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.

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.

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...

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

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...

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

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.

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...

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...

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,