” The deputy returns to his squad car.
The dispatcher can be heard stating on the radio: “Kentucky for Joshua Thomas, male white, 6 foot, 225, born in ’79, multiple for traffic, also multiple for drug trafficking and [unintelligible].” 
Still On The Video
Deputy again approaches the SUV.
At his request, defendant pulls forward, past the guardrail and the overpass. The deputy goes to the passenger side of the SUV with what appears to be documents in his hand. He leans into the front passenger window, so that his forearms go into the open window, and tells defendant, “Ah, the traffic stop’s over, ah, you’re free to go, all right.”
Questions Keep Coming
The deputy then withdraws from the window, without the documents, and asks him, “Ahm, you said you’re going to see ***Alabama?” Defendant answers, “Yes, sir.”
The deputy asks him, “How old’s your daughter?” “She 14,” defendant replies. Deputy says, “Fourteen. OK. She does know you’re comin’?” “Yes,” defendant answers. He replies, “OK. All right. Um, did you get arrested in Kentucky a while back?”
Defendant says, “Yeah. It’s been a long time ago.” The deputy asks him, “What was that for?” Defendant explains he used to have a “bad habit” and that he “went down a bad path” but that he had “changed [his] life” and “now [taught] martial arts” to “law enforcement and military.”
Deputy makes appreciative noises.
Here We Go The Big Question
Then deputy tells defendant, “Um, we’re out working a drug interdiction detail today. I’m not accusing you of anything. Do you have any contraband in the car, any large amounts of money, firearms, anything like that?” Defendants denies having any of those things.
Deputy then asks him, “No? Would it be OK if I searched your car?”
Defendant responds, “What’d you pull me over for?”
Deputy answers, “I pulled you over for having an obstructed windshield.” Defendant asks, “You said I’m free to go?” Deputy says, “Yeah.” Defendant says, “All right, well, thank you, sir.”
Deputy says, “All right. Have a safe trip.”
Defendant says, “All right, you have a good one.”
]]> Criminal Nuggets Podcast full clean 18:57 https://illinoiscaselaw.com/plain-view-doctrine-examples/ Wed, 29 Aug 2018 19:13:39 +0000 https://illinoiscaselaw.com/?p=10275 The plain view doctrine allows police to seize property without a warrant if its criminality is readily apparent. The doctrine requires that: (i) The officer be lawfully in a position from which he observes the property,(ii) The incriminating character of the property is immediately apparent, and(iii) The officer had a lawful right of access to the […] The plain view doctrine allows police to seize property without a warrant if its criminality is readily apparent. The doctrine requires that: (i) The officer be lawfully in a position from which he observes the property, The plain view doctrine allows police to seize property without a warrant if its criminality is readily apparent.



The doctrine requires that:



(i) The officer be lawfully in a position from which he observes the property,(ii) The incriminating character of the property is immediately apparent, and(iii) The officer had a lawful right of access to the property.



The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.



Incriminating Character Not Always Immediately Apparent



The Supreme Court has described “immediately apparent” as “an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary.” Texas v. Brown, 460 U.S. 730, 741 (1983).



Essentially, the “immediately apparent” element hinges on a probable cause determination; it does not require a law enforcement officer to know that an item is contraband or evidence of a crime. See People v. Jones, 215 Ill. 2d 261, 277 (2005).



The appropriate question is would a reasonable person in that officer’s position believe that a crime was being or had been committed?




Search & Seizure Resource Page
To see more
Illinois Search And Seizure Resources and case law go here.



Plain View Doctrine Examples



Below are plain view doctrine examples taken from the the case law.



People v. California



In Horton v. California, 496 U.S. 128, 136-37 (1990), the Supreme Court officially adopted a long-recognized standard that, for police to properly seize evidence in plain view, its “incriminating character” must be immediately apparent.



People v. Humphrey



In People v. Humphrey, 361 Ill. App. 3d 947 (2005) a police officer stopped a motorist for speeding. During the stop, the officer noticed a container holding hundreds of pills near the passenger’s feet.



The court held that the officer improperly seized the pills because he did not know that they contained pseudoephedrine or whether possessing the pills constituted a crime.



People v. Lee







People v. Lee, 2018 IL App (3d) 160100 (August). Episode 529 (Duration 4:49)



The officer said the baggie looked like it had oatmeal in it, later testing revealed it to be cocaine.



Police had a warrant to search defendant’s home. They suspected he was involved in a shooting.  Sterling police investigated defendant’s involvement in a shooting.



The Drugs



A Detective found drugs underneath defendant’s bed sheets after he pulled back defendant’s bed sheets. It was a knotted, plastic bags that contained a brown, powdery substance.



Issue



Defendant claimed that the substance’s incriminating character was not immediately apparent because the detective admittedly did not know that the substance contained cocaine.



Holding



The court held this officer had probable cause to seize the substance the moment he discovered it hidden beneath defendant’s bed sheets in packaging commonly used to store illicit d...]]> Criminal Nuggets Podcast full 4:49 https://illinoiscaselaw.com/top-13-illinois-supreme-court-criminal-law-cases-in-2017/ Tue, 14 Aug 2018 16:01:32 +0000 https://illinoiscaselaw.com/?p=8291 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 […] 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. 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.



]]> Criminal Nuggets Podcast full 37:42 https://illinoiscaselaw.com/probable-cause-dissipation-when-does-it-end-can-police-move-the-car-to-a-garage-when-they-cant-find-anything/ Tue, 14 Aug 2018 02:04:22 +0000 https://illinoiscaselaw.com/?p=10252 People v. Varnauskas, 2018 IL App (3d) 150654 (July). Episode 521 (Duration 24:46) What does the new license plate obstruction statute say? Gist 2 kilos of heroin and 1 kilo of cocaine were found under defendant’s hood. He was sentenced to 40 years on prison. Facts Defendant was stopped because his rear license plate was obscured by […] People v. Varnauskas, 2018 IL App (3d) 150654 (July). Episode 521 (Duration 24:46) What does the new license plate obstruction statute say? Gist 2 kilos of heroin and 1 kilo of cocaine were found under defendant’s hood. People v. Varnauskas, 2018 IL App (3d) 150654 (July). Episode 521 (Duration 24:46)
What does the new license plate obstruction statute say?
Gist
2 kilos of heroin and 1 kilo of cocaine were found under defendant’s hood. He was sentenced to 40 years on prison.
Facts
Defendant was stopped because his rear license plate was obscured by an empty bicycle rack attached to the car. It’s quite clear that the straps were hanging down so low that the license plate was obstructed and that only two digits of the license plate could be read.
During the traffic stop a drug detection dog gave a positive alert for the presence of drugs in defendant’s vehicle. The officer obtained a rental agreement for the vehicle. Defendant’s name was not on the rental agreement. The rental agreement indicated that the vehicle was due to be returned to Los Angeles two days later.
Before The Search
The trooper asked defendant to sit in the front passenger seat of his squad car so that he could speak with defendant and determine if defendant was authorized to drive the vehicle.
The officer obtained a rental agreement for the vehicle. Defendant’s name was not on the rental agreement. The rental agreement indicated that the vehicle was due to be returned to Los Angeles two days later.
At the same time, the trooper checked for defendant’s driver’s license information via his telecommunications system. The trooper received information that defendant had a valid driver’s license. Defendant indicated he was coming from Colorado and the vehicle had been rented by his friend, in Los Angeles, California.
Defendant also indicated that he had flown into Los Angeles and was traveling via the car to see his mother in Connecticut. Defendant was unable to specify which day he had flown into Los Angeles and was not sure if he was going to return the rental vehicle to California.
Defendant told police that there was no bicycle on the bicycle rack because he had sold it in Colorado.
Trooper Jarrod Johnson arrived on scene and continued to fill out a warning ticket for defendant while Veryzer walked his canine partner around defendant’s vehicle.
The Drug Dog Sniff
The trooper testified regarding the procedure for walking the canine around a vehicle.
He indicated that he attaches a six-foot lead to one of the canine’s two collars and brings the canine to the front of the vehicle (within three feet of the vehicle) and places the canine in the sit position. He would then give the canine the command to “seek, find dope,” which is the canine’s trained command to look for odors of narcotics that he was trained to alert on—cocaine, heroin, methamphetamines, crack cocaine, and cannabis.
The trooper would then walk the canine around the vehicle twice counterclockwise, returning to the front the vehicle. On the second rotation of walking his canine partner around defendant’s vehicle, his canine partner came to a sudden stop at the trunk area of defendant’s vehicle.
The trooper described the canine alerting to having found narcotics as when the canine has “slowed his process, snapped his head and body back to the left, and began taking short, quick breaths.” After alerting, the canine would then sit as a final response because he is trained to sit when he positively recognizes one of the five odors that he is trained in.
Roadway Search
Another police trooper searched defendant’s vehicle on the side of the road. They searched for 20 minutes.
They conducted a cursory search of defendant’s vehicle by checking all the bags and general locations of the vehicle where drugs have been found during other vehicle searches in the past, including searching inside the bags and luggage that were in the t...]]> Criminal Nuggets Podcast full clean 24:46 https://illinoiscaselaw.com/the-smell-of-cannabis-still-supports-probable-cause-for-a-full-vehicle-search/ Mon, 09 Jul 2018 19:24:24 +0000 https://illinoiscaselaw.com/?p=10226 In re O.S., 2018 IL App (1st) 171765 (June). Episode 509 (Duration 7:03) Can the odor of weed still justify a traffic stop even after the cannabis legislation? Charges Minor respondent O.S. was adjudicated delinquent of the offenses of aggravated unlawful use of a weapon and unlawful possession of a weapon and committed to the Department of […] In re O.S., 2018 IL App (1st) 171765 (June). Episode 509 (Duration 7:03) Can the odor of weed still justify a traffic stop even after the cannabis legislation? Charges Minor respondent O.S. was adjudicated delinquent of the offenses of aggravated unlaw... In re O.S., 2018 IL App (1st) 171765 (June). Episode 509 (Duration 7:03)
Can the odor of weed still justify a traffic stop even after the cannabis legislation?
Charges
Minor respondent O.S. was adjudicated delinquent of the offenses of aggravated unlawful use of a weapon and unlawful possession of a weapon and committed to the Department of Juvenile Justice for an indeterminate period of time.
Facts
During the course of an encounter with Chicago police officers, minor respondent was found to be in possession of a firearm.
The minor was a passenger in the car in the front seat. They parked in front of the building. The car was running. The windows were up. The rear seat passenger had a blunt behind his ear and another burned blunt was recovered from the vehicle.
The officer’s car pulled up diagonally in front of them. The driver was asked for his license and registration. The police asked the driver to roll down his window first, and that’s when the smell was even stronger.
Another officer then opened the door on the passenger side. The respondent got out, was patted down, and arrested for the concealed weapon that was recovered in his jacket—jacket pocket.
There is a no parking sign.
The Odor Of Cannabis
The officer said he smelled cannabis coming from the car parked in a no parking zone.
When the got to the car windows and started interacting with the passengers they again smelled an even stronger smell of marijuana. They also saw that the person sitting behind the respondent had a hand-rolled cigar in his ear.
See Also

* Episode 015 – People v. Abdur-Rhamim – Police Car Search Legal in Illinois if They Smell Marijuana, So Why is There an Illegal Traffic Stop Here?
* Episode 340 – Interview With Kim Bilbrey – The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant 
* Episode 276 – People v. Kavanaugh – You Just Can’t Ignore The Stench Of Weed…And An Accident

Discovery Of The Gun
As the respondent got out of the car, he reached for his right jacket pocket. The officer said, “Don’t do that.”
The officer touched the pocket, immediately realized it was a gun, and arrested the respondent. In the rear seat, a partially smoked hand-rolled blunt was recovered.
Issue
Respondent acknowledges this legal precedent; however, he submits that the odor of marijuana can no longer furnish police officers with probable cause or reasonable suspicion of criminal activity in light of the recent amendment decriminalizing the possession of small amounts of marijuana in Illinois.
The minor submits that his constitutional right to be free from unreasonable searches and seizures was violated when police officers “seized the stopped vehicle in which he was a passenger even though the driver was merely standing temporarily in a no parking zone and the smell of burnt cannabis near the vehicle did not indicate *** criminal activity.”
The Roll Up Was A Stop
Upon review, we agree with the parties.
The manner in which the police vehicle was positioned effectively blocked the idling car from driving...]]> Criminal Nuggets Podcast full clean 7:03 https://illinoiscaselaw.com/you-have-an-expectation-of-privacy-in-your-cell-site-location-information/ Wed, 04 Jul 2018 22:25:11 +0000 https://illinoiscaselaw.com/?p=7832 Carpenter v. United  States, SCOTUS June 2018. Episode 508 (Duration 17:52) You Have An Expectation Of Privacy In Your Cell Site Location Information And Police Need A Warrant To Get Into Your Phone. Search & Seizure Resource Page Check out the Illinois Search And Seizure Resource Page to learn more about the 4th amendment. The Charge […] Carpenter v. United  States, SCOTUS June 2018. Episode 508 (Duration 17:52) You Have An Expectation Of Privacy In Your Cell Site Location Information And Police Need A Warrant To Get Into Your Phone. Search & Seizure Resource Page Check out the Illinoi... Carpenter v. United  States, SCOTUS June 2018. Episode 508 (Duration 17:52)
You Have An Expectation Of Privacy In Your Cell Site Location Information And Police Need A Warrant To Get Into Your Phone.



Search & Seizure Resource Page
Check out the
Illinois Search And Seizure Resource Page
to learn more about the 4th amendment.

The Charge
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,]]> Criminal Nuggets Podcast full 17:52 https://illinoiscaselaw.com/carpenter-v-united-states/ Wed, 04 Jul 2018 17:59:00 +0000 https://illinoiscaselaw.com/?p=11620 Carpenter v. United  States, SCOTUS June 2018. Episode 508 (Duration 17:52) Carpenter v. United States Says Police Need A Warrant To Get It Your Cell Site Location Data Police need a warrant to capture your CSLI. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD The Charge Defendant was charged […] Cell Site Location Data Police Need A Warrant



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







Carpenter v. United States Says Police Need A Warrant To Get It Your Cell Site Location Data



Police need a warrant to capture your CSLI.







Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download
APPLE PODCASTS GOOGLE PODCASTS
SPOTIFY ANDROID RSS
DIRECT DOWNLOAD



The Charge



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


]]> Criminal Nuggets Podcast full 17:52 https://illinoiscaselaw.com/mistake-of-law-doctrine-requires-a-genuinely-ambiguous-law/ Mon, 02 Jul 2018 19:15:54 +0000 https://illinoiscaselaw.com/?p=10222 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 […] 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 juvenil... 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 from 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,]]> Criminal Nuggets Podcast full clean 8:18 https://illinoiscaselaw.com/heres-a-guy-that-didnt-need-to-be-charged/ Wed, 27 Jun 2018 00:13:00 +0000 https://illinoiscaselaw.com/?p=11622 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD Gist A big white dude walks up to defendant’s front door with another guy. When Defendant gets […] Here's A Guy That Didn't Need To Be Charged



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.







Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download
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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 b...]]> Criminal Nuggets Podcast full clean 15:06 https://illinoiscaselaw.com/a-racist-a-black-guy-and-a-hammer-and-a-test-for-criminal-justice/ Tue, 26 Jun 2018 17:27:09 +0000 https://illinoiscaselaw.com/?p=7779 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD   Illinois Trial Procedure Check out the Illinois Trial Resource Page to learn how criminal trials […] 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOT... 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.

Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download
APPLE PODCASTS GOOGLE PODCASTS
SPOTIFY ANDROID RSS
DIRECT DOWNLOAD
 

Illinois Trial Procedure
Check out the
Illinois Trial Resource Page
to learn how criminal trials work.
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 ...]]> Criminal Nuggets Podcast full clean https://illinoiscaselaw.com/3-scotus-criminal-law-cases-covering-rental-cars-pleading-innocence-and-warrantless-searches-on-private-property/ Tue, 19 Jun 2018 21:52:13 +0000 https://illinoiscaselaw.com/?p=11895 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… Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD In This Episode… We discuss the following cases: Byrd v. United States (May 2018) […] SCOTUS On Searching Cars On Private Driveway



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…







Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download
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SPOTIFY ANDROID RSS
DIRECT DOWNLOAD



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.



]]> Criminal Nuggets Podcast full 40:36 https://illinoiscaselaw.com/3-scotus-criminal-law-cases-q2-2018/ Tue, 19 Jun 2018 16:40:32 +0000 https://illinoiscaselaw.com/?p=7758 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… Search & Seizure Resource Page Check out the Illinois Search And Seizure Resource Page to learn more about the 4th amendment. In This Episode… We discuss the following cases: Byrd […] 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… Search & Seizure Resource Page Check out the Illinois Search And Seizure Resource Page to learn mo... 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…



Search & Seizure Resource Page
Check out the
Illinois Search And Seizure Resource Page
to learn more about the 4th amendment.

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.]]> Criminal Nuggets Podcast full 40:36 https://illinoiscaselaw.com/armed-violence/ Wed, 13 Jun 2018 18:04:38 +0000 https://illinoiscaselaw.com/?p=10209 Armed Violence Statute The gist behind the armed violence offense in Illinois is to create a more serious felony offense anytime a person commits a felony while armed with a weapon. Dangerous Weapon The Illinois armed violence statute is found at 720 ILCS 5/33A-2(a)(1) of the Criminal Code of 2012. It states: “A person commits […] Armed Violence Statute The gist behind the armed violence offense in Illinois is to create a more serious felony offense anytime a person commits a felony while armed with a weapon. Dangerous Weapon The Illinois armed violence statute is found at 720 I...



Armed Violence Statute



The gist behind the armed violence offense in Illinois is to create a more serious felony offense anytime a person commits a felony while armed with a weapon.



Dangerous Weapon



The Illinois armed violence statute is found at 720 ILCS 5/33A-2(a)(1) of the Criminal Code of 2012. It states:



“A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law, except [certain excluded offenses].”



720 ILCS 5/33A-2(a).



Discharges A Firearm



Section (b) covers using a firearm:



A person commits armed violence when he or she personally discharges a firearm that is a Category I or Category II weapon while committing any felony defined by Illinois law, except [certain excluded offenses].”



720 ILCS 5/33A-2(b)



Causes Great Bodily Harm



Section (c) covers causing bodily harm with a firearm:



“A person commits armed violence when he or she personally discharges a firearm that is a Category I or Category II weapon that proximately causes great bodily harm, permanent disability, or permanent disfigurement or death to another person while committing any felony defined by Illinois law, except [certain excluded offenses.]”



720 ILCS 5/33A-2(c)



Weapon Categories Definition



The definitions section under 720 ILCS 5/33A-1(c) defines the various categories of weapons as follows:



Category I Weapon



A Category I weapon is a



* Handgun* Sawed-off shotgun* Sawed-off rifle* Firearm small enough to be concealed upon the person* Semiautomatic firearm* Machine Gun.



Category II Weapon



A Category II weapon is a



* Any other rifle* Shotgun* Spring gun* Other firearm, stun gun or taser * Knife with a blade of at least 3 inches in length* Dagger* Dirk* Switchblade knife* Stiletto* Axe* Hatchet* Other deadly or dangerous weapon or instrument of like character.



Category III Weapon



A Category III weapon is a



* Bludgeon* Black-jack* Other Dangerous weapon of like character.



Armed Violence Is A Class X Felony



A person convicted of an armed violence has essentially committed a Class X Felony. The sentencing statute for armed violence creates certain minimum number of years a person must serve if convicted.



See 720 ILCS 5/33A-3(a), (a-5), (b). Sentence:



TypeCategoryMinimumDangerous WeaponCategory I15 yrsDangerous WeaponCategory II10 yrsDangerous WeaponCategory IIIClass 2 Felony



The more serious forms of armed violence involve discharging a fir...]]> Criminal Nuggets Podcast full 10:30 https://illinoiscaselaw.com/when-hgn-results-are-inadmissible-can-the-state-get-into-how-the-defendant-was-acting-a-fool/ Tue, 12 Jun 2018 18:00:27 +0000 https://illinoiscaselaw.com/?p=10207 People v. Tatera, 2018 IL App (2d) 160207 (May). Episode 498 (Duration 7:21) 9th DUI for this guy; 8 years seems about right. Gist This is defendant’s 9th DUI. He got 8 years. HGN Issue There were no fields and no blow but the video showed him all dazed and confused and not following instructions. Defendant […] People v. Tatera, 2018 IL App (2d) 160207 (May). Episode 498 (Duration 7:21) 9th DUI for this guy; 8 years seems about right. Gist This is defendant’s 9th DUI. He got 8 years. HGN Issue There were no fields and no blow but the video showed him all daze... People v. Tatera, 2018 IL App (2d) 160207 (May). Episode 498 (Duration 7:21)
9th DUI for this guy; 8 years seems about right.

Gist
This is defendant’s 9th DUI. He got 8 years.
HGN Issue
There were no fields and no blow but the video showed him all dazed and confused and not following instructions. Defendant argues that the trial court abused its discretion by allowing the jury to see a portion of the administration of the HGN test in the arrest video.
Defendant argues that, because the State agreed that the HGN test was improperly conducted, the jury should have been precluded from seeing any footage of the administration of the test.
What The Jury Saw
The trial court, over defendant’s objections, admitted a portion of the recording because it showed defendant disobeying the officer’s instructions to keep his hands at his sides and out of his pockets.
Defendant contends that, under People v. McKown, 236 Ill. 2d 278, 306 (2010), the recording was completely inadmissible.
People v. McKown
In McKown, the supreme court held that, for the results of an HGN test to be admitted at trial, a proper foundation must be laid, including the officer’s proper training and administration of the test. The supreme court held that the administration of the HGN test in that case did not meet the standards that the court had enunciated, so the admission of any testimony concerning the test and its results was reversible error. 
Analysis
Here, defendant argues that the officer did not correctly perform the HGN test, so the admission of the recording was likewise erroneous, and that, given the closeness of the evidence, the error cannot be deemed harmless beyond a reasonable doubt.
In McKown, by contrast, the officer testified about the test and the conclusions he drew from the defendant’s performance. Here, Kresen did not testify at all about the test—either his administration of the test or defendant’s performance of the test; likewise, the State made absolutely no argument about the test.
Thus, in this respect, McKown is significantly distinguishable.

The question remains, however, whether the jury should have observed the portion of the recording admitted to illustrate defendant’s inability or refusal to comply with Kresen’s instructions. See People v. King, 2014 IL App (2d) 130461. We then held that “a motorist’s failure to follow directions on a particular field sobriety test does not lose all relevance simply because the test might not have been designed for the precise purpose of gauging the ability to follow directions.” Id. ¶ 12.

Thus, we determined that our holding did not imply that, where the State is aware that the HGN test was not conducted properly and, thus, that the results were inadmissible, the officer’s otherwise relevant and material observations could or should have been characterized as part of the administration of an HGN or other field sobriety test.

That the defendant did not follow the officer’s instructions was separate and apart from any scientific evidence that would have been associated with the HGN test (and which neither the officer nor the State commented upon).

In This Case…
Here, the State conceded that the HGN test was improperly conducted.
Unlike in King, the officer did not even mention the HGN test; rather, he testified that defendant did not follow his instructions,]]> Criminal Nuggets Podcast full clean 7:21 https://illinoiscaselaw.com/5-illinois-search-seizure-pat-down-cases-how-not-to-act-in-front-of-the-police/ Wed, 06 Jun 2018 15:03:33 +0000 https://illinoiscaselaw.com/?p=7701 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. 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 […] 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. In This Episode… We discuss the following cases: People v. Richardson, 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.



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;
]]> Criminal Nuggets Podcast full 13:26 https://illinoiscaselaw.com/pat-down-search/ Wed, 06 Jun 2018 14:18:33 +0000 https://illinoiscaselaw.com/?p=11624 Episode 496 (Duration 13:26) Here’s a quick summary of 5 recent “pat down” cases. 5 Illinois Pat Down Search Cases That Explain When You Can Pat & When You Can’t 3 Go for the State, and 2 come out in favor of the defense. In This Episode… We discuss the following cases: People v. Richardson, 2017 IL App […] 5 Illinois Search & Seizure “Pat Down” Cases | How Not To Act In Front Of The Police



Episode 496 (Duration 13:26) Here’s a quick summary of 5 recent “pat down” cases.







5 Illinois Pat Down Search Cases That Explain When You Can Pat & When You Can’t



3 Go for the State, and 2 come out in favor of the defense.







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.



]]> Criminal Nuggets Podcast full 13:26 https://illinoiscaselaw.com/the-vehicle-exception-does-not-supersede-the-warrant-requirement-when-vehicle-is-on-private-property/ Tue, 05 Jun 2018 17:45:11 +0000 https://illinoiscaselaw.com/?p=10203 Collins v. Virginia, 584 U.S. ___, 138 S. Ct. 1663 (2018). Episode 495 (Duration 11:20) 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 […] Collins v. Virginia, 584 U.S. ___, 138 S. Ct. 1663 (2018). Episode 495 (Duration 11:20) 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 permit... Collins v. Virginia, 584 U.S. ___, 138 S. Ct. 1663 (2018). Episode 495 (Duration 11:20)
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.]]> Criminal Nuggets Podcast full 11:20 https://illinoiscaselaw.com/justified-pat-down-acting-kooky-in-the-back-seat-is-going-to-get-you-ordered-out-of-the-car/ Tue, 29 May 2018 17:17:39 +0000 https://illinoiscaselaw.com/?p=10195 People v. Gomez, 2018 IL App (1st) 150605 (April). Episode 492 (Duration 8:05) 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 […] People v. Gomez, 2018 IL App (1st) 150605 (April). Episode 492 (Duration 8:05) 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 wh... People v. Gomez, 2018 IL App (1st) 150605 (April). Episode 492 (Duration 8:05)
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.]]> Criminal Nuggets Podcast full clean 8:05 https://illinoiscaselaw.com/nurse-acting-in-behalf-of-the-police-became-a-state-actor-and-they-needed-to-go-get-a-warrant/ Mon, 28 May 2018 17:11:24 +0000 https://illinoiscaselaw.com/?p=10192 People v. Gill, 2018 IL App (3d) 150594 (April). Episode 491 (Duration 5:33) Police had a nurse confiscate defendant’s clothes for them. Gist Defendant was charged with aggravated arson of a home when people were in it. He ends up at the hospital where a nurse gathers his clothes and gives it to the police. Defendant […] People v. Gill, 2018 IL App (3d) 150594 (April). Episode 491 (Duration 5:33) Police had a nurse confiscate defendant’s clothes for them. Gist Defendant was charged with aggravated arson of a home when people were in it. People v. Gill, 2018 IL App (3d) 150594 (April). Episode 491 (Duration 5:33)
Police had a nurse confiscate defendant’s clothes for them.
Gist
Defendant was charged with aggravated arson of a home when people were in it. He ends up at the hospital where a nurse gathers his clothes and gives it to the police.
Defendant was a suspect, due to an altercation between him and an occupant of the house earlier that morning. He was angry at a women who took $310 of drugs from him.
Issue
Defense counsel filed a motion to quash the seizure of defendant’s clothing from the Pekin hospital and suppress the clothing as evidence, arguing that the seizure did not meet any exceptions to the warrant requirement.
Facts
An officer at the scene of the home smelled gasoline and saw a Jeep in the driveway. Inside the house, the fire had originated in the kitchen, against an exterior wall.
Inside the Jeep, he noticed a gas can and white rags similar to the rags found in Defendant’s truck at Denny’s. The Jeep belonged to the women’s roommate.
Later the next day at the hospital, the nurses told police that defendant was admitted smelling badly of gasoline. The nurse then gave defendant’s clothing to police. The nurse did this because she was asked by police to put his clothes aside and save it for them. A dog was allowed to sniff the clothes and the dog alerted.
Police never secured a warrant for the clothes.
Surveillance video of the truck captured it near the scene of the crime. The truck was towed to the East Peoria Police Department without a warrant. Eventually, a warrant was obtained for the truck to be searched.
The Video
A neighbor turned over surveillance footage from their home security system.
A dark figure can be seen moving about the vicinity of the house across the street. Twenty-one seconds later, that house erupts into fire. An individual carrying a burning object runs into the street from the area of the house and runs down the street, to the right from the perspective of the camera. After running down the street for about 12 seconds, the individual throws the burning object from his person and continues running off screen.
A small fire where the discarded fiery object was thrown remains on screen. Investigators found the burnt debris along with a bic lighter. Police also found an abandoned grey sweatshirt with burn arm sleeves and a Bic lighter in the pocket.
After the defendant’s truck was confiscated and towed. The search revealed a Bic lighter under the truck’s front seat.
The Clothes
The accelerant-detecting canine, Rusty, can alert to the presence of ignitable liquids. Rusty performed a sniff of defendant’s clothing at the Pekin hospital, alerting to a pair of blue jeans. Arndt also took Rusty into defendant’s hospital room, where Rusty alerted to defendant’s hands. Police testified that they could smell the gasoline on defendant’s clothing when conducting the sniff with Rusty.
The grey sweatshirt also had defendant’s blood and DNA on it.
A forensic scientist testified that the white rag and gas can found in the Jeep, as well as debris from the house all tested positive for gasoline.
She also testified that defendant’s clothing tested positive for gasoline, but she could not identify if the gasoline was on an individual piece of clothing, as the clothing was collected in the same container.
Verdict & Sentence
Defendant was found guilty by a jury and sentenced to 12 years. Defendant next contends that the seizure of his clothing from the hospital was illegal on multiple grounds, and that the circuit court therefore erred in failing to suppress evidence stemming from that seizure.
State Action
First,]]> Criminal Nuggets Podcast full clean 5:33 https://illinoiscaselaw.com/not-on-their-watch-reviewing-court-says-this-guy-didnt-do-it/ Wed, 23 May 2018 23:18:20 +0000 https://illinoiscaselaw.com/?p=7642 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD   I’m Ready To Start Making Better Use Of My Drive Time And Ready […] 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Downl... 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. https://illinoiscaselaw.com/?p=11626 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD Gist In 2013 Maniac Latin Disciples, encountered several members of the Sureños, a rival street […] How To Make A Murder Conviction Not Stick



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.  full clean 18:22 https://illinoiscaselaw.com/this-hot-pursuit-of-a-disorderly-conduct-suspect-didnt-justify-the-warrantless-entry-into-the-trailer/ Tue, 22 May 2018 16:52:24 +0000 https://illinoiscaselaw.com/?p=10180 People v. Smock, 2018 IL App (5th) 140449 (April). Episode 489 (Duration 7:09) Defendant is getting arrested for disorderly conduct when recedes further into his house to prevent arrest, police follow him in and arrest him. Gist Police were responding to a noise complaint at a trailer park. Defendant gets arrested for Disorderly Conduct. A jury […] People v. Smock, 2018 IL App (5th) 140449 (April). Episode 489 (Duration 7:09) Defendant is getting arrested for disorderly conduct when recedes further into his house to prevent arrest, police follow him in and arrest him. People v. Smock, 2018 IL App (5th) 140449 (April). Episode 489 (Duration 7:09)
Defendant is getting arrested for disorderly conduct when recedes further into his house to prevent arrest, police follow him in and arrest him.
Gist
Police were responding to a noise complaint at a trailer park. Defendant gets arrested for Disorderly Conduct.
A jury found the defendant guilty of possession of methamphetamine and disorderly conduct. He got 5 years.
Complainant
The complainant indicated that someone inside the trailer next door was banging on its walls, while yelling and cursing.
As the officers were speaking, they too were able to hear the noise coming from inside the trailer. The complainant agreed to sign a complaint for discorderly conduct because this was not the first time the police had been called out. 
The officers proceeded next door to the defendant’s residence to arrest him for disorderly conduct.
Defendant Says
Originally, defendant refused to come outside when police knocked on the defendant’s door. The officers assured the defendant that they just needed to talk to him.
The defendant testified that when the officers knocked on his front door, he told them three times not to enter his house without a warrant. He assured the police officers he “would cease and desist as far as the noise was concerned.”
The officers told the defendant they would not enter his home.
The Old Standing In The Doorway Ruse
Nevertheless, when he opened the door, an officer informed the defendant that he was under arrest and reached out to grab the defendant by the hand.
The door opened outwards and the officer stepped in front of it so it could not be closed.
Defendant was asked to come outside. That’s when he told the police he wasn’t coming outside.
He told them 3 times not to come into his house without a warrant.
Then It Got Physical
The defendant then testified that when the officer reached out to grab him, he ran inside his trailer. The defendant stated that when he ran,
“They chased me from my porch into my living room.”
One of the officers tazed the defendant in his living room before placing him under arrest.
Little Taser Action
When they entered the kitchen area, the defendant threatened an officer with a two-liter plastic bottle.
That’s when they tased him.
The officers then placed the defendant under arrest.
Controlled Substance Discovered
A search of the defendant’s person incident to his arrest yielded a hypodermic needle and a wadded-up coffee filter that ultimately proved to contain a small amount of methamphetamine.
Constitution Protects The Home
The chief evil against which the fourth amendment to the United States Constitution is directed is the physical entry into the home. People v. Wear, 229 Ill. 2d 545, 562 (2008). To protect against the unjustified entry by law enforcement into the home, the fourth amendment has “drawn a firm line at the entrance to the house.” Payton v. New York, 445 U.S. 573, 590 (1980); People v. Davis, 398 Ill. App. 3d 940, 948 (2010).
Thus, the warrantless entry by police officers into a home and seizures inside the home are presumptively unreasonable under the fourth amendment, even with probable cause. Wear, 229 Ill. 2d at 562. Police need a warrant to cross the threshold of a private citizen’s home, unless exigent circumstances justify the intrusion.
Hot Pursuit
“Hot pursuit” doctrine says a person cannot defeat a public arrest simply by retreating to the safety of their home. See United States v. Santana, 427 U.S. 38, 42 (1976) (women standing at the threshold of her ap...]]> Criminal Nuggets Podcast full clean 7:09 https://illinoiscaselaw.com/sealing-vs-expungement/ Wed, 16 May 2018 17:12:21 +0000 https://illinoiscaselaw.com/?p=7596 Expungement And Sealing In Illinois With Paul Meyers. Episode 487 (Duration 32:12). Illinois has one of the broadest expungement and sealing laws in the country. In this 30 minute interview Illinois attorney Paul Meyers explains the seal v expunge dichotomy and key differences. Sealing vs Expungement There are often great employment opportunities and benefits if a […] Expungement And Sealing In Illinois With Paul Meyers. Episode 487 (Duration 32:12). Illinois has one of the broadest expungement and sealing laws in the country. In this 30 minute interview Illinois attorney Paul Meyers explains the seal v expunge dich...



