Kane County Nuggets

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.”

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

The court had some issues with the credibility and consistency of Campbell and his girlfriend’s testimony.

Specifically, it was odd that she said that  she had not spoken to defendant about the case and that he did not have a key to an apartment where he had been living for several years.

Issue

Campbell argues that the evidence was insufficient to convict him on several grounds. He points to inconsistencies between the officers’ testimony and the police reports. He notes the lack of physical evidence connecting him to the gun.

What Is More Plausible?

He describes his own testimony as the more plausible version of events.

Most importantly, however, he argues that the officers are incredible because it is beyond human experience to believe that he tossed the gun into the Durango in sight of the officers. This type of testimony is referred to as “dropsy” testimony.

The State argues that, to the extent “dropsy” testimony exists, it is not a basis on which to categorically disbelieve the officers’ testimony.

Dropsy Testimony A case involving “dropsy” testimony is one in which a police officer, to avoid the exclusion of evidence on fourth amendment grounds, falsely testifies that the defendant dropped the contraband in plain view.

Many courts trace the origin of this description of officer testimony to a decision out of the New York Criminal Court in People v. McMurty, 314 N.Y.S.2d 194 (N.Y. Crim. Ct. 1970). See, e.g., United States v. Janis, 428 U.S. 433, 448 n.18 (1976) (citing McMurty, 314 N.Y.S.2d 194); State v. Brunori, 578 A.2d 139, 142 n.6 (Conn. App. Ct. 1990) (same); Ruiz v. State, 50 So. 3d 1229, 1232-33 (Fla. Dist. Ct. App. 2011) (same).

In McMurty, the court explained the problem of “dropsy” testimony in some detail. The proliferation of “dropsy” testimony, arises out of the United States Supreme Court’s decision in Mapp v. Ohio, 367 U.S. 643 (1961). In Mapp, the court incorporated the exclusionary rule and held that it was enforceable against the states. Id. at 655. Before Mapp, a local police officer who engaged in unconstitutional conduct—an arrest based on less than probable cause, for example—could still see the evidence admitted at trial.

In other words, a police officer could truthfully testify in state court that he or she stopped someone for no reason and the prosecution against that person would be unaffected. After Mapp, an officer’s truthful testimony that he or she stopped someone for no reason would result in suppression of the evidence. So, police made the great discovery that if the defendant drops the contraband on the ground, after which the policeman arrests him, the search is reasonable and the evidence is admissible.

Put simply, Mapp led to police officers lying about their encounters with citizens to ensure that the evidence they unlawfully obtained would nonetheless be admitted later. See Janis, 428 U.S. at 447-48 n.18 (“exclusionary rule tends to lessen the accuracy of the evidence presented in court because it encourages the police to lie in order to avoid suppression of evidence” (citing McMurty, 314 N.Y.S.2d 194)).

Illinois Courts On Dropsy Testimony

Illinois courts have similarly defined “dropsy” cases as those in which an officer falsely testifies that a defendant dropped contraband in plain view “to avoid the exclusion of evidence on fourth-amendment grounds.” People v. Ash, 346 Ill. App. 3d 809, 816 (2004). See also A. McClurg, Good Cop, Bad Cop: Using Cognitive Dissonance Theory to Reduce Police Lying, 32 U.C. Davis L. Rev. 389, 400 (1999), and People v. Cunningham, 333 Ill. App. 3d 1045, 1049 (1st Dist. 2002) (drug case reversed because officer’s testimony found to be contrary to human experience and unworthy of belief the testimony of the arresting officer was so unlikely and improbable that it was unworthy of belief when he said he saw defendant drop the drugs in the car). But see People v. Cunningham, Docket No. 94971-Agenda 1-May 2004 (Illinois Supreme Court overules Cunningham and reinstates drug conviction where “one bad apple spoils the lot”)

In Ash, however, the defendant made a far bolder claim, asserting that the mere existence of “dropsy” testimony in some cases meant that officers should be viewed as less trustworthy in all cases. More recently, this court has viewed the phenomenon of “dropsy” testimony with skepticism, describing the “widespread nature” of this kind of testimony as “alleged” and based only on anecdotal evidence. People v. Moore, 2014 IL App (1st) 110793-B, ¶¶ 12-13.

Is It A Problem?

