People v. Cregan, 2014 IL 113600 (February). Episode 032 (Duration 22:43)

Arizona v. Gant was the landmark decision by the Supreme Court which prevented police officers from searching the contents of a car after the arrest of the driver. 

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Gist

The Illinois Supreme Court Decision, People v. Cregan, released on February 21, 2014 has altered the landscape on searches incident to arrest.

Arizona v. Gant Update: The Illinois Supreme Court in People v. Creagen Has Made a Search of Your Luggage Much Easier After a Search Incident to Arrest

In this Podcast – 

* Samuel Partida, Jr. discusses the facts of this case,* reviews the body of case law leading to this case,* summarizes the defense argument,* summarizes the prosecution argument,* discusses the court ruling, and* leaves practicing attorneys with a final take away for their practice.

Busy criminal law litigators have got to take the less than 25 minutes necessary to get up to speed on this development! Anyone else who just wants to educate themselves, will certainly find interesting knowledge in this podcast.

These are the cases discussed:

* Arizona v. Gant, 556 U.S. 332 (2009)* People v. Cregan, 2014 IL 113600 (2014)* New York v. Belton, 453 U.S. 454 (1981)* Chimel v. California, 395 U.S. 752 (1969)* People v. Hoskins, 101 Ill.2d 209 (1984)* United States v. Chadwick, 433 U.S. 1 (1977)* United States v. Robinson, 414 U.S. 218 (1973)*

People v. Jones, 2014 IL App (3d) 121016 (November). Episode 031 (Duration 10:34).

Drug trafficking evidence has shifted to more liberal interpretation of suspicious behavior around drugs delivered through the mail.

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The State charged defendant with unlawful cannabis trafficking (720 ILCS 550/5.1(a)) and unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(f).)

Facts

FedEx security specialist noted this package was –

* Shipped from southern state* Paid for by cash* No signature was required* Phone number for shipper and receiver was the same* All the seams taped

They notified the police. Police brought in the sniff dogs. After the dog alerted, a warrant was obtained, and the package was opened.

Class X amount of cannabis was inside. A tracking device was placed in the package. It was delivered by agents.

The package was left by the front door after no one answered. A female retrieved it. 13 minutes later a Defendant arrived at the residence. Defendant is then driven away from the home.

The car is then stopped by police. Defendant was in the passenger’s seat holding the closed package.

Defendant denied knowing what was in the package and stated he thought it was some shoes that he had ordered.

Charges

Defendant was charged under Illinois Compiled Statutes Section 5.1 of the Cannabis Control Act (Act) for cannabis trafficking which provides that

“any person who knowingly brings or causes to be brought into this State *** with the intent to manufacture or deliver 2,500 grams or more of cannabis in this State or any other state or country is guilty of cannabis trafficking.”

People v. Flores, 2014 IL App (1st) 121786 (November). Episode 030 (Duration 19:46). 

Right to remain silent must be scrupulously honored by the police.

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Gist

Questions from police must stop after suspect says he does not want to talk.

So what went wrong here?Did anything go wrong at all?

Murder and attempted murder conviction are reversed and case remanded for new trial. Police did not honor Defendant’s invocation of his right to remain silent. There was no coercion or intimidation, but “no” means “no.”

Facts

May Interrogation

Defendant was arrested for a shooting that occurred in Chicago.  A van was being driven around. It was hunting for rival gang members. The passenger engaged in at least two shootings. One victim died.

No strong eyewitness identifications were made.

Defendant was 17 years old. He was arrested in May and held for 50 hours in an interrogation room. Eventually, he gave statements that he was the shooter.

In July, Defendant was arrested again. He also gave statements that he was the shooter in the July statement.

The May statement was flatly declared inadmissible by the trial judge. The trial court found that in the May interrogations –

* Defendant asked for counsel* Detectives reinitiated questioning of Defendant 14 to 15 hours later* Detectives used an excessive amount of profanity with Defendant* Detectives misinformed Defendant about key evidence they said they had on him

The State declined to proceed with charges in May, thus Defendant was released.

July Interrogation

Defendant was rearrested in July after the drive...

People v. Gonzalez-Carrera, 2014 IL App (2d) 130968 (September).  Episode 025 (Duration 15:41)

Search and seizure law dark side revealed.

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This is an example of a case with a less than completely honest deputy. Very important facts were withheld from the defense, the judge, and the prosecution.

You’re Gonna Love These Facts

The defense ran a motion to suppress evidence based on what they thought was an unconstitutional traffic stop.