Expungement And Sealing In Illinois With Paul Meyers. Episode 487 (Duration 32:12).



Illinois has one of the broadest expungement and sealing laws in the country. In this 30 minute interview Illinois attorney Paul Meyers explains the seal v expunge dichotomy and key differences.







Sealing vs Expungement



There are often great employment opportunities and benefits if a person can use the court process to “undo” their criminal history. When we talk about seal vs expunge we are talking about using a court process to “undo” a person’s criminal past.



✓ Expungement means to destroy or return complete records to a petitioner.  (Go to 2:13)



✓ Sealing means to make records unavailable without a court order except for certain parties generally in law enforcement and public safety.  (Go to 2:25)



Expungement is better than sealing because it provides a more complete evisceration of information. However, if you can’t expunge a record sealing it will keep it out of view of the general public including most employers.



Expungement Illinois



What can you expunge in Illinois?



“A petitioner may petition the circuit court to expunge the records of his or her arrests and charges not initiated by arrest when each arrest or charge not initiated by arrest sought to be expunged resulted in:



(i) acquittal, dismissal, or the petitioner’s release without charging, unless excluded by subsection (a)(3)(B); (ii) a conviction which was vacated or reversed, unless excluded by subsection (a)(3)(B); (iii) an order of supervision and such supervision was successfully completed by the petitioner, unless excluded by subsection (a)(3)(A) or (a)(3)(B); or (iv) an order of qualified probation (as defined in subsection (a)(1)(J)) and such probation was successfully completed by the petitioner.”



See 20 ILCS 2630/5.2(b). Expungement.



Sealing In Illinois



What can you seal in Illinois?



“The following records may be sealed:



(A) All arrests resulting in release without charging;(B) Arrests or charges not initiated by arrest resulting in acquittal, dismissal, or conviction when the conviction was reversed or vacated, except as excluded by subsection (a)(3)(B);(C) Arrests or charges not initiated by arrest resulting in orders of supervision, including orders of supervision for municipal ordinance violations, successfully completed by the petitioner, unless excluded by subsection (a)(3);(D) Arrests or charges not initiated by arrest resulting in convictions, including convictions on municipal ordinance violations, unless excluded by subsection (a)(3);(E) Arrests or charges not initiated by arrest resulting in orders of first offender probation under Section 10 of the Cannabis Control Act, Section 410 of the Illinois Controlled Substances Act, Section 70 of the Methamphetamine Control and Community Protection Act, or Section 5-6-3.3 of the Unified Code of Corrections; and(F) Arrests or charges not initiated by arrest resulting in felony convictions unless otherwise excluded by subsection (a) paragraph (3) of this Section.”



See 20 ILCS 2630/5.2(c)(2). Sealing.











In This Episode…



]]> Criminal Nuggets Podcast full 32:12 https://illinoiscaselaw.com/big-problem-in-lake-county-when-states-attorney-didnt-sign-the-overhear-applications/ Tue, 15 May 2018 16:34:30 +0000 https://illinoiscaselaw.com/?p=10176 People v. Allard, 2018 IL App (2d) 160927 (February). Episode 486 (Duration 9:35) Lake County State Attorney didn’t sign the applications for the recorded phone calls so they are invalid. Gist Defendants were indicted for racketeering conspiracy, racketeering, criminal drug conspiracy, street gang criminal drug conspiracy, controlled substances trafficking, and unlawful possession of a controlled substance […] People v. Allard, 2018 IL App (2d) 160927 (February). Episode 486 (Duration 9:35) Lake County State Attorney didn’t sign the applications for the recorded phone calls so they are invalid. Gist Defendants were indicted for racketeering conspiracy, People v. Allard, 2018 IL App (2d) 160927 (February). Episode 486 (Duration 9:35)
Lake County State Attorney didn’t sign the applications for the recorded phone calls so they are invalid.
Gist
Defendants were indicted for racketeering conspiracy, racketeering, criminal drug conspiracy, street gang criminal drug conspiracy, controlled substances trafficking, and unlawful possession of a controlled substance with the intent to deliver.
It was investigation involving the Four Corner Hustlers.
Wiretap Evidence
As part of an investigation into gang activity, the Lake County State’s Attorney’s Office obtained authorization to intercept private communications involving certain telephone numbers.
Issue
The circuit court of Lake County authorized the nonconsensual electronic surveillance, pursuant to article 108B of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure) (725 ILCS 5/108B), based on applications signed and presented by two assistant state’s attorneys (ASAs), not by the elected state’s attorney (SA).
Defendants joined in a motion to suppress the evidence, arguing that the SA’s failure to personally apply for the wiretap orders violated Article 108B as well as the federal wiretap statute set forth in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510-2522 (2012)), better known as “Title III.”
They argued that, pursuant to Illinois and federal law, an application for a wiretap order must be personally authorized, in writing, by the elected SA, in this case SA Nerheim, or a person designated by the SA in writing or authorized by law to act for him in his absence. Defendants asserted that neither ASA Mathews nor ASA Fisz was so authorized and that, therefore, the orders entered pursuant to the applications were invalid.
Turns Out
The chief of the gang and narcotics prosecution division of the Lake County State’s Attorney’s Office the chief of the felony trial division were signing these warrants. Consistent with the applications, each order noted that the application was made, under oath, by either ASA Mathews or, in one instance, ASA Fisz, “on behalf of Michael G. Nerheim, State’s Attorney of Lake County.
The applications included orders and extension orders for nonconsensual telephone interceptions of the gang.
The investigation was being conducted by the Federal Bureau of Investigation (FBI); the Lake County Metropolitan Enforcement Group; and the police departments of Waukegan, North Chicago, and Zion.
Turns out SA Nerheim did not personally sign or present the wiretap applications.
The Illinois Overhear Statute
Section 108B-2(a) governs “request[s] for application for interception.” 725 ILCS 5/108B-2(a). This is an authorized eavesdropping recording.
The statute provides that “[a] State’s Attorney may apply for an order authorizing interception of private communications in accordance with the provisions of this Article.”  725 ILCS 5/108B-2(a).
In turn, section 108B-3(b) provides that
“[t]he State’s Attorney or a person designated in writing or by law to act for the State’s Attorney and to perform his or her duties during his or her absence or disability, may authorize, in writing, an ex parte application to the chief judge of a circuit court for an order authorizing the interception of a private communication when no party has consented to the interception and the interception may provide evidence of, or may assist in the apprehension of a person who has committed, is committing or is about to commit,]]> Criminal Nuggets Podcast full 9:35 https://illinoiscaselaw.com/rare-blood-disease-does-not-constitute-extraordinary-circumstance-in-this-aggravated-dui/ Tue, 01 May 2018 15:20:35 +0000 https://illinoiscaselaw.com/?p=10170 People v. Lawson, 2018 IL App (4th) 170105 (March). Episode 483 (Duration 8:25) Defendant had a rare blood condition, that was not considered an extraordinary circumstance. Gist Defendant drove on a suspended license a “silver Nissan” around 1:30 a.m., after consuming alcohol that evening. The Accident An accident reconstructionist would testify defendant approached the intersection of […] People v. Lawson, 2018 IL App (4th) 170105 (March). Episode 483 (Duration 8:25) Defendant had a rare blood condition, that was not considered an extraordinary circumstance. Gist Defendant drove on a suspended license a “silver Nissan” around 1:30 a. People v. Lawson, 2018 IL App (4th) 170105 (March). Episode 483 (Duration 8:25)
Defendant had a rare blood condition, that was not considered an extraordinary circumstance.
Gist
Defendant drove on a suspended license a “silver Nissan” around 1:30 a.m., after consuming alcohol that evening.
The Accident
An accident reconstructionist would testify defendant approached the intersection of Washington and Main Streets, in Bloomington, Illinois, at a speed of 47 miles per hour.
Due to her intoxication, defendant struck a man and a women as they walked across the intersection. Defendant did not stop her vehicle at the scene of the accident and failed to report she was in an accident to law enforcement officials.
The women died.
Defendant’s BAC
Testing revealed defendant’s blood alcohol concentration to be 0.265 and also indicated the presence of tetrahydrocannabinol (THC), or cannabis.
What The State Wanted
The State recommended a sentence of 12 years in prison for aggravated driving under the influence of alcohol (count I), a sentence of 9 years in prison for failure to report an accident involving death (count II), and a sentence of 364 days in jail for driving while license suspended (count XI).
Rare Disease
Defendant requested probation, characterizing her “extreme chronic and serious medical condition” as “extraordinary circumstances” requiring probation.
She had immune thrombocytopenic purpura (ITP) which required monthly blood transfusions.
The Sentence
Mitigation
In mitigation, the trial court considered defendant’s lack of a prior felony conviction and hardship on her children.
It also considered defendant’s “medical condition” and remorse.
Aggravation
In aggravation, the court considered the many “shattered lives” left in the wake of defendant’s “reckless conduct” and defendant’s failure to stop after hitting the pedestrians. The court also considered defendant “continually lied” to law enforcement officers after she was arrested, causing “additional work” for officers.
Deprecate Seriousness of Offense
The court noted the need to deter others from committing similar crimes. The trial court stated that a sentence of probation would deprecate the seriousness of defendant’s conduct and no extraordinary circumstances warranted probation “even with [defendant’s] medical condition.”
12 Years
The court sentenced defendant to eight years in prison for aggravated driving under the influence of alcohol (count I), four years in prison for failure to report an accident involving death (count II), and a sentence of “court costs plus conviction” for driving while license suspended (count XI).
Defendant’s sentences were “mandatory consecutive” bringing her total time to 12 years.
Issue
Defendant argued her “severe and unusual medical condition” and “the presumption for probation where there is no significant criminal history” were “extenuating circumstances” warranting probation.
Defendant first argues the trial court abused its discretion in sentencing her for aggravated driving under the influence of alcohol where it failed to find extraordinary circumstances existed, requiring she receive a sentence of probation.
Appellate Court Can’t Give Probation
Our supreme court has twice stated we categorically do not have the authority to reduce a prison sentence to a sentence of probation. See Bolyard, 61 Ill. 2d at 588 (“Rule 615 does not grant a reviewing court the authority to reduce a sentence of imprisonment to a sentence of probation.]]> Criminal Nuggets Podcast full clean 8:25 https://illinoiscaselaw.com/garrity-v-new-jersey/ Wed, 25 Apr 2018 16:06:25 +0000 https://illinoiscaselaw.com/?p=11628 Episode 481 (Duration 11:39) Police investigations and follow up prosecutions of other police officers involve slightly different constitutional concerns.  Garrity v. New Jersey Establishes Special Rules When An Officer Becomes The Target Of An Investigation In This Episode… We discuss the following case: Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967). Gist of the […] When An Officer Becomes The Target Of An Investigation Special Rules Apply To Their Interrogation



Episode 481 (Duration 11:39) Police investigations and follow up prosecutions of other police officers involve slightly different constitutional concerns. 







Garrity v. New Jersey Establishes Special Rules When An Officer Becomes The Target Of An Investigation







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...]]> Criminal Nuggets Podcast full 11:39 https://illinoiscaselaw.com/when-police-investigate-the-police/ Wed, 25 Apr 2018 15:52:24 +0000 https://illinoiscaselaw.com/?p=7518 Episode 481 (Duration 11:39) Police investigations and follow up prosecutions of other police officers involve slightly different constitutional concerns. What are they? 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 […] Episode 481 (Duration 11:39) Police investigations and follow up prosecutions of other police officers involve slightly different constitutional concerns. What are they? In This Episode… We discuss the following case: Garrity v. New Jersey, 385 U.S. Episode 481 (Duration 11:39) Police investigations and follow up prosecutions of other police officers involve slightly different constitutional concerns. What are they?



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.
Before You Go…
]]> Criminal Nuggets Podcast full 11:39 https://illinoiscaselaw.com/police-use-the-wrong-kind-of-warrant-in-a-murder-investigation/ Mon, 16 Apr 2018 14:31:59 +0000 https://illinoiscaselaw.com/?p=10156 People v. Boose, 2018 IL App (2d) 170016 (March). Episode 476 (Duration 11:08) Sloppy drafting of a warrant means all the murder evidence is out. Gist The victim was beat with a broom and died in the hospital. Defendant was her husband and their 7 year old granddaughter was living with them and she saw the […] People v. Boose, 2018 IL App (2d) 170016 (March). Episode 476 (Duration 11:08) Sloppy drafting of a warrant means all the murder evidence is out. Gist The victim was beat with a broom and died in the hospital. People v. Boose, 2018 IL App (2d) 170016 (March). Episode 476 (Duration 11:08)
Sloppy drafting of a warrant means all the murder evidence is out.

Gist
The victim was beat with a broom and died in the hospital. Defendant was her husband and their 7 year old granddaughter was living with them and she saw the beating and told police.
Problem With The Warrant
For some reason police used a drug warrant to get into the house and take evidence of the murder. This created all kinds of search and seizure problems for the police.
The complaint was mainly a drug complaint but did include some items germaine to the murder. The warrant’s description of the items to be seized was identical to the complaint’s description of items that would be relevant to the investigation of a drug offense. However, the warrant did not include the following items listed in the complaint that were germane to the investigation of the victim’s death:
“broom handles, bludgeons, wooden handles, extension cords, ropes, belts, [and] any binding agents.”
The Warrant Application
The entire search-warrant paperwork consisted of five pages: a one-page complaint for a search warrant, a three-page affidavit accompanying the complaint, and a one-page search warrant. The affidavit had the 7 year old’s story, but the warrant was asking to confiscate drug paraphernalia.
The Complaint
The one-page complaint for a search warrant began by listing certain items to be seized that would be pertinent to a narcotics investigation but not relevant to the murder investigation that Detective Schroder was conducting.
In the middle of this list of narcotics evidence were the items that pertained to the murder investigation:
“broom handles, bludgeons, wooden handles, extension cords, ropes, [and] belts.”
After listing those six items, the list of items common to drug dealing resumed, and the complaint then referred to “the premises located at 2204 Van Wie Avenue, Rockford, Illinois.” (Emphasis in original.)
The complaint concluded with the language:
“That complainant has probable cause to believe that aforesaid facts are true for the following reasons: see attached affidavit, which is incorporated by reference herein.”
The Search Warrant
The one-page search warrant provided the correct address. The list of items to be seized was identical to the list on the complaint for a search warrant, except that it did not contain the six items related to the murder investigation. The search warrant also contained language incorporating the complaint for a search warrant:
“Whereas, a written complaint under oath has been made before me this day stating facts sufficient to show probable cause for search of the following described place.”
The Affidavit
The three-page affidavit accompanying the complaint and the search warrant clearly set forth the details that supported probable cause to search the premises, including the following:
…that police were called to Rockford Memorial Hospital regarding a deceased woman whom the fire department transported from her residence (2204 Van Wie Avenue, Rockford) to the hospital, that the seven-year-old granddaughter of the victim and defendant had witnessed defendant beating the victim with a broomstick and throwing her into the walls, that the victim had multiple abrasions and bruises about her body, that family members said that there had been “a lot of domestic violence” between the defendant and the victim, that the victim had been deceased for about eight hours, and that the coroner’s office had conducted an autopsy of the victim and had “declared this incident a Murder.]]> Criminal Nuggets Podcast full clean 11:08 https://illinoiscaselaw.com/4-sora-sex-offender-registration-act-cases-to-know-about/ Wed, 11 Apr 2018 16:09:23 +0000 https://illinoiscaselaw.com/?p=7478 Episode 475 (Duration 26:13) Here are 4 cases on the Illinois Sex Offender Registration Act (SORA) You should know something about.  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. […] Episode 475 (Duration 26:13) Here are 4 cases on the Illinois Sex Offender Registration Act (SORA) You should know something about.  In This Episode… We discuss the following cases: In re T.J.D., 2017 IL App (5th) 170133 (November) In re B.C.,

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))];
]]> Criminal Nuggets Podcast full 26:14 https://illinoiscaselaw.com/a-dui-arrest-on-a-private-parking-lot-cannot-lead-to-driver-license-suspension/ Tue, 03 Apr 2018 13:21:44 +0000 https://illinoiscaselaw.com/?p=10144 People v. Relwani, 2018 IL App (3d) 170201 (February). Episode 471 (Duration 7:01) In this Illinois DUI prosecution, Defendant loses his SSS hearing because he didn’t establish the Walgreen’s parking lot was privately maintained. Gist Defendant lost his motion to rescind statutory summary suspension. Facts Defendant was asleep in the driver’s seat of his vehicle in […] People v. Relwani, 2018 IL App (3d) 170201 (February). Episode 471 (Duration 7:01) In this Illinois DUI prosecution, Defendant loses his SSS hearing because he didn’t establish the Walgreen’s parking lot was privately maintained. People v. Relwani, 2018 IL App (3d) 170201 (February). Episode 471 (Duration 7:01)
In this Illinois DUI prosecution, Defendant loses his SSS hearing because he didn’t establish the Walgreen’s parking lot was privately maintained.
Gist
Defendant lost his motion to rescind statutory summary suspension.
Facts
Defendant was asleep in the driver’s seat of his vehicle in the parking lot of a Walgreens drug store in Joliet, Will County, Illinois. Defendant was the only person in the vehicle at the time. The keys to the vehicle were in the ignition, and the engine was running.
Police officers approached the vehicle, woke defendant, and subsequently arrested defendant for DUI.
No Fields
After defendant was arrested, he was taken to the police station, where he allegedly refused to submit to some form of chemical testing. Defendant’s driver’s license was later summarily suspended by the Secretary of State.
The Private Parking Lot Rule
Defendant contends further that the State did not present any evidence in this case to show that defendant was observed driving on a public street or that the parking lot in question was publicly owned or was maintained by a government entity as was necessary to establish that the parking lot was a public highway.
Defendant contends that there is a long line of cases, which unequivocally held that the summary suspension statute (also known as the implied consent statute) cannot be applied to an individual who was driving or in actual physical control of a motor vehicle in a private parking lot, rather than on a public highway (referred to hereinafter as the private parking lot rule).
State Says
The State asserts that under the established law, a parking lot on privately owned property may constitute a public highway for purposes of the summary suspension statute and that it was defendant’s burden, therefore, to present evidence to establish that the parking lot in this case was not a public highway, which defendant failed to do.
Specifically, according to the State, defendant failed to present any evidence to show that the parking lot was privately owned and privately maintained, and the mere fact that the parking lot was a Walgreens parking lot, in and of itself, was insufficient to establish that the parking lot was not a public highway.
How’d He Get There?
In addition, the State maintains, the fact that the vehicle was in the Walgreens parking lot and that defendant was the only person in the vehicle gave rise to an inference that defendant had driven the vehicle to that location on the public streets, as did defendant’s statement to the police that he had come back to Joliet in the vehicle from a restaurant in Chicago.
Defendant’s Prima Facie Case
The defendant bears the burden of proof at the hearing to establish a prima facie case for rescission and must present some evidence on every necessary element of the ground asserted.
If the defendant does so, the burden shifts to the State to come forward with evidence to justify the summary suspension.
However, if the defendant fails to establish a prima facie case, a directed finding should be granted for the State on the petition to rescind.
Implied Consent Statute
Under the summary suspension statute (also known as the implied consent statute), any person who drives or is in actual physical control of a motor vehicle on a public highway is deemed to have given his or her consent to a chemical test or tests of blood, breath, other bodily substance, or urine for the purpose of determining the content of alcohol, drugs, intoxicating compounds,]]> Criminal Nuggets Podcast full clean 7:01 https://illinoiscaselaw.com/how-accurate-is-a-dui-breathalyzer/ Mon, 02 Apr 2018 13:16:06 +0000 https://illinoiscaselaw.com/?p=10142 People v. Robledo, 2018 IL App (2d) 151142 (February). Episode 470 (Duration 7:10) Defendant blew .082 she argued the margin of error of the machine means the state didn’t prove she was .08. Traffic Stop Officer Michael Bond of the Mundelein Police Department observed defendant driving a car with only one headlight illuminated. He followed the […] People v. Robledo, 2018 IL App (2d) 151142 (February). Episode 470 (Duration 7:10) Defendant blew .082 she argued the margin of error of the machine means the state didn’t prove she was .08. Traffic Stop Officer Michael Bond of the Mundelein Police Dep... People v. Robledo, 2018 IL App (2d) 151142 (February). Episode 470 (Duration 7:10)
Defendant blew .082 she argued the margin of error of the machine means the state didn’t prove she was .08.
Traffic Stop
Officer Michael Bond of the Mundelein Police Department observed defendant driving a car with only one headlight illuminated. He followed the car onto a residential street, where it pulled into a driveway.
DUI Investigation
She walked behind a house and came back out. At that moment, defendant reappeared and informed Bond that she pulled into the driveway because her license was suspended and she did not want to be arrested. 
Bond smelled a moderate odor of alcohol on defendant’s breath, and he noticed that her eyes were bloodshot and “droopy.” Defendant displayed no other signs of intoxication.
Defendant told Bond that she had drunk “a couple” of Mike’s Hard Lemonades and a “swig” of Corona.
Borderline
Bond arrested defendant for driving with a suspended license, and she agreed to perform field sobriety tests at the police station. Following defendant’s performance of the field sobriety tests, Bond informed defendant that she was “borderline.”
Breadth Test
Defendant agreed to take a breath test.
Bond observed defendant for 20 minutes, during which she did not put anything into her mouth. Defendant then blew into an Intox EC/IR-II machine, with a result of 0.082.
Machine Calibration
Bond explained that a dry gas container inside the machine is calibrated to give a result of 0.079.
According to Bond, the machine did internal checks and performed certification tests on September 2, 2014, and October 1, 2014, and both tests accurately measured the alcohol concentration in the dry gas container at 0.079.
Bond testified that the machine has a margin of error of plus or minus 0.005.
Issue
Defendant contends that she was not proved guilty beyond a reasonable doubt where her BAC could have been as low as 0.077, given the machine’s margin of error.
The Code
Section 11-501.2(a) of the Code provides in relevant part that evidence of the concentration of alcohol in a person’s breath is admissible in a criminal prosecution under section 11-501. 625 ILCS 5/11-501.2(a).
This is a DUI charge.
Section 11-501.2(a) further states that a chemical analysis of a person’s breath is considered valid if it was performed according to standards promulgated by the Department of State Police (Department). 625 ILCS 5/11-501.2(a). To lay a proper foundation for the admission of the result of a breath test, the prosecution must establish that the breath test was performed in accordance with those standards. People v. Olson, 2013 IL App (2d) 121308, ¶ 9.
The Standards 
We, therefore, look to the Department’s standards, as set forth in administrative regulations.
Administrative regulations have the force and effect of law. People v. Clairmont, 2011 IL App (2d) 100924, ¶ 17. Section 1286.200 of Title 20 of the Illinois Administrative Code provides that the following procedures establish the accuracy of breath-testing instruments:
(1) The instrument was approved at the time of the subject test,
(2) The performance of the instrument was within the accuracy tolerance according to the last accuracy check prior to the subject test,
(3) No accuracy check has been performed since the subject test,]]> Criminal Nuggets Podcast full clean 7:10 https://illinoiscaselaw.com/summary-of-illinois-forced-blood-draw-case-when-can-police-go-the-hospital-to-get-drivers-blood/ Wed, 28 Mar 2018 22:00:00 +0000 https://illinoiscaselaw.com/?p=11897 Episode 469 (Duration 26:45) Here’s a quick summary of Illinois cases that deal with non consensual, forceable, warrantless blood draws. 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 […] Taking A Driver To The Hospital For A Forced Blood Draw



Episode 469 (Duration 26:45) Here’s a quick summary of Illinois cases that deal with non consensual, forceable, warrantless blood draws.











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”,]]> Criminal Nuggets Podcast full 26:45 https://illinoiscaselaw.com/warrantless-blood-draws-coming-to-a-hospital-near-you/ Wed, 28 Mar 2018 11:00:31 +0000 https://illinoiscaselaw.com/?p=7420 Episode 469 (Duration 26:45) Here’s a quick summary of Illinois cases that deal with non consensual, forceable, warrantless blood draws. 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, […] Episode 469 (Duration 26:45) Here’s a quick summary of Illinois cases that deal with non consensual, forceable, warrantless blood draws. In This Episode… We discuss the following cases: Birchfield v. North Dakota, 136 S. Ct. 1260 (2016) Missouri v. Episode 469 (Duration 26:45) Here’s a quick summary of Illinois cases that deal with non consensual, forceable, warrantless blood draws.

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 ...]]> Criminal Nuggets Podcast full 26:45 https://illinoiscaselaw.com/citizens-tip-that-driver-almost-hit-the-building-justifies-investigatory-stop-for-dui/ Tue, 27 Mar 2018 13:11:05 +0000 https://illinoiscaselaw.com/?p=10140 People v. Meo, 2018 IL App (2d) 170135 (March). Episode 468 (Duration 14:08) Gas station attendant calls the police on defendant to report he almost hit the building, so DUI stop justified. Gas Attendant Calls It In At about 8:30 p.m., Scott was dispatched to Casey’s General Store (Casey’s), located at the intersection of Plank Road […] People v. Meo, 2018 IL App (2d) 170135 (March). Episode 468 (Duration 14:08) Gas station attendant calls the police on defendant to report he almost hit the building, so DUI stop justified. Gas Attendant Calls It In At about 8:30 p.m., People v. Meo, 2018 IL App (2d) 170135 (March). Episode 468 (Duration 14:08)
Gas station attendant calls the police on defendant to report he almost hit the building, so DUI stop justified.
Gas Attendant Calls It In
At about 8:30 p.m., Scott was dispatched to Casey’s General Store (Casey’s), located at the intersection of Plank Road and Main Street, to investigate a report of a possible drunk driver. It was snowing heavily at the time.
According to Scott, a clerk at Casey’s called dispatch to report a possible drunk driver in the building.
Based on the clerk’s report, dispatch then advised Scott that “the male driver was driving a white Scion. He had driven up to the front of the building, hitting the curb, going over the curb, and the store clerk described it as almost going into the building.”
Officer Arrives
After receiving the call from dispatch, Scott drove to Casey’s, and parked his squad car in a parking lot east of Casey’s so that he would have a better view of the vehicles parked in the Casey’s parking lot.
He saw a white Scion parked in the Casey’s parking lot, and “fairly soon” thereafter he saw a white male, later identified as defendant, enter the vehicle. After following defendant for about 30 seconds and observing defendant commit no traffic violations, Scott activated the lights on his squad car, and defendant stopped his vehicle.
The Traffic Stop
Scott stopped defendant’s vehicle based on the blinking headlights and the original call.
A video recording was made from Scott’s squad car camera from just before the time that defendant’s vehicle passed in front of Scott at Casey’s until the time that Scott arrested defendant for DUI. The video was played for the court and entered into evidence.
Spoke To Driver
Scott testified that, after pulling over defendant’s vehicle, he approached the vehicle and spoke with defendant through the open driver’s-side window. While speaking to defendant, Scott smelled alcohol on defendant’s breath and noted that defendant’s “eyes were glassy and bloodshot, his speech was thick-tongued and slurred.”
Defendant told Scott that he drank three beers about six or seven hours earlier.
Scott asked defendant for his driver’s license and proof of insurance. According to Scott, defendant had a hard time getting his driver’s license out of his wallet and “fumbled his wallet a few times.” Scott testified: “He literally had it in his hands and he dropped it out onto his lap and picked it back up and was kind of using multiple fingers to kind of manipulate the wallet in order to open it correctly.”
Scott testified that the driver’s license was located behind a plastic flap and that it took defendant a few tries to pull the license out of the wallet. Scott stated that defendant also pulled a credit card out of the wallet and handed him the credit card instead of his insurance card.
Field Sobriety Tests
Scott testified that he decided to perform field sobriety tests on defendant and asked him to step out of his vehicle. Because of the heavy snowfall and wind, Scott asked defendant to accompany him to a nearby Jewel pharmacy drive-through pickup area, with an overhang, so that they could be protected from the snow.
Scott testified that, when he asked defendant to exit and lock his vehicle, defendant did so. Scott agreed that he wrote in his police report that defendant swayed and seemed unbalanced as he walked. Scott also agreed, however, that the video showed that defendant had no difficulty walking toward the police car in the deep snow.
The video also showed that defendant, while walking toward the police vehicle, dropped his keys and was able to pick them up without difficulty. Scott transported defendant to Jewel to perform t...]]> Criminal Nuggets Podcast full clean 14:08 https://illinoiscaselaw.com/do-houses-have-more-protection-than-apartments/ Mon, 19 Mar 2018 16:53:39 +0000 https://illinoiscaselaw.com/?p=11900 Episode 464 (Duration 19:10) Here’s a quick summary of the cases that suggest, that maybe, houses have more constitutional protection than apartments. 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, […] Is there a difference between houses and apartments when it comes to the constitution?



Episode 464 (Duration 19:10) Here’s a quick summary of the cases that suggest, that maybe, houses







have more constitutional protection than apartments.







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 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).



]]> Criminal Nuggets Podcast full 19:10 https://illinoiscaselaw.com/constitutionality-based-on-structure-do-houses-have-more-protection-than-apartments/ Mon, 19 Mar 2018 13:16:38 +0000 https://illinoiscaselaw.com/?p=7368 Episode 464 (Duration 19:10) Here’s a quick summary of the cases that suggest, that maybe, houses have more constitutional protection than apartments. 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 […] Episode 464 (Duration 19:10) Here’s a quick summary of the cases that suggest, that maybe, houses have more constitutional protection than apartments. In This Episode… We discuss the following cases: Florida v. Jardines, 133 S. Ct. Episode 464 (Duration 19:10) Here’s a quick summary of the cases that suggest, that maybe, houses have more constitutional protection than apartments.