Outside of Illinois, “dropsy” testimony has been acknowledged as a genuine problem confronting the criminal justice system. See, e.g., Janis, 428 U.S. at 447-48 n.18 (citing “studies and commentary” showing that the exclusionary rule “encourages the police to lie *** to avoid suppression”); United States v. Contreras, 820 F.3d 255, 267 (7th Cir. 2016) (finding, “cases in which defendants drop drugs in plain view invite skepticism” and noting scholarly documentation of “an increase of ‘dropsy’ cases” after Mapp); Dixon v. State, 327 A.2d 516, 517 (Md. 1974) (describing “dropsy” cases, along with inventory searches, as “afflict[ing] law enforcement with the yawning credibility gap”).

In New York, the problem was so pervasive that the police themselves named this kind of false testimony: “testilying.” Of particular relevance here, a New York City report regarding police corruption indicates that officers frequently “testilied” about things like traffic violations, observing bulges in pockets, or plain view sightings of guns or drugs to justify potentially unlawful searches and seizures. City of N.Y., Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department: Commission Report 38 (1994). See also Christopher Slobogin, Testilying: Police Perjury and What to Do About It, 67 U. Colo. L. Rev. 1037, 1040 n.11 (1996) (citing City of N.Y., Commission to Investigate Allegations of Police Corruption and the AntiCorruption Procedures of the Police Department: Commission Report 36 (1994)).

One Bad Apple Does Not Spoil The Lot

Of course, it is not enough for us to conclude that untruthful “dropsy” testimony exists; we also must be cognizant of the way courts have treated it.

As we see it, there are essentially three categories of treatment of “dropsy” testimony.

1) At one extreme, there are courts that decline to acknowledge at all that this type of testimony can be problematic. See Moore, 2014 IL App (1st) 110793-B ¶ 13 (assuming, but refusing to say, that the evidence of “dropsy” testimony “actually establishes a trend or problem”).

2) At the other extreme, courts have issued wholesale condemnations of this type of testimony. See People v. Cunningham, 333 Ill. App. 3d 1045, 1049 (1st Dist. 2002). See also People v. Quinones, 402 N.Y.S.2d 196, 198 (N.Y. App. Div. 1978) (rejecting officer’s “dropsy” testimony “as a matter of law” where it has “all appearances of having been patently tailored to nullify constitutional objections”).

3) But, the largest group of cases, including McMurty, sees “dropsy” testimony as a lurking saboteur of the fair administration of criminal justice while recognizing the testimony in each individual case must be evaluated for its own credibility. Even in McMurty, 314 N.Y.S.2d at 197 the court said judges must only decide the cases that come before them.

A Way To Analyze These Cases?

Critical whenever an officer testifies that the defendant dropped contraband in plain view is this question:

would the officer’s detention or search of the defendant have violated the fourth amendment if he or she had not seen the defendant drop the contraband in plain view?

If the answer is “no,” there is far less reason to doubt the credibility of the officer’s testimony because the officer has nothing to gain by lying about the drop. If, however, the answer is “yes,” both trial courts and courts of review should take care to analyze the credibility of the officer because the incentive to lie to avoid suppression of the evidence is at its highest. This Case

Aside from a conclusory statement that, absent the plain view sighting of the gun, the officers “illegally searched the vehicle,” Campbell does not argue that the officers’ conduct would have violated the fourth amendment absent the “dropsy” testimony.

We conclude that even without testimony about the observation of Campbell tossing the gun into the car, the officers’ conduct likely comported with the fourth amendment giving them little incentive to fabricate a “dropsy” narrative. Not Because They Smelled Cannabis

Other officer’s said they could smell cannabis.

While we are skeptical that an officer would have been able to smell cannabis in his moving car, even if the Durango’s windows were open, the observation of a traffic violation is a valid reason to conduct a Terry stop. People v. Hackett, 2012 IL 111781, ¶ 20 (decision to stop a car is reasonable where officer has probable cause to believe that driver committed traffic violation). 

But Because A Stop & Passenger Removal Is Legal

The Durango was illegally double-parked. Double-parking, or even stopping a car next to another car parked against the curb, violates the Illinois Vehicle Code. 625 ILCS 5/11-1303(a)(1)(a).

Our supreme court has said it is well established that following a lawful traffic stop, police may, as a matter of course, order the driver and any passengers out of the vehicle pending completion of the stop without violating the protections of the fourth amendment. People v. Sorenson, 196 Ill. 2d 425, 433 (2001). In sum, removing the testimony about the tossing of the gun and keeping everything else the same, we cannot say that there would have been any illegality to cover up as far as the fourth amendment is concerned. 

