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

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...

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.

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.

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...

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,

People v. Lubienski, 2016 IL App (3d) 150813 (September). Episode 232 (Duration 5:04)

Will crossing the line once justify a traffic stop?

Yes.

Facts

The passenger tires briefly cross the white fog line and touch the gravel shoulder when turning right. The decision to stop the truck was reasonable in light of 625 ILCS 5/11-709(a).

Case Law

Under People v. Hackett, 2012 IL 111781, an investigatory stop is proper where a police officer observes a vehicle deviate from his lane, as an investigatory stop in this situation allows the officer to inquire further into the reason for the lane deviation, either by inquiry of the driver or verification of the condition of the roadway where the deviation occurred.

It’s All About Reasonable Suspicion

The investigatory stop does not need to be supported by probable cause.

Probable cause would require affirmative testimony that defendant deviated from his proper lane of travel and that no road conditions necessitated the movement.

However, an officer would have reasonable, articulable suspicion for an investigatory stop without first considering whether the circumstances he or she observed would satisfy each element of a particular offense.

Search & Seizure Resource Page

Hey check out the Illinois  Search And Seizure Resource Page

and learn more about 4th amendment issues. 

 

Analysis

Here, there was reasonable, articulable suspicion that defendant had committed a traffic violation, and thus it was proper for him to effectuate an investigatory stop of defendant’s vehicle to determine the reason for the infraction.

It was not necessary for the court to determine whether the officer reasonably believed it was “practicable” for defendant to have remained in his lane.

The answer to that particular question would only be implicated when determining whether the officer had probable cause to cite defendant for a violation of section 11-709(a).

The fact that defendant did not commit any subsequent violations is also irrelevant, as the officer had a reasonable, articulable suspicion for the stop immediately upon defendant’s crossing of the fog line – just once. 

People v. Tates, 2016 IL App (1st) 140619 (August). Episode 230 (Duration 5:59)

Drug conviction reversed because defendant can’t be sufficiently tied to the contraband.

Facts

This is a search warrant case.

The name on the warrant was not defendant. When the police get in defendant is found in the dining room which had a table filled with drugs and packing material.

A codefendant was seated at the table but not defendant.

Various drugs and over 220 grams of heroin, 130 grams of cocaine, 2,070 grams of cannabis, and five tenths of a gram of methamphetamine were recovered throughout the house.

The codefendant accepted ownership and responsibility for all the drugs.

No indicia of residency was recovered and no fingerprints from the bags were obtained.

Constructive Possession

To support a conviction for possession of a controlled substance, the State must prove that the defendant had knowledge of the presence of the narcotics and that the narcotics were in the defendant’s immediate and exclusive control.

Possession can be either actual or constructive.

● Constructive possession does not require actual present dominion over the substance, but can be inferred through an “intent and capability to maintain control and dominion.”

● A defendant’s lack of control of the premises will not preclude a finding of guilt if the circumstantial evidence supports an inference that the defendant intended to control the contraband inside.

● Mere presence at the scene, even coupled with flight, is not enough to satisfy the State’s burden of proof.

It is defendant’s relationship to the contraband that must be examined.

Where there is no evidence that the defendant controls the premises, proof of mere presence, even combined with defendant’s knowledge of the presence of narcotics, will not support a finding of constructive possession unless there is other circumstantial evidence of defendant’s control over the contraband.

Search & Seizure Resource Page

Check out the

Illinois Search And Seizure Resource Page

to learn more about the 4th amendment.

Analysis

First, in this case there is no evidence that defendant exercised control over the premises such that a trier of fact could reasonably infer his knowledge and control over the narcotics located there.

No evidence establishes that police observed him touching or otherwise handling the cannabis or other materials on and around the dining room table.

Proving that defendant must have been aware of the drugs does nothing to support the inference that defendant was constructively in possession of the drugs.

Thus, at most, the State established his presence in the residence and his awareness of the presence of cannabis in the dining room. This is insufficient to prove his constructive possession of that contraband.

Holding

Nothing in the record establishes any connection whatsoever between defendant and the heroin, cocaine, and methamphetamines recovered from other rooms in the apartment.

Conviction was reversed outright. No evidence in the record satisfied the State’s burden to show defendant’s immediate and exclusive control over the narcotics.

The evidence and reasonable inferences that can be drawn therefrom do not support the jury’s verdicts on the narcotics charges as there is no evidence—even circumstantial—that Tates was aware of the narcotics hidden in the water cooler and refrigerator and no evidence, other than (i) his presence in the dining room where cannabis was in plain view and (ii) his flight from police...