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 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,]]> Criminal Nuggets Podcast full 19:10 https://illinoiscaselaw.com/consensual-blood-draw-has-to-be-clear-and-unequivocal-especially-if-you-have-not-been-ticketed/ Mon, 12 Mar 2018 22:55:47 +0000 https://illinoiscaselaw.com/?p=10123 People v. Hayes, 2018 IL App (5th) 140223 (February). Episode 461 (Duration 17:53) Defendant runs over and kills a 7 year old boy, however, the resulting DUI blood draw is out because defendant was never under arrest. Hits & Kills A Little Boy Defendant was driving home from the store with two of his children. One […] People v. Hayes, 2018 IL App (5th) 140223 (February). Episode 461 (Duration 17:53) Defendant runs over and kills a 7 year old boy, however, the resulting DUI blood draw is out because defendant was never under arrest. People v. Hayes, 2018 IL App (5th) 140223 (February). Episode 461 (Duration 17:53)
Defendant runs over and kills a 7 year old boy, however, the resulting DUI blood draw is out because defendant was never under arrest.
Hits & Kills A Little Boy
Defendant was driving home from the store with two of his children.
One of the children attempted to hand the defendant a piece of candy to unwrap for him. The defendant looked back to talk to the child. As he did, his vehicle struck seven-year-old David Kirby.
According to witnesses, the boy rode his bicycle between two parked cars onto the roadway and into the path of the defendant’s van. Defendant could have done anything to avoid the accident.
The accident took place near city hall in Sumner, Illinois. The defendant ran into city hall asking for help. Brent Parrott, a volunteer firefighter who was there that day, administered CPR to David. Several police officers responded to the accident, including Lawrence County Deputy Danny Ash, Illinois State Police Trooper Brooks Thomann, and Bridgeport Police Chief Scott Murray.
No Signs of Intoxication
No Tickets Issued
Trooper Thomann testified that he had both training and experience in recognizing the signs of intoxication or influence of drugs in motorists. He did not notice anything about the defendant’s demeanor or appearance that would lead him to believe that the defendant was intoxicated or under the influence. He did not detect the odor of alcohol or drugs, and he noted that the defendant did not slur his speech.
Asked what his conclusion was as to the cause of the accident, Trooper Thomann replied,
“as far as I could see, the child had just ridden out into the street. And when he came around that vehicle, shot out in the middle of the street, and then Mr. Hayes struck him.”
Trooper Thomann testified that he did not issue any traffic citation to the defendant, explaining,
“There was no violation, as far as Mr. Hayes.”
To The Hospital
Deputy Ash asked Chief Murray to transport the defendant to Lawrence County Memorial Hospital to provide blood and urine samples for drug screening.
Chief Murray did so.
He testified that he did not know whether Deputy Ash had placed the defendant under arrest prior to this time. He testified that he did not personally place the defendant under arrest at any time, and he did not issue the defendant any traffic citations. Chief Murray drove the defendant to the hospital. He further testified that during the 10-minute ride to the hospital, the defendant was not handcuffed. At the hospital, Chief Murray accompanied the defendant to the restroom while he provided a urine sample and remained with him while his blood was drawn.
Eventually Charged
Chief Murray testified that he waited with the defendant until Deputy Ash arrived to transport him from the hospital. Chief Murray handed Deputy Ash the DUI kit completed by hospital staff and then left.
He assumed that Deputy Ash transported the defendant back to the police station, but he left the hospital before they did. The test indicated the presence of drugs, and the defendant was charged with aggravated driving under the influence (DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2010)).
Deputy Ash arrived after the samples were taken and drove the defendant back to the police station.
Implied Consent
Deputy Ash was then asked about his decision to have the defendant transported to the hospital for drug testing. Defense counsel asked him on what basis he made that decision. Deputy Ash responded, “He was involved in a personal injury accident. He was the driver of a vehicle involved in a personal injury accident.” Deputy Ash then testified that “consent is implied whenever y...]]> Criminal Nuggets Podcast full clean 17:53 https://illinoiscaselaw.com/matthew-taylor/ Fri, 02 Mar 2018 22:11:53 +0000 https://illinoiscaselaw.com/?p=7229 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. 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 […] 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. In This Episode… “I think that they got it right. It shows that the courts are taking an understanding of what... 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.


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

]]> Criminal Nuggets Podcast full 54:23 https://illinoiscaselaw.com/former-police-officer-now-has-a-law-degree-and-says-this-about-the-4th-amendment/ Fri, 02 Mar 2018 17:01:32 +0000 https://illinoiscaselaw.com/?p=11902 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. 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 […] Police Officer Becomes A Lawyer And Says This About Search & Seizure Law



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.







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,]]> Criminal Nuggets Podcast full 54:23 https://illinoiscaselaw.com/no-talking-command-was-an-order-not-a-request-and-an-unreasonable-seizure/ Wed, 28 Feb 2018 22:46:55 +0000 https://illinoiscaselaw.com/?p=10117 People v. Lee, 2018 IL App (3d) 170209 (February). Episode 458 (Duration 6:59) In this search and seizure case 25 minute wait for the sniff dog was too long. Drug Charges The State charged defendants, Wan Fung Lee and Jacky Yao Chuan Xiong, with unlawful cannabis trafficking (720 ILCS 550/5.1(a)), unlawful possession with intent to deliver […] People v. Lee, 2018 IL App (3d) 170209 (February). Episode 458 (Duration 6:59) In this search and seizure case 25 minute wait for the sniff dog was too long. Drug Charges The State charged defendants, Wan Fung Lee and Jacky Yao Chuan Xiong, People v. Lee, 2018 IL App (3d) 170209 (February). Episode 458 (Duration 6:59)
In this search and seizure case 25 minute wait for the sniff dog was too long.
Drug Charges
The State charged defendants, Wan Fung Lee and Jacky Yao Chuan Xiong, with unlawful cannabis trafficking (720 ILCS 550/5.1(a)), unlawful possession with intent to deliver cannabis (id. § 5(g)), and unlawful possession of cannabis (id. § 4(g)).
The Stop
Sergeant Clint Thulen testified that he pulled over defendants’ vehicle on March 9, 2015, for failure to signal a lane change.
A video recording of the traffic stop was introduced into evidence. Defendants’ exhibit No. 4 is a three-page timeline of the traffic stop. The first page chronicles the stop up until the point where Thulen returns Lee’s license. The second page details Thulen’s requests for consent and the period of waiting for the canine to arrive. The third page covers the period of the stop after the canine arrives.
Defendants agree that the traffic stop in the present case was lawful—based upon Thulen’s probable cause to believe a traffic violation had occurred—up until the point that Thulen issued Lee a warning ticket.
The State agrees that, at that point, Thulen had neither probable cause nor a reasonable, articulable suspicion upon which defendants could be detained.
The Video
The video begins as Thulen commences the traffic stop. Thulen approaches the passenger side of the vehicle and leans into the window. Approximately 1½ minutes later, the driver of the vehicle, later identified as defendant Lee, exits the vehicle and walks to the front of Thulen’s squad car. Thulen sits in the driver’s seat of the squad car and soon thereafter Lee sits in the passenger seat. The officers said they couldn’t smell the weed but they were sure the bags in the car contained weed.
They ask about it when defendant is in the squad car. He denies and the officer tells defendant to shut the door so he doesn’t run.
Thulen radios in defendants’ information. At the seven minute mark of the video recording, a second officer, Sergeant Brian Strouss arrives at the scene. Thulen asks Lee and Xiong, “You guys have got nothing to hide, right? Would you mind waiting for a dog to come and walk around the outside of the car?” Thulen tells them “it won’t take too long.” At the 14:45 minute mark of the video, Thulen radios in requesting a canine. He then tells defendants, “Hey, you’re free to go. You can do anything you want. You know, you’re free to go so I sure appreciate you waiting around for the dog though.” For approximately 25 minutes, defendants and the officers make small talk outside of the vehicle. In that period, Thulen requests that Xiong roll up the windows of the vehicle. The dog alerted. The trial judge granted the motion to suppress and the trial court sustained it.
Issue
Thus, the issue turns upon whether the encounter from that point forward was consensual.
Mendendhall Factors
We need not venture outside the four factors enumerated in Mendenhall to find the most compelling in the present case.
Thulen yelled, “Hey, no talking” at defendants, a plain example of “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” 
Not only was Thulen’s statement made in a loud and controlling voice, but the substance of that statement was in the nature of an order, dictating what defendants may or may not do.
Moreover, the order was accompanied by Thulen gesturing for Lee to come to him and, later, a direction that Lee look at Thulen.]]> Criminal Nuggets Podcast full clean 6:59 https://illinoiscaselaw.com/defendants-perfect-driving-was-not-the-proximate-cause-of-the-accident/ Mon, 19 Feb 2018 20:13:02 +0000 https://illinoiscaselaw.com/?p=10103 People v. Mumaugh, 2018 IL App (3d) 140961 (January). Episode 453  (Duration 16:35) Defendant was driving under the speed limit when he hit a girl wearing all black in the middle of night when she was standing in the middle of the roadway. This is an Illinois DUI case. Defendant Mumaugh was 43 years old at […] People v. Mumaugh, 2018 IL App (3d) 140961 (January). Episode 453  (Duration 16:35) Defendant was driving under the speed limit when he hit a girl wearing all black in the middle of night when she was standing in the middle of the roadway. People v. Mumaugh, 2018 IL App (3d) 140961 (January). Episode 453  (Duration 16:35)
Defendant was driving under the speed limit when he hit a girl wearing all black in the middle of night when she was standing in the middle of the roadway.
This is an Illinois DUI case.
Defendant
Mumaugh was 43 years old at the time of trial. He lived in Marseilles, and had been a professional truck driver for 27 years. On June 21, 2012, at approximately 10:30 p.m., Mumaugh left work in Ottawa and began driving his GMC Blazer east on I-80 toward Marseilles.
He exited the Interstate at the Marseilles exit and proceeded south on Highway 15 toward the Marseilles city limits.
It was a very dark night with no moonlight.
The Highway
Highway 15 is a paved, two-lane road. At the time of the accident, the posted speed limit was 55 m.p.h. At the location of the accident, there were no lights illuminating the highway. The area is rural, and the highway is surrounded by open fields and bordered by gravel shoulders.
The Girls
At the same time Mumaugh was driving home that night, 12-year-old Jennifer Dennis (Jennifer) and her friend, 13-year-old Courtney Brown (Courtney), were walking on the east side of Highway 15, at the edge of the northbound lane.
Jennifer and Courtney had sneaked out of Courtney’s house to go the Dollar Store for soda. Finding the store closed, they continued north on Highway 15 in Marseilles toward a gas station, which was also closed.
The girls then walked south along Highway 15 on their way back to Courtney’s house.
Phone Calls
At 10:34 p.m., Maggie Thomas, a 911 dispatcher, received a call from Milan Najdanovich.
Najdanovich told Thomas,
“I’m on my way into town, and you got two little girls, they’ve got to be 12 or 14 years old, walking on Marseilles blacktop walking in between Hicks Gas and the Shell station. They’ve got no reflectors on, no nttin’ Honey, they’re goin’ to get hit. They’re wearing dark clothes. I’m really afraid somebody’s gonna hit ’em or soemmething”
Within 58 seconds of Najdanovich’s 911 call, a squad car was dispatched to the scene.
The Accident
As Courtney and Jennifer walked, Courtney’s flip flop broke, and she bent down to fix it.
Mumaugh was driving south on highway 15 at 50 miles per hour when he saw the white legs of a young girl (Courtney), in the northbound lane. Courtney was about 75 feet away. Within a split second, another young girl, Jennifer, appeared out of nowhere in the southbound lane, immediately in front of Mumaugh’s vehicle.
Jennifer was wearing black clothes and had her back to Mumaugh.
Mumaugh immediately swerved his vehicle to the right to avoid striking Jennifer, but Jennifer was right in front of his vehicle. The left side of his vehicle struck Jennifer. Courtney heard a crash as she was bending over. Mumaugh’s vehicle veered off into a ditch on the west side of the highway.
Jennifer sustained serious injuries as a result of the accident, including an injury to her brain. She was in a coma for several months and suffered permanent disabilities.
Defendant Administer’s Aid
Mumaugh immediately exited his vehicle to give aid to Jennifer. Mumaugh had been an emergency medical technician (EMT) for approximately 10 years in the 1990s. He encountered Courtney, who said to him,
“I kept telling her to get out of the road. I kept telling her she shouldn’t walk on the road.”
Mumaugh and Courtney found Jennifer lying face down on the east side of the highway. Her breathing was very labored.
Authorities Arrive
]]> Criminal Nuggets Podcast full clean 16:35 https://illinoiscaselaw.com/state-argued-for-application-of-the-attenuation-doctrine-in-the-face-of-this-obvious-4th-amendment-violation/ Tue, 30 Jan 2018 17:49:42 +0000 https://illinoiscaselaw.com/?p=10087 In re Jarrell C., 2017 IL App (1st) 170932 (December). Episode 447 (Duration 14:47) 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 […] In re Jarrell C., 2017 IL App (1st) 170932 (December). Episode 447 (Duration 14:47) 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. In re Jarrell C., 2017 IL App (1st) 170932 (December). Episode 447 (Duration 14:47)
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.]]> Criminal Nuggets Podcast full 14:47 https://illinoiscaselaw.com/successful-roadmap-to-conducting-a-sniff-dog-test-during-a-traffic-stop/ Mon, 29 Jan 2018 17:41:06 +0000 https://illinoiscaselaw.com/?p=10084 People v. Heritsch, 2017 IL App (2d) 151157 (December). Episode 446 (Duration 7:36) Everything could be tracked and timed with the video, if there is more than one officer at the scene then state has the best chance of winning a motion to suppress evidence. Charges Following a stipulated bench trial in the circuit court of […] People v. Heritsch, 2017 IL App (2d) 151157 (December). Episode 446 (Duration 7:36) Everything could be tracked and timed with the video, if there is more than one officer at the scene then state has the best chance of winning a motion to suppress evid... People v. Heritsch, 2017 IL App (2d) 151157 (December). Episode 446 (Duration 7:36)
Everything could be tracked and timed with the video, if there is more than one officer at the scene then state has the best chance of winning a motion to suppress evidence.
Charges
Following a stipulated bench trial in the circuit court of Boone County, defendant, Ken Heritsch, was convicted of possession of more than 10 grams but not more than 30 grams of a substance containing cannabis (720 ILCS 550/4(c)). Because defendant had a prior conviction of possession of cannabis, the offense was a Class 4 felony.
Defendant was sentenced to a three-year term of probation and 90 days in the Boone County jail.
Gist
Defendant’s conviction was based on the discovery of cannabis in his vehicle following a traffic stop and a dog sniff. The time stamp on the video recording establishes a timeline of events.
Time Line of Events
(7:05:34 p.m.) Zapf testified that he observed the Mercury cross the fog line, after which he pulled the vehicle over.
(7:07:29 p.m.) Zapf approached the driver’s side of the Mercury (7:06:11 p.m.). Zapf asked defendant for his driver’s license and proof of insurance. Zapf then started to walk back to his squad car.
(7:08:12 p.m. to 7:08:20 p.m.) Before reaching the squad car, Zapf spoke briefly with Bogdonas about his observations of defendant’s condition. At the end of the conversation, Zapf asked Bogdonas to try to get defendant’s consent for a search of the Mercury. Zapf then returned to his squad car and ascertained that defendant’s driver’s license was valid and that he had no outstanding warrants. Zapf decided to issue a warning to defendant for crossing the fog line.
(7:09:53 p.m.) Meanwhile, Bogdonas had defendant step out of his vehicle, and she searched his person. Defendant did not consent, however, to a search of his vehicle. Bogdonas approached Zapf and told Zapf that defendant was being an “asshole”. Zapf had been writing a warning to defendant, but after speaking with Bogdonas, Zapf decided to issue defendant a citation for improper lane usage.
(7:10:59 p.m.) At that point, Zapf had written only defendant’s name on the warning. Zapf told Gardner that he had decided to issue a citation to defendant because Bogdonas said that defendant was a “jerk”.
(7:11:02 p.m.) Gardner then told Zapf to summon Officer Grubar, who worked with a drug detection dog, to the scene.
(7:11:07 p.m) Zapf made a radio call to Grubar at.
(7:11:33 p.m to 7:11:55 p.m) Grubar responded and told Zapf that she was unavailable. Zapf ended the call at.
(7:12:29 p.m. through 7:12:47 p.m.) Shortly thereafter, Zapf received a radio communication from Boone County deputy sheriff Kevin Smyth, who indicated that he would bring his drug detection dog, Bosco, to the scene. When Smyth arrived, he had Bosco conducted a free air sniff of the Mercury.
Citation Written While Sniff Was Done
Zapf then searched the vehicle, found cannabis, and placed defendant under arrest. Zapf testified that, while waiting for Smyth to arrive, he was in his vehicle and was working on defendant’s citation. Bosco completed the free air sniff while Zapf was still working on the citation. When Zapf finished writing the citation, he stepped out of his vehicle.
Smyth was questioning defendant.
Zapf testified that he walked to defendant, who was standing in front of Zapf’s vehicle. Smyth was walking back to his own vehicle. We note that the video recording shows that, when Zapf exited his squad car, he walked directly to defendant’s vehicle.
Drug Dog Did Not Delay
Smyth testified that identifying drugs by odor was among the things Bosco was trained to do. When Smyth arrived at the scene,]]> Criminal Nuggets Podcast full clean 7:36 https://illinoiscaselaw.com/running-away-from-a-shots-fired-scene-seems-reasonable-can-police-stop-everyone-seen-running-away/ Wed, 24 Jan 2018 17:36:57 +0000 https://illinoiscaselaw.com/?p=10082 In re D.L., 2017 IL App (1st) 171764 (December). Episode 445 (Duration 9:29) 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 […] In re D.L., 2017 IL App (1st) 171764 (December). Episode 445 (Duration 9:29) 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 juve... In re D.L., 2017 IL App (1st) 171764 (December). Episode 445 (Duration 9:29)
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 “it 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 c...]]> Criminal Nuggets Podcast full clean 9:29 https://illinoiscaselaw.com/opps-wrong-address-goes-on-the-search-warrant/ Tue, 23 Jan 2018 17:32:17 +0000 https://illinoiscaselaw.com/?p=10080 People v. Ross, 2017 IL App (4th) 170121 (December). Episode 444 (Duration 9:50) Police put the wrong address on the search warrant. Now what happens? This is an Illinois search and seizure opinion. Charges The State charged defendants, James A. Ross and Ryan A. Schriefer, with unlawful possession with intent to deliver cannabis while within 1000 […] People v. Ross, 2017 IL App (4th) 170121 (December). Episode 444 (Duration 9:50) Police put the wrong address on the search warrant. Now what happens? This is an Illinois search and seizure opinion. Charges The State charged defendants, James A. People v. Ross, 2017 IL App (4th) 170121 (December). Episode 444 (Duration 9:50)
Police put the wrong address on the search warrant. Now what happens?
This is an Illinois search and seizure opinion.
Charges
The State charged defendants, James A. Ross and Ryan A. Schriefer, with unlawful possession with intent to deliver cannabis while within 1000 feet of a school (720 ILCS 550/5.2, 5(e) (West 2014)) and the unauthorized production or possession of cannabis sativa plants (720 ILCS 550/8(d) (West 2014)).
Gist
Law enforcement officers searched a structure on property located at the northeastern corner of Greely and Chestnut Streets in Monticello, Illinois, pursuant to a search warrant issued earlier the same day.
Both defendants filed motions seeking to suppress evidence they argued was improperly obtained as the result of a defective search warrant. The trial court granted defendants’ motions.
Issue
On appeal, the State argues the trial court erred in granting defendants’ motions to suppress based on “a discrepancy in the address” contained in the search warrant.
It contends that despite the error as to the target residence’s street address, the search warrant’s description of that residence was otherwise sufficient to allow law enforcement officers to know where to conduct the search.
Facts
The record reflects the property at issue was a single lot with two buildings—a tan, two-story house and a blue, barn-shaped building that, at some point, had been used as a residence.
The search at issue was of the tan house, which had a front door that faced Chestnut Street and the numbers 1002 displayed on the front of the home. The barn was associated with a street address of 817 North Greely Street in Monticello and was located north of the tan house.
The Search Warrant
The search warrant set forth the street address of the property to be searched as 817 North Greely Street and further described it as follows:
“A single family, tan, two[-]story dwelling located on the east side of North Greely Street with the number 817 displayed on the front, a detached barn to the north of the residence[.]”
During the search, law enforcement officers discovered cannabis and cannabis production materials.
Wrong House
Turns out the structure searched—the tan house—was a residence located at 1002 East Chestnut Street, but the search warrant referenced only a residence at the location of 817 North Greely Street in Monticello, Illinois.
The residence at issue was located northeast of the intersection, and police agreed it was a tan building.
Reports from the neighbors were that the tan residence was the problem. Police could also smell burnt cannabis coming from the home. They did not “actually go check the numbers” that were affixed to the front of the target residence.
How Did It Happen?
The officer who drafted the search warrant did not go to the location.
He was told to do it because he was good with search warrants. Russell testified he researched the address and stated his “research indicated that the residence was underneath one address, 817 N. Greely.” Russell testified he drafted a search warrant based on the officers’ observations of the location. He did not personally visit the address in question prior to preparing the complaint for a search warrant.
Russell testified, later, he looked up records associated with 1002 East Chestnut Street. He stated he went to the clerk’s office “to determine why it showed 817 on the computer, and they explained it was two different properties consolidated into one.”
Russell also learned that separate Monticello city water and ...]]> Criminal Nuggets Podcast full 9:50 https://illinoiscaselaw.com/judge-rene-cruz/ Wed, 17 Jan 2018 18:44:51 +0000 https://illinoiscaselaw.com/?p=7166 Episode 442 (Duration 31:15). Judge Rene Cruz of the 16th Judicial Circuit provides practical advice for attorneys. 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.” — […] Episode 442 (Duration 31:15). Judge Rene Cruz of the 16th Judicial Circuit provides practical advice for attorneys. 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 Panam... Episode 442 (Duration 31:15). Judge Rene Cruz of the 16th Judicial Circuit provides practical advice for attorneys.



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

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]]> Criminal Nuggets Podcast full 31:15 https://illinoiscaselaw.com/police-arrest-the-defendant-and-hold-her-down-while-shes-catheterized-nonetheless-no-state-action/ Wed, 10 Jan 2018 17:06:24 +0000 https://illinoiscaselaw.com/?p=10069 People v. Sykes, 2017 IL App (1st) 150023 (December). Episode 439 (Duration 9:13) Cops help hold her down while they force catheterize her, was this an illegal seizure after they captured and tested her urine? Gist Ladina Sykes and her two children were leaving a beach in Evanston when their car struck a wall in the […] People v. Sykes, 2017 IL App (1st) 150023 (December). Episode 439 (Duration 9:13) Cops help hold her down while they force catheterize her, was this an illegal seizure after they captured and tested her urine? People v. Sykes, 2017 IL App (1st) 150023 (December). Episode 439 (Duration 9:13)
Cops help hold her down while they force catheterize her, was this an illegal seizure after they captured and tested her urine?
Gist
Ladina Sykes and her two children were leaving a beach in Evanston when their car struck a wall in the parking lot. At the hospital they hold her down to take her urine. She was found guilty and placed on supervision after cannabis was detected in her urine.
Sykes was deemed mentally unable to provide consent, so when she refused to provide a doctor-ordered urine sample, a nurse catheterized her while several people, including two Evanston police officers, held her down because she was being physically uncooperative.
Facts
Paramedics took Sykes to Evanston Hospital. 
The paramedics took Sykes to Evanston Hospital, where a triage nurse assessed her condition. She was stable and had no complaints but was deemed to have an altered mental state because even though she was alert and oriented as to person and place, she did not know the date or time of day.
Officer Pratt told hospital staff he suspected Sykes was under the influence of something. 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.
Pratt asked Sykes to provide blood and urine samples, and she declined. He did not ask hospital staff to obtain samples for him.
The Hold Down
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. The urine test, in particular, would determine if she had drugs in her system. 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.
After Sykes’s CT scan showed no evidence of injury and her mental state improved, Evanston Hospital discharged her into police custody.
Issue
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. 
 Sykes argued the Evanston police officers’ participation in the forcible extraction of her blood and urine to test for drugs or alcohol, without a warrant, was an illegal search and the results of the search should be suppressed.
Sykes first contends the police violated her fourth amendment rights by actively participating in her forced catheterization. While Sykes concedes the police did not order the catheterization, she asserts they participated in an unconstitutional search by helping to hold her down while a nurse catheter...]]> Criminal Nuggets Podcast full clean 9:13 https://illinoiscaselaw.com/forced-blood-draw-against-douchebag-defendant-results-in-suppression-of-evidence/ Tue, 09 Jan 2018 16:59:30 +0000 https://illinoiscaselaw.com/?p=10066 People v. Eubanks, 2017 IL App (1st) 142837 (December). Episode 438 (Duration 12:56) On December 21, 2009 defendant ran over a mom and child killing the mom when he refused to give blood or urine they held him done so they could draw it. Gist In this case, Eubanks was arrested in connection with a hit-and-run […] People v. Eubanks, 2017 IL App (1st) 142837 (December). Episode 438 (Duration 12:56) On December 21, 2009 defendant ran over a mom and child killing the mom when he refused to give blood or urine they held him done so they could draw it. People v. Eubanks, 2017 IL App (1st) 142837 (December). Episode 438 (Duration 12:56)
On December 21, 2009 defendant ran over a mom and child killing the mom when he refused to give blood or urine they held him done so they could draw it.
Gist
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.
Facts
Shortly before 9 p.m. on December 21, 2009, in the Rogers Park neighborhood of Chicago, Felix Worthon was walking home with his wife Maria and their son Jeremiah near the intersection of Greenview and Greenleaf Avenues. Maria and Jeremiah stopped to talk to Maurice Glover, a man from their church.
Felix crossed the street ahead of them. As he was crossing, he heard a sound behind him; he turned around and was nearly hit by a car. The car struck Maria and Jeremiah and kept going without stopping. The force of the impact knocked Maria’s body a block away. Maria died immediately, and Jeremiah suffered permanent injuries.
Defendant Arrested & Restrained
A passenger in the car came back to the scene to tell police Defendant was the hit and run driver. He was quickly arrested.
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’s blood produced negative results for alcohol or any illegal substance, but his urine tested positive for cannabis, ecstasy, and cocaine metabolite.
The body converts drugs to metabolites over time as part of the metabolic process.
He Doesn’t Get The Reckless Instruction
Eubanks requested that the jury be instructed on reckless homicide as a lesser included offense of first degree murder. The court denied his request, stating that if the State’s evidence was believed, Eubanks’s actions “could only create a strong probability of death or great bodily harm to some individual.” The jury found Eubanks guilty of first degree murder, failure to report a motor vehicle accident involving death or injury, and aggravated driving under the influence.
Eubanks was sentenced to 40 years’ imprisonment.
Was It Error To Deny Reckless Instruction?
Eubanks first argues that he was entitled to a jury instruction on reckless homicide since there was some evidence that he acted recklessly in causing Maria’s death.
He’s not saying the evidence is insufficient to convict him of first degree murder, nor could he reasonably do so. There are plenty of high speed cases where courts have said first degree murder was proved because death or serious injury was a certainty.
Rather, Eubanks argues that there was sufficient evidence of his recklessness that the jury should have been instructed on both reckless homicide and first degree murder.
Standard On Lesser Included
A defendant is entitled to an instruction on a lesser-included offense if there is some evidence in the record that, if believed by the jury, would reduce the crime charged to a lesser offense. People v. McDonald, 2016 IL 118882, ¶ 25. That is, the evidence must permit a rational jury to acquit the defendant of the greater offense but still find him guilty of the lesser offense.
Murder v. Reckless Homicide
]]> Criminal Nuggets Podcast full clean 12:56 https://illinoiscaselaw.com/dangling-rosary-justifies-a-traffic-stop/ Mon, 01 Jan 2018 16:28:20 +0000 https://illinoiscaselaw.com/?p=10054 People v. Lomeli, 2017 IL App (3d) 150815 (December). Episode 434 (Duration 9:18) Defendant gets stopped for having a rosary hanging from his rearview mirror. Gist Defendant gets pulled over for having a rosary dangling from his front mirror. Facts Officer actually said he saw something hanging that might have been obstructing the driver’s view. The […] People v. Lomeli, 2017 IL App (3d) 150815 (December). Episode 434 (Duration 9:18) Defendant gets stopped for having a rosary hanging from his rearview mirror. Gist Defendant gets pulled over for having a rosary dangling from his front mirror. People v. Lomeli, 2017 IL App (3d) 150815 (December). Episode 434 (Duration 9:18)
Defendant gets stopped for having a rosary hanging from his rearview mirror.
Gist
Defendant gets pulled over for having a rosary dangling from his front mirror.
Facts
Officer actually said he saw something hanging that might have been obstructing the driver’s view. The officer did not recall what the object was.
He initiated a traffic stop based off the object suspended in the rearview mirror. Defendants gets arrested for DWLS.
It was a rosary.
Ordinary Rosary
The defendant said the rosary was a circle of beads with a single strand necklace at the bottom. He stated that the rosary hung down about halfway between the rearview mirror and the dashboard and was “[a] few centimeters” wide.
The Traffic Code
Section 12-503(c) of the Illinois Vehicle Code (Code) states, in pertinent part,
“No person shall drive a motor vehicle with any objects placed or suspended between the driver and the front windshield *** which materially obstructs the driver’s view.”
625 ILCS 5/12-503(c).
See also People v. Dunmire, 2019 IL App (4th) 190316 (December). Episode 717 (Duration 12:41) (The Tinted Window Statute Permits Up To 35% Light Transmittance On Side Windows)
Issue
On appeal, the defendant argues that the trial court erred in denying the defendant’s motion to suppress evidence because no reasonably objective officer could have believed the object hanging from the rear view mirror of the car the defendant was driving materially obstructed the driver’s view.
Some Case Law
“A police officer may conduct a brief, investigatory stop of a person where the officer can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.” People v. Hackett, 2012 IL 111781, ¶ 20 (car stopped for multiple lane deviations was proper).
The officer’s belief that the intrusion is warranted must amount to more than a hunch, but need not rise to the level of suspicion required for probable cause. See People v. Close, 238 Ill. 2d 497, 505 (2010)). But a traffic stop may be justified on something less than probable cause.
A police officer can effect a lawful Terry stop without first considering whether the circumstances he or she observed would satisfy each element of a particular offense.
This Is Not Probable Cause
For probable cause and conviction, there must be something more. But an investigatory stop in this situation allows the officer to inquire further into the reason for the stop, either by inquiry of the driver or verification of the condition of the possible obstruction.
The elements of windshield obstruction include a reasonable belief that the defendant had violated each of the following elements of the offense:
(1) that the defendant was driving a vehicle with an object placed or suspended between him and the windshield,
(2) that the object obstructed the driver’s view, and
(3) such obstruction was material.