Several officers testified that they pulled up to the Durango to do a “narcotics investigation,” but even pretextual traffic stops are constitutional as long as the objective facts demonstrate cause for the stop. Whren v. United States, 517 U.S. 806, 812-13 (1996). In United States v. Robinson, 414 U.S. 218 (1973), we held that a traffic-violation arrest would not be rendered invalid by the fact that it was a mere pretext for a narcotics search.

Given that the stop was lawful, nothing in the record suggests that the officers’ actions following the stop would have been unlawful. …But Court Is Skeptical

We are skeptical of the idea that a person, with knowledge of the presence of a police officer, would throw contraband in view of that officer.

But, the recognized reasons for an officer to present untruthful “dropsy” testimony are not present and so no reason exists for us to intrude on the trial court’s express credibility findings or second guess the officers’ testimony that defendant tossed the gun into the back seat. See People v. Henderson, 33 Ill. 2d 225, 229 (1965) (“Far from being contrary to human experience, cases which have come to this court show it to be a common behavior pattern for individuals having [contraband] on their person to attempt to dispose of them when suddenly confronted by authorities.”)

Holding

While we have serious reservations about the plausibility of a suspect openly discarding contraband with knowledge of police presence, on the facts and in light of the standard of review, we ultimately agree with the State and affirm defendant’s conviction.

On the facts here, we cannot say that the officers would have been so overcome by a temptation to lie as to render their testimony incredible.

Conviction affirmed.

See Also

• Do We Make “Testilying” Easy?
• Episode 250 – People v. Wall, 2016 IL App (5th) 140596 (October) (Police Tell A Little Lie To Encourage Signing The Consent To Search)
• Episode 015 – People v. Abdur-Rahim, 2014 IL App (3d) 130558 (August) (trooper thinks he can smell cannabis)

People v. Markham, 2019 IL App (3d) 180071 (April). Episode 626 (Duration 7:32)

State says overdose immunity should not kick in since defendant was feeling good enough to ask for his wallet and keys.

Gist

This is a possession of heroin case.

Facts

The parties submitted the following stipulated facts for the court’s consideration:

“1. A female companion and the defendant used heroin;
2. After going out into the kitchen and playing with her phone for a few minutes, the female companion re-entered the bedroom and observed the Defendant sitting in the bed turning purple;
3. Defendant was suffering a drug overdose;
4. The female then called 911 and commenced CPR;
5. Tazewell County Deputies were dispatched to [the home] in regards to a possible drug overdose;
6. When Deputies arrived they found [defendant] non-responsive and not breathing, and they commenced performing CPR on him;
7. One Deputy observed a syringe on a bedside table near the television;
8. As [defendant] was being prepped to be moved from the room to the ambulance, he began breathing on his own, eventually regaining consciousness;
9. As [defendant] was being prepared to be transported to the hospital, he requested his wallet and house keys from out of the closet to take with him to the hospital;
10. Deputy McKinney went into the closet to gather [defendant’s] wallet and keys;
11. Deputy McKinney found contraband (a rolled up dollar bill) sticking out of the wallet;
12. Inside the rolled up bill was a gray wrapper that appeared to be a gum wrapper which contained a grayish-white substance;
13. The grayish-white substance field tested positive for heroin;
14. That the amount of the substance recovered by law enforcement is within the amount identified in subsection (d) of 720 ILCS 570/414, which is less than 3 grams of a substance containing heroin;
15. That [defendant] is charged with Unlawful Possession of a Controlled Substance, 720 ILCS 570/402(c);”

By agreement, the parties further supplemented the stipulated facts, listed above, to provide that “[t]he deputies were administering CPR, and at that time North Pekin officers arrived and administered two doses of Narcan to the defendant. The deputies continued the CPR. At that point [defendant’s] pulse came back, but he was not breathing on his own. And then— and to clarify, paramedics then arrived, and paramedics administered the two subsequent doses of Narcan.”

Issue

At issue in this appeal is whether law enforcement “acquired” the heroin in defendant’s wallet “as a result” of defendant obtaining “emergency medical assistance” or whether law enforcement discovered the heroin after the “emergency medical assistance” concluded and defendant’s condition became somewhat stable.

Overdose Immunity

Defendant filed a motion to dismiss the charge based on the statutory immunity from prosecution provision of section 414(c) of the Act )(720 ILCS 570/414(c)).