They won!

The case turned on whether or not the broken taillight could mattered in the middle of the day when the car was actually stopped. The law required red lights to be visible for at least 500 feet at night. See 625 ILCS 5/12-201(b) 

It was day time, and no evidence that red light was not visible for at least 500 feet. So, the judge granted the motion. All the evidence found in the car was suppressed.

What Exactly Was Suppressed?

The judge threw out and excluded from evidence

* 4 kilos of cocaine and* 1 pound of meth

This was all discovered in the car.

Wait, We Are Not Done

Upon seeing the court’s ruling, the prosecution filed a motion to reconsider and a motion to reopen the proofs. The State told the judge, that there was more crucial evidence that they failed to mention in the hearing.

In their motion, they told the judge that their was more information the court had to consider.

You see, the driver of that car was under investigation by the F.B.I. That federal agency had been involved in a massive drug transaction with the Defendant right before the deputy pulled him over for driving with a broken taillight.

People v. Green, 2014 IL App (3d) 120522 (August). Episode 021 (Duration 13:11)

A police interrogation in murder case is not recorded. So what happens in Illinois when the video recorder breaks down and the interrogation is not recorded?

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Facts of the Case

In that case, the police find a women violently beat to death in her home. Her family immediately tells the police that her boyfriend is violent towards her. In fact, he had recently sent her a threatening text message.

Guess who the police want to talk to? After some cat and mouse stuff, the police eventually find Defendant in a van driving quickly away from the police. Defendant still has blood on him. Guess, who gets a ride to the police station for some questions?

By all accounts, the recording equipment simply malfunctions. The interrogation is not recorded. Defendant, of course, makes some incriminating statements.

Police Interrogation in Murder Case in Illinois

The applicable law here falls under the Illinois Compiled Statutes Code of Criminal Procedure section 725 ILCS 5/ 103-2.1(b). Surprisingly, the code does not use the language we would expect. One would expect to find the language “shall be” somewhere in a “requirement” section of law.

That’s not how this law is written up. Here is exactly what the code says:

“An oral, written, or sign language statement of an accused made as a result of a custodial interrogation conducted at a police station or other place of detention shall be presumed to be inadmissible as evidence against the accused in any criminal proceeding brought under [listed] Section …unless (1) an electronic recording is made of the custodial interrogation; and (2) the recording is substantially accurate and not intentionally altered.”

People v. Abdur-Rahim, 2014 IL App (3d) 130558 (August). Episode 015 (Duration 10:08).

7 year drug conviction reversed, even though the officer said he smelled marijuana.

Police Car Search Legal in Illinois if They Smell Marijuana

In 1985, the Illinois Supreme Court first authorized a police car search if the officer claimed to be able to smell marijuana in the car. See People v. Stout, 106 Ill. 2d 77, 477 N.E.2d 498 (1985).

This decision was followed by later appellate courts. See People v. Hansen, 326 Ill. App.3d 610 (4th Dist. 2001) and People v. Boyd, 298 Ill. App. 3d 1118 (4th Dist. 1998).

The Supreme court said that

“…distinctive odors can be persuasive evidence of probable cause. A police officer’s detection of controlled substances by their smell has been held to be a permissible method of establishing probable cause. This method of detection does not constitute an unconstitutional search. In the case at bar, it was the duty of [the officer], when confronted with circumstances which tended to indicate that criminal activity was taking place to investigate in order to determine whether such criminal activity in fact existed. Based on the particular facts of this case, including the officer’s experience and training on the detection of controlled substances, we find that probable cause existed to justify the warrantless search.”

Stout, 106 Ill 2d at 88.

This is the law in Illinois. Which only begs the question. If the officer was claiming to smell marijuana, why did the search of this car get reversed by the appellate court?

Facts of This Case

Essentially, we have a trooper who is taking forever with the traffic stop.

He called for the police drug dogs but they were late in arriving to the scene. When the officer finally has finished writing the tickets he holds on to the ticket and defendant’s driver’s license.

Defendant is then removed from his truck. And while standing outside the truck the officer asked defendant about the smell of marijuana coming from inside the truck.

Defendant admits to contraband being in the center console. Cop finds it. The dogs finally show up. The police drug dog indicated in the back of truck. Felony amounts of marijuana are found by the police.

Officer’s Comments About the Smell of Marijuana

Part of the reason for the reversal, is that the officer is heard expressing his true feelings about what he thought he was smelling.