However, an officer may conduct an investigatory stop with reasonable, articulable suspicion, which is less than probable cause, and “without first determining whether the circumstances he observed would satisfy each element of a particular offense.” People v. Little, 2016 IL App (3d) 130683.
]]> Criminal Nuggets Podcast full clean 9:18 https://illinoiscaselaw.com/retrograde-extrapolation-evidence-is-back-stronger-and-better-than-ever/ Wed, 06 Dec 2017 20:36:47 +0000 https://illinoiscaselaw.com/?p=10028 People v. Beck, 2017 IL App (4th) 160654 (November). Episode 424 (Duration 11:51) Defendant crosses the centerline and collides head on with another car resulting in serious brain damage to the other driver, this 54 page opinion results. Bad Accident This was a head on collision that resulted in brain damage with long-term and lasting […] People v. Beck, 2017 IL App (4th) 160654 (November). Episode 424 (Duration 11:51) Defendant crosses the centerline and collides head on with another car resulting in serious brain damage to the other driver, this 54 page opinion results. People v. Beck, 2017 IL App (4th) 160654 (November). Episode 424 (Duration 11:51)
Defendant crosses the centerline and collides head on with another car resulting in serious brain damage to the other driver, this 54 page opinion results.
Bad Accident
This was a head on collision that resulted in brain damage with long-term and lasting effects to the other driver. Defendant was found guilty of Aggravated DUI after a stipulated bench trial and put on 30 months probation with 180 days in jail but stayed.
Defendant’s car crossed into oncoming traffic.
A firefighter made first contact with defendant at the accident scene. Defendant reported to the firefighter that he “had maybe five beers” and Gubbins relayed that information to Carle’s emergency room. Defendant reported he had been drinking for the homecoming festivities at Eastern Illinois University since 10 a.m. on the day of the accident.
A photograph of the interior of defendant’s vehicle showed a single Bud Light beer can on the floorboard.
Taken To Hospital 
Defendant is taken to the hospital at 9:43 pm.
Hospital personnel informed the Sheriff’s office that defendant had a blood alcohol result of 0.211.
Deputy Clough stated he first saw defendant in a bed in his hospital room. Defendant’s parents were present and Clough believed a nurse was also in and out of the room. ” Clough next asked defendant if he was willing to submit to testing of his blood and urine. Defendant consented to the testing, and Clough asked a nurse to “do a DUI kit.”
Defendant is ticketed with DUI at 1:45 pm.
Conversation With Police
Because the emergency room was busy, blood was not collected from defendant until approximately 3:25 or 3:26 a.m. (7 hours after the crash) While waiting on the nurse to obtain specimens from defendant, Clough and defendant had a further discussion about defendant’s consumption of alcohol.
During that conversation, defendant reported that he had been drinking at a party prior to the accident.
Defendant admitted that he drank eight to nine beers at a party before the accident and crossed the centerline of the highway and struck Camp’s vehicle.
The officer did read the warning to motorist but did not give defendant the Miranda warnings.
Interesting 911 Recording
Recordings indicated the 9-1-1 center was contacted by law enforcement and asked to contact Carle’s emergency department with a request to draw defendant’s blood.
A dispatcher with the 9-1-1 center then contacted Carle and relayed the request to its emergency department, stating as follows:
“The deputies on scene are requesting that the male subject who’s being transported, you guys get a blood draw from him.”
An unidentified individual from Carle’s emergency department then responded,
“Yeah, we usually always do.”
But a nurse testified she was not ordered by any law enforcement agency to perform the blood draw. Rather, she did so at the direction of the emergency room doctor. At the time she drew defendant’s blood, there were not any police officers in defendant’s room, and she had not spoken to any police officers about defendant’s case. To her knowledge police were not requesting a blood draw.
She acknowledged that defendant’s medical records reflected that she drew defendant’s blood at 10:29 p.m.
Retrograde Extrapolation
The state presented a forensic toxicologist who described retrograde extrapolation as “a mathematical process” and “a method of estimating an individual’s BAC at an earlier point in time when it’s known at a later point in time.”
He testified retrograde extrapolation was an accepted method within the field of toxicology for determining an individual’s BAC and “was first described ...]]> Criminal Nuggets Podcast full clean 11:51 https://illinoiscaselaw.com/forced-blood-draw-in-this-illinois-dui-sustained-by-the-illinois-supreme-court/ Tue, 05 Dec 2017 20:31:09 +0000 https://illinoiscaselaw.com/?p=10026 People v. Brooks, 2017 IL 121413 (November). Episode 423 (Duration 13:50) Defendant is taken to the hospital kicking and screaming literally against his will and his blood is drawn. Motorcycle Accident Police arrive to the scene of motorcycle accident. No other cars were involved. Witnesses told the police that defendant was riding the bike and he […] People v. Brooks, 2017 IL 121413 (November). Episode 423 (Duration 13:50) Defendant is taken to the hospital kicking and screaming literally against his will and his blood is drawn. Motorcycle Accident Police arrive to the scene of motorcycle accident.... People v. Brooks, 2017 IL 121413 (November). Episode 423 (Duration 13:50)
Defendant is taken to the hospital kicking and screaming literally against his will and his blood is drawn.

Motorcycle Accident
Police arrive to the scene of motorcycle accident.
No other cars were involved.
Witnesses told the police that defendant was riding the bike and he wiped out. Webb spoke to defendant and, while doing so, noticed 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.
According to Webb, defendant appeared agitated by the presence of law enforcement.
Webb believed defendant’s leg was broken because his foot was “almost upside down.”
No Hospital Please
When Webb asked defendant if he wanted to go to the hospital, defendant refused.
Webb was concerned about defendant’s safety, as he appeared to not be thinking rationally because he was screaming and swearing at the police. 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 in getting him there.
Although defendant continued to decline medical services, Webb ordered defendant out of the Jeep.
Defendant refused.
Was He Arrested?
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.
Warnings Read
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.
No Police Blood
Webb stated he did not take a sample of defendant’s blood nor did he direct anyone at the hospital to do so. While Webb observed nurses working on defendant, he never spoke to them or any doctor. Webb stated he had no further contact with the hospital after he left and did not know whether defendant ever gave consent for a blood draw.
Defendant Treated
Defendant then testified. 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. Altogether, defendant stated he spent approximately 12 hours at the hospital.
Issue
The sole allegation raised in defendant’s motion to suppress is that his fourth amendment right to be free from an unreasonable search was violated by a blood draw conducted at the hospital.
No Prima Facia Case
To make a prima facie case for suppression, defendant had to establish two things:
first, that a search occurred in the form of a blood draw and,
second, that the draw violated the fourth amendment.
Defendant failed to establish either of these propositions.
Defendant presented no evidence that his blood was actually drawn at the hospital.
Although this was a matter within his personal knowledge,]]> Criminal Nuggets Podcast full clean 13:50 https://illinoiscaselaw.com/bare-bones-affidavit-allegedly-does-not-establish-a-nexus-to-the-house-searched/ Wed, 29 Nov 2017 20:23:32 +0000 https://illinoiscaselaw.com/?p=10022 People v. Manzo, 2017 IL App (3d) 150264 (October). Episode 421 (Duration 7:17) In this search warrant application bones affidavit nonetheless establishes a nexus to defendant’s house. Gist The jury found defendant guilty of unlawful possession of a weapon by a felon but acquitted him of unlawful possession of a controlled substance with intent to deliver. […] People v. Manzo, 2017 IL App (3d) 150264 (October). Episode 421 (Duration 7:17) In this search warrant application bones affidavit nonetheless establishes a nexus to defendant’s house. Gist The jury found defendant guilty of unlawful possession of a we... People v. Manzo, 2017 IL App (3d) 150264 (October). Episode 421 (Duration 7:17)
In this search warrant application bones affidavit nonetheless establishes a nexus to defendant’s house.
Gist
The jury found defendant guilty of unlawful possession of a weapon by a felon but acquitted him of unlawful possession of a controlled substance with intent to deliver.
The circuit court sentenced defendant to 36 months’ probation.
Search Warrant
This was a search warrant supported by three controlled buys with an informant.
The Buys
On one occasion, officers observed Casillas leave the residence to sell Harrison cocaine.
The officers’ constant surveillance established that Casillas left the residence and sold cocaine to Harrison without making any stops before the transaction. Further, Casillas was seen using a vehicle registered to the residence to conduct a separate drug transaction.
Each time defendant drove to a supermarket for the deal.
Nexus Issue
Prior to trial, defendant filed a motion to quash the search warrant and suppress the evidence.
The motion alleged that the complaint for the search warrant failed to establish probable cause to conduct a search of the residence, which led to defendant’s arrest and the seizure of evidence.

Specifically, defendant asserted that the warrant was unsupported by any evidence that one or more of the transactions took place at the residence, that the police observed illegal activity at the residence, or that Casillas sold contraband or conducted other illegal activity at the residence.

Defendant contends the complaint for the search warrant did not establish probable cause because it failed to show a nexus between Casillas’s illegal activities and defendant’s residence.
In other words, defendant asserts probable cause was lacking because the warrant did not include any information or observations connecting Casillas’s illegal activity to defendant’s residence.
In addition, the motion argued that the police failed to seek or find any corroborating information to verify that Casillas lived at the residence.
Illinois Search Warrant Law
At a probable cause hearing, the warrant must make a practical, commonsense assessment of whether, given all of the circumstances set forth in the affidavit, there is a fair probability that evidence of a particular crime will be found in a particular place.
A showing of probable cause means that the facts and circumstances within the knowledge of the affiant are sufficient to warrant a person of reasonable caution to believe that an offense has occurred and that evidence of it is at the place to be searched.

In determining whether probable cause for a search warrant exists, there must be a sufficient nexus between a criminal offense, the items to be seized, and the place to be searched.

If there is no direct information to establish such a nexus, the court may draw reasonable inferences to create the nexus.
Learn more about Illinois search and seizure issues from other warrant cases.
Analysis
Here, Harrison’s affidavit showed that officers observed Casillas leave defendant’s residence while communicating with Harrison to set up an imminent drug transaction.
While under uninterrupted surveillance, Casillas walked from the residence to the location of the drug transaction.
While under uninterrupted surveillance, Casillas walked from the residence to the location of the drug transaction.
Holding
The information contained within the affidavit sufficiently connected Casillas’s drug activity to defendant’s residence.]]> Criminal Nuggets Podcast full clean 7:17 https://illinoiscaselaw.com/do-you-have-to-give-blood-if-you-pass-the-breathalyzer/ Tue, 28 Nov 2017 20:17:58 +0000 https://illinoiscaselaw.com/?p=10019 People v. Durden, 2017 IL App (3d) 160409 (November). Episode 420 (Duration 7:33) Can police ask for blood after you pass the breathalyzer? Gist Defendant is arrested for DUI. He passes the breathalyzer. Then he refuses to submit to blood or urine testing, and he’s suspended. On appeal he challenges the denial of his petition to […] People v. Durden, 2017 IL App (3d) 160409 (November). Episode 420 (Duration 7:33) Can police ask for blood after you pass the breathalyzer? Gist Defendant is arrested for DUI. He passes the breathalyzer. Then he refuses to submit to blood or urine test... People v. Durden, 2017 IL App (3d) 160409 (November). Episode 420 (Duration 7:33)
Can police ask for blood after you pass the breathalyzer?
Gist
Defendant is arrested for DUI. He passes the breathalyzer. Then he refuses to submit to blood or urine testing, and he’s suspended. On appeal he challenges the denial of his petition to rescind the statutory summary suspension of his DL.
The trial court denied defendant’s petition to rescind.
The Stop
The officer testified that he was on patrol at approximately 1:12 a.m., when he observed defendant commit “multiple lane violations.”
According to Middleton, defendant’s vehicle veered toward his patrol car, crossed over the double yellow line three times, veered into the painted median twice, and “began to veer towards the opposite lane of traffic.” After observing defendant commit “approximately five lane violations,” Middleton of the Shorewood police department activated his overhead lights.
Defendant stopped his vehicle, and Middleton approached and asked for defendant’s driver’s license.
The Contact
In attempting to retrieve his license, defendant’s “hands slipped off his wallet numerous times” and before handing the license to Middleton, defendant dropped it in his lap.
Defendant also dropped his cell phone in his lap. Middleton asked defendant if he had consumed any alcoholic beverages or was on any medication. Defendant denied both. Middleton returned to defendant’s vehicle and asked him to step out of the car.

* At that time, Middleton smelled a “moderate” odor of an alcoholic beverage.
* Middleton also observed that defendant had “slurred speech, glossy, bloodshot eyes” and “unusual behavior.”
* He fails the FSTS but declines the PBT.

He Blows
He’s arrested based on defendant’s “slurred speech, *** very dangerous driving, [and] performance on the field sobriety tests.”
Defendant blew a 0.035, which is well below the legal limit of 0.08.
Probable Cause For DUI Arrest
A defendant alleging that an arresting officer did not have reasonable grounds to believe that he was driving under the influence bears the burden to produce prima facie evidence that the officer lacked reasonable grounds.
“Probable cause is not guilt beyond a reasonable doubt.”
Probable cause deals with probabilities and involves factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The existence of probable cause depends upon the totality of the circumstances at the time of the arrest.
Erratic driving, such as crossing the centerline, is sufficient to justify an investigatory stop.
Additionally, slurred speech, red and glassy eyes, the odor of an alcoholic beverage, difficulty producing documents, and failed field sobriety tests “have repeatedly been held to be indicia of intoxication adequate to support an arrest for driving under the influence of alcohol.”
Chemical Tests Of Blood, Breath, or Urine
Once an officer has probable cause to arrest a driver for DUI, the officer may request “a chemical test or tests of blood, breath, or urine for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds or any combination thereof in the person’s blood.” 625 ILCS 5/11-501.1(a).
“Multiple testing is not always proper.”

However, “a police officer can first require a breath test for alcohol and then require a blood or urine test for drugs.” People v.]]> Criminal Nuggets Podcast full clean 7:33 https://illinoiscaselaw.com/everything-you-wanted-to-know-about-the-niu-college-of-law-criminal-defense-clinic-with-professor-cain/ Wed, 22 Nov 2017 15:47:45 +0000 https://illinoiscaselaw.com/?p=7085 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. 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 […] 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. In This Episode “I love what I’m doing. 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.


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

]]> Criminal Nuggets Podcast full 33:14 https://illinoiscaselaw.com/unreasonably-prolonged-traffic-stop-masks-other-problems-with-dog/ Tue, 21 Nov 2017 20:01:11 +0000 https://illinoiscaselaw.com/?p=10012 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD The Stop After stopping the Impala for following too closely, Sergeant Hain […] 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download A... 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.


Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download
APPLE PODCASTS GOOGLE PODCASTS
SPOTIFY ANDROID RSS
DIRECT DOWNLOAD
The Stop
After stopping the Impala for following too closely, Sergeant Hain approached the open front passenger-side window.
Johnson was in the driver’s seat, Cook was in the front passenger seat, and Paddy was seated in the rear behind Johnson.
According to Sergeant Hain, Cook’s face was pale, he was trembling, and he would look only at Johnson.
Paddy was very rigid, he was pressed against the backseat, and he stared out the driver’s-side rear window.
Sergeant Hain considered Cook and Paddy to be nervous.
The female driver is asked to exit and sit in the officer’s front seat in the squad car.
The Warning
After entering his squad car, Sergeant Hain began preparing a written warning for following too closely.
He also conducted a computer-records check, from which he learned that the Impala was registered in Minnesota.
As Sergeant Hain was talking with Johnson, he requested that Detective Ryan Monaghan, a K-9 handler, back him up. Although Sergeant Hain had completed the written warning, he left it on the clipboard. He then told Johnson to wait in the squad car while he spoke to Cook about an insurance card. He exited the squad car and walked back to the front passenger window.
The Insurance Card + Weed
Sergeant Hain asked Cook to look for an insurance card.
According to Sergeant Hain, as he stood at the passenger window the second time, he saw green flakes on Cook’s face, chest, and pants. Based on Sergeant Hain’s police training and experience, he decided that the flakes appeared to be cannabis.
The Drug Dog Sniff
During the K-9 sniff, the dog, which was trained to passively alert to the odor of drugs by sitting down, never did so.
Instead, the dog was very excited and attempted to jump through the window of the Impala.
Detective Monaghan had to repeatedly command the dog to smell for drugs, as the dog was distracted by Paddy’s return. According to Detective Monaghan, the dog was trained to protect and previously there had been i...]]> Criminal Nuggets Podcast full clean 14:30 https://illinoiscaselaw.com/updates-with-discretionary-life-sentence-for-youngsters-and-de-facto-life-sentences/ Tue, 07 Nov 2017 18:12:00 +0000 https://illinoiscaselaw.com/?p=10000 People v. Holman, 2017 IL 120655 (September) People v. Hoy, 2017 IL App (1st) 142596 (September) People v. Evans, 2017 IL App (1st) 143562 (August). Episode 413 (Duration 10:27) Defendant was 17 years old when he was given a discretionary life sentence, is he entitled to a new sentencing hearing?  People v. Holman Facts Defendant was […] People v. Holman, 2017 IL 120655 (September) People v. Hoy, 2017 IL App (1st) 142596 (September) People v. Evans, 2017 IL App (1st) 143562 (August). Episode 413 (Duration 10:27) Defendant was 17 years old when he was given a discretionary life sentence... People v. Holman, 2017 IL 120655 (September)
People v. Hoy, 2017 IL App (1st) 142596 (September)
People v. Evans, 2017 IL App (1st) 143562 (August). Episode 413 (Duration 10:27)
Defendant was 17 years old when he was given a discretionary life sentence, is he entitled to a new sentencing hearing? 

People v. Holman
Facts
Defendant was 17 when he and a buddy burglarized a home and shot and killed the 82 year old woman who lived there.
Because he was five weeks from his eighteenth birthday at the time of the offense, he was not eligible for the death penalty. See Ill. Rev. Stat. 1979, ch. 38, ¶ 9-1(b). Instead, he was eligible for a discretionary life sentence.  See Ill. Rev. Stat. 1979, ch. 38, ¶ 1005-8-1(a)(1).
Criminal History
The Madison County circuit court’s probation and court services department prepared a presentence investigation report (PSI). The PSI included the defendant’s criminal history.
Defendant had a prior conviction for murder and one for attempt murder under his belt.
At age 14, he was adjudicated delinquent for burglary and placed on two years’ probation.
At age 15, he was adjudicated delinquent for three counts of criminal damage to property and committed to the Department of Corrections’ juvenile division. The defendant was paroled and then arrested for burglary three months later.
His parole was revoked, and he was returned to the Department of Corrections. The defendant was paroled again at age 17.
While he was free, Esther was murdered.
No Remorse
“The defendant expressed no guilt for this offense or remorse for the victim, who was an 82 year old woman who posed no physical threat to him. The defendant’s history of senseless criminal acts of mortal violence toward others and lack of remorse for his victims indicates to this officer that the defendant has no predilection for rehabilitation.”
Neurological Impairment
On an intelligence test, the defendant scored in the borderline or mildly retarded range. Prost attributed some of his performance to “neurological impairment.” Other tests confirmed that and indicated a high probability of organic brain damage.
He was diagnosed as mildly mentally retarded.
The defendant’s verbal intelligence indicated that he does have capacity for making a “socially appropriate judgment.”
Given Natural Life
The appellate court noted that the defendant’s sentence was not unconstitutional under Miller because the defendant here was afforded a sentencing hearing where natural life imprisonment was not the only available sentence.
Defendant Pushing The Envelope
The defendant appealed.
Defendant was pushing the envelope and asking that the Illinois Supreme Court create a categorical ban on juvenile life sentences.
Procedurally, this is a denial of a successive postconviction that is being appealed.
Law
The United States Constitution prohibits “cruel and unusual punishments.” U.S. Const., amend. VIII.
Inherent in that prohibition is the concept of proportionality. See Graham, 560 U.S. at 59. Criminal punishment should be “graduated and proportioned to both the offender and the offense.” Davis, 2014 IL 115595, ¶ 18 (citing Miller, 567 U.S. at ___, 132 S. Ct. at 2463, and Roper, 543 U.S. at 560). When the offender is a juvenile and the offense is serious, there is a genuine risk of disproportionate punishment.
In Roper, Graham,]]> Criminal Nuggets Podcast full clean https://illinoiscaselaw.com/how-to-become-an-illinois-state-judge-with-scott-j-frankel/ Mon, 06 Nov 2017 14:04:28 +0000 https://illinoiscaselaw.com/?p=6993 Episode 412 (Duration 37:05) What’s it take to become an Illinois state judge? 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 […] Episode 412 (Duration 37:05) What’s it take to become an Illinois state judge? 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 ... Episode 412 (Duration 37:05)
What’s it take to become an Illinois state judge?


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 Judicia...]]> Criminal Nuggets Podcast full 37:05 https://illinoiscaselaw.com/dui-dismissed-after-state-trooper-consistently-does-not-come-to-court/ Tue, 17 Oct 2017 21:19:45 +0000 https://illinoiscaselaw.com/?p=9974 People v. Connors, 2017 IL App (1st) 162440 (September). Episode 404 (Duration 9:32) DUI dismissed because prosecutor did not show due diligence in getting the trooper to court for trial. Facts A trooper saw a black sedan veer to the left across the lane markings and then to the right so that half the car crossed […] People v. Connors, 2017 IL App (1st) 162440 (September). Episode 404 (Duration 9:32) DUI dismissed because prosecutor did not show due diligence in getting the trooper to court for trial. Facts A trooper saw a black sedan veer to the left across the la... People v. Connors, 2017 IL App (1st) 162440 (September). Episode 404 (Duration 9:32)
DUI dismissed because prosecutor did not show due diligence in getting the trooper to court for trial.
Facts
A trooper saw a black sedan veer to the left across the lane markings and then to the right so that half the car crossed the fog line.
Forney followed the car for about a mile before he activated his lights and directed the sedan’s driver to pull over.
The driver, Connors, failed the sobriety tests Forney administered. Connors refused to take a breathalyzer test. Prosecutors charged Connors with driving under the influence of alcohol.
Speedy Trial Demand
Defendant demanded a trial and four times the case had to be continued on the state’s motion when the trooper did not show up to court.
There were some status days after that when the defense attorney couldn’t make it and they were waiting for an evaluation.
Eventually, defendant demanded trial again, and again the trooper did not come to court.
Finally Shows Up
When the trooper finally showed up he testified about Connors’s erratic driving and the coordination tests that Connors failed.
Connors stipulated that he told Forney he had drunk four beers, and that he had “nodded off” while driving, which caused him to drive the car across the fog line.

How To File A Motion To Dismiss
In A Criminal Case
See also this Handy Guide On Filing A Motion To Dismiss in a criminal case to discover more on this topic.

Speedy Extension
Upon the state’s request, the court extended the speedy trial term for 60 days and set the case for trial.
Defendant filed a motion to dismiss arguing that for the court to give the prosecution a 60-day extension, the prosecution needed to show due diligence in its efforts to produce Forney for trial. See 725 ILCS 5/103-5(c).
Connors argued that the prosecution had not shown due diligence.
725 IlCS 5/103-5(c)
The parties agree that only subsection (c) of the speedy trial statute could justify the 60- day extension the trial court granted. Subsection (c) provides:
“If the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day the court may continue the cause on application of the State for not more than an additional 60 days.”
725 ILCS 5/103-5(c).
Due Diligence
The State bears the burden of proof on the question of due diligence.
The test of due diligence is whether the State began efforts to locate its witness in sufficient time to secure his presence before the speedy trial term expired.
Hard To Find
There were at least 2 occasions where the prosecution asked for a continuance because the trooper was not in court and had no explanation for why not.
The third time he didn’t show, the prosecutor admitted that more than a year after the court first set the case for trial and Connors answered ready for trial, after three trial dates set specifically at the prosecutor’s request for which the prosecution’s single witness failed to appear, and knowing that the full 160 days had run on Connors’s speedy trial term—the prosecutor still had not found out how to contact his one witness so that he could set a date on which his witness would come to court.
Really Hard To Find
]]> Criminal Nuggets Podcast 1 1 full 9:32 https://illinoiscaselaw.com/investigative-stop-and-car-search-must-cease-once-probable-cause-dissipates/ Mon, 16 Oct 2017 21:14:47 +0000 https://illinoiscaselaw.com/?p=9971 People v. Pulido, 2017 IL App (3d) 150215 (August). Episode 403 (Duration 9:59) After a traffic stop the car is towed to the police station so it could be searched more thoroughly. Gist It turns out the defendant was under investigation by a narcotics unit and they had tipped of the trooper to defendant’s car. Six […] People v. Pulido, 2017 IL App (3d) 150215 (August). Episode 403 (Duration 9:59) After a traffic stop the car is towed to the police station so it could be searched more thoroughly. Gist It turns out the defendant was under investigation by a narcotics ... People v. Pulido, 2017 IL App (3d) 150215 (August). Episode 403 (Duration 9:59)
After a traffic stop the car is towed to the police station so it could be searched more thoroughly.
Gist
It turns out the defendant was under investigation by a narcotics unit and they had tipped of the trooper to defendant’s car.
Six days before the traffic stop defendant gave some meth to an undercover. They set up a bigger deal. Rather than go through with the deal investigators decided to tip off state troopers to the car.
All they told the trooper was that the car had drugs in it.
Didn’t tell him what kind of drugs or where they were kept.
Stopped
The the evidence showed that defendant was properly stopped for speeding.
K-9 unit arrived at the scene while the stop was ongoing, and Rico alerted to narcotics.
The trial court noted that Rico’s certification had expired, but found that went to the weight of the evidence. The court also found that defendant consented to a search of his vehicle. No drugs were found during the first search and the vehicle was moved due to rain and safety issues.
Eventually, at the police station investigators found tubes wrapped with black tape from the vehicle’s air filter. Inside the tubes was a substance that later tested positive for methamphetamines.
Sentence
Ultimately, the court found defendant guilty, and sentenced defendant to 15 years’ imprisonment.
Issue
Was seizing and towing the car outside the scope the police’s constitutional authority?
Terry Stop
A traffic stop is analogous to a Terry investigatory stop, and therefore, the reasonableness of police conduct during a traffic stop may be judged by reference to Terry’s dual inquiry.
The two prongs of this inquiry are
(1) whether the stop was justified at its inception and
(2) whether the officer’s actions during the course of the stop were reasonably related in scope to the circumstances that initially justified the stop.
Terry v. Ohio, 392 U.S. 1, 19-20 (1968).
No Problem With The Speeding
Here, the trooper testified that he had tested and verified that his LIDAR device was working properly at the start of his shift. The LIDAR device showed defendant was traveling seven miles per hour above the posted speed limit. Defendant, therefore, violated section 11- 601(b) of the Illinois Vehicle Code (625 ILCS 5/11-601(b)).
The decision to stop defendant’s vehicle was lawful at its inception.
No Problem With The Drug Dog
After obtaining defendant’s information, the trooper and defendant returned to the squad car so that he could run the information through LEADS and write defendant a warning.
Before the trooper finished writing defendant a warning and receiving the confirmation from LEADS, the K-9 unit arrived on the scene and conducted the free-air sniff. After Rico alerted on the vehicle, the trooper was informed by radio that defendant’s LEADS check was clear. A free-air sniff conducted during a lawful traffic stop does not violate the fourth amendment, as long as it is done, as it was here, within the time reasonably required to complete the mission of the initial traffic stop.
Having found that the free-air sniff did not unreasonably prolong the traffic stop, we now consider whether Rico’s alert constituted probable cause to search defendant’s vehicle.
Did Dog’s Alert Provide Additional Authority?
Although we find that Rico’s positive alert provided the officers with probable cause to search defendant’s vehicle on I-80, we find that such probable cause dissipated after the officers’ initia...]]> Criminal Nuggets Podcast full clean 9:59 https://illinoiscaselaw.com/kid-on-a-bike-stopped-for-questioning-in-a-murder-think-roadblock-for-one/ Wed, 11 Oct 2017 21:08:15 +0000 https://illinoiscaselaw.com/?p=9968 In re Tyreke H., 2017 IL App (1st) 170406 (September). Episode 402 (Duration 10:10) Kid on a bike is stopped because he’s a witness to a murder, then they see a gun in his pocket. Charges The State filed a petition for adjudication of wardship, charging Respondent with two counts of aggravated unlawful use of a […] In re Tyreke H., 2017 IL App (1st) 170406 (September). Episode 402 (Duration 10:10) Kid on a bike is stopped because he’s a witness to a murder, then they see a gun in his pocket. Charges The State filed a petition for adjudication of wardship, In re Tyreke H., 2017 IL App (1st) 170406 (September). Episode 402 (Duration 10:10)
Kid on a bike is stopped because he’s a witness to a murder, then they see a gun in his pocket.
Charges
The State filed a petition for adjudication of wardship, charging Respondent with two counts of aggravated unlawful use of a weapon (AUUW) and one count of unlawful possession of firearms (UPF).
Facts
Plain clothes officers driving in an unmarked car were looking for the the minor respondent because he was wanted for questioning in a homicide.
The officers saw an individual they believed to be Respondent riding a bicycle.
Both Respondent and the officers were traveling eastbound. The officers drove past Respondent, visually confirmed his identity, and stopped the car just in front of Respondent, just east of him, so that he would ride directly to them.
Police notice a bulge in Respondent’s right front jeans pocket.
The Bulge
They get his name and Respondent cooperated, and made no furtive movements either before or during the stop. Officer Ludwich testified that, after they confirmed that Respondent was Tyreke H., it was Officer Ludwich’s intention to ask Respondent some questions and ask whether he was willing to go down to the station. Officer Ludwich came around the rear of the car and approached Respondent from behind. When he was about four feet away, he saw the bulge in Respondent’s pocket.
Silutoutte Of A Gun
He testified that this bulge appeared “to be basically a handgun in [Respondent’s] right front pants pocket.” Officer Ludwich also stated that “[i]t was a silhouette of a handgun in a front jeans pocket.”
Officer Ludwich had recovered a handgun “hundreds” of times during his 23-year career with the Chicago police department. And, in his opinion, the bulge in Respondent’s pocket was “different than what a typical wallet or set of keys would look like.”
Tap & Pat Down
Before conducting a protective pat down of Respondent, Officer Ludwich tapped Respondent’s right pant pocket to confirm, for officer safety, whether it was a firearm. Officer Ludwich described what he felt as a “hard metallic nonyielding touch.”
Based on what he felt when he tapped Respondent’s right front pants pocket, Officer Ludwich “believed” and “knew” it was a gun in Respondent’s pocket.
He said, “What’s this?”
Respondent replied, “It’s a gun. I need it for protection.”
Officer Ludwich performed a protective pat down and recovered a .22 caliber AMT semiautomatic handgun with six live rounds, five in the magazine and one in the chamber.
Officer Ludwich testified that the gun was approximately seven inches long. The weapon was inventoried, and Respondent was arrested.
Issue
Respondent raises two issues regarding his encounter with the police officers.
He says he was unreasonably seized in violation of the fourth amendment, and that he was unreasonably searched in violation of the fourth amendment.
Respondent says that the police seized him when they blocked his path, forcing him to stop his bicycle and answer questions, and that they did so without any reasonable, articulable suspicion that Respondent had committed a crime.
Mendenhall Factors
The Illinois Supreme Court has stated that “the absence of Mendenhall factors, while not necessarily conclusive, is highly instructive.” Luedemann, 222 Ill. 2d at 554.
The United States Supreme Court has identified the following four factors that indicate a seizure:
(1) the threatening presence of several officers,
(2) the display of a weapon by an officer,
(3) some physical touching of the person, or
]]> Criminal Nuggets Podcast full clean 10:10 https://illinoiscaselaw.com/field-sobriety-tests-in-a-dui-investigation-are-ordinarily-considered-a-seizure/ Tue, 10 Oct 2017 21:03:03 +0000 https://illinoiscaselaw.com/?p=9966 People v. Bianca, 2017 IL App (2d) 160608 (September). Episode 401 (Duration 6:26) In this DUI the officer jumps right into FSTs before corroborating the unamous tip. Anonymous Tip LaBarbera testified that he was performing a traffic stop when a citizen drove by and reported seeing a car driving “recklessly and all over the road” and […] People v. Bianca, 2017 IL App (2d) 160608 (September). Episode 401 (Duration 6:26) In this DUI the officer jumps right into FSTs before corroborating the unamous tip. Anonymous Tip LaBarbera testified that he was performing a traffic stop when a citize... People v. Bianca, 2017 IL App (2d) 160608 (September). Episode 401 (Duration 6:26)
In this DUI the officer jumps right into FSTs before corroborating the unamous tip.