Section 414 of the Act, titled “Overdose; limited immunity from prosecution,” provides:

“(a) For the purposes of this Section, ‘overdose’ means a controlled substanceinduced physiological event that results in a life-threatening emergency to the individual who ingested, inhaled, injected or otherwise bodily absorbed a controlled, counterfeit, or look-alike substance or a controlled substance analog.

(b) A person who, in good faith, seeks or obtains emergency medical assistance for someone experiencing an overdose shall not be charged or prosecuted for Class 4 felony possession of a controlled, counterfeit, or look-alike substance or a controlled substance analog if evidence for the Class 4 felony possession charge was acquired as a result of the person seeking or obtaining emergency medical assistance and providing the amount of substance recovered is within the amount identified in subsection (d) of this Section.

(c) A person who is experiencing an overdose shall not be charged or prosecuted for Class 4 felony possession of a controlled, counterfeit, or look-alike substance or a controlled substance analog if evidence for the Class 4 felony possession charge was acquired as a result of the person seeking or obtaining emergency medical assistance and providing the amount of substance recovered is within the amount identified in subsection (d) of this Section. * * *

(e) The limited immunity described in subsections (b) and (c) of this Section shall not be extended if law enforcement has reasonable suspicion or probable cause to detain, arrest, or search the person described in subsection (b) or (c) of this Section for criminal activity and the reasonable suspicion or probable cause is based on information obtained prior to or independent of the individual described in subsection (b) or (c) taking action to seek or obtain emergency medical assistance and not obtained as a direct result of the action of seeking or obtaining emergency medical assistance.”

720 ILCS 570/414.

Purpose Of The Act

The public act enacting section 414 of the Act includes a preamble stating, in relevant part:

“WHEREAS, Drug-overdose deaths are the second leading cause of accidental death in the nation and deaths have increased significantly in recent years, in both the Chicago Metropolitan Area and across Illinois; and

WHEREAS, The General Assembly finds that drug-overdose deaths could be substantially decreased if immunity from criminal prosecution for Class 4 felony violations of the Illinois Controlled Substances Act and Class 3 felony violations of the Methamphetamine Control and Community Protection Act were granted to a person possessing a small amount of the drug who, in good faith, seeks emergency medical assistance for someone experiencing a drug-related overdose and if this immunity were granted for the same Class 4 felony violations of the Illinois Controlled Substances Act and the Class 3 felony violations of the Methamphetamine Control and Community Protection Act to a person who is experiencing a drug-related overdose[.]”

Pub. Act 97- 678, § 5 (eff. June 1, 2012) (adding 720 ILCS 570/414).

People v. Teper

See Episode 264 – People v. Teper, 2016 IL App (2d) 160063 (November) (defendant found slumped over in his car but drug possession prosecution was still allowed).

Here, the State suggests the emergency ended before the discovery of the heroin by law enforcement.

Based on these circumstances, the State submits that defendant cannot rely on the statutory immunity provisions of the Act once the true emergency requiring emergency medical assistance was resolved. The State cites People v. Teper, 2016 IL App (2d) 160063, in support of its argument.

In Teper, officers received numerous reports of a driver slumped over her steering wheel in traffic. Upon arrival at the scene, officers first observed several hypodermic syringes, and one officer observed two Baggies of a brown rock-like substance in the vehicle. Based solely on the officer’s observations of the defendant’s physical appearance and the items in plain view inside the vehicle, the officers concluded the driver was likely experiencing an overdose and made the decision to administer Narcan. 

In that case, the trial court determined that immunity from prosecution based on section 414 did not apply because “the triggering fact” for overdose intervention occurred after the officers observed suspected drugs and paraphernalia in plain view. Id. ¶ 12. In other words, the trial court found the officers were not summoned to the scene with knowledge of a drug overdose and developed probable cause to seize the contraband before realizing the driver was incapacitated due to a drug overdose.

The Second District Appellate Court affirmed the trial court’s ruling.

The reviewing court opined that, because the contraband was clearly and immediately visible, thereby establishing independent probable cause prior to the defendant obtaining emergency medical assistance, the statutory exception to immunity from prosecution set forth in section 414(e) of the Act was triggered.

This Call Was More Specific

Unlike Teper, the initial 911 call here conveyed the urgent necessity for emergency medical services due to a drug overdose in progress, triggering statutory immunity from the outset.

Further, emergency medical assistance was in progress when an officer discovered contraband.

For these reasons, we find Teper is factually distinguishable from the case at bar. The State contends the fact that defendant was physically able to make a request for his wallet and keys should have caused the trial court to conclude defendant was past the point of requiring emergency medical assistance. In fact, the State posits “it is impossible to argue defendant, at the moment he asked the question, was in need of emergency care.”