People v. Romanowski, 2016 IL App (1st) 142360 (August). Episode 222 (Duration 8:07)

Is it prejudicial to tell the jury that defendant was told if he refused to blow that his DL would be suspended?

Facts

Defendant is discovered in his parked vehicle, with the engine running, at a tollbooth lane displaying a red “X,” indicating that it was out of service.

Trial counsel objected to the testimony regarding the contents of the warning to motorists.

Arguing that the civil consequences of a refusal to submit to blood-alcohol testing are not relevant in DUI cases and are highly prejudicial.

Law

Defendant acknowledged that his refusal to take a blood-alcohol test was admissible at trial.

Section 11-501.2(c)(1) of the Illinois Vehicle Code specifically provides for the admissibility of evidence of a driver’s refusal to submit to blood-alcohol testing. And our courts have long recognized that a defendant’s refusal to take such a test is “relevant as circumstantial evidence of his consciousness of guilt.” See also Birchfield v. Nebraska, Episode 186 from June 2016. 

Defendant’s beef was that the circuit court erred when it permitted the arresting officer to also testify to the contents of the admonishment he received warning him of the consequences of such a refusal.

His primary argument was that the statute prohibits admission of this type testimony and that the trial judge did not have discretion to admit it.

The Second district prevents this kind of testimony while the 4th and 5th Districts allow it.

Illinois DUI Resource Page

Check out the Illinois DUI Resource Page

to learn more about DUI in Illinois.

Analysis

See Illinois Rule of Evidence 403.

This 1st District court also said the testimony was proper because the contents of the warning to motorists to be relevant circumstantial evidence of a defendant’s consciousness of his own guilt.

Evidence is unduly prejudicial only if it casts a negative light upon the defendant for reasons that have nothing to do with the case on trial, or invites the jury to decide the case “on an improper basis, commonly an emotional one, such as sympathy, hatred, contempt, or horror.

While the warnings may be circumstantial evidence of a defendant’s guilt, this does not encourage a decision on any improper basis.

The evidence at issue here is not technical in nature but rather implicates basic common sense: a person is given an incentive to submit to testing and nevertheless refuses to be tested, indicating that he knows the results will be unfavorable to him.

People v. Franklin, 2016 IL App (1st) 140059 (August). Episode 221 (Duration 9:15)

Police find weed in this hotel room, but the warrantless search of the room exceeded the scope of a search incident to arrest.

Facts

Defendant had rented a hotel room.

Police are called to the room because another hotel guest said an occupant of Defendant’s room stole her money.

Police go to the room and are let in by Defendant. They talk to the roommate suspected of the theft. Police find cannabis in plain view, the roommate bolts out the room.

Defendant is left alone in their room for around three minutes as they chase the runner. When the police get back to the room, defendant is seen coming out the bathroom where tiles in the ceiling now appear disturbed.

Defendant is arrested and they find guns in the bathroom ceiling.

Law

A warrantless search is per se unconstitutional unless it falls within recognized exceptions to the warrant requirement.

Two exceptions are

(1) probable cause accompanied by exigent circumstances,

(2) a search incident to arrest and

(3) a search based on consent.

Search & Seizure Resource Page

Check out the

Illinois Search And Seizure Resource Page 

to learn more about the 4th amendment. 

Consent

Consent is not valid unless it is voluntary; and in order for consent to be voluntary, it must be freely given without duress or coercion (express or implied).

There is no doubt that Defendant consented to the entry into the room to talk to the roommate.

The interruption of the search as a result of the roommates flight did not render the officer’s re-entry non-consensual. A brief interruption or a temporary suspension of a search does not transform one continuous search into two separate searches.

See People v. Carter, 2016 IL App (3d) 140958 (March), Episode 157 of the Premium Nuggets Podcast.

* Search Warrant Case

* Gun in Couch

* Police Leave – They Are Done

* Roommate Says “It’s in the Couch!”

* Cop’s Come Back

When an officer fails to abandoned his investigation, relinquish control over the defendant’s house, or indicate an intent not to seize contraband then the search is not reasonably complete.

Here, the officers did not leave the room because they had completed their search and ran out only to pursue a fleeing suspect.

Scope

However, defendant contends that the search of the bathroom ceiling exceeded the scope of his consent to enter the room was not otherwise justified either as a search incident to his arrest for the cannabis nor by exigent circumstances.

Here defendant has a point.

The police were let in the room to talk to the roommate about a theft. The probable cause to arrest defendant for the weed did not translate into the ability to conduct a warrantless search of the entire room, including the bathroom.

In a search incident to arrest, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.

Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated.

In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or eviden...