Exactly what the trooper said about the smell of marijuana coming from the truck was this:

“When I was up there talking to him I thought I could smell an odor of burnt cannabis, not raw cannabis. I’m not certain the way the wind was blowing and stuff. I’m not going to call him out on that, and I am going to question him about it at some point. I am not going to use that as probable cause to search the vehicle. I’m not 100% sure about that.”

The trooper was talking to his dispatch operator. He was more or less thinking out loud, outside the presence of the Defendant.

Essentially, the trooper was admitting that the smell was not that strong and that he couldn’t really draw any conclusions from it.

Is this, situation really any different from every other case where an officer testifies in court to smelling a “faint odor of cannab...

In Episode 014, I discuss the case of People v. Kofron.

A knock and talk is a police tactic.

The goal is to conduct a warrantless search of a home by walking up to the residence, engaging in conversation with the resident, ending in consent for the police to enter and search.

Clearly, the appellate court had big problems with police and the appellate prosecutor in that case. The question that remains is whether or not this case illustrates THE problem with a knock and talk or was this case an isolated example of rogue cops?

Similar to Stop and Frisk

Ultimately, how a person feels about the police tactic of a knock and talk is probably very similar to how a person feels about a stop and frisk.

A stop and frisk is a similar police tactic. Here, the goal is to conduct a warrantless search of a person. Police are trained to walk up to a person, engage in conversation, and eventually gain consent to conduct a search of the person.

Advocates against warrantless searches of person, probably won’t see the merit in a warrantless search of a home. Supporters of law enforcement who believe a consensual search of a person is an appropriate policy tool, probably see a consensual search of a home in the same way.

Learn more about Illinois search and seizure issues.

Everyone Embarrass Themselves Here

The trial court judge was really bothered by the warrantless search conducted in the case of People v. Kofron.  

The judge actual felt compelled to say this, on the record:

“In my years of law enforcement, I don’t know that I’ve seen anything that exceeds what-the conduct that I’ve seen here.”

People v. Kofron ¶ 11.

The appellate court in its written opinion felt compelled to say about the appellate prosecutors handling the appeal of the case for the State:

“We begin by addressing a number of distortions of the record on appeal made by the State in the ‘Statement of Facts’ section of its opening brief. These distortions are problematic not only because the State relies upon the distortions as key elements in support of its legal arguments on appeal, but also because the distortions undermine the credibility of the State in general.”

People v. Kofron ¶ 14.

To say the least, the trial judge did not believe the cops testimony. The cops were trying to say in court that they were given valid consent to enter and search the home. Sure, things got a little heated, but the resident finally “let them in”. Yea, that is how it went down.

How Do You Say “NO”?

Critics of this police tactic argue that one of the main problems is that there is no remedy when citizens are confronted with police personnel who simply do not accept “No” as the answer.

Police, often invest time, money, personnel and resources on these things. How easily, are they going to show up in force and then just walk away when the homeowner is less than enthusiastic about letting a S.W.A.T team into turns things upside down?

Clearly,

People will forever try to avoid DUI checkpoints legally.

An Illinois criminal court decision suggests that is theoretically possible? But is it practically possible?

This podcast episode was inspired by the Illinois criminal court decision of People v. Timmsen, 2014 IL App (3d) 120481 (July). See also Episode 153 – People v. Timmsen, 2016 IL 118181 (March) (Illinois Supreme Court overrules the lower court). 

Is it Possible to Avoid DUI Checkpoints Legally?

The case gives us a mixed bag of results. Technically, the case makes it clear that a person CAN legally avoid a DUI checkpoint.

Strictly speaking, the police cannot stop a car just because that car is seen making a U-turn to avoid a traffic safety checkpoint. Great, sounds like good news for drivers and the defense bar.

Yes, But Car Can Still Be Stopped If…

Yet, the court still outlined the pathway for police to follow to legally stop a car seen avoiding a DUI or safety checkpoint. The court set up the following rules for police to follow so these stops don’t get thrown out of court.

There are three examples of when a turn before a safety checkpoint reaches a reasonable suspicion of criminal activity allowing the police to stop the car before they can actually get away:

(1) When a vehicle tries to go through the checkpoint without stopping at all;(2) When a vehicle stops just before the roadblock and the driver and passenger change places; or

(this is my favorite point)

(3) When a vehicle avoids the roadblock in a suspicious manner

I love number three. Message to the police is this: “Look guys look for any other reason that you can put into a sentence and write down for us.”