The State’s argument is not only unpersuasive, it rewrites history.

Here, when law enforcement entered the residence at the address provided during the 911 call, defendant was unresponsive, not breathing, and was revived due to the administration of CPR and four doses of Narcan. Moreover, at the time of defendant’s request for his wallet and keys, defendant was not out of danger as a result of the overdose since he was being “prepped” and “prepared” to be moved from the residence to a hospital by ambulance.

Without this intervention at the residence and subsequent hospital care, it is likely that one more drug-related death would have been added to the already alarming state statistics.

Narrow Interpretation

We conclude the State’s narrow interpretation of the statutory phrase “as a result” is flawed.

The State’s narrow interpretation would serve to eviscerate the undeniable purpose of the Act by discouraging those witnessing or experiencing an overdose from immediately calling for lifesaving emergency medical attention. In order for the Act to work and save lives as intended, those witnessing or experiencing a drug overdose must have immediate and absolute assurance that the courts will uphold the provisions of the Act by prohibiting prosecution for items observed by first responders at the scene after being summoned to that location to prevent a death by overdose.

Holding

We hold that the Act provides broad and unconditional protection from the prying eyes of law enforcement present at the scene of an overdose, regardless of whether that location is a personal residence, a business, a vehicle, and so on.

For these reasons, with little guidance from existing precedent, we conclude the trial court correctly found that defendant was entitled to the immunities granted under section 414(c) of the Act because the heroin was discovered “as a result” of law enforcement entering the residence to provide emergency medical assistance as needed to prevent another needless death by overdose.

The trial court’s decision granting defendant’s motion to dismiss is affirmed.

People v. Kimble, 2019 IL 122830 (April). Episode 622 (Duration 9:42)

Judge declared a mistrial kind of early, still double jeopardy was not implicated.

Gist

This was a sex abuse case. The lower appellate court prevented a new trial based on double jeopardy after the trial judge declared a mistrial.

Deliberation

The jury began deliberating at 10:50 a.m. About 2½ hours later, at their request, the jury returned to the courtroom to rewatch the videotaped interview of S.M. The jury then continued its deliberations at 2:15 p.m.

About two hours later, at 4:25 p.m., the trial judge indicated on the record that she had received a note from the jury as follows:

“After deliberating for five hours, and despite our best efforts, we are at an impasse.”

The note was signed by the foreperson. Counsel was present for both parties.

Not The First Time

The trial judge indicated that this was the second time that she had received information from the jury that they were at an impasse. She explained that the jury had also informed the bailiff that they were at an impasse shortly after viewing the video.

The trial judge informed the parties that she had instructed the bailiff to tell the jurors to continue to deliberate.

Jury Brought Out

“THE COURT: [Foreperson], I received your note that you are at an impasse. Can you tell me how long that you have been at that impasse?

THE FOREPERSON: Pretty much a good part of the day. Four and a half hours or five hours.

THE COURT: And nothing has changed during that period of time?

THE FOREPERSON: Some numbers changed here and there, but we were stuck at a certain proportion.

THE COURT: And how long has that existed?

THE FOREPERSON: About I would say three hours.

THE COURT: And you haven’t moved during that period of time?

THE FOREPERSON: No, ma’am.

THE COURT: Do you—let me ask, do you think if I sent you home for the night, let you sleep on it, would it do any good? Could you continue your deliberation tomorrow? Would that help at all?

THE FOREPERSON: I asked that question, and it was indicated that it would not.

THE COURT: It would not?

THE FOREPERSON: No, ma’am.”

Should They Prim Them?

The following discussion was then had outside the presence of the jury:

“ASSISTANT STATE’S ATTORNEY: Judge, I do understand the foreperson’s comments. I understand it seems as though they are completely deadlocked at this point and it might be futile for future further deliberation. However, I believe that procedurally, from the State’s point of view, we should at least attempt the Prim instruction before we discharge the jury.

DEFENSE ATTORNEY: I would agree with the State, your Honor.

THE COURT: Pardon?

MR. HAIDUK: I would agree with the State.

…

THE COURT: I am fearful, folks, if I do that, you’re going to have some extremely angry jurors.

ASSISTANT STATE’S ATTORNEY: I understand, Judge.

THE COURT: There has been some very loud voices back there for a period of time. I think it would be futile to do that. Therefore, I would decline.

ASSISTANT STATE’S ATTORNEY: Understood, Judge.”