Anonymous Tip
LaBarbera testified that he was performing a traffic stop when a citizen drove by and reported seeing a car driving “recklessly and all over the road” and that she had seen the vehicle park behind K&L Liquors.
The citizen described the vehicle as a black SUV with a manufacturer’s marking that looked like an “upsidedown V.”
The citizen did not give LaBarbera a description of the license plate or the car’s exact make or model and could not describe anything about the driver other than that she was a white female with blonde hair.
The citizen did not elaborate on what she meant by “driving recklessly and all over the road,” and she did not explain how long the driver had done so.
The citizen then drove off and LaBarbera did not ask her to wait so he could obtain more information.
State Concedes
Further, the the informant’s tip was truly unanimous and required corroboration that did not exist. It was not sufficiently reliable to provide LaBarbera with reasonable suspicion for the investigatory stop.
“Stay In That Spot”
He then saw defendant leave the store and enter the car. LaBarbera left the traffic stop, parking his marked squad car next to defendant’s car.
Defendant testified that LaBarbera parked his marked squad car behind her car, blocking her from leaving, and then got out of his car. He was in full uniform. He came up to her window to speak to her.
LaBarbera testified that he could not recall “for sure,” but he did not think he “even got out of [his] car.”
LaBarbera asked defendant to “stay in that spot” so he could speak with her after he “cleared” his other traffic stop.
He testified that he did not “command” defendant to stay but rather “requested” her to do so. Defendant testified that the officer asked her to stay. Although the officer asked her to stay, defendant believed she was required to stay and would not have left.
LaBarbera agreed that defendant “followed his instructions” and waited for him to return.
Now Just A Traffic Stop
When LaBarbera returned to defendant’s car, he asked for her driver’s license and proof of insurance.
Eventually, he had defendant step out of the car to perform field sobriety tests. Following the field sobriety tests, LaBarbera arrested defendant.
He brought her to the station, where she submitted to a Breathalyzer.
LaBarbera never observed defendant driving the vehicle, but he testified that defendant’s arrest was not based solely on the anonymous tip he had received from the citizen.
Police-Citizen Encounters
There are three tiers of police-citizen encounters:
(1) an arrest of a citizen, which must be supported by probable cause;
(2) a temporary investigatory seizure conducted pursuant to Terry v. Ohio, 392 U.S. 1 (1968), where an officer may conduct a brief, investigatory stop of a citizen when the officer has a reasonable, articulable suspicion of criminal activity and such suspicion amounts to more than a mere “hunch”; and
(3) police-citizen encounters that are consensual, which involve no coercion or detention and do not implicate any fourth amendment interests.
State Says Consensual
The State has argued consistently both before the trial court and now on appeal that the evidence shows that the encounter between defendant and LaBarbera was consensual because the officer merely asked her to remain while he completed the unrelated traffic stop and she agreed to that request.
Both LaBarbera and defendant testified that LaBarbera asked defendant to stay.
]]> Criminal Nuggets Podcast full clean 6:26 https://illinoiscaselaw.com/a-rational-review-of-the-jason-stockley-acquittal-why-this-officer-was-not-guilty-of-murder/ Mon, 02 Oct 2017 17:07:09 +0000 https://illinoiscaselaw.com/?p=11904 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 […] A Rationale Review Of The Jason Stockley Shooting From St. Louis



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



More 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 trans...]]> Criminal Nuggets Podcast full 39:07 https://illinoiscaselaw.com/what-you-dont-know-about-the-jason-stockley-shooting-why-this-former-st-louis-officer-was-acquitted-of-murder/ Mon, 02 Oct 2017 14:56:47 +0000 https://illinoiscaselaw.com/?p=6914 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 […] 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 Sta... 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 ...]]> Criminal Nuggets Podcast full 39:07 https://illinoiscaselaw.com/whats-the-full-extent-of-the-emergency-aid-exception-to-the-warrant-requirement/ Mon, 18 Sep 2017 18:04:46 +0000 https://illinoiscaselaw.com/?p=9944 People v. Ramsey, 2017 IL App (1st) 160977 (August). Episode 391 (Duration 8:51) Police take some bloody glass from defendant’s house after responding to an emergency; did they need a search warrant? Facts Defendant arranged with the victim to pay her for sex on line. As they got to the top of the stairs, Ramsey placed […] People v. Ramsey, 2017 IL App (1st) 160977 (August). Episode 391 (Duration 8:51) Police take some bloody glass from defendant’s house after responding to an emergency; did they need a search warrant? Facts Defendant arranged with the victim to pay her ... People v. Ramsey, 2017 IL App (1st) 160977 (August). Episode 391 (Duration 8:51)
Police take some bloody glass from defendant’s house after responding to an emergency; did they need a search warrant?
Facts
Defendant arranged with the victim to pay her for sex on line.
As they got to the top of the stairs, Ramsey placed his hand on F.S.’s shoulder, held a knife to her neck, and told her not to scream or he would kill her. Ramsey told F.S. to “get on the couch” in the bedroom and take off her clothes. After F.S. disrobed and while Ramsey still held the knife, he demanded that F.S. perform oral sex on him.
He sexually assaulted her.
Ramsey was interrupted by his phone ringing.
Ties Her To A Bench
He took F.S. to an exercise bench in the room and tied her to the bench with her hands behind her back and put a sock in her mouth so she could not scream. Ramsey dressed and left the room to return the phone call. While Ramsey was out of the room, F.S. was able to free her hands. She then punched out a window in the room. When she could not escape through the window, she leaned out the window and called out for help.
Screams For Help
Ramsey then returned and pulled F.S. back into the room by her hair. As they struggled, Ramsey bit F.S.’s shoulder and punched her face and head several times.
Alphonzo Wells, Ramsey’s next door neighbor, was outside washing his truck around noon that day. Wells heard the screams, saw a hand pull F.S. back into the house and called 911.
Police Arrive
Ramsey told F.S. to get dressed and to go wash the blood off her face because the police would be arriving soon.
As Ramsey stood by the front door, other officers entered the home. F.S., crying, disheveled, and with scratches on her arms, ran down the stairs and towards the officers. Police noticed blood droplets on his T-shirt. Another officer noticed glass on the sidewalk under the broken window. Ramsey told the officers he had gotten into a fight with his girlfriend.
Ramsey was placed under arrest, and F.S. was taken to the hospital by ambulance.
The Walk Through
Officers walked through both floors of the residence to determine whether other perpetrators or victims were present.
They checked closets, under the beds, and anywhere else a person could be hiding. There is no evidence that the officers opened drawers or otherwise searched in locations where a human being could not hide. In the second floor bedroom, they noticed a knife and exercise equipment.
The officers did not take any items at that time.
Evidence Tech Shows Up
About an hour later, an evidence technician entered the home and recovered the knife, an exercise cord, an audiovisual cord wrapped around a piece of exercise equipment, and a container of petroleum jelly.
The technician also recovered a latex condom from the floor of the bedroom by the bed.
The technician remained in the house for about 20 minutes, collecting the items in the bedroom and taking photographs.
Issue
Before trial, Ramsey filed a motion to suppress items recovered from and photographs taken inside his home.
Ramsey claims the police were unjustified in entering and searching the residence after he was arrested and an ambulance was called for F.S. He also contends that the delay in recovering the items, necessitating a second entry by the evidence technician, provides additional grounds for suppression.
Ramsey argued that because there were no exigent circumstances, police were required to obtain a warrant to search his home after he was arrested.
State Says
The State contended that officers responding to the 911 call had probable cause to enter the home in order to locate any victims or other...]]> Criminal Nuggets Podcast full clean 8:51 https://illinoiscaselaw.com/making-his-own-way-an-attorney-profile-featuring-shady-yassin/ Fri, 15 Sep 2017 13:05:08 +0000 https://illinoiscaselaw.com/?p=6815 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. 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 […] 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. In This Episode “It was a cool thing that our friendship merged into a business partnership and it was one that... 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.

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.
]]> Criminal Nuggets Podcast full 20:45 https://illinoiscaselaw.com/since-guns-are-legal-to-own-can-an-officer-stop-you-just-for-seeing-your-gun/ Mon, 11 Sep 2017 21:38:47 +0000 https://illinoiscaselaw.com/?p=9938 People v. Holmes, 2017 IL 120407 (July). Episode 387 (Duration 10:12) Illinois Supreme Court adopts the federal rule in holding that gun arrests before Aguilar are supported by probable cause. Issue Defendant filed a motion to quash his arrest and suppress evidence. He says the probable cause underlying defendant’s arrest was based solely upon a violation […] People v. Holmes, 2017 IL 120407 (July). Episode 387 (Duration 10:12) Illinois Supreme Court adopts the federal rule in holding that gun arrests before Aguilar are supported by probable cause. Issue Defendant filed a motion to quash his arrest and supp... People v. Holmes, 2017 IL 120407 (July). Episode 387 (Duration 10:12)
Illinois Supreme Court adopts the federal rule in holding that gun arrests before Aguilar are supported by probable cause.
Issue
Defendant filed a motion to quash his arrest and suppress evidence.
He says the probable cause underlying defendant’s arrest was based solely upon a violation of sections 24-1.6(a)(1), (a)(3)(A) and 24-1.6(a)(2), (a)(3)(A) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A), the so called Aguilar charges, which were declared facially unconstitutional.
Defendant argued that the void ab initio doctrine retroactively invalidated probable cause and thereby incidentally mandating the suppression of the evidence inculpating defendant for his FOID violation.
Facts
Officer Barrera saw defendant lean into the passenger-side window of a vehicle to speak to the driver.
Defendant’s shirt rode up, revealing a revolver tucked into his waistband.
Officer Barrera approached defendant, asked him to place his hands on his head, and removed defendant’s revolver.
It was after defendant was taken into custody that Officer Barrera learned defendant’s name and that he did not have a FOID card. Officer Barrera had no arrest or search warrant for defendant at the time of his arrest.
Therefore, probable cause was based solely upon defendant’s violation of the subsequently invalidated AUUW subsections.
Void Ab Initio
Defendant contends that our 2002 decision in Carrera mandates strict application of the void ab initio doctrine, which, defendant maintains, would have the effect of retroactively invalidating probable cause.
Any other result, according to defendant, would be counter to the void ab initio doctrine.
The void ab initio doctrine is a state jurisprudential principle.

“When a statute is held to be facially unconstitutional, the statute is said to be void ab initio, i.e., void ‘from the beginning.’ ” (Internal quotation marks omitted.) People v. McFadden, 2016 IL 117424, ¶ 17 (quoting Perlstein v. Wolk, 218 Ill. 2d 448, 455 (2006)).
“An unconstitutional law ‘confers no right, imposes no duty and affords no protection. It is as though no such law had ever been passed.’ ” People v. Gersch, 135 Ill. 2d 384, 399 (1990) (quoting People v. Schraeberg, 347 Ill. 392, 394 (1932)). “[W]here a statute is violative of constitutional guarantees, we have a duty not only to declare such a legislative act void, but also to correct the wrongs wrought through such an act by holding our decision retroactive.”

The law is clear that a defendant cannot be prosecuted under a statute that is void ab initio. See McFadden, 2016 IL 117424, ¶ 19. Less clear is whether the void ab initio doctrine is meant to be given such literal interpretation as to extend its reach to probable cause.
Don’t Take The Latin To Serious
The Illinois Supreme Court said that strict application of the void ab initio doctrine in the present context, to the extent posited by defendant, would conflict
(1) with precedent from the United States Supreme Court and
(2) with two recent decisions from the court.
Federal case law is clear that, under the facts of this case, probable cause would not be retroactively invalidated by the subsequent invalidation of the statute upon which probable cause was based at the time of the arrest. DeFillippo, 443 U.S. 31; Charles, 801 F.3d 855.
Kind Of Already Pissed On Void Ab Initio Doctrine
The court said  this analysis was compelling.
Strict application of the Illinois void ab initio doctrine,]]> Criminal Nuggets Podcast full 10:12 https://illinoiscaselaw.com/third-or-more-duis-is-considered-aggravated-dui-and-subjects-offender-to-stiffer-penalties/ Thu, 24 Aug 2017 02:10:29 +0000 https://illinoiscaselaw.com/?p=9925 People ex rel. Glasgow v. Carlson, 2016 IL 120544 (December). Episode 382 (Duration 10:20) Mandamus awarded to force trial court to sentence defendant as a class X offender. Sentencing Dispute Petitioner, James W. Glasgow, State’s Attorney of Will County, seeks mandamus pursuant to Illinois Supreme Court Rule 381 against respondent, the Honorable David M. Carlson, […] People ex rel. Glasgow v. Carlson, 2016 IL 120544 (December). Episode 382 (Duration 10:20) Mandamus awarded to force trial court to sentence defendant as a class X offender. Sentencing Dispute Petitioner, James W. Glasgow, People ex rel. Glasgow v. Carlson, 2016 IL 120544 (December). Episode 382 (Duration 10:20)
Mandamus awarded to force trial court to sentence defendant as a class X offender.

Sentencing Dispute
Petitioner, James W. Glasgow, State’s Attorney of Will County, seeks mandamus pursuant to Illinois Supreme Court Rule 381 against respondent, the Honorable David M. Carlson, judge of the circuit court of Will County.
Defendant had some priors in his background: Defendant’s record included a 1989 Class 2 felony conviction, a 1981 Class X felony conviction, and a 1980 Class 2 felony conviction.
What is Mandamus?
Under the Illinois Constitution, this court has discretionary original jurisdiction to hear mandamus cases. See Ill. Const. 1970, art. VI, § 4(a), Illinois Supreme Court Rule 381.
Mandamus is an extraordinary remedy used to compel a public official to perform a purely ministerial duty where no exercise of discretion is involved.
This court awards mandamus relief only when “the petitioner establishes a clear right to the relief requested, a clear duty of the public official to act, and clear authority in the public official to comply. Only matters of law are ever appropriate in a mandamus.
Judge’s Benchbook
Apparently, the judge had some bench book memo saying this section was inconsistent and some lenity should be applied.
The judge ignored the cases that were cited to him.
What They Want
Petitioner asks this court to compel respondent to
(1) vacate its sentencing order,
(2) classify as a Class 2 felony a third violation of Illinois’s driving while under the influence (DUI) statute of the Illinois Vehicle Code (625 ILCS 5/11-501 et seq.), and
(3) resentence defendant as a Class X offender pursuant to section 5-4.5-95(b) of the Unified Code of Corrections (730 ILCS 5/5-4.5-95(b)).
Class 4 or Class 2
Defendant was charged by indictment with Class 2 felony aggravated DUI (625 ILCS 5/11-501(a)(2)).
The indictment alleged he had 2 prior DUI convictions. The State acknowledged that a separate provision, subsection (d)(2)(A), generally classified aggravated DUI as a Class 4 felony.
Nonetheless, the State argued that because defendant was charged under subsection (d)(2)(B), that provision’s express classification of the offense as a Class 2 felony must control.
For support, the State cited to the appellate court’s decision in People v. Mischke, 2014 IL App (2d) 130318, that reached the same conclusion. In turn, the State argued that defendant was subject to a mandatory Class X sentence on his third DUI conviction based on his prior criminal record.
What Trial Court Did
The circuit court, however, continued to express doubt that defendant’s third DUI conviction should be classified as a Class 2 felony.
The court repeatedly asked the State to explain when a third DUI conviction would ever be classified as a Class 4 felony.
The court also suggested that the State was asking the court to ignore subsection (d)(2)(A), that generally defined aggravated DUI as a Class 4 felony.
The court then sentenced defendant as a Class 4 offender to 24 months of probation.
(d)(2)(A) v. (d)(2)(B)
First of all, subsection (d)(1)(A) provides that a person is guilty of aggravated DUI if that person commits a DUI o...]]> Criminal Nuggets Podcast full clean 10:20 https://illinoiscaselaw.com/police-not-allowed-to-testify-they-can-tell-when-an-arrestee-is-lying/ Wed, 23 Aug 2017 01:57:40 +0000 https://illinoiscaselaw.com/?p=9920 People v. O’Donnell, 2015 IL App (4th) 130358 (March). Episode 381 (Duration 12:56) Officer says she could tell defendant was not telling the truth when he told her his story. Single Car Accident Beckett testified he responded to a car accident at approximately 12:46 a.m. and no driver was found at the scene. At 1:12 […] People v. O’Donnell, 2015 IL App (4th) 130358 (March). Episode 381 (Duration 12:56) Officer says she could tell defendant was not telling the truth when he told her his story. Single Car Accident Beckett testified he responded to a car accident at appr... People v. O’Donnell, 2015 IL App (4th) 130358 (March). Episode 381 (Duration 12:56)
Officer says she could tell defendant was not telling the truth when he told her his story.
Single Car Accident
Beckett testified he responded to a car accident at approximately 12:46 a.m. and no driver was found at the scene. At 1:12 a.m., he was notified by the local fire department an individual had been located walking approximately one mile away.
Defendant Located
Beckett proceeded to that location, where he found defendant.  
Beckett testified defendant told him a friend had been driving his car, he had been a passenger, and after the crash, he exited the car to go to a business district to find a way home. Beckett stated, at the time he located defendant, defendant was not near a business district, but was walking deeper into a residential area.
Crash Scene
Arresting officer Rebecca Bragg of the Mahomet police department testified next for the State.
She stated she observed skid marks across the road and a crashed vehicle in a bean field. She identified the vehicle as a white Grand Prix and testified the outside of the vehicle was damaged–the hood was crushed, the mirrors were broken, the front windshield was shattered, and the passenger’s side window was “busted out.”
Bragg testified she observed both the driver’s side and passenger’s side air bags had been deployed. She stated the driver’s side air bag looked like it had been tampered with and pushed in between the handles of the steering wheel. Bragg also observed a cushion and cell phone on the driver’s seat and miscellaneous items on the passenger’s seat.
She explained the passenger’s side air bag appeared not to have been tampered with and there was a path from the car through the bean field, leading away from the road, where it appeared someone had walked and broken the beans.
Admissible Opinion
In Bragg’s opinion, the accident occurred when “the driver was going entirely too fast, couldn’t make the curve, went off the roadway, tried to overcorrect the steering, and causing [sic] them to skid, and it collided with a fire hydrant, which caused the car to flip and roll.”
Defendant’s Statements At The Scene
Bragg testified she spoke with defendant, the registered owner of the car, after her assisting officer brought him back to the scene.
Defendant explained he went to Uncle Buck’s Sports Bar and Grill (the bar), where he played five or six games of pool with three or four different individuals. Bragg stated defendant could not describe or name any of the people he played pool with, except for one, “John.”
Bragg testified she asked defendant about his alcohol consumption, and defendant admitted he drank “approximately five, twelve-ounce Busch can beers” and was too drunk to drive.
Defendant told Bragg he was ready to leave the bar and talked to the man he had just met playing pool, John, who told defendant he would drive defendant’s car to an address on Prairie View Road. Defendant told Bragg he was not sure where that location was.
It was “John”
Bragg testified defendant told her John was driving too fast and he told him to slow down.
He then explained, once the car went off the roadway, he closed his eyes and did not open them until after the car landed. When he opened his eyes, John was not in the vehicle.
Defendant then told Bragg the car doors would not open, so he crawled out the passenger’s side window and started walking to try to find a business area so he could call a friend. Bragg testified defendant went in the opposite direction of a business area after the accident.
The only information defendant could give Bragg about John was he was a male,]]> Criminal Nuggets Podcast full clean 12:56 https://illinoiscaselaw.com/in-dui-trial-officer-can-give-opinion-testimony-of-intoxication/ Tue, 22 Aug 2017 01:48:15 +0000 https://illinoiscaselaw.com/?p=9917 People v. Martin, 2017 IL App (4th) 150021 (June). Episode 380 (Duration 9:58) A little police opinion testimony was not a problem. Single Car Accident Defendant was convicted of aggravated DUI. The Trooper discovered a black car in the ditch and two men standing outside the vehicle. The Trooper asked if the men were all […] People v. Martin, 2017 IL App (4th) 150021 (June). Episode 380 (Duration 9:58) A little police opinion testimony was not a problem. Single Car Accident Defendant was convicted of aggravated DUI. The Trooper discovered a black car in the ditch and two m... People v. Martin, 2017 IL App (4th) 150021 (June). Episode 380 (Duration 9:58)
A little police opinion testimony was not a problem.
Single Car Accident
Defendant was convicted of aggravated DUI.
The Trooper discovered a black car in the ditch and two men standing outside the vehicle.
The Trooper asked if the men were all right, and they responded they were. The Trooper then asked who had been driving the vehicle, and defendant stated his wife had been driving.
Defendant explained his wife accepted a ride from someone on the interstate to get a tow truck.
The Trooper noted there were no footprints in the snow walking away from the vehicle or walking along the interstate. The Trooper Vandeventer also noted a strong smell of alcohol on defendant’s breath.
The other man eventually says defendant was driving.
Records check revealed he was revoked and at that point he is arrested.
It’s A DUI
Defendant, of course, appeared disoriented, his eyes were red and glassed-over, and his breath smelled of alcohol.
By this point a different the Trooper takes over and asks defendant how many alcoholic beverages he had consumed, and defendant responded he had consumed “four beers approximately.”
The Trooper administered a field sobriety test, but the test was inconclusive.
The Trooper then arrested defendant for driving with a revoked license.
The Trooper transported defendant to the jail and administered the “walk-and-turn” field sobriety test and the “one-legged stand” field sobriety test, both of which indicated defendant was impaired.
Defendant was then charged with DUI.
Wife & Buddy Testify
Defendant’s buddy testified that he was drinking beer with defendant. When they left defendant drove.
While defendant was driving, he slid off the road.
Defendant’s wife was never with them. The wife testifies she was driving, but admitted she did not say this to the the Trooper when she called defendant’s phone and the The Trooper answered.
At that point she was told he was being arrested for DUI and all she did was ask about her car being towed.
Opinion Testimony
It was harmless error when the prosecutor asked the The Trooper who the The Trooper thought was driving.
Defendant argues The Trooper testimony was unfairly prejudicial because the jury was likely to believe him due to his role as a state Trooper.
Defendant also makes much of the fact The Trooper Vandeventer’s testimony related to “the only issue for the jury to decide” and complains this testimony “usurped the province of the jury to judge the credibility of witnesses and decide the facts.”
Ultimate Fact Doctrine
But the court rejected this idea, noting that: Illinois courts have rejected the so-called “ultimate fact” doctrine, which held that a witness may not express his opinion as to the ultimate issue in a case.
Instead, it is now well settled that a witness, whether expert or lay, may provide an opinion on the ultimate issue in a case. This is so because the trier of fact is not required to accept the witness’ conclusion and, therefore, such testimony cannot be said to usurp the province of the jury. See also Ill. R. Evid. 704. (“Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”)
Illinois Rule Of Evidence 701
The Trooper’s testimony as technically an improper lay opinion.
Illinois Rule of Evidence 701 states:
]]> Criminal Nuggets Podcast full clean 9:58 https://illinoiscaselaw.com/nrupa-patel-helps-dissect-conflict-of-interest-confronting-former-prosecutors/ Wed, 09 Aug 2017 18:59:40 +0000 https://illinoiscaselaw.com/?p=6763 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. 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 […] 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. In This Episode “If there can be any possible conflict you get it in writing…” ... 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.


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

* Learn More About Illinois Professional Responsibility Rules
* See More Illinois Conflict of Interest Cases
* 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 Contr...]]> Criminal Nuggets Podcast full 23:20 https://illinoiscaselaw.com/is-it-time-to-kill-the-brady-rule-and-other-big-discovery-issues-with-evan-bruno/ Wed, 02 Aug 2017 15:57:49 +0000 https://illinoiscaselaw.com/?p=6746 In Episode 372 (Duration 33:25), Evan Bruno of Urbana, Illinois dives into some of the current problems with modern discovery rules and procedures. 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 […] In Episode 372 (Duration 33:25), Evan Bruno of Urbana, Illinois dives into some of the current problems with modern discovery rules and procedures. In This Episode “Don’t tell me what’s exculpatory or not. I may know something you don’t know. In Episode 372 (Duration 33:25), Evan Bruno of Urbana, Illinois dives into some of the current problems with modern discovery rules and procedures.



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 The Illinois Rules On Discovery

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
* https://illinoiscaselaw.com/?p=6726 In Episode 369 (Duration 29:56), Evan Bruno of Urbana, Illinois describes his experience working as a clerk in the Illinois Appellate Court system. 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 […] In Episode 369 (Duration 29:56), Evan Bruno of Urbana, Illinois describes his experience working as a clerk in the Illinois Appellate Court system. In This Episode “It’s not cockiness…If you’re willing to put in the work and do the research, In Episode 369 (Duration 29:56), Evan Bruno of Urbana, Illinois describes his experience working as a clerk in the Illinois Appellate Court system.



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
* https://illinoiscaselaw.com/?p=9883 People v. Bonilla, 2017 IL App (3d) 160457 (June). Episode 364 (Duration 15:16) Constitutional violation did not depend on whether the common door to the apartment was locked. Basic Facts On a tip police bring a dog to an apartment complex in Moline, Illinois. The exterior doors leading into the apartment building’s common-area hallways were […] People v. Bonilla, 2017 IL App (3d) 160457 (June). Episode 364 (Duration 15:16) Constitutional violation did not depend on whether the common door to the apartment was locked. Basic Facts On a tip police bring a dog to an apartment complex in Moline, People v. Bonilla, 2017 IL App (3d) 160457 (June). Episode 364 (Duration 15:16)
Constitutional violation did not depend on whether the common door to the apartment was locked.
Basic Facts
On a tip police bring a dog to an apartment complex in Moline, Illinois.
The exterior doors leading into the apartment building’s 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.
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.
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.
Issue
The specific issue before us in this appeal is whether the police officer violated defendant’s fourth amendment rights when he entered the common-area hallway of the unlocked apartment building and conducted a dog sniff of the front door of defendant’s apartment.
More specifically, we must determine whether the police officer’s actions constituted a search for purposes of the fourth amendment.
A Short Review
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.
Property-Based Approach
If applicable, the property-based approach should be applied first.
First of all, 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.

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.
Under the privacy-based approach, a fourth amendment search occurs when police officers intrude into an area in which a person has 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.

Again, there is no need to apply the privacy-based approach if a fourth amendment search has already been found under the property-based approach (if the situation before the court is such ...]]> Criminal Nuggets Podcast full clean 15:16 https://illinoiscaselaw.com/constitutional-violations-depends-on-whether-the-2-story-flat-is-more-like-single-family-home-or-more-like-apartment-building/ Mon, 17 Jul 2017 20:44:08 +0000 https://illinoiscaselaw.com/?p=9881 People v. Martin, 2017 IL App (1st) 143255 (June). Episode 363 (Duration 17:41) Constitutional violation depended on whether the 2 story flat was more like a single family home or an apartment building. A Drug Deal? Police searched a home without a warrant. Police say they observed a man approach defendant and raise his right index […] People v. Martin, 2017 IL App (1st) 143255 (June). Episode 363 (Duration 17:41) Constitutional violation depended on whether the 2 story flat was more like a single family home or an apartment building. A Drug Deal? People v. Martin, 2017 IL App (1st) 143255 (June). Episode 363 (Duration 17:41)
Constitutional violation depended on whether the 2 story flat was more like a single family home or an apartment building.
A Drug Deal?
Police searched a home without a warrant.
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. Police could not tell what the item was that defendant took 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 door frame 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 police said the door was open, he observed that the front door opened into a vestibule or common area that had another door, leading into the residence.
The parties stipulated that the officers did not have a warrant.
Trial Court Findings
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.
Issue
On appeal defendant challenges the warranty seizure of the drugs.
The Case Law
Turning to defendant’s contentions, defendant relies on Jardines, 569 U.S. ___, 133 S. Ct. 1409, and the expectation of privacy test from Katz, 389 U.S. 347. See also the Illinois search & seizure resource guide.
We briefly summarize each framework.
Katz
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. ”
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.

* 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).

Jardines
In Jardines, 569 U.S. ___, 133 S. Ct. at 1413, the Court considered whether using a drug sniffing dog on a homeowner’s porch to investigate the contents of a home was a “...]]> Criminal Nuggets Podcast full clean 17:41 https://illinoiscaselaw.com/illinois-supreme-court-says-lasalle-county-prosecutor-cannot-have-his-own-police-force/ Mon, 10 Jul 2017 20:21:44 +0000 https://illinoiscaselaw.com/?p=9874 People v. Ringland, 2017 IL 119484 (June). Episode 360 (Duration 13:06) Prosecutors cannot designated officials with general policing power. Basic Facts 5 defendants were each stopped by Jeffrey Gaither, a special investigator for the La Salle County State’s Attorney. Each traffic stop occurred on Interstate 80 in La Salle County and resulted in the discovery […] People v. Ringland, 2017 IL 119484 (June). Episode 360 (Duration 13:06) Prosecutors cannot designated officials with general policing power. Basic Facts 5 defendants were each stopped by Jeffrey Gaither, a special investigator for the La Salle County S... People v. Ringland, 2017 IL 119484 (June). Episode 360 (Duration 13:06)
Prosecutors cannot designated officials with general policing power.
Basic Facts
5 defendants were each stopped by Jeffrey Gaither, a special investigator for the La Salle County State’s Attorney.
Each traffic stop occurred on Interstate 80 in La Salle County and resulted in the discovery of a controlled substance.
At issue in this case is the Counties Code section 55 ILCS 5/3-9005(b). Did Gaither have the authority to make these traffic stops?
State’s Attorney Testifies
In the litigation, defendant called the elected SA, Brian Towne, as a witness.
Brian said he created the State’s Attorney’s Felony Enforcement (SAFE) unit specifically to conduct drug interdiction traffic stops on route 80, so he could get his hands on some of that drug money flowing through his county.
Gaither was ex ISP and was hired for this task.
He was paid by La Salle County and was an employee of the State’s Attorney of Lasalle County.
He had a Ford Explorer equipped with lights and a video camera.
The Counties Code
55 ILCS 5/3-9005(b) of the Counties Code provides in relevant part:

“The State’s Attorney of each county shall have authority to appoint one or more special investigators to (1) serve subpoenas, (2) make return of process and (3) conduct investigations which assist the State’s Attorney in the performance of his duties.”

55 ILCS 5/3-9005(b).
Section 3-9005(b) expressly limits its investigation authorization to those investigations that assist a State’s Attorney in the performance of his or her duties.
Thus, to be valid, the instant traffic stops, must constitute investigations that assist a State’s Attorney in the performance of his or her duties.
Additionally, Section 3-9005(a) prescribes certain powers and duties of the State’s Attorney. These duties of each State’s attorney shall be:

* to commence and prosecute all actions, suits, indictments, and prosecutions, civil and criminal, in the circuit court for his or her county, in which the people of the State or county may be concerned;
* all actions and proceedings brought by any county officer in his or her official capacity;
* to prosecute charges of felony or misdemeanor, for which the offender is required to be recognized to appear before the circuit court (55 ILCS 5/3-9005(a)(6);
* to prosecute all forfeited bonds and recognizances and all actions and proceedings for the recovery of debts, revenues, moneys, fines, penalties, and forfeitures accruing to the State or his or her county or to any school district or road district in the county;
* to prosecute all suits in the county against railroad or transportation companies, which may be prosecuted in the name of the People of the State of Illinois (55 ILCS 5/3-9005(a)(2));
* to defend all actions and proceedings brought against his or her county, or against any county or State officer, in an official capacity, within the county (55 ILCS 5/3-9005(a)(4);
* to attend the examination of all persons brought before any judge on habeas corpus, when the prosecution is in his or her county (55 ILCS 5/3-9005(a)(5);
* to give his or her opinion, without fee or reward, to any county officer in the county, upon any question or law relating to any criminal or other matter, in which the people or the county may be concerned (55 ILCS 5/3-9...]]> Criminal Nuggets Podcast full clean 13:06 https://illinoiscaselaw.com/illinois-bail-reform-law/ Fri, 07 Jul 2017 18:31:04 +0000 https://illinoiscaselaw.com/?p=6687 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. 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 […] 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. In This Episode “Same old song.” — Anonymous Lawyer. Let’s take a closer look at the new Illinois bail reform... 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.



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

* Learn More About The Illinois Bail/Bond System
* 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

]]> Criminal Nuggets Podcast full 20:21 https://illinoiscaselaw.com/fidgeting-with-your-waistband-at-the-wrong-time-gonna-get-you-patted-down/ Tue, 27 Jun 2017 18:30:44 +0000 https://illinoiscaselaw.com/?p=9867 People v. Richardson, 2017 IL App (1st) 130203-B (May). Episode 355 (Duration 6:52) 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 […] People v. Richardson, 2017 IL App (1st) 130203-B (May). Episode 355 (Duration 6:52) 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. People v. Richardson, 2017 IL App (1st) 130203-B (May). Episode 355 (Duration 6:52)
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 warrant...]]> Criminal Nuggets Podcast full clean 6:52 https://illinoiscaselaw.com/professor-beckett-on-how-to-file-and-win-a-change-in-venue-motion/ Tue, 20 Jun 2017 19:39:57 +0000 https://illinoiscaselaw.com/?p=9613 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD In This Episode “Fair and impartial doesn’t mean you’re ignorant.” […] 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. Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download ... 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.


Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download
APPLE PODCASTS GOOGLE PODCASTS
SPOTIFY ANDROID RSS
DIRECT DOWNLOAD
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.]]> Criminal Nuggets Podcast full 54:41 https://illinoiscaselaw.com/after-a-driver-is-arrested-must-police-cease-all-contact-with-the-passengers/ Mon, 19 Jun 2017 17:48:44 +0000 https://illinoiscaselaw.com/?p=9854 People v. Veal, 2017 IL App (1st) 150500 (May). Episode 350 (Duration 4:30) When a driver is arrested does that then mean that the passengers are free to leave and go on their way? Charges Veal was charged with four counts of unlawful use of a weapon by a felon, two counts of aggravated unlawful use […] People v. Veal, 2017 IL App (1st) 150500 (May). Episode 350 (Duration 4:30) When a driver is arrested does that then mean that the passengers are free to leave and go on their way? Charges Veal was charged with four counts of unlawful use of a weapon b... People v. Veal, 2017 IL App (1st) 150500 (May). Episode 350 (Duration 4:30)
When a driver is arrested does that then mean that the passengers are free to leave and go on their way?
Charges
Veal was charged with four counts of unlawful use of a weapon by a felon, two counts of aggravated unlawful use of a weapon, and one count of armed habitual criminal after an officer recovered a gun on Veal’s seat during a traffic stop.
Facts
Police pulled up next to a Honda Civic at a red light, at which time officers observed that the rear two passengers of the car were not wearing seatbelts.
Defendant was the rear seat passenger and was seen making movements toward his waist, as though he was trying to cover something.
Specifically, the officer testified that Veal moved his hands towards his waist on the right side of his body and pushed his waist down.
Driver Arrested
The driver was ordered out and arrested.
He then ordered Veal out of the car and opened the door for him.
As Veal exited the car, Officer Kanski saw a handgun underneath where Veal had been sitting, and he immediately secured Veal and took possession of the weapon.
Issue
The issue on appeal is whether or not the traffic stop had ended once the driver was arrested.
Specifically, the parties dispute whether Officer Kanski’s command for Veal to exit the car occurred while the stop was in progress. Veal contends that following the arrest of the driver, the stop had concluded and he was free to leave. 
Illinois courts have not squarely confronted the issue presented in this case, which is whether a traffic stop ends when, instead of returning papers to the driver, the officers arrest or restrain him.
Law
There are several exceptions to the warrant requirement, including the circumstance where a police officer briefly stops a person for questioning when the officer reasonably believes that person has committed, or is about to commit, a crime—colloquially known as a Terry stop.
To lean more about Illinois search and seizure issues check out this resource page.
A motor vehicle stop is akin to a Terry stop (Knowles v. Iowa, 525 U.S. 113, 117 (1998)), and as such, we analyze the reasonableness of such stops under Terry principles (Jones, 215 Ill. 2d at 270).
And both parties agree that following a lawful traffic stop police may, as a matter of course, order the driver and any passengers out of the vehicle pending completion of the stop.
Traffic Stop & No Seat Belts
A traffic stop is reasonable when the police have probable cause to believe that a traffic violation has occurred.
Here, Veal does not challenge the legality of the stop based on the fact that both Veal and his fellow rear-seat passenger were not wearing seatbelts. See 625 ILCS 5/12-603.1(a) (generally requiring rear-seat passengers to wear safety belts).
Analysis
According to Veal, the order to step out of the car constituted a new police-citizen encounter requiring separate justification under the fourth amendment.
The reviewing court disagreed.
We have considered the question of when a traffic stop “ends” for purposes of determining the legality of a later search of the automobile or the defendant. As a general matter, we have held that the return of paperwork—e.g., a driver’s license, vehicle registration, or proof of insurance—signifies the conclusion of the stop as it conveys to the driver that he is free to leave, and any ensuing search must be supported on grounds independent of t...]]> Criminal Nuggets Podcast full clean 4:30 https://illinoiscaselaw.com/proximate-cause-defense-in-aggravated-dui-remains-intact-after-illinois-law-change/ Tue, 13 Jun 2017 17:36:13 +0000 https://illinoiscaselaw.com/?p=9852 People v. Way, 2017 IL 120023 (April). Episode 349 (Duration 7:44) Proximate cause defense in aggravated DUI cases remains alive and well after the cannabis reform law. This was a cannabis related aggravated DUI. To learn more about Illinois DUI law visit this resource page. Facts Defendant drove over the centerline of a two-lane road […] People v. Way, 2017 IL 120023 (April). Episode 349 (Duration 7:44) Proximate cause defense in aggravated DUI cases remains alive and well after the cannabis reform law. This was a cannabis related aggravated DUI. People v. Way, 2017 IL 120023 (April). Episode 349 (Duration 7:44)
Proximate cause defense in aggravated DUI cases remains alive and well after the cannabis reform law.
This was a cannabis related aggravated DUI. To learn more about Illinois DUI law visit this resource page.
Facts
Defendant drove over the centerline of a two-lane road in and struck head-on a truck driven by a pregnant lady.
Both the pregnant lady and defendant’s 14-year-old son, who was a passenger in defendant’s vehicle, suffered from great bodily harm.
Defendant consented to blood and urine samples on the day of the accident. The urine test revealed the presence of tetrahydrocannabinol (THC) metabolite, which results from cannabis use.
The Charge
Section 11-501(a)(6) of the Illinois Vehicle Code (Vehicle Code) makes it a misdemeanor offense to drive or be in actual physical control of any vehicle in this state while there is any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis. 625 ILCS 5/11-501(a)(6).
Section 11-501(d)(1)(C) of the Vehicle Code elevates the misdemeanor offense to felony aggravated DUI if the person, in committing the violation of subsection (a), was involved in a motor vehicle accident that resulted in great bodily harm or permanent disability or disfigurement to another, when the violation was a proximate cause of the injuries. 625 ILCS 5/11-501(d)(1)(C).
Section 11-501 of the Vehicle Code provides, in pertinent part:
“(a) A person shall not drive or be in actual physical control of any vehicle within this State while: * * * (6) there is any amount of a drug, substance, or compound in the person’s breath, blood, or urine resulting from the unlawful use or consumption of cannabis listed in the Cannabis Control Act *** . * * * (d) Aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof. (1) Every person convicted of committing a violation of this Section shall be guilty of aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof if: * * * (C) the person in committing a violation of subsection (a) was involved in a motor vehicle accident that resulted in great bodily harm or permanent disability or disfigurement to another, when the violation was a proximate cause of the injuries[.]” 625 ILCS 5/11-501 (West 2010).
Note: This provision of the Vehicle Code was recently amended and no longer imposes a zero-tolerance ban on driving with cannabis in the driver’s system. Pub. Act 99-697 (eff. July 29, 2016).
Issue
Defendant was not allowed to call her doctor who would have testified that defendant “has low blood pressure and it is possible that the loss of consciousness right before the accident was caused by this condition and not caused by any particular drug.
At issue is whether defendant should have been allowed to present evidence from her physician that a medical condition, rather than drug impairment, led her to lose consciousness and was the sole cause of the resulting collision with Wood’s vehicle.
Doctor Would Have Said
Of course, the doctor could not say that was the cause, simply that it was a possibility.”
Defense counsel also stated that defendant would have testified “that she was not impaired and had not done any illegal drugs that particular day” and would have called three lay witnesses “who saw her shortly before the accident to testify that she was not impaired.”
Law Changed
The Act now prohibits driving with either 5 nanograms or more of...]]> Criminal Nuggets Podcast full clean 7:44 https://illinoiscaselaw.com/officers-inaccurate-reliance-on-hgn-throws-his-credibility-into-question/ Wed, 07 Jun 2017 17:10:14 +0000 https://illinoiscaselaw.com/?p=9847 People v. Motzko, 2017 IL App (3d) 160154 (April). Episode 347 (Duration 6:18) Defendant wins his motion to suppress in this DUI arrest in part because the officer doesn’t understand HGN. Charges Defendant was involved in single-vehicle motorcycle accident and was subsequently charged with citations for improper lane usage (625 ILCS 5/11-709(a)), failure to reduce speed […] People v. Motzko, 2017 IL App (3d) 160154 (April). Episode 347 (Duration 6:18) Defendant wins his motion to suppress in this DUI arrest in part because the officer doesn’t understand HGN. Charges Defendant was involved in single-vehicle motorcycle acci... People v. Motzko, 2017 IL App (3d) 160154 (April). Episode 347 (Duration 6:18)
Defendant wins his motion to suppress in this DUI arrest in part because the officer doesn’t understand HGN.

Charges
Defendant was involved in single-vehicle motorcycle accident and was subsequently charged with citations for improper lane usage (625 ILCS 5/11-709(a)), failure to reduce speed to avoid an accident (625 ILCS 5/11-601(a)), and DUI (625 ILCS 5/11-501(a)(2)).
Facts
A hearing was held on defendant’s motion to suppress evidence and quash arrest.
When the officer arrived, he saw a motorcycle lying on its side and defendant sitting on the ground being treated by medical personnel.
The officer spoke to a witness, who told him that he observed defendant drive his motorcycle up Main Street at a “high rate of speed,” fail to negotiate the curve, and crash. The witness also told the officer that he could smell alcohol on defendant’s breath. The officer did not question the security guard further.
The officer spoke to defendant while he was being treated at the scene.
The officer asked defendant if he had consumed any alcohol. Defendant initially stated that he had a 12-ounce beer and then corrected himself and said he had a 20-ounce beer. The officer admitted that he had no record or recollection of defendant having slurred speech.
HGN
At the hospital, the officer performed a Horizontal Gaze Nystagmus (HGN) test on defendant.
The officer did not perform any other field sobriety tests on defendant because of his injuries from the accident.
Before the administration of the HGN test, defendant told the officer that he was blind in his right eye. The officer did not remember asking defendant if he struck his head during the accident but admitted that defendant may have sustained a head injury.
The officer did not take that into account when administering the HGN test to defendant.
He said he observed five clues during defendant’s HGN test and explained that the presence of four or more clues is a strong indication that the individual being tested is “over .08 or intoxicated.”
The officer testified that he received training in the HGN test and was taught that it can be used to determine if someone is intoxicated. He testified that HGN is “one of the most *** accurate tests in determining somebody to be over a .08 [blood alcohol level].”
In his report, the officer listed “glassy bloodshot eyes, slight odor of an alcoholic beverage, single vehicle crash involving motorcycle, [and] admission to drinking” as his reasons for believing defendant was driving under the influence of alcohol.
Arrest Factors
At the hearing, the officer testified that he arrested defendant for DUI based on the clues he observed on the HGN test, the odor of an alcoholic beverage on defendant, defendant’s glassy, bloodshot eyes, and his admission to drinking. The officer also considered that defendant was likely coming from a bar when the accident happened based on defendant’s statement that he had been “downtown.”
The officer testified that he also considered the accident and the statements by the security guard when he arrested defendant for DUI.
Trial Court Ruling
The trial court explained that the officer’s testimony that HGN testing can determine the level of intoxication was wrong under People v. McKown, 236 Ill. 2d 278 (2010), and caused the court to call into question his “credibility on the issue of impairment in this case” as well as the HGN test itself “in terms of the officer’s experience, knowledge of the standards, and how it was conducted.”
]]> Criminal Nuggets Podcast full clean 6:18 https://illinoiscaselaw.com/the-magic-words-that-instantly-allow-an-officer-to-search-a-car-without-a-warrant-with-kim-bilbrey/ Tue, 16 May 2017 16:46:39 +0000 https://illinoiscaselaw.com/?p=6542 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. In this Episode Kim Bilbrey has been with the […] 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. 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.

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)

Search & Seizure Resource Page
Check out the
Illinois Search And Seizure Resource Page
to learn more about the 4th amendment.

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

]]> Criminal Nuggets Podcast full 14:18 https://illinoiscaselaw.com/terry-hake-and-the-graylord-investigation-turn-crook-county-into-cook-county/ Wed, 10 May 2017 12:53:54 +0000 https://illinoiscaselaw.com/?p=6527 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.  In This Episode “I saw funny things going on. I saw attorneys meeting with judges before their cases were tried behind closed doors for […] 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 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. 


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
* Criminal Nuggets Podcast full 30:31 https://illinoiscaselaw.com/what-criminal-law-lawyers-need-to-know-about-the-curtis-lovelace-trial-with-curtis-lovelace/ Thu, 04 May 2017 16:27:15 +0000 https://illinoiscaselaw.com/?p=6473 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. 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 […] 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. He was falsely accused of killing his wife, 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.


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
* How Discovery Is Suppose To Work In Criminal Cases

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 s...]]> Criminal Nuggets Podcast full 51:50 https://illinoiscaselaw.com/what-happens-when-police-enter-a-home-to-make-an-arrest-without-a-warrant/ Thu, 27 Apr 2017 17:44:05 +0000 https://illinoiscaselaw.com/?p=9814 People v. Garcia, 2017 IL App (1st) 142141 (March). Episode 330 (Duration 4:34) Police entered a home without a warrant to make a misdemeanor arrest; the exclusionary rule does not mandate suppression of evidence. Charges Defendant was charged with one count of unlawful possession of a firearm based on his possession of a firearm while under […] People v. Garcia, 2017 IL App (1st) 142141 (March). Episode 330 (Duration 4:34) Police entered a home without a warrant to make a misdemeanor arrest; the exclusionary rule does not mandate suppression of evidence. People v. Garcia, 2017 IL App (1st) 142141 (March). Episode 330 (Duration 4:34)
Police entered a home without a warrant to make a misdemeanor arrest; the exclusionary rule does not mandate suppression of evidence.
Charges
Defendant was charged with one count of unlawful possession of a firearm based on his possession of a firearm while under 18 years of age. 720 ILCS 5/24-3.1(a)(1).
Facts
 Officers knock on defendant’s door and either his little brother or mother answered.
They come in an immediately arrest the defendant in the living room. The family testified that they barged in and did not identify themselves as police officers. They took defendant outside the home and before placing defendant in their vehicle, he performed a search of defendant and recovered a six-shot .32 caliber revolver handgun.
The police said defendant was wanted on an armed robbery. They had a signed misdemeanor complaint for theft and battery. In fact, they had no search or arrest warrant.
Issue
Defendant filed a pretrial motion to quash arrest and suppress the gun seized from him on the grounds that it was obtained through a warrantless entry into his home.
 On appeal, defendant contends the trial court erred in denying his motion to quash arrest and suppress evidence because the evidence was obtained through exploitation of the illegal warrantless arrest within his home and is therefore subject to the exclusionary rule.
In other words, the handgun recovered from his pocket was only recovered through “exploitation of the illegality” of the police officers’ unconstitutional entry into his home.
Case Law
In Payton v. New York, 445 U.S. 573, 602-03 (1980), the United States Supreme Court held that warrantless entry by police officers into a defendant’s residence to make a routine felony arrest in the absence of consent or exigent circumstances violated the defendant’s fourth amendment right to be free from unreasonable search and seizure.
Ten years later, in New York v. Harris, 495 U.S. 14, 16 (1990), the Court again addressed the warrantless entry of police officers into a defendant’s home, examining the issue of whether a statement made by a defendant outside of the home should have been suppressed because the police, by entering defendant’s home without a warrant and without consent, violated Payton’s rights.
The Court concluded that the defendant’s statement should not be suppressed.
In People v. Alexander, 212 Ill. App. 3d 1091 (1991), this court first addressed the Supreme Court’s decision in Harris and reiterated the Harris holding that “where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though [that] statement is taken after an arrest made in the home in violation of Payton, ” because “as long as the police have probable cause for holding the suspect in custody, such statements are neither “the product of being in unlawful custody *** [nor] the fruit of having been arrested in the home rather than someplace else.” Alexander, 212 Ill. App. 3d at 1104 (quoting Harris, 495 U.S. at 19).
Analysis
This court went on to decide that although Harris only referred to statements obtained outside the home, “we see no reason why the rule it enunciates should not apply as well to other evidence obtained outside the home, as the argument for excluding statements was that they were the fruits of an illegal arrest rather than that there was some basis for dist...]]> Criminal Nuggets Podcast full clean 4:34 https://illinoiscaselaw.com/this-drug-interdiction-traffic-stop-was-legal/ Wed, 26 Apr 2017 14:02:54 +0000 https://illinoiscaselaw.com/?p=9812 People v. West, 2017 IL App (3d) 130802 (March). Episode 329 (Duration 10:59) This obvious drug interdiction traffic stop was nonetheless 100% consensual. Facts 12,204 grams of cannabis in 16 bundles wrapped in duct tape hidden in defendant’s vehicle doors are discovered by police during a traffic stop. Issue Defense counsel argued the stop was impermissibly […] People v. West, 2017 IL App (3d) 130802 (March). Episode 329 (Duration 10:59) This obvious drug interdiction traffic stop was nonetheless 100% consensual. Facts 12,204 grams of cannabis in 16 bundles wrapped in duct tape hidden in defendant’s vehicle d... People v. West, 2017 IL App (3d) 130802 (March). Episode 329 (Duration 10:59)
This obvious drug interdiction traffic stop was nonetheless 100% consensual.

Facts
12,204 grams of cannabis in 16 bundles wrapped in duct tape hidden in defendant’s vehicle doors are discovered by police during a traffic stop.
Issue
Defense counsel argued the stop was impermissibly prolonged by “drug interdiction” questions unrelated to the purpose of the stop, that the officer did not have reasonable, articulable suspicion to ask those questions, and that defendant’s consent to search his car was merely acquiescence to the show of authority.
Holding
Ultimately, the trial court denied defendant’s motion.
The court found that the traffic stop was not unreasonably prolonged; it ended when defendant was told he was free to leave, and the ensuing encounter was consensual, not coerced.
The Stop
Interestingly, the office noticed defendant after the car ahead of him flew by him, obviously speeding. Hmmm?
Upon stopping the car the officer noticed defendant had an Arizon DL.
Then the officer asked numerous questions unrelated to the traffic stop.
Defendant said he was driving from Arizona to Flint, Michigan, to visit friends. He said he planned to stay until the end of the week and indicated that he did not know his friends’ address in Michigan.
Illegal narcotics suppliers sometimes hold back the precise drop-off location to prevent drivers from cooperating with police in the event they are stopped before delivering the drugs.
The Driver
The defendant had a suitcase in the backseat, a mechanic’s shirt hanging inside the car, and a camera in the rear window.
The officer asked defendant to sit in his squad car with him while he checked his documents and wrote him a warning ticket.
The officer stated he found it odd that defendant said his business was not going well but he was taking a costly trip to visit friends.
Approximately 14 minutes after Johnson initiated the stop, he issued defendant a written warning, returned his documents, and told defendant he was “free to go.”
Defendant exited the squad car.
One Last Thing
Johnson exited the squad car in quick succession.
Thereafter, he voluntarily remained outside of his car and engaged the officer in conversation.
He told defendant to have a “nice trip,” they shook hands, and they remarked that it was nice meeting each other.
Defendant exited the squad car with his paperwork and began walking back to his car. Before defendant got back into his car, the officer asked defendant if he could talk with him further. Defendant agreed to do so. But before defendant gets into his car the the officer asks for permission to search.
Defendant says “yes.”
No Reasonable Suspicion
This is not a reasonable suspicion case.
Clearly, the officer did not have reasonable suspicion.
He ultimately decided he did not have reasonable, articulable suspicion sufficient to prolong the traffic stop and ended it. Armed with the knowledge that he was free to leave, defendant twice consented to the trooper’s request for permission to search the car, and the defendant said “Yes.”
Not Prolonged
Defendant presented no evidence at trial that the traffic stop was prolonged.
The officer’s testimony and the video footage of the traffic stop established the opposite. He did not cease working on the traffic stop while engaging defendant in conversation.
The defendant points to nothing in the record suggesting otherwise.
The Traffic Stop Ended
Even assuming, for sake of argument, the traffic stop was unreasonably prolonged by the officer’s questions, the defendant’s point is irrelevant.]]> Criminal Nuggets Podcast full clean 10:59 https://illinoiscaselaw.com/litigating-knock-and-talk-warrantless-entries-with-alana-de-leon/ Tue, 25 Apr 2017 21:02:40 +0000 https://illinoiscaselaw.com/?p=6445 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.  There is a certain amount of timidness often seen in young criminal law litigators. An uncertainty and apprehension that […] 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 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. 

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)
]]> Criminal Nuggets Podcast full 43:21 https://illinoiscaselaw.com/how-defense-attorneys-defend-against-and-fight-a-knock-and-talk-warrantless-entry/ Tue, 25 Apr 2017 17:20:54 +0000 https://illinoiscaselaw.com/?p=11906 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 is an Illinois criminal law litigator worth keeping an eye on. There is a certain amount of timidness often seen in young criminal law litigators.  An uncertainty and apprehension that only […] How Defense Attorneys Fight A Knock And Talk Warrantless Entry



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 is an Illinois criminal law litigator worth keeping an eye on.







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!]]> Criminal Nuggets Podcast full 43:21 https://illinoiscaselaw.com/putting-your-hands-in-your-pockets-may-get-you-patted-down/ Mon, 24 Apr 2017 13:17:20 +0000 https://illinoiscaselaw.com/?p=9810 People v. Evans, 2017 IL App (4th) 140672 (March). Episode 327 (Duration 7:49) 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 […] People v. Evans, 2017 IL App (4th) 140672 (March). Episode 327 (Duration 7:49) 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 possibl... People v. Evans, 2017 IL App (4th) 140672 (March). Episode 327 (Duration 7:49)
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...]]> Criminal Nuggets Podcast full clean 7:49 https://illinoiscaselaw.com/behind-the-scenes-of-the-curtis-lovelace-trial-attorney-evan-parke-discloses-how-the-defense-team-made-use-of-foia/ Fri, 21 Apr 2017 14:16:16 +0000 https://illinoiscaselaw.com/?p=6412 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. 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, […] 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. About Evan Parke Evan is from the same general area in Quincy, 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.


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
* This Is What You Can Get Through Normal Discovery Procedures

Links & Resources

* Illinois FOIA Exemptions
* Illinois FOIA
* Illinois Attorney General On FOIA
* Frequently Asked Questions
* Sample FOIA Request

What’s In This Episode
]]> Criminal Nuggets Podcast full https://illinoiscaselaw.com/officer-sternly-tells-kid-to-come-here/ Wed, 19 Apr 2017 12:59:22 +0000 https://illinoiscaselaw.com/?p=9805 In re Elijah W., 2017 IL App (1st) 162648 (March). Episode 326 (Duration 4:59) Plain clothes officer sternly telling a kid to “come here” is a seizure. Juveniles can’t really consent to a police officer. Facts Kid was with his buddies when unmarked sport utility vehicle with 3 officers in plain clothes goes by. Kid starts […] In re Elijah W., 2017 IL App (1st) 162648 (March). Episode 326 (Duration 4:59) Plain clothes officer sternly telling a kid to “come here” is a seizure. Juveniles can’t really consent to a police officer. Facts Kid was with his buddies when unmarked spo... In re Elijah W., 2017 IL App (1st) 162648 (March). Episode 326 (Duration 4:59)
Plain clothes officer sternly telling a kid to “come here” is a seizure.
Juveniles can’t really consent to a police officer.
Facts
Kid was with his buddies when unmarked sport utility vehicle with 3 officers in plain clothes goes by.
Kid starts to walk away and car reverses and slowly follows him.
Each officer was armed, wore a bulletproof vest, and displayed a police badge.
All the officers recognized the kid and new he was a minor.
“Come Here”
One of them called for him to “come here” in a casual, but stern tone of voice.
Kid complied and walked towards the SUV.
They ask him “what you doing out here?” Kid shrugged in response. They repeat the question in a stern tone.
Kid then responded, “I got a couple rocks on me.”
Kid is placed in handcuffs.
Six ziplock bags containing suspect crack cocaine found on him. Then another plastic bag containing 12 ziplock bags with capsules of suspect heroin are pulled from some sweat pants he had underneath his jeans in the right pocket.
Juvenile
In trying to determine if this was a consensual encounter the trial court said that the United States Supreme Court has recognized that compared to adults, juveniles have a lack of maturity and an underdeveloped sense of responsibility; they are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; and their characters are not as well formed. See Graham v. Florida, 560 U.S. 48, 68 (2010), Miller v. Alabama, 567 U.S., and J.D.B., 564 U.S. at 265 (age of the subject is relevant to the custody analysis of Miranda).
Our supreme court’s decision in In re D.L.H., 2015 IL 117341 adopted the analysis set forth in J.D.B. There, the court considered whether the test for determining whether the minor was in custody for purposes of section 5-170(a) of the Juvenile Court Act of 1987 (705 ILCS 405/5-170(a) (West 2012)) was any different than the test for determining whether he was in custody for the purposes of Miranda.
The court noted two discrete inquiries required under Miranda:
(1) “what were the circumstances surrounding the interrogation” and
(2) “given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.”
Our supreme court has identified several factors relevant to the first inquiry, including, among other things,

* the age,
* intelligence, and
* mental makeup of the accused.

The D.L.H. court found that when the person questioned is a juvenile,” the reasonable person standard is modified to take that fact into account.
Analysis
The decision in D.L.H. was limited to fifth amendment Miranda concerns and did not extend to fourth amendment consensual encounters involving a minor.
This reviewing court said that the holding in J.D.B. should apply to a fourth amendment analysis when determining whether an encounter between a minor and law enforcement was consensual.
A 13-year-old youth would not have believed he or she could have denied the officer’s two requests to “come here” and avoid the police without raising further suspicion.
Holding
But since the kid was breaking curfew the court said the stop was a justified Terry stop.
Police officers observed 13-year-old Elijah outside after 11:00 p.m.
The officers reasonably suspected an ordinance violation based on the late hour of the night which justified the stop. 
In this case, the totality of the circumstances justified a Terr...]]> Criminal Nuggets Podcast full clean 4:59 https://illinoiscaselaw.com/when-an-officer-says-come-here-that-may-be-a-command-and-a-seizure/ Wed, 19 Apr 2017 01:13:19 +0000 https://illinoiscaselaw.com/?p=9802 People v. Qurash, 2017 IL App (1st) 143412 (March). Episode 325 (Duration 8:37) Do the words, “Come Here”, alone constitute a seizure? Facts Police are driving and they see defendant walking. When the officers were about 15 feet away from defendant, they stopped the police car, lowered the window, and said to defendant, “come here.” Defendant […] People v. Qurash, 2017 IL App (1st) 143412 (March). Episode 325 (Duration 8:37) Do the words, “Come Here”, alone constitute a seizure? Facts Police are driving and they see defendant walking. When the officers were about 15 feet away from defendant, People v. Qurash, 2017 IL App (1st) 143412 (March). Episode 325 (Duration 8:37)
Do the words, “Come Here”, alone constitute a seizure?
Facts
Police are driving and they see defendant walking.
When the officers were about 15 feet away from defendant, they stopped the police car, lowered the window, and said to defendant, “come here.”
Defendant immediately drops a bottle.
Drugs Discovered
Defendant testified that he walked right up to the police car like he was told. Police get out of the car and go get the bottle.
There are 26 separate bags of weed in there. They arrest defendant and in his pocket they find two more bottles with pills, a controlled substance (Diazepam).
Issue
On appeal defendant asks: Does the Statement “Come Here,” Uttered by a Police Officer to a Citizen, Result in a Seizure?
More specifically, the question was whether the trial court was manifestly erroneous in determining that the words “come here” were issued as a request.
Defendant contends that the court erred in denying his motion to quash because he was seized at the moment the officer said, “come here.”
According to defendant, the officers lacked a reasonable suspicion or probable cause for this seizure.
A Seizure
A person is seized when his freedom of movement is restrained by physical force or a show of authority. See more seizure and pat down cases.
The test is whether a reasonable person would conclude, in light of the totality of the circumstances, that he was not free to leave.
Following the United States Supreme Court’s decision in United States v. Mendenhall, 446 U.S. 544, 553 (1980), the Illinois Supreme Court adopted the Mendenhall plurality factors indicating a seizure when the person does not attempt to leave:
(1) the threatening presence of several officers,
(2) the display of a weapon by an officer,
(3) the physical touching of the person, and
(4) the use of language or tone of voice compelling the person to comply with the officer’s requests.
The absence of any of these factors is not dispositive but highly instructive on the issue of whether a seizure occurred.
Analysis
Here, it is undisputed that officers Gregory and Oppedisano did not exit their car, display any weapons, or physically touch defendant prior to stating, “come here.”
Thus, the only Mendenhall factor that is in play is the use of language or tone of voice compelling the person to comply.
The trial court, after listening to both the officers and defendant testify, made a finding of fact that officer Gregory’s statement, “come here,” was a request.
Defendant’s Words
The defendant corroborates that in his own testimony by saying he did see the officers, they asked him to come over to the car.
So the defendant doesn’t deny. In fact, they did just ask him.
They didn’t—they didn’t demand that he come here.
They didn’t pull out any weapons. They were in the car, asked him to come over to the car. The trial court then denied the motion to quash.
Officer’s Tone
The reviewing court said that nothing in the record suggests the trial court’s finding that the words “come here” were issued as a request was against the manifest weight of the evidence.
The officer’s tone of voice when he told defendant to “come here” is not possible to discern from this record.
No one testified to the officer’s tone when he said, “come here”; accordingly, this court, or for that matter any reviewing court, cannot determine his tone when he spoke to defendant.
Not The Trier of Fact
That determination is solely within the province o...]]> Criminal Nuggets Podcast full clean 8:37 https://illinoiscaselaw.com/how-can-police-enforce-a-blood-warrant-a-discussion-with-anthony-cameron/ Tue, 11 Apr 2017 20:10:41 +0000 https://illinoiscaselaw.com/?p=6376 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. Which begs the question: What exactly happens when a person refuses to give up their blood even […] 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. 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.


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 its 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
* More About Illinois DUI Cases

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 nu...]]> Criminal Nuggets Podcast full 35:33 https://illinoiscaselaw.com/how-can-police-enforce-a-blood-warrant/ Tue, 11 Apr 2017 17:25:56 +0000 https://illinoiscaselaw.com/?p=11908 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.  Which begs the question: What exactly happens when a person refuses to give up their blood even though […] How Can Police Enforce A Blood Warrant?



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. 







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 its 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* More About Illinois DUI Cases



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)



]]> Criminal Nuggets Podcast full 35:33 https://illinoiscaselaw.com/citizens-arrest-made-by-off-duty-officer-way-outside-his-jurisdiction/ Thu, 23 Mar 2017 01:44:09 +0000 https://illinoiscaselaw.com/?p=8884 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 […] 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. 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 ...]]> Criminal Nuggets Podcast full clean 10:26 https://illinoiscaselaw.com/adjoining-municipality-in-the-same-county-traffic-stop-rule/ Thu, 23 Mar 2017 01:38:38 +0000 https://illinoiscaselaw.com/?p=8880 People v. Bond, 2016 IL App (1st) 152007 (November). Episode 262 (Duration 8:00) Can a Blue Island police officer enter the city of Chicago, an adjoining municipality, and exercise his police powers when he observes an illegally parked vehicle in violation of the Illinois Vehicle Code? See also Episode 195, People v. Reynolds, 2016 IL App (4th) […] People v. Bond, 2016 IL App (1st) 152007 (November). Episode 262 (Duration 8:00) Can a Blue Island police officer enter the city of Chicago, an adjoining municipality, and exercise his police powers when he observes an illegally parked vehicle in viola... People v. Bond, 2016 IL App (1st) 152007 (November). Episode 262 (Duration 8:00)
Can a Blue Island police officer enter the city of Chicago, an adjoining municipality, and exercise his police powers when he observes an illegally parked vehicle in violation of the Illinois Vehicle Code?
See also Episode 195, People v. Reynolds, 2016 IL App (4th) 150572 (June)

Illinois DUI Resource Page
Check out the Illinois DUI Resource Page
to learn more about DUI in Illinois.

 
]]> Criminal Nuggets Podcast full clean 8:00 https://illinoiscaselaw.com/racial-bigotry-in-the-jury-should-the-rules-allow-it/ Tue, 21 Mar 2017 15:27:40 +0000 https://illinoiscaselaw.com/?p=6330 Pena-Rodriguez v. Colorado, SCOTUS (March 2017). Episode 310 (Duration 6:59). Should the rules allow judges to do something about bigotry that’s discovered during jury deliberations? Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD The recent opinion from the Supreme Court of the United States, Pena-Rodriguez v. Colorado, […] Pena-Rodriguez v. Colorado, SCOTUS (March 2017). Episode 310 (Duration 6:59). Should the rules allow judges to do something about bigotry that’s discovered during jury deliberations? Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download... Pena-Rodriguez v. Colorado, SCOTUS (March 2017). Episode 310 (Duration 6:59). Should the rules allow judges to do something about bigotry that’s discovered during jury deliberations?

Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download
APPLE PODCASTS GOOGLE PODCASTS
SPOTIFY ANDROID RSS
DIRECT DOWNLOAD
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,]]> Criminal Nuggets Podcast full clean https://illinoiscaselaw.com/heres-a-dui-discovery-sanction-with-no-teeth-its-not-the-civil-inference-thing/ Thu, 16 Mar 2017 02:04:10 +0000 https://illinoiscaselaw.com/?p=8868 People v. Acevedo, 2017 IL App (3d) 150750 (March). Episode 309 (Duration 6:09) legal 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 […] People v. Acevedo, 2017 IL App (3d) 150750 (March). Episode 309 (Duration 6:09) legal 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... People v. Acevedo, 2017 IL App (3d) 150750 (March). Episode 309 (Duration 6:09)
legal 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.

Illinois DUI Resource Page
Check out the Illinois DUI Resource Page
to learn more about DUI in Illinois.

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 readi...]]> Criminal Nuggets Podcast full 6:09 https://illinoiscaselaw.com/exclusionary-rule-has-its-place-in-blood-draw-cases-for-now/ Mon, 13 Mar 2017 11:42:21 +0000 https://illinoiscaselaw.com/?p=10127 People v. Turner, 2018 IL App (1st) 170204 (February). Episode 462 (Duration 9:30) Good faith exception saves this warrantless blood draw. Collision Shortly after 10 p.m. on July 2, 2011, the defendant’s pickup truck collided with a motorcycle carrying two persons. The truck and motorcycle had collided in an intersection. The driver of the motorcycle, James […] People v. Turner, 2018 IL App (1st) 170204 (February). Episode 462 (Duration 9:30) Good faith exception saves this warrantless blood draw. Collision Shortly after 10 p.m. on July 2, 2011, the defendant’s pickup truck collided with a motorcycle carrying... People v. Turner, 2018 IL App (1st) 170204 (February). Episode 462 (Duration 9:30)
Good faith exception saves this warrantless blood draw.
Collision
Shortly after 10 p.m. on July 2, 2011, the defendant’s pickup truck collided with a motorcycle carrying two persons.
The truck and motorcycle had collided in 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.
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.”
Not High Speeds
Based on the extent of deformation of the motorcycle’s wheelbase, Coulom calculated that the motorcycle’s speed at impact was approximately 25 miles per hour. Using another formula, he determined “an approximate speed of 23 miles per hour which was consistent with the 25 [miles per hour] I got with the wheelbase deformation.”
He applied a separate “energy formula” to estimate that the pickup truck’s speed was between 13 and 15 miles per hour at the time of the collision. Officer Coulom testified that the pickup truck’s “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.
Blood Samples
According to Escamilla’s records, the defendant admitted to a nurse that he was drinking alcohol before the accident.
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 hospital blood was 0.142 and the ISP blood was .118.
Charged With Aggravated DUI
The defendant was charged with 10 counts of aggravated driving under the influence of alcohol and reckless homicide.
Defendant Says He Didn’t Consent
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 further testified that at some point he was told “that in order for me to go home that I would have to give a blood sample.”
He claimed that he never consented to the DUI kit blood draw.
State Says When There Is  A Death That’s Different
The State argued that McNeely was distinguishable and that the DUI kit blood draw was permissible under section 11-501.2 of the Illinois Vehicle Code (Code), which states that “if a law enforcement officer has probable cause to believe that a motor vehicle driven by *** a person under the influence of alcohol *** has caused the death or personal injury to another, that person shall submit, upon the request of a law enforcement officer, to a chemical test or tests of his or her blood, breath or urine for the purpose of determining the alcohol content thereof.” 625 ILCS 5/11-501.2(c)(2) (West 2010).
8 Year Sentence
The court found that the defendant’s failure to yield was the proximate cause of James McFall’s death and Kasey McFall’s injuries. Accordingly, the court found the defendant guilty of all 10 charged counts. The trial court sentenced the defendant to two concurrent eight-year sentences on counts I and V.]]> Criminal Nuggets Podcast full clean 9:30 https://illinoiscaselaw.com/january-2017-illinois-criminal-case-list-an-audio-review-of-the-january-cases/ Tue, 07 Mar 2017 12:00:42 +0000 https://illinoiscaselaw.com/?p=6294 This is the January 2017 Illinois criminal case law audio summary. Episode 302 (Duration 16:53) Why read about what the Illinois criminal law courts have been up to when you can just listen? The best way to ensure you consistently outmatch and outgun the competition is by doing the work they don’t do. That means […] This is the January 2017 Illinois criminal case law audio summary. Episode 302 (Duration 16:53) Why read about what the Illinois criminal law courts have been up to when you can just listen? The best way to ensure you consistently outmatch and outgun t... This is the January 2017 Illinois criminal case law audio summary. Episode 302 (Duration 16:53)

Why read about what the Illinois criminal law courts have been up to when you can just listen?
The best way to ensure you consistently outmatch and outgun the competition is by doing the work they don’t do. That means staying on top of the important opinions.
The January 2017 round-up is 16:53 minutes long.
The Top 10 Illinois Criminal Cases For January 2017
Here’s a quick snapshot of what’s included in your MP3 Download, this is what you missed:
1. People v. Day
You know how I always say DUI litigants win a case at the trial level and the appellate court comes along and snatches away the victory? Well it happened again. WRONG! Defendant actually wins at the trial level AND the appellate level by demonstrating the SFST’s were unreliable. Get this one in your DUI binder right away.
2. People v. Soto
When exactly does the the taint of a Mirandaless confession wear off? Does it take hours? or days? This defendant is reinterviewed in the same interrogation room with the same officer’s present. The opinion discusses curative measures like a substantial break in time and changing circumstances. Interestingly, defendant was homeless and was allowed to sleep at the police station during the investigation!
3. People v. Edwards
Here, a 17 year old with documented mental illness who was off his meds, nonetheless gives a 100% voluntary confession. He read at a fifth grade level, was hospitalized previously for mood disorder, bipolar disorder, and depression.
4. People v. Anderson
If you really want to use an eyewitness identification expert in your case then you better see how trial courts are distinguishing People v. Lerma.
5. People v. Biagi
That didn’t last long. This DUI litigant won at the trial level then lost at the appellate level. The trial judge was wrong to interpret flashing overhead lights as a show of force. Hmmm?
6. People v. Viramontes
Defendant’s codefendant had documented mental health issues. The state had her records. Defendant wanted them. State said “no”. Defendant used this often overlooked rule to easily get the records.
7. People v. Jones
Speaking of mental health records, this time defendant wanted to get his hands on the victim’s mental health records. However, defendant did not completely follow through with the rule.
8. People v. Heller
Are you remember to give a modified 3.14 when they bring in other crimes in a domestic battery? The IPI is wrong.
9. People v. Hernandez
How a “heat run” meant this defendant was accountable for a 7 kilo deal even though he was not the buyer or the seller of the smack.
10. People v. Brown
Counting days ain’t the most exciting thing we do, but if you can help your client get out 41 days sooner you can’t pass that up. Use this case to make sure you get every day he’s entitled to.
]]> Criminal Nuggets Podcast full 16:53 https://illinoiscaselaw.com/february-2017-illinois-criminal-case-law-summary-the-audio-round-up/ Mon, 06 Mar 2017 16:39:40 +0000 https://illinoiscaselaw.com/?p=6319 This is the February 2017 Illinois criminal case law audio summary. Episode 303 (Duration 20:28) Why read about what the Illinois criminal law courts have been up to when you can just listen? The best way to ensure you consistently outmatch and outgun the competition is by doing the work they won’t do. That means staying on […] This is the February 2017 Illinois criminal case law audio summary. Episode 303 (Duration 20:28) Why read about what the Illinois criminal law courts have been up to when you can just listen? The best way to ensure you consistently outmatch and outgun ... This is the February 2017 Illinois criminal case law audio summary. Episode 303 (Duration 20:28)


Why read about what the Illinois criminal law courts have been up to when you can just listen?
The best way to ensure you consistently outmatch and outgun the competition is by doing the work they won’t do. That means staying on top of the important opinions.
The February 2017 round-up is 20:28 minutes long.
The Top 13 Illinois Criminal Cases For February 2017
Here’s a quick snapshot of what’s included in your MP3 Download, this is what you missed:
1. People v. Fort
When the State may want to charge second degree murder even though it’s kind of redundant, silly, and a little stupid to do it.
2. People v. Ayres
The right way to accuse you of being completely incompetent and ineffective.
3. People v. Shinaul
The sneaky little way the State is trying to stop defendants from vacating unconstitutional gun convictions.
4. People v. Williams
This off duty officer knows how to make an extrajurisdictional arrest stick. He was off-duty and way outside of his city limits when he made a citizen’s arrest.
5. In re Manuel M.
A completely inappropriate use of the “surveillance privilege” is used to deprive the accused minor of significant discovery.
6. People v. Oelerich
A demon told him to test his invincibility. What he did was shocking.
7. People v. Grant
The wrong way to handle a gun. Defendant shoots himself in the hand in his empty apartment…but is that a reckless discharge?
8. People v. Encalado
Paying for sex from prostitutes is usually embarrassing and kept on the down-low…Wrong! This defendant wanted to blab all about it in front of the jury.
9. People v. Pepitone
Why Sex offenders can now go to a Bear’s game at Soldier field.
10. People v. Ochoa
Are you letting the prosecution try to admit the kitchen sink by helping the jury understand the “steps in an investigation”? These prosecutors will be trying this murder case for the 3rd time because defense counsel put her foot down.
11. People v. Ortiz
How to dissect, break down and de fang a landmark “pro defense” opinion.
12. People v. Mandoline
When just a little police misconduct and constitutional rights trampling is no big deal.
13. People v. Washington
Courts have to tiptoe through the process with unfit defendants. The fastest way to a reversal is to respect every wish of an unfit defendant.
]]> Criminal Nuggets Podcast full 20:28 https://illinoiscaselaw.com/officer-without-any-drug-recognition-expert-training-makes-a-dui-drug-arrest/ Wed, 01 Mar 2017 17:52:27 +0000 https://illinoiscaselaw.com/?p=9816 People v. Gocmen, 2017 IL App (3d) 160025 (March). Episode 331 (Duration 7:57) Officer untrained in the use of narcotics doesn’t know enough to make this DUI drug arrest. Facts Officer responds to the scene of an unconscious person in a vehicle. He finds a Ford Explorer with its passenger side tires on the grass and […] People v. Gocmen, 2017 IL App (3d) 160025 (March). Episode 331 (Duration 7:57) Officer untrained in the use of narcotics doesn’t know enough to make this DUI drug arrest. Facts Officer responds to the scene of an unconscious person in a vehicle. People v. Gocmen, 2017 IL App (3d) 160025 (March). Episode 331 (Duration 7:57)
Officer untrained in the use of narcotics doesn’t know enough to make this DUI drug arrest.

Facts
Officer responds to the scene of an unconscious person in a vehicle.
He finds a Ford Explorer with its passenger side tires on the grass and part of the vehicle still on the road.
Paramedics were already present, attending to defendant. He finds Red Bull can cut in half with burn marks on the interior. He runs a cocaine swipe on it and comes back positive.
There is also a used one millimeter syringe in the vehicle.
A brown, granular substance was also found in a small baggy in defendant’s wallet, for which test results were not available at the time of the hearing.
There were no signs of alcohol use, but the paramedics did say that there was a fresh track mark on defendant’s arm where a needle would have been used. The paramedics also noted that defendant was sweating, had pinpoint pupils, and had a heart rate of 144 beats per minute.
Defendant was also in and out of consciousness.
This officer had zero training in the detection of narcotics use.
Defendant was able to tell the officer he was a diabetic.
The officer arrested defendant for DUI drugs at the hospital.
Rescission Granted
The trial court granted the motion to rescind the statutory summary suspension.
State’s Argument
The State stressed defendant’s physical symptoms: that defendant was sweating, had pinpoint pupils, and had a heart rate of 144 beats per minute.
However, the officer admitted that he never observed defendant and only knew these symptoms by speaking to the paramedics. As he never observed these symptoms and did not have any training or experience in DUI of drugs, his opinion as to the cause of said symptoms is tenuous at best.
Specifically, the State argues “the unfortunate explosion in illicit drug use throughout all sectors of our society has made the effects of drugs on people common knowledge.”
The State exaggerates the pervasiveness of drug use. It defies logic and borders on insulting to say that the average person in Illinois is so familiar with illicit drug use that he or she is able to recognize its effects.
Strong Dissent
The dissent says that there was also a baggie of what field tested as positive for drugs, as well as an uncapped syringe lying on the passenger seat.
Paramedics advised the officer that defendant had not only a hole in his arm from a recent injection, but also track marks on his arm. One need not be a 20-year police veteran or drug expert to connect these dots.
Track marks are a common sign of a drug abuser who injects his or her drug of choice repeatedly, ultimately causing collapse of veins and distinct marks in the affected area.
Defendant is not the first drug user to tell police he is a diabetic upon being found with a hypodermic syringe.
Analysis
The reviewing court agreed noting that the main problem was that the officer had no training or experience that would enable him to distinguish between a diabetic reaction and a drug reaction.
Can Residue
Moreover, the officer further based his arrest on the residue found at the bottom of the Red Bull can. 
Test
Though he conducted a “NARK Cocaine ID Swipe” of the residue, which he said tested positive for opiates, we find it curious that a “Cocaine ID” test would be used to test for opiates when cocaine is not an opiate. See People v. Vernor, 66 Ill. App. 3d 152, 154-55 (1978) (finding that opiates are narcotic drugs while cocaine is not).
Therefore,]]> Criminal Nuggets Podcast full clean 7:57 https://illinoiscaselaw.com/judge-anderson/ Tue, 28 Feb 2017 19:15:01 +0000 https://illinoiscaselaw.com/?p=6271 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. 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 […] 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. 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.


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.

Ultimate Illinois Sentencing Guide
Check out the Illinois Sentencing Resource Page to discover more on this topic.

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 ...]]> Criminal Nuggets Podcast full 1:01:21 https://illinoiscaselaw.com/take-down-lights-not-a-show-of-force-without-other-coercive-act/ Tue, 21 Feb 2017 00:49:02 +0000 https://illinoiscaselaw.com/?p=8787 People v. Biagi, 2017 IL App (5th) 150244 (January). Episode 297 (Duration 8:23) Trial court erred 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 […] People v. Biagi, 2017 IL App (5th) 150244 (January). Episode 297 (Duration 8:23) Trial court erred 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... People v. Biagi, 2017 IL App (5th) 150244 (January). Episode 297 (Duration 8:23)
Trial court erred 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 spacey.
– 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 ...]]> Criminal Nuggets Podcast full clean 8:23 https://illinoiscaselaw.com/dui-expert-says-blood-in-the-mouth-leads-to-unreliable-breathalyzer-results/ Mon, 20 Feb 2017 20:22:15 +0000 https://illinoiscaselaw.com/?p=10106 People v. Ernsting, 2018 IL App (5th) 160330 (January). Episode 454 (Duration 9:07) Ronald Henson testified that blood in the mouth produces unreliable breathalyzer results and would tend to produce a disproportionately higher BAC. Car Crash At approximately 11 p.m., the defendant crashed her 2011 Chevrolet Camaro into an unoccupied pickup truck that was parked along […] People v. Ernsting, 2018 IL App (5th) 160330 (January). Episode 454 (Duration 9:07) Ronald Henson testified that blood in the mouth produces unreliable breathalyzer results and would tend to produce a disproportionately higher BAC. People v. Ernsting, 2018 IL App (5th) 160330 (January). Episode 454 (Duration 9:07)
Ronald Henson testified that blood in the mouth produces unreliable breathalyzer results and would tend to produce a disproportionately higher BAC.
Car Crash
At approximately 11 p.m., the defendant crashed her 2011 Chevrolet Camaro into an unoccupied pickup truck that was parked along a street near her home in Steeleville. The defendant’s dog was riding with her at the time, and the impact of the collision caused the car’s airbags to deploy. At the scene of the accident, the defendant stated that she did not require medical treatment and that her dog had distracted her driving.
She exhibited signs of alcohol impairment, however, and failed multiple field sobriety tests. As a result, she was arrested and charged with DUI (625 ILCS 5/11-501(a)(2) (West 2016)) and was transported to the Randolph County jail for the administration of a breath-alcohol test.
The Breath Test
The defendant’s breath-alcohol test was administered by Randolph County Sheriff’s Deputy Kyle Colvis, using an Intox EC/IR II breath-test machine. The testing procedure was video recorded, but the recording has no audio. After the defendant’s first attempt to provide a sufficient breath sample failed because she inserted the machine’s mouthpiece too far into her mouth, Colvis removed the mouthpiece with his right hand, purged the machine, and then reinserted the mouthpiece so that the defendant could try again.
The defendant’s second attempt was successful, and the machine indicated that her BAC was 0.215.
However, the officer had not checked the defendant’s mouth for blood prior to her performance of the breath test, even though he had been trained to check a subject’s mouth prior to and after the pre-test 20-minute observation period. 
She was thus charged with operating her vehicle while her BAC was 0.08 or more (id. § 11-501(a)(1)).
Mouth Check
We note that the “DUI checklist” states, “CHECK MOUTH PRIOR TO AND AFTER 20 MINUTE PERIOD,” but does not reference “foreign substances.” Colvis testified that he was not “familiar with the Illinois Administrative Code regulations,” but he agreed that blood in a subject’s mouth would be considered a “foreign substance” such as chewing gum or chewing tobacco. Colvis further agreed that if a subject had blood in the mouth, a blood or urine test would be preferable to a breath test and that he would “at least” have the subject “rinse their mouth out” and then restart the 20-minute observation period. Colvis acknowledged that the purpose of checking a subject’s mouth before and after the observation period is to ensure reliable test results.
Issue
Defendant changes the reliability of the tests used in her DUI prosecution.
The defendant’s motion specifically alleged, among other things, that when her car’s airbags had deployed, she had “sustained an injury to her mouth which caused a cut and, therefore, bleeding, in the inside of her mouth.” The motion further alleged that assuming that there was any measurable amount of alcohol in the blood, the blood in the defendant’s mouth would have materially affected the reliability of the test results.
Did She Act Like She Was .215?
Colvis acknowledged that the defendant had not stumbled or staggered during the testing procedures. Colvis did not recall whether the defendant had questioned the breath-test results in his presence. The defendant’s husband, Dale Ernsting, testified that on May 7, 2016, he and the defendant had purchased a used Jeep in the morning and had spent the day running errands in it.
]]> Criminal Nuggets Podcast full clean 9:07 https://illinoiscaselaw.com/when-well-motivated-good-intentioned-people-do-the-wrong-thing/ Fri, 17 Feb 2017 00:14:25 +0000 https://illinoiscaselaw.com/?p=6240 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) 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 […] 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) The Bluhm Legal Clinic Center on Wrongful Convictions from the Northwestern Pritzker School of Law is ... 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)
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.
Register Now
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.
Register Now
(remember to email me for your FREE bonus CLE)
]]> Criminal Nuggets Podcast full 16:21 https://illinoiscaselaw.com/no-probable-cause-for-this-dui-arrest/ Wed, 15 Feb 2017 00:38:19 +0000 https://illinoiscaselaw.com/?p=8782 People v. Day, 2016 IL App (3d) 150852 (January). Episode 294 (Duration 10:56) Field Sobriety Tests Administered On Wet Surface Were Invalid Creating Probable Cause Problems In This DUI Arrest. Field Sobriety Tests… This Statutory summary suspension is rescinded after improper SFSTs fail to establish probable cause for DUI arrest. Facts The officer in this […] People v. Day, 2016 IL App (3d) 150852 (January). Episode 294 (Duration 10:56) Field Sobriety Tests Administered On Wet Surface Were Invalid Creating Probable Cause Problems In This DUI Arrest. Field Sobriety Tests… This Statutory summary suspension is... People v. Day, 2016 IL App (3d) 150852 (January). Episode 294 (Duration 10:56)
Field Sobriety Tests Administered On Wet Surface Were Invalid Creating Probable Cause Problems In This DUI Arrest.
Field Sobriety Tests…
This 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.

Illinois DUI Resource Page
Check out the Illinois DUI Resource Page
to learn more about DUI in Illinois.

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,]]> Criminal Nuggets Podcast full 10:56 https://illinoiscaselaw.com/fastcase7/ Tue, 07 Feb 2017 12:00:26 +0000 https://illinoiscaselaw.com/?p=6170 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? 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. […] 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? Well, Ed Walters decided to revolutionize legal research. 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?

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.
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 Androi...]]> Criminal Nuggets Podcast full 34:28 https://illinoiscaselaw.com/december-2016-two-fundamental-principles-rang-through-loud-and-clear-this-month/ Mon, 30 Jan 2017 12:00:11 +0000 https://illinoiscaselaw.com/?p=6150 This is the December 2016 Illinois criminal case rundown. Episode 289 (Duration 25:29)  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. […] This is the December 2016 Illinois criminal case rundown. Episode 289 (Duration 25:29)  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 Ill... This is the December 2016 Illinois criminal case rundown. Episode 289 (Duration 25:29) 

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.
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.]]> Criminal Nuggets Podcast full 25:29 https://illinoiscaselaw.com/insufficient-evidence-of-habitation-in-this-search-warrant-case/ Tue, 17 Jan 2017 14:23:26 +0000 https://illinoiscaselaw.com/clecourses/?p=6501 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. Facts Fernandez’s convictions stemmed from the recovery of heroin, weapons, and ammunition from a single family home and detached garage from a Chicago home. Police executed a search warrant. Over […] 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. Facts Fernandez’s convictions stemmed from the recovery of heroin, weapons, 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.
Facts
Fernandez’s convictions stemmed from the recovery of heroin, weapons, and ammunition from a single family home and detached garage from a Chicago home.
Police executed a search warrant.
Over 900 grams of heroin and some guns were pulled from his detached garage.
In a bedroom, officers found a passport and insurance cards belonging to Fernandez, as well as framed pictures of Fernandez with the woman in the car.
Neither the passport nor the insurance card listed an address for Fernandez. The closet held both men’s and women’s clothes.
There were additional framed pictures of Fernandez with the same woman hanging on the wall in the living room area. Police recovered two .357-caliber handguns under the hood of the van along with a brick of suspect heroin and large bags containing smaller knotted bags of heroin.
They also recovered ammunition for the .357-caliber handguns and a box of ammunition for a .38-caliber handgun.
Other officers recovered an additional .32-caliber gun under the hood of the van. A gun was also in the bedroom.
Constructive Possession
Constructive possession exists where there is no personal dominion over the contraband, but the defendant has control over the area where the contraband was found.
The State must prove beyond a reasonable doubt that the defendant had knowledge of the presence of the contraband and exercised “immediate and exclusive” control over the area where the contraband was discovered.

Search & Seizure Resource Page
Check out the
Illinois Search And Seizure Resource Page
to learn more about the 4th amendment.

He Live There?
The problem here is that there was insufficient evidence of habitation.
Evidence of residency or habitation often takes the form of rent receipts, utility bills, or mail, none of which link Fernandez to the address that was searched.
To the contrary, the evidence at trial revealed that Fernandez received mail at a completely different place.
Defendant had keys to the place, his passport and insurance card were found on a dresser, and his picture with a women hung on the wall. Nonetheless, this did not demonstrate that he had control of the premises.
Plus, the presence of an unidentified man on the premises at the time the police executed the search warrant weighs against a finding that Fernandez maintained control over the premises.
Reversed outright.
]]> Criminal Nuggets Podcast full 3:57 https://illinoiscaselaw.com/dui-dismissal-does-not-implicate-double-jeopardy/ Tue, 10 Jan 2017 18:06:20 +0000 https://illinoiscaselaw.com/clecourses/?p=6484 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. […] 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 ... 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.
]]> Criminal Nuggets Podcast full clean 8:36 https://illinoiscaselaw.com/how-to-win-a-motion-for-funds-with-joshua-kutnick/ Mon, 09 Jan 2017 19:45:21 +0000 https://illinoiscaselaw.com/?p=6092 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. Not only does Joshua Kutnick walk us through the litigation steps […] 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. 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.


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)
Lerma plus Kinion equals a Motion For Funds For Eyewitness Expert Fees. Add this sample motion to your library right now. Thanks Joshua!
Add To My Library Now
Add To My Library Now.

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 Fu
* See Also Professor Karen Daniel For More Insight On Eyewitness Expert Litigation
* See Also Real Life Eyewitness Identification Expert Professor Shari Berkowitz
* Illinois Evidence Resource Page

]]> Criminal Nuggets Podcast full 21:27 https://illinoiscaselaw.com/you-just-cant-ignore-the-stench-of-weed-and-an-accident/ Tue, 03 Jan 2017 14:18:47 +0000 https://illinoiscaselaw.com/clecourses/?p=6327 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. Facts Trooper responds to the scene where Defendant had cut-off another driver forcing the other driver into a ditch. When the trooper approached […] 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. Facts Trooper responds to the scene where Defendant ha... 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.
Facts
Trooper responds to the scene where Defendant had cut-off another driver forcing the other driver into a ditch.
When the trooper approached the defendant, he detected the odor of burnt cannabis. He asked defendant if she had anything illegal in the car, and she eventually admitted that she had cannabis. The trooper noted the odor of cannabis was “more freshly burnt” than stale.
Defendant also had a pipe and a grinder in her car.
The trooper testified that the cannabis was located under the seat.
Defendant told him she smoked cannabis approximately one week prior to the incident.
He was trained in detecting drug and cannabis use.
She Passed The Fields
The trooper did not observe that defendant had any difficulty walking when she exited her vehicle, and he did not smell cannabis on defendant’s breath.
He had defendant perform several field sobriety tests, including the walk-and-turn and one-leg stand tests. Trooper said she failed them all.
He also observed strong lack of convergence in defendant’s left eye indicative of drug impairment.
On video, the fields don’t actually look bad.

Illinois DUI Resource Page
Check out the Illinois DUI Resource Page
to learn more about DUI in Illinois.

 
Issue
The State argues that the trial court erred in granting the petition to rescind statutory summary suspension.
In the instant case, the issue was whether the arresting officer had reasonable grounds to believe that defendant was driving while under the influence of cannabis under section 2- 118.1(b)(2) of the Code (which only requires reasonable grounds).
Trial Court’s Findings
The trial court granted the rescission of the suspension. 
The trial court gave great deference to the fact that when the defendant was outside the vehicle, there was no odor of burnt cannabis on her person or otherwise on her breath. Further, the trial judge found the field sobriety tests were actually favorable to the defendant.
The trial court stated that it placed “significant weight” on the fact that the tests were performed on the shoulder of the interstate with heavy traffic passing within 10 to 15 feet of defendant.
The trial court also noted that there was a lack of evidence as to defendant’s demeanor, including whether she had red eyes or slurred speech. 
Analysis
First of all, the reviewing court said the trial court properly refused to consider the trooper’s testimony regarding the convergence test.
Nevertheless, the reviewing court found that, even accepting the trial court’s factual findings, the evidence was that there was reasonable grounds to believe defendant was driving while under the influence of cannabis.
Defendant admitted that she failed to check her blind spot before changing lanes, causing another vehicle to drive into the ditch. The trooper also detected a strong odor of burnt cannabis in defendant’s car and located a pipe, grinder, and cannabis under defendant’s front passenger seat.
Holding
The reviewing court concluded that the facts of defendant’s erratic driving, the strong odor of burnt cannabis in her vehicle, and the presence of cannabis and paraphernalia in her vehicle were sufficient “to lead a reasonably cautious person ...]]> Criminal Nuggets Podcast full clean 4:49 https://illinoiscaselaw.com/multiple-officers-in-your-bedroom-part-2/ Wed, 28 Dec 2016 12:00:42 +0000 https://illinoiscaselaw.com/clecourses/?p=6279 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. Gist of The Case In this murder trial, defendant argued he […] 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... 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.
Gist of The Case
In this murder trial, defendant argued he was arrested in his home at approximately 5:20 a.m., without a warrant or without probable cause.
He argued for the suppression of his statements made while in police custody following his arrest.
<< See Part I To Learn The Facts
See Also…

* Other Illinois Confession Cases
* Episode 250 Police Tell A Little Lie To Encourage Signing The Consent To Search
* Episode 252 Handcuffing During This Traffic Stop Justified (It Was Really A Drug Investigation)
* Episode 199 Recorded Interrogation Justifies Holding Defendant More Than 98 Hours Before Seeing a Judge
* Episode 158 Taint From A Bad Confession Still Stunk Up The Place
* Episode 030 Right to Remain Silent: “No” Means “No” But This is Not a Rape Case
* Episode 185 Sotomayor Told A Big Fat Lie (SCOTUS Extends Attenuation Doctrine)
* Episode 075 The Exclusionary Rule and The Good Faith Exception

]]> Criminal Nuggets Podcast full 12:33 https://illinoiscaselaw.com/what-to-tell-your-clients-about-immigration/ Wed, 21 Dec 2016 15:28:14 +0000 https://illinoiscaselaw.com/?p=6011 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. Attorney David Richmond and Attorney Omar Salguero are primarily immigration law attorneys. This made them […] 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. 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.


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
* Other Important Sentencing Ramifications

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.]]> Criminal Nuggets Podcast full 41:18 https://illinoiscaselaw.com/19-minute-observation-periond/ Tue, 20 Dec 2016 12:00:18 +0000 https://illinoiscaselaw.com/clecourses/?p=6256 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? DUI Arrest Defendant was arrested for DUI and taken to the station at around 12:30 a.m. At around 12:43 a.m., he read the warning to defendant, which took […] 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? DUI Arrest Defendant was arrested for DUI and taken to the station at around 12:30 ... 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?
DUI Arrest
Defendant was arrested for DUI and taken to the station at around 12:30 a.m.
At around 12:43 a.m., he read the warning to defendant, which took about two or three minutes.
Prior to reading the warning, the officer began observing defendant for the mandated 20 minutes.
The report said that after the matter of a 20 minute observation period, at 1:02 he administered the breathalyzer.
Math Doesn’t Add Up
Well, simple math demonstrates the observation period only lasted 19 minutes.
…But
The officer testified that he observed defendant both before and after he read the warning to motorists so technically he was watching him more than 20 minutes.
Upon arrival at the station the officer began to fill out paperwork, which took approximately 10 minutes. The officer testified that he began the 20-minute observation period 10 minutes before he read the warning at 12:43 a.m., while he was filling out the paperwork.
He also acknowledged that he did not explicitly make an entry in the police report as to when the observation period commenced.
Ultimately, the officer observed defendant for 29 minutes before administering the breath test.
Defendant did not burp, belch, hiccup or vomit. He blew over the limit.
The Issue
The court again observed that it was not aware of any law that provided that the 20-minute observation period commences only after the warning is read to the defendant.
 At issue is whether the petition to rescind the summary suspension of defendant’s driving privileges should have been granted.
Specifically, defendant contends that the officer did not substantially comply with the 20-minute observation period as required by section 1286.310 of the Illinois Administrative Code (20 Ill. Adm. Code 1286.310).
The Law
Section 1286.310 provides:
“… a) Prior to obtaining a breath analysis reading from a subject, the [breath-analysis operator] or another agency employee shall continuously observe the subject for at least 20 minutes.
1) During the 20[-]minute observation period the subject shall be deprived of alcohol and foreign substances and shall not have regurgitated or vomited.” 

Illinois DUI Resource Page
Check out the Illinois DUI Resource Page
to learn more about DUI in Illinois.

 
Analysis
The trial judge credited the officer’s consistent testimony that he began the 20-minute observation period before he read the warning and that he observed defendant for 20 continuous minutes before he gave the breath test. 
The court did not credit the slight inference from the police report’s lacking a start time that the observation period might have begun after the officer read the warning.
Either way, here, there was “substantial compliance” with the 20-minute observation period.
No evidence was presented that remotely suggested that defendant was not within the officer’s direct line of sight or peripheral vision during the entirety of the time that they were at the police station.
Furthermore, to the extent that defendant appears to argue that the 20-minute observation period should start only after a defendant is read the warning, the court rejected such argument.
Nowhere does the regulation provide that the 20-minute observation period begins onl...]]> Criminal Nuggets Podcast full clean 4:38 https://illinoiscaselaw.com/november-2016-illinois-criminal-case-list/ Wed, 07 Dec 2016 17:49:13 +0000 https://illinoiscaselaw.com/?p=5641 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.  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 […] 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.  Why read the cases when you can listen? This is where we quickly and efficiently outline the most i... 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. 

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.
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
]]> Criminal Nuggets Podcast full 25:29 https://illinoiscaselaw.com/october-2016-illinois-criminal-case-list/ Wed, 23 Nov 2016 12:00:04 +0000 https://illinoiscaselaw.com/?p=5609 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.   Listen to the audio round-up in under 20 minutes or download your copy of the […] 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 updat... 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.

 
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.
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 )
]]> Criminal Nuggets Podcast full 16:23 https://illinoiscaselaw.com/death-tragedy-an-attorney-who-couldnt-stand-it-anymore/ Wed, 16 Nov 2016 12:00:48 +0000 https://illinoiscaselaw.com/?p=5573 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. We last spoke to Jeffrey Hall in Episode 251 where he gave us an update to the Illinois Cannabis […] 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. 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.


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
* https://illinoiscaselaw.com/?p=5536 The most Honorable Judge Robert Steigmann of the Fourth Appellate District provides valuable insight and lessons on proper impeachment, prior inconsistent statements, and 725 ILCS 5/115-10.1. Episode 256 (Duration 47:16). Prepare for valuable insight, trial lessons, and behind the scenes action from one of Illinois’s most respected judges. Is Judge Steigmann The Longest Serving Illinois […] The most Honorable Judge Robert Steigmann of the Fourth Appellate District provides valuable insight and lessons on proper impeachment, prior inconsistent statements, and 725 ILCS 5/115-10.1. Episode 256 (Duration 47:16). Prepare for valuable insight, The most Honorable Judge Robert Steigmann of the Fourth Appellate District provides valuable insight and lessons on proper impeachment, prior inconsistent statements, and 725 ILCS 5/115-10.1.
Episode 256 (Duration 47:16). Prepare for valuable insight, trial lessons, and behind the scenes action from one of Illinois’s most respected judges.


Is Judge Steigmann The Longest Serving Illinois Judge?
I actually don’t know the answer to this question.
But check out these numbers:
In 1977 Robert Steigmann ran for judge and won at the age of 31. Before that he was a prosecutor at the Champaign County State’s Attorney’s Office. He was there 5 years. He also served 2 years at the Sangamon County State’s Attorney’s Office, and worked for one year at the legislative reference bureau right out of law school.
Judge Stegmann was a 6th Judicial Circuit (Champaign) trial judge for 12 years.
Since 1989 he has been on the Fourth Appellate District. That’s 28 years. In total he’s been on the bench for 40 years!
I asked him directly if retirement was right around the corner.
He’s reply was that it’s time to retire when the EMT says, “We can’t revive him.”
Topics Covered
In this discussion Judge Steigman revealed the following information.

Difference Between Impeachment & 725 ILCS 5/115-10.1
Origins Story For 725 ILCS 5/115-10.1
Biggest Mistakes Attorneys Are Making
Glaring Benefits of The Statute That Go Unused
Great Examples Of How To Do It Right
Encouraging Reminder That Trials Are Truth Seeking Endeavours

Law School Examples
Making sense of the topics discussed will be a little easier if you know these “law school” type scenarios used by the judge through the discussion.
The Traffic Scenario
In this scenario, the judge reverts to an old civil law problem.

A traffic accident is being litigated and the central issues revolves around who had the green light.
The witness testifies in court that the green car had the green light. However, right after the accident the witness tells the police that he wasn’t sure who had the green light, but thought it might have been the white car.

Obviously, the lawyer for the white car driver is going to want to impeach this witness.
Rape Case He Tried
The judge remembered an old rape case that he prosecuted.
This was before prior inconsistent statements could be argued substantively. Here’s what happened:

Defendant was charged with rape. The victim had blood and mud on her body. Defendant’s grandmother (Grandma) remembered that the defendant came home late that day.
He had blood and mud on his clothes.
Interestingly, for the first time in his entire life, that night he did the laundry. He washed the very clothes he came home in. At the trial, Grandma didn’t remember anymore.

The judge would have liked the jury to have known what she told the cops.
Important Links & Resources

* 725 ILCS 5/115-10.1
* Illinois Rules of Evidence Resource Page
* Illinois Rule of Evidence 613(b)
* Illinois Rule of Evidence 801(d)(1)(A)
* Illinois Rule of Evi...]]> Criminal Nuggets Podcast full 47:16 https://illinoiscaselaw.com/traffic-stop-was-really-a-drug-investigation/ Mon, 07 Nov 2016 12:00:32 +0000 https://illinoiscaselaw.com/clecourses/?p=6151 People v. Duran, 2016 IL App (1st) 152678 (October). Episode 252 (Duration 8:54) This traffic stop from its inception was a drug investigation, reasonableness has to take that into account. Facts Police get a tip that a named women will be in Chicago, stay at a certain hotel, and will have drugs on her. Sure […] People v. Duran, 2016 IL App (1st) 152678 (October). Episode 252 (Duration 8:54) This traffic stop from its inception was a drug investigation, reasonableness has to take that into account. Facts Police get a tip that a named women will be in Chicago, People v. Duran, 2016 IL App (1st) 152678 (October). Episode 252 (Duration 8:54)
This traffic stop from its inception was a drug investigation, reasonableness has to take that into account.
Facts
Police get a tip that a named women will be in Chicago, stay at a certain hotel, and will have drugs on her.
Sure enough, the police watch the hotel and confirm that the woman checks into the hotel.
She is seen carrying a black attache bag. Later Defendant and another women visit the first women at the hotel.
Defendant is seen walking out of the hotel room with the black bag.
He then gets in an Escalade driven by the second woman who was with him when they were at the hotel. A CPD patrol officer stops the Escalade for driving too fast for conditions.
The women consents to a search. At that point, Defendant is immediately removed from the vehicle and handcuffed.
A dog comes to the scene and alerts specifically upon the black bag.
Reasonable Stop
The trial court concluded that the officers were justified in stopping the vehicle, detaining the occupants, and having them step out of the vehicle to conduct a Terry investigation.
The trial court also found that the officers obtained valid consent from the driver to search her vehicle and that the dog’s alert upon sniffing the attaché bag was sufficiently reliable to establish probable cause to believe that the bag contained illegal drugs and, therefore, the officers were justified in searching the bag, seizing the drugs, and arresting the defendant.

Search & Seizure Resource Page
Hey check out the
Illinois Search And Seizure Resource Page 
and learn more about the 4th amendment. 

What About The Handcuffing?
However, the trial court concluded that the defendant was arrested without probable cause prior to the dog’s alert to the presence of narcotics in the attaché bag and, therefore, “the seizure was unlawful.” As a consequence, the trial court granted the defendant’s motion to quash arrest and suppress evidence.
Analysis
The reviewing court said that since this was always a drug investigation the officers had reasonable suspicion that the defendant was involved in criminal narcotic activity, they were justified in handcuffing the defendant as a safety precaution without transforming his temporary detention incident to a valid traffic stop into an arrest.
The tip from the informant standing alone did not demonstrate the basis of the confidential informant’s knowledge or the veracity of the information.
However, independent corroboration of significant aspects of the informant’s predictions can impart a degree of reliability on the informant’s other allegations sufficient to support an investigative stop.
Even corroboration of innocent details can be sufficient to establish reasonable suspicion of criminal activity.
The reviewing court agreed the facts of this case support the trial court’s finding that the officers had a reasonable articulable suspicion that the defendant was involved in criminal narcotics activity, justifying an investigative stop of the vehicle in which the defendant was riding.
The informant was correct about the named women and the hotel. Additional observation by police saw defendant visit her and leave with her bag.
This looked like a drug deal.
Yea, What About The Handcuffing?
Handcuffing is the type of activity which may convert an otherwise lawful investigatory stop into an arrest because it heightens the intrusiveness of a temporary detention.
However, the use of handcuffs does not, by itself, convert a lawful investigatory stop into an arrest.]]> Criminal Nuggets Podcast full clean 8:54 https://illinoiscaselaw.com/jeffrey-hall-on-problems-with-the-illinois-cannabis-decriminalization-law/ Thu, 03 Nov 2016 19:42:06 +0000 https://illinoiscaselaw.com/?p=5496 Illinois criminal law attorney Jeffrey Hall from Peoria helped draft the new cannabis related DUI subsection that appeared in the Illinois Cannabis decriminalization law. (Or should I say, “Illinois’s version of decriminalization”?) In Episode 251 (Duration 42:00), Jeff lets us know what is happening with this new law since it passed. Jeffrey Hall Jeffrey R. Hall […] Illinois criminal law attorney Jeffrey Hall from Peoria helped draft the new cannabis related DUI subsection that appeared in the Illinois Cannabis decriminalization law. (Or should I say, “Illinois’s version of decriminalization”? Illinois criminal law attorney Jeffrey Hall from Peoria helped draft the new cannabis related DUI subsection that appeared in the Illinois Cannabis decriminalization law. (Or should I say, “Illinois’s version of decriminalization”?)

In Episode 251 (Duration 42:00), Jeff lets us know what is happening with this new law since it passed.


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.
Topics Covered
Jeff really rolled up his sleeves and provided valuable insight into the following general topics:

Recap of specific changes to the law
Easy analysis on what happens to charges in the system before a major law change happens
Provides a sample motion for practitioners
Highlights problems and weaknesses with the new law
Addresses the new Illinois Supreme Court Rules on the topic

“Can’t Miss” Discussion
Hardcore practitioners are going to have listen carefully. Jeff provides a sample motion and explains how to use it. The sample motion, when filed, helps to ensure defendant’s can benefit from the significant changes to possession of cannabis charges. Not only can you find the sample motion on Jeff’s blog, you can also download it below.
Additionally, Jeff talks about a helpful tip for anyone fighting off a cannabis related DUI driver’s license suspension. Make sure to listen in to capture the benefits of all this information pertaining to the legislation.
Important Links

* Attorney Jeffrey R. Hall
* Jeff Hall’s Blog
* Hall, Rustom & Fritz, Inc.
* People v. Glisson, 202 LL.2d 400 (2002) (application of new laws)

* Attorney Juliet Boyd of Boyd & Kummer, LLC
* 625 ILCS 5/11-501.2(b) (chemical and other test presumptions)
* 625 ILCS 5/11-501(a)(7 ) (new cannabis related DUI)
* Ken Wang Summary of Illinois Cannabis Decriminalization Law
* Illinois Supreme Court 587 (civil notice to accused)
* Illinois Supreme Court 588 (civil fines and penalties)
* People v. Johnson, 197 Ill.2d 478 (2001) (bad warning to motorist DUI case)
* https://illinoiscaselaw.com/clecourses/?p=6144 People v. Wall, 2016 IL App (5th) 140596 (October). Episode 250 (Duration 5:47) Police lied to him about a break-in at his home, then tell him to sign the consent form or he’ll get arrested. Facts Defendant is called by police and told that his house may have been broken into. He needed to come home […] People v. Wall, 2016 IL App (5th) 140596 (October). Episode 250 (Duration 5:47) Police lied to him about a break-in at his home, then tell him to sign the consent form or he’ll get arrested. Facts Defendant is called by police and told that his house m... People v. Wall, 2016 IL App (5th) 140596 (October). Episode 250 (Duration 5:47)
Police lied to him about a break-in at his home, then tell him to sign the consent form or he’ll get arrested.
Facts
Defendant is called by police and told that his house may have been broken into. He needed to come home right away.
Except this was a total made up fabrication, sometimes called a lie.
Can We Search Please?
When defendant arrives he finds a drug team there and is told if he signs the consent to search his home that he would not be arrested.
By the way, this officer was huge. He was 6 feet 6 inches tall and 390 pounds.
Defendant initially asked if they had a warrant, meaning defendant initially refused to consent. Then the officer made a veiled threat to defendant by telling him that if he did not sign the consent form he would go to jail.
In addition, the officer made a promise to defendant that defendant would not go to jail if he signed the consent form.
Defendant signs the form.
Cannabis and cannabis plants are pulled from his home. He is charged and arrested 3 months later.
Issue
Defendant argued that his consent was involuntary since he was lured home on false pretences and police led him to believe his only choice was to consent or be hauled off to jail.
Consent
To be effective consent must be voluntary, meaning that it was given “absent any coercion, express or implied,” and was not “the result of official coercion, intimidation, or deception.”
A police officer’s giving false or misleading information can vitiate the voluntariness of the consent.
An officer making a groundless threat and presenting the occupant of the home with the choice of either consenting or suffering the consequences of the threatened course of conduct can also vitiate consent.
Additionally, the record is devoid of any evidence of exigent circumstances which precluded the State from obtaining a warrant.

Search & Seizure Resource Page
Check out the
Illinois Search And Seizure Resource Page 
to learn more about the 4th amendment. 

 
Analysis
The reviewing court said it is clear that the officer made a promise to defendant in order to obtain his consent. Here, the evidence shows the police tricked, intimidated, and threatened defendant into signing a voluntary consent form.
Thus, defendant’s consent to search was involuntary, and all items seized and all statements subsequently made by defendant must be suppressed.
Reversed and remanded.
]]> Criminal Nuggets Podcast full clean 5:47 https://illinoiscaselaw.com/aggravated-dui-proximate-cause-cannabis-case/ Tue, 01 Nov 2016 12:00:58 +0000 https://illinoiscaselaw.com/clecourses/?p=6136 People v. Swift, 2016 IL App (3d) 140604 (October). Episode 249 (Duration 8:33) New cannabis law only gets a passing mention in this proximate cause aggravated DUI case. Defendant was convicted of aggravated DUI (625ILCS 5/11-501(a)(6), (d)(1)(C)) for having cannabis in his system. Facts He was involved in an accident resulting in great bodily harm. […] People v. Swift, 2016 IL App (3d) 140604 (October). Episode 249 (Duration 8:33) New cannabis law only gets a passing mention in this proximate cause aggravated DUI case. Defendant was convicted of aggravated DUI (625ILCS 5/11-501(a)(6), People v. Swift, 2016 IL App (3d) 140604 (October). Episode 249 (Duration 8:33)
New cannabis law only gets a passing mention in this proximate cause aggravated DUI case.
Defendant was convicted of aggravated DUI (625ILCS 5/11-501(a)(6), (d)(1)(C)) for having cannabis in his system.
Facts
He was involved in an accident resulting in great bodily harm.
Defendant hit the victim’s trailer when he stopped to adjust some equipment. The victim was standing outside near his trailer. He sustained a number of injuries, including a broken femur, a broken disc in his lumbar spine, and three breaks in his pelvis.
His injuries required eight or nine surgeries.
Defendant admitted that he had smoked marijuana a month prior to the accident and had taken a marijuana capsule for pain relief two weeks prior to the accident. His hospital record confirmed that cannabinoids were in his system.
Jury Instructions
The jury was instructed that “the defendant’s act of driving a vehicle while there was any amount of a drug, substance or compound in his blood or urine resulting from the unlawful use or consumption of cannabis was the proximate cause of the great bodily harm.”
The court continued: “The term ‘proximate cause’ means any cause which in the natural or probable sequence produced the great bodily harm. It need not be the only cause nor the last or nearest cause. It is sufficient if it occurs with some other cause, which in combination with it causes the great bodily harm.”
Flawed Indictment
Here, the indictment failed to include proximate cause language as was required. The failure to include an essential element of the charge would seem to be a clear substantive defect, which requires a broadening of the indictment to include that element.
However, because defendant waited until the trial to begin he had to show prejudice to win a dismissal.
The record shows that defendant was aware of the proximate cause element, despite the State’s failure to include it in the charging instrument and suffered no prejudice in the preparation of his defense.
Thus, the trial court properly denied defendant’s motion to dismiss the indictment.
Proximate Cause
In regards to the proximate cause element, our supreme court has clarified that the proximate cause element refers not to the presence of drugs referenced in subsection (a)(6), but only to a defendant’s driving.
In other words, the State must prove only a causal link between defendant’s driving and a person’s injuries.
The concept of proximate cause encompasses two separate requirements, cause in fact and legal cause.

Illinois DUI Resource Page
Check out the Illinois DUI Resource Page
to learn more about DUI in Illinois.

Cause in Fact
Cause in fact exists where there is a reasonable certainty that a defendant’s acts caused the injury or damage.
Legal Cause
Legal cause is essentially a question of foreseeability; the relevant inquiry is whether the injury is of a type that a reasonable person would see as a likely result of his or her conduct.
Foreseeability is added to the cause-in-fact requirement because even when cause in fact is established, it must be determined that any variation between the result intended and the result actually achieved is not so extraordinary that it would be unfair to hold the defe...]]> Criminal Nuggets Podcast 1 1 full 8:33 https://illinoiscaselaw.com/professor-karen-daniel-shares-her-insight-and-experience-on-eyewitness-identification-litigation/ Wed, 26 Oct 2016 02:31:03 +0000 http://illinoiscaselaw.com/?p=5263 Clinical Professor of Law Karen L. Daniel and Director of the Northwestern Center on Wrongful Convictions recently sat down with the Criminal Nuggets podcast.  In Episode 247 (Duration 32:18), the professor provides insight and answers questions trial attorneys may face when litigating eyewitness identification issues. Clinical Professor Karen L. Daniel Clinical Professor Karen L. Daniel is […] Clinical Professor of Law Karen L. Daniel and Director of the Northwestern Center on Wrongful Convictions recently sat down with the Criminal Nuggets podcast.  In Episode 247 (Duration 32:18), the professor provides insight and answers questions trial ... Clinical Professor of Law Karen L. Daniel and Director of the Northwestern Center on Wrongful Convictions recently sat down with the Criminal Nuggets podcast. 
In Episode 247 (Duration 32:18), the professor provides insight and answers questions trial attorneys may face when litigating eyewitness identification issues.


Clinical Professor Karen L. Daniel
Clinical Professor Karen L. Daniel is a Clinical Professor of Law at the Northwestern Pritzker School of law. She is also Director of the Center on Wrongful Convictions. The Center works to help free wrongfully convicted individuals.
Through her experience in personally handling these cases and supervising her law students the professor has gained a certain expertise in working with eyewitness identification expert witnesses.
What We Cover
Listen in as the professor…

Reveals available resources on eyewitness identification
Describes her own experiences working with eyewitness experts
Breaks down the ground breaking case of People v. Lerma
Illustrates possible litigation strategy
Demystifies the eyewitness identification report

What You Won’t Want To Miss
Pay careful attention when Professor Daniel talks about the one motion in limine we should all be making in eyewitness identification cases. The law is not perfect and rule making has not caught up with the research.
There is one tricky situation where we’ll want the careful input of an eyewitness identification expert. Sometimes an expert is not relevant or required. However, sometimes an expert can help guide you and a jury through some tricky terrain.
Hit the play button above to ensure you capture all this insight.

Eyewitness Identification
Issues Checklist & List of Experts
Download this checklist of possible eyewitness identification issues that may warn you of problems in your case and a list of eyewitness identification experts near Illinois. These are not an exhaustive lists. It’s just a place to start.
Add To My Library Now
Download this checklist now!

Important Links & References Mentioned

Clinical Professor Karen L. Daniel
Northwestern Pritzker School of Law
Center on Wrongful Convictions
Professor Daniel email: k-daniel@law.northwestern.edu
Recent Case Professor Daniels Worked On (New Trial Ordered)
People v. Lerma, 2016 IL 118496 (January)
Recent Case In The News Dealing With Eyewitness Identification
Professor Shari Berkowitz (Eyewitness Expert)
Dr.Gary Wells (Eyewitness Expert) Iowa State University Department of Psychology
Dr. Gary Wells Personal Resource Page
Dr. Gary Wells Articles
http://illinoiscaselaw.com/?p=5229 Assistant Professor Shari Berkowitz from California State University Dominguez Hills sits down with the Criminal Nuggets to talk about problems with eyewitness memories in a criminal case. In Episode 246 (Duration 44:57), she clearly articulates exactly how an eyewitness expert can be used in a criminal case. Who is Professor Berkowitz? Professor Dr. Shari Berkowitz is […] Assistant Professor Shari Berkowitz from California State University Dominguez Hills sits down with the Criminal Nuggets to talk about problems with eyewitness memories in a criminal case. In Episode 246 (Duration 44:57), Assistant Professor Shari Berkowitz from California State University Dominguez Hills sits down with the Criminal Nuggets to talk about problems with eyewitness memories in a criminal case.
In Episode 246 (Duration 44:57), she clearly articulates exactly how an eyewitness expert can be used in a criminal case.


Who is Professor Berkowitz?
Professor Dr. Shari Berkowitz is on the faculty at California State University Dominguez. She is an assistant professor of criminal justice administration. She completed her PhD at the University of California Irvine under her mentor Dr. Elizabeth Loftus.
Her particular research interests include: eyewitness memory, false memory, false confession, and the causes and consequences of wrongful convictions. Dr. Berkowitz serves as an expert witness and consultant in legal cases involving eyewitness memory and memory distortion.
She has consulted in criminal, civil, state, federal and military courts for both sides.
Listen-In As The Professor…

Discusses her professional background
Outlines exactly what eyewitness experts can and cannot do
Explains the very basics of how memory works
Reports on her own research on false memories
Breaks down the structure of a typical report she may issue when she’s on a case

You Won’t Want To Miss…
How Professor Berkowitz studied under and was mentored by Dr. Elizabeth Loftus. How she talks about specific high profile cases which first captured her attention and interest in this field.
Don’t let the Professor’s Chicago connection fly by without notice. She was formerly an assistant professor in psychology at Roosevelt University in Chicago.
That’s where she came across The Northwestern School of Law Center on Wrongful Convictions. She met the director at the time and eventually was introduced to Professor Karen Daniel who is currently the director.

Eyewitness Identification
Issues Checklist & List of Experts

Download this checklist of possible eyewitness identification issues that may warn you of problems in your case and a list of eyewitness identification experts near Illinois. These are not an exhaustive lists. It’s just a place to start.
Add To My Library Now
Download this checklist now!

Important Links & References Mentioned

California State University Dominguez Hills
Assistant Professor Shari Berkowitz

Articles By Professor Shari Berkowitz
Professor Berkowitz email: sberkowitz@csudh.edu
Professor Berkowitz phone: (310) 243-3071
Dr. Elizabeth Loftus TED Talk
Center on Wrongful Convictions
Professor Karen Daniel
“What can a perception-memory expert tell a jury” by Geoffrey R. Loftus
“Suggestive Eyewitness Identification Procedures and the Supreme Court’s Reliability Test i...]]> Criminal Nuggets Podcast full 44:57 https://illinoiscaselaw.com/september-2016-illinois-criminal-case-list/ Tue, 04 Oct 2016 17:44:26 +0000 http://illinoiscaselaw.com/?p=5187 Podcast Episode 240 (Duration 18:51) of the Criminal Nuggets features the September 2016 criminal case list. There were 39 published cases dealing with criminal law issues. My case list summarizing these decisions was 35 pages long! Don’t worry if you didn’t get to them. Push the play button above and listen to the audio round-up. […] Podcast Episode 240 (Duration 18:51) of the Criminal Nuggets features the September 2016 criminal case list. There were 39 published cases dealing with criminal law issues. My case list summarizing these decisions was 35 pages long! Podcast Episode 240 (Duration 18:51) of the Criminal Nuggets features the September 2016 criminal case list. There were 39 published cases dealing with criminal law issues. My case list summarizing these decisions was 35 pages long!


Don’t worry if you didn’t get to them. Push the play button above and listen to the audio round-up. Then download your copy of the case list to peruse the rest of the cases when you find the time.
If you can spare approximately 19 minutes, you can easily get caught up with the top 10 September cases for 2016. Here’s a quick snapshot of what you missed:
1. People v. Reyes
The reason why the Illinois Supreme Court finally said de facto life sentences for juvenile offenders are unconstitutional…was it because they were brave or was this the only logical thing to do? Go to case.
2. People v. Valdez
How the Illinois Supreme Court has paired back Kentucky v. Padilla…this means less Illinois attorneys will be ineffective. Go to case.
3. People v. Cherry
If armed violence cannot be predicated on an offense that makes the possession or use of a dangerous weapon either an element of the base offense or an aggravated or enhanced version of the offense then why can aggravated battery be an appropriate predicate offense? After, all aggravated battery use of a firearm is a Class X while aggravated battery great bodily harm is only a Class 3. Go to case.
4. People v. O’Neal
A sneaky little way the prosecution can abuse the felony murder rule. Go to case.
5. People v. Lubienski
WARNING. The police can stop you if your tire touches a traffic lane just once. How the hell else can they figure out what the heck you are up to? Go to case.
6. People v. Theus
Remember Heien v. North Carolina? SCOTUS said police can justify a traffic stop even if they are mistaken about the traffic law only if the law itself is ambiguous. Wrong! Even completely unambiguous traffic laws may be used to justify an error by the police. Go to case.
7. People v. Nesbit
The simple fact is that you can be found ineffective for not revoking your client’s bond fast enough. Go to case.
8. People v. Lucious
Do you confuse coconspirator statements in furtherance of a conspiracy with the Bruton rule prohibiting hearsay from a coconspirator? Does it seem like one rule allows what the other prohibits? Listen to the podcast to see how we straighten it all out. Go to case.
9. People v. Tate
Why bond call judges might be systematically committing reversible error…especially if you file an SOJ. Go to case.
10. People v. Buckhanan
This father and son attorney duo run independent law firms.]]> Criminal Nuggets Podcast full 18:51 https://illinoiscaselaw.com/traffic-laws-are-susceptible-to-mistake-interpretation-by-the-police/ Fri, 30 Sep 2016 14:56:05 +0000 http://illinoiscaselaw.com/clecourses/?p=6060 People v. Theus, 2016 IL App (4th) 160139 (September). Episode 238 (Duration 8:47) Car is stopped for jerking to the left when the single lane road opens up into 2 lanes. Facts Defendant was a passenger in a car stopped by a deputy. The deputy observed a gold colored Chevrolet Malibu traveling on the road where […] People v. Theus, 2016 IL App (4th) 160139 (September). Episode 238 (Duration 8:47) Car is stopped for jerking to the left when the single lane road opens up into 2 lanes. Facts Defendant was a passenger in a car stopped by a deputy. People v. Theus, 2016 IL App (4th) 160139 (September). Episode 238 (Duration 8:47)
Car is stopped for jerking to the left when the single lane road opens up into 2 lanes.
Facts
Defendant was a passenger in a car stopped by a deputy. The deputy observed a gold colored Chevrolet Malibu traveling on the road where “it splits into two lanes.”
Over 400 grams of cocaine are found in the trunk.
Deputy testified that he saw the vehicle “make an abrupt lane change” without activating its turn signal.
The Traffic Code
The trial court found the stop was predicated on the alleged violation of section 11-804 of the Illinois Vehicle Code (625 ILCS 5/11-804 – When signal required).
The relevant section says…
“…(d) The electric turn signal device required in Section 12-208 of this Act must be used to indicate an intention to turn, change lanes or start from a parallel parked position…”
625 ILCS 5/11-804(d).
Thus, both parties agreed section 11-804(d) of the Vehicle Code requires a driver to use his or her turn signal when changing lanes.
Trial Court Suppresses The Drugs
After reviewing a video exhibit and a photo exhibit of the roadway in question, the court found the road is “poorly marked.”
The trial court granted the motion to suppress, finding that:
“There is virtually no warning—in the form of a sign adjacent to the roadway or markings on the pavement itself—indicating that roadway turns from one to two northbound lanes. It appears that any abrupt movement of a vehicle would most likely be attributable to the fact that the lane markings abruptly change without warning. *** The law recognizes that deviations in the movement of a vehicle may be attributable to road conditions. *** The vehicle was not turned. There was no movement made from one marked lane to another. There is no evidence suggesting that movement of the vehicle was made without reasonable safety. Under these unique circumstances the court finds that there was no duty to signal and therefore no reasonable grounds to believe that [section] 11-804 had been violated.”
Appellate Court Reverses
A police officer’s objectively reasonable mistake, whether of fact or law, may provide the reasonable suspicion necessary to justify a traffic stop. See Heien v. North Carolina, 135 S. Ct. 530 (2014).
In Gaytan, the court found a vehicle stop will not violate the fourth amendment if the officer’s mistake of law was objectively reasonable. Gaytan, 2015 IL 116223, ¶ 48.
The reviewing court overruled the trial court and found that the officer’s belief that section 11-804 required the driver to signal at this juncture of the roadway was objectively reasonable under the circumstances.
Officer Mistaken
Here, the detective concluded the driver committed a traffic violation for failing to signal. However, if this was mistaken it, none the less, could justify stopping the car if the interpretation was objectively reasonable.
Ambiguous Statute
The plain text of the statute requires a signal when changing lanes. There is no ambiguity in that requirement.
However, it does not address whether it applies to lane divisions and mergers, and thus an ambiguity arises when applying the law to the spot of the roadway. There, one lane became two lanes, requiring the driver to pick one.
The Supreme Court pointed out “an officer may ‘suddenly confront’ a situation in the field as to which the application of a statute is unclear—however clear it may later become.” Heien, 574 U.S. at ___, 135 S. Ct. at 539.
In the case sub judice,]]> Criminal Nuggets Podcast full clean 8:47 https://illinoiscaselaw.com/paul-meyers-on-why-experienced-attorneys-still-commit-error-with-prior-inconsistent-statements/ Wed, 28 Sep 2016 21:56:46 +0000 https://illinoiscaselaw.com/?p=8709 Paul Meyers does his best to finally set me straight on the intricacies and interplay between impeachment, substantive evidence, and prior inconsistent statements. More than once on the Criminal and Premium Nuggets Podcasts I have reported that “even experienced trial courts face serious uncertainties when applying section 115-10.1 of the Code.” Well, apparently I’m not immune from […] Paul Meyers does his best to finally set me straight on the intricacies and interplay between impeachment, substantive evidence, and prior inconsistent statements. More than once on the Criminal and Premium Nuggets Podcasts I have reported that “even e... Paul Meyers does his best to finally set me straight on the intricacies and interplay between impeachment, substantive evidence, and prior inconsistent statements.


More than once on the Criminal and Premium Nuggets Podcasts I have reported that “even experienced trial courts face serious uncertainties when applying section 115-10.1 of the Code.” Well, apparently I’m not immune from falling into this evidentiary trap.
Who’s Paul Meyers?
Paul is Kane County, Illinois Public Defender assigned to the general felony division.
Topics We Cover
Paul does a great job of…

* Presenting General Threshold Issues
* Laying Out a Roadmap or Cheat Sheet
* Explaining How a Brothers Motion Should Be Used

The interconnectedness of impeachment, substantive evidence, and prior inconsistent statements itself can occupy a small library. In this podcast, we focused on getting the basic concepts explained and understood.
This way, you could see for yourself how the overall structure of the “correct” analysis fits together. Above all, the overarching goal was to understand the basics so you could walk away with an easy to understand and easy to follow cheat-sheet on this topic.
You’ll have to be the judge on deciding if we succeeding with this mission.
Important Links & Cases Mentioned

* 725 ILCS 5/115-10.1
* Illinois Rule of Evidence 801(d)(1)(A)
* Illinois Rule of Evidence 607
* Illinois Rule of Evidence 613
* People v. Blakey, 2015 IL App (3d) 130719 (November 2015) (prior inconsistent statement in this DUI huffing case was admitted in error)
* People v. Evans, 2016 IL App (3d) 140120 (July) (courts still getting it wrong, prosecutor allowed to get away with a little too much)
* People v. Hallbeck, 227 Ill.App.3d 59 (2nd Dist. 1992) (seminal case on laying foundation for a prior inconsistent statement)
*