For more information on Illinois DUI Law go here. And for more search & seizure opinions go here.

 What is a Suspicious Manner?

The court itself described point number three this way: “What is considered suspicious has been subject to much debate, with results varying by jurisdiction.”

I would also add, that what is considered suspicious also varies widely by the judge who is happens to catch the case.

The court briefly discussed some of the “suspicious” activities that would justify a stop. First and foremost, any traffic infraction committed while trying to “get away.” Would be a legitimate reason to stop the car. 

The court suggested that setting up the checkpoint in a “high-crime area” could also provide the necessary suspicion to stop evading cars.

Finally, the court would accept any evidence of a car trying to make any kind of fast get-a-way. For example if the police see the car speeding, squealing tires, or spraying gravel that would all suggest flight for some reason.

Drive Away Very Carefully

If I’m a cop tasked with putting up the next DUI or traffic safety checkpoint I’d look for a high crime area,

Is it illegal to lie to the police?

In Illinois there is a charge called obstructing identification. It is a form of obstructing justice.

This podcast episode was encouraged by the Illinois criminal court case of People v. Schronski, 2014 IL App (3d) 120574 (07/09/2014).

So When is Illegal to Lie to the Police?

In this version of the law, it is a crime to lie to the police about your name. However, it is not absolutely against the law and it is only illegal to lie to the police under certain circumstances.

To sustain a conviction for obstructing identification, the prosecution must prove that a person:

(1) Intentionally or knowingly provided a false or fictitious name, residence address, or date of birth to a peace officer; and(2) Was either:

(a) lawfully arrested or detained, or(b) the information was requested from an individual that was reasonably believed to have witnessed a crime.

See 720 ILCS 5/31-4.5(a).

See also other Illinois Crimes in this handy crimes index.

Obstructing Identification is Unique

The thing that is different about this crime is that the prohibited conduct is not always technically illegal.

Example

What I mean is that some acts are just illegal no matter what. Killing someone is murder, always. Sure there is such a thing as self defense. But self defense is a way to excuse behavior we still generally try to prohibit. A self defense claim does not change the fact that the law tries to prevent a killing by criminalizing the act in the first instance.

Lying to Police

The act of lying to the police is not always meant to be prohibited by the criminal law in the first instance. The law only wants to ban lying to the cops under certain circumstances. When it comes to your name, the law criminalizes (and thus tries to prevent) lying when your are lawfully arrested, detained, or when you are a witness to a crime.

The law does not take a position on lying to police about your name outside the realm described above.

So, Is It Illegal to Lie to the Police? Not Always

Say a cop is walking through a neighborhood and is just trying to get to know the members of the community.

If the officer came upon you and asked you your name trying to get to know you better. Giving a fake name, under these circumstances, is not illegal. The law takes no position on whether you should or should not lie to the officer.

This means every time a person is charged with obstructing identification, the questions that has to be asked is if:

(1) The person was a witness to a crime, and if(2) The person was lawfully detained or arrested?

If the answer is “no”, the charge can be challenged in court.

This Feels Like a Search & Seizure Case

Often, the answer to the question, “Is it illegal to lie to the police?”, will turn on the legality of the arrest or detention.This is the very same issue that frequently comes up when analyzing 

Yes, a DUI sleeping in car  situation can happen to you under a not so unique set of circumstances. 

In fact, if you are drunk and asleep at the wheel of a non moving (even turned off) car you can be liable!

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The podcast episode was inspired by the recent Illinois court decision, People v. Morris, 2014 IL App (1st) 1130152 (07/23/2014). However, there is also a decision out of South Dakota where a man was acquitted on appeal for DUI. This guy was drunk and leaned into his truck and accidently bumped a gear level.

The South Dakota case also sounds interesting and can be found in this Argus Leader article.

The Code in Illinois

The actual Illinois Criminal Code on the matter says that an individual:

shall not drive or be in actual physical control of any vehicle within this State while under the influence of alcohol.

625 ILCS 5/11-501(a)(2).

See other Illinois DUI Opinions.

The Factors

In Illinois, the presence of four factors may lead to a DUI conviction for falling asleep behind the wheel while drunk.

The specific question a court is answering when looking at these factors is whether the sleepy head was in actual physical control of the car?

Here are the factors:

* Possessed of the ignition key* Physical capability to operate the vehicle* Sitting in the driver’s seat, and* Alone in the car with the doors locked.