Hung Jury & Mistrial Declared

At that point, the jurors were called back into the courtroom.

The court then indicated that it would excuse the jurors and thanked them for their service. After discharging the jurors, the court declared a mistrial.

Lower Court Barred A Retrial

The appellate court barred a retrial based on double jeopardy.

The court found that

(1) defendant did not consent to or acquiesce in the trial court’s declaration of a mistrial,
(2) the trial court’s decision to declare a mistrial resulted from an act of judicial indiscretion, and
(3) there was no manifest necessity for the mistrial.

See Episode 398 – People v. Kimble, 2017 IL App (2d) 160087, ¶¶ 28, 41, 56 (September).

Double Jeopardy Law

The double jeopardy clause of the fifth amendment, which applies to the states through the fourteenth amendment, provides that an accused may not be tried more than once for the same offense. U.S. Const., amend. V; Currier v. Virginia, 585 U.S. ___, ___, 138 S. Ct. 2144, 2149 (2018). We interpret our state’s double jeopardy provision identically to the federal provision. See Ill. Const. 1970, art. I, § 10; People v. Levin, 157 Ill. 2d 138, 159 (1993).

The clause unequivocally provides three separate protections,

1. barring retrial for the same offense after an acquittal,
2. retrial after a conviction, and
3. multiple punishments for the same offense.

North Carolina v. Pearce, 395 U.S. 711, 717 (1969); Levin, 157 Ill. 2d at 144.

Moreover, because jeopardy attaches when the jury has been impaneled and sworn, the constitutional provision also protects a defendant’s valued right to have his trial completed by a particular tribunal and to be spared from the burden of repeated proceedings, even where the trial does not finally resolve the merits of the charges.

See Arizona v. Washington, 434 U.S. 497, 503-04 (1978) (quoting United States v. Jorn, 400 U.S. 470, 484 (1971)).

Manifest Necessity

When a mistrial has been declared, a retrial may proceed without offending double jeopardy principles if

(1) the defendant consents to the mistrial or
(2) there is a manifest necessity for the mistrial.

Washington, 434 U.S. at 505; People ex rel. Roberts v. Orenic, 88 Ill. 2d 502, 508 (1981). Under these circumstances, the second trial is properly understood as the continuation of the original jeopardy arising from the first trial. Richardson v. United States, 468 U.S. 317, 325 (1984).

The Supreme Court has emphasized that a manifest necessity ruling must be grounded in its own facts. The Court has expressly declined to require the mechanical application of any rigid formula when trial judges decide whether jury deadlock warrants a mistrial.

In reviewing whether the trial court acted within its discretion in declaring a mistrial on the basis of a jury deadlock, lower courts have considered several nonexhaustive factors as useful guideposts. These factors include

(1) statements from the jury that it cannot agree,
(2) the length of the deliberations,
(3) the length of the trial,
(4) the complexity of the issues,
(5) the jury’s communications to the judge, and
(6) the potentially prejudicial impact of continued forced deliberations.

The jury’s own statement that it is unable to reach a verdict has been repeatedly considered the most important factor in determining whether a trial court abused its discretion in declaring a mistrial.

Issue

The basis for defendant’s motion to bar retrial and the trial court’s denial of that motion both centered on whether the trial court exercised sound discretion in declaring a mistrial based on a manifest necessity.

A Hung Jury Meets Manifest Necessity

The Supreme Court, however, long ago explained that principles of double jeopardy do not bar reprosecution after discharge of a jury on the grounds that the jury cannot reach a verdict.

The Court explained that the trial judge may declare a mistrial “whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the mistrial, or the ends of public justice would otherwise be defeated.” United States v. Perez, 22 U.S. 579, 580 (1824); see also People v. DeFrates, 395 Ill. 439, 446 (1946).

The rule has been continuously reaffirmed because “a mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant’s consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide.” Jorn, 400 U.S. at 480.

Thus, a defendant’s right to a complete trial with a chosen jury “must in some circumstances be subordinated to the public’s interest in fair trials designed to end in just judgments.” Id.

Manifest Necessity Due to Deadlocked Jury

The manifest necessity standard does not require that a mistrial be “necessary” in the strict sense of the word, but it does require a “high degree” of necessity.

Settled law provides that a jury’s inability to reach a unanimous verdict is one circumstance that constitutes a manifest necessity permitting a retrial. Indeed, a deadlocked jury is the classic example of a situation when the manifest necessity standard is satisfied.

