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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...

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...

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...

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

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

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.”

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,

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...

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).

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...