Renico v. Lett, 559 U.S. 766, 774 (2010); see also Richardson, 468 U.S. at 324 (“We have constantly adhered to the rule that a retrial following a hung jury does not violate the Double Jeopardy Clause.”); Oregon v. Kennedy, 456 U.S. 667, 672 (1982) (a hung jury is the “prototypical example” that meets the “manifest necessity” standard)

A trial judge’s decision to declare a mistrial when he considers the jury deadlocked should be accorded great deference by a reviewing court. While a trial judge may not act “irrationally or irresponsibly” in declaring a mistrial, the declaration will be upheld so long as it is the result of the trial judge’s exercise of “sound discretion.”

Based on this highly deferential standard, the Supreme Court in Lett noted that it had never overruled a trial court’s declaration of a mistrial based on a jury’s inability to reach a verdict on the ground that the manifest necessity standard had not been met. Id. at 775.

This Case: 2 Cases of Impasse

Here, the record revealed two statements from the jury indicating its inability to agree on the verdict. The trial judge initially urged the jurors to continue to deliberate and subsequently took care to clarify where the jury stood with respect to the deliberative process. The trial judge specifically asked the foreperson whether additional time would be helpful. The jury emphatically indicated that it had been at an impasse for several hours, and the collective belief of the jurors, after the foreperson specifically inquired of them, was that it would be futile to continue to deliberate.

The statements from the jury and the unequivocal communication with the foreperson supported the trial judge’s determination that further deliberations would have been futile.

But Was The Mistrial Too Fast?

The record reflects that this was not a long and highly complicated case. Rather, it was a relatively short trial, which primarily involved two days of witness testimony and videotaped statements and one defendant. The charges arose out of essentially the same operative conduct. At its core, the case was a credibility contest between S.M. and defendant.

Although defendant disputes the amount of time the jury deliberated, the record reflects that the jury deliberated for at least several hours and rewatched the video of S.M. The trial judge gave the parties an opportunity to provide input and to comment on the foreperson’s remarks, and she considered their input prior to declaring a mistrial.

Judge Had Some Discretion

Additionally, the trial judge explained on the record her fear of coercing the jury into a decision by requiring further deliberations. She expressed concern about the potential for “extremely angry jurors” after hearing “very loud voices in the jury room for a period of time.”

We will not substitute our judgment in characterizing the state of mind of the jurors.

Under these circumstances, applying the relevant considerations, the record amply supports that it was not irrational, irresponsible, or otherwise unreasonable for the trial judge to conclude that the jury was unable to reach a verdict and that further deliberations would have been pointless and coercive.

Yeah, But Was There Judicial Indiscretion?

We reject defendant’s assertion, raised for the first time on appeal, that the trial judge’s declaration of the mistrial was a result of judicial indiscretion, rather than manifest necessity.

Defendant maintains that the trial judge triggered the need to declare a mistrial by engaging in the ex parte communication, directing the jury to continue deliberating. He argues that the trial judge used the ex parte communication as the basis for her later decision to declare a mistrial, instead of giving the Prim instruction or allowing further deliberation.

Neither the record nor the controlling law supports a finding that the trial judge’s initial communication prompted a mistrial. Initially, we reiterate that any communication from a judge to a jury, after the jury has begun deliberations, should be made in open court and in the presence of the parties. People v. Childs, 159 Ill. 2d 217, 227 (1994).

Nevertheless, we have explained that a nonprejudicial ex parte communication does not impact the fairness of a defendant’s trial. People v. Johnson, 238 Ill. 2d 478, 489 (2010).

Judge Did The Right Thing

Here, the substance of the court’s communication to the jury in this case to “continue deliberating” was proper, constituting a clear and noncoercive response well within the court’s discretion. Furthermore, we note that defendant never objected to the ex parte communication itself nor raised it as a basis for granting his motion to bar reprosecution. 

Prim Instruction Is Not Required

Essentially, defendant argues that the trial court was responsible for the continued impasse by failing to give the jury the Prim instruction to provide them with further guidance. Contrary to defendant’s assertion, the trial judge was not obligated to give the Prim instruction at any time prior to declaring a mistrial.

Nothing in our case law or the constitution indicates that the Prim instruction is mandatory, even on request of the parties, much less a prerequisite for finding a manifest necessity exists to declare a mistrial. Nor was the trial judge obligated to force the jury to deliberate for a minimum period. See Blueford v. Arkansas, 566 U.S. 599, 609 (2012); People v. Cowan, 105 Ill. 2d 324, 328 (1985) (no obligation to give the Prim instruction).

It is within the trial court’s discretion whether to give that charge at any time during the proceedings, and the trial judge was in the best position to decide whether such an instruction would be helpful or, instead, coercive, leading the jury toward a verdict it otherwise would not have reached.

We will not second-guess the trial court or substitute our judgment for the trial judge’s judgment or reweigh the evidence. A discretionary decision implies a range of acceptable outcomes.

Holding

We discern no basis to conclude that the trial judge abused her considerable discretion in deciding that a mistrial was justified by manifest necessity. Therefore, the double jeopardy clause did not bar reprosecution. Defendant may be retried, and the judgment of the appellate court is reversed.

Cause remanded for a new trial.

See Also

• Episode 620 – People v. Drake, 2019 IL 123734 (March) (appellate court can consider improperly admitted  evidence when deciding if double jeopardy attaches after a reversal) 
• Episode 583 – People v. Shoevlin, 2019 IL App (3d) 170258 (January) (Serious double jeopardy concerns are raised when the judge declares a mistrial in this domestic battery case.)
• Episode 398 – People v. Kimble, 2017 IL App (2d) 160087 (September) (judge declares a mistrial too early and now the state cannot recharge defendant).
• Episode 279 – People v. Staple, 2016 IL App (4th) 160061 (December) (defendant plead guilty to misdemeanor DUI, so the trial judge dismissed the felony DUI without implicating double jeopardy)
• Episode 389 – People v. Threatte, 2017 IL App (2d) 160161 (August) (prosecutor got sick in the middle of trial and mistrial was declared)
• Episode 040  – People v. Guillen, 2014 IL App (2d) 131216 (November) (defendant tried to plead guilty to a misdemeanor DUI, the the judge allowed them to dismiss the charges so they could indict on felony charges)
• Episode 041 – More on Double Jeopardy Definition
• People v. Ventsias, 2014 IL App (3d) 130275 (July) (Double Jeopardy Does Not Attach on dismissed Charge, Double Jeopardy Attaches After a Guilty Plea)
• Episode 317 – People v. Staple, 2016 IL App (4th) 160061 (December)(How Double Jeopardy Really Works)

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.”

On Appeal

Defendant argues on appeal that in light of the recent amendment to section 4 of the Act, the smell of burnt cannabis alone no longer provides a reasonable belief that a crime has occurred sufficient to support probable cause.

He maintains that the odor of cannabis can no longer serve as a ground for probable cause or reasonable suspicion of criminal activity in light of the recent amendment to the Act decriminalizing the possession of small amounts of cannabis. See Pub. Act 99-697, §40 (eff. July 29, 2016) (decriminalizing the possession of not more than 10 grams of cannabis by categorizing it as a “civil law violation” punishable by a fine ranging from $100 to $200).

Automobile Exception

Under the automobile exception, police officers may search a vehicle without a warrant where probable cause exists to believe the vehicle contains evidence of criminal activity subject to seizure. People v. James, 163 Ill. 2d 302, 312 (1994). Probable cause means that there is a reasonable ground for belief of guilt and that the belief of guilt must be particularized with respect to the person to be searched or seized. Maryland v. Pringle, 540 U.S. 366, 371 (2003).

In determining whether probable cause exists, a law enforcement officer may rely on training and experience to draw inferences and make certain deductions. Ornelas v. United States, 517 U.S. 690, 700 (1996). Probable cause exists when the facts known to the arresting officer at the time are sufficient to lead a reasonable person to believe that the defendant is engaged in criminal activity. Jones, 215 Ill. 2d at 273-74.

The Smell of Weed

It is well established that the distinctive odor of cannabis can be persuasive evidence of criminal activity. See People v. Stout, 106 Ill. 2d 77, 87 (1985). In Stout, our supreme court held that when an officer detects an odor of a controlled substance, the officer has probable cause to conduct a search of a vehicle if testimony has been elicited that the officer has training and experience in the detection of controlled substances. 

Since then, Illinois courts have repeatedly recognized that the smell of burnt cannabis emanating from a vehicle will provide officers familiar with and trained in the detection of controlled substances with probable cause to search a vehicle. See People v. Weaver, 2013 IL App (3d) 130054, ¶ 32. This principle has been extended to include searches of the driver and any passengers. People v. Zayed, 2016 IL App (3d) 140780, ¶ 22; People v. Williams, 2013 IL App (4th) 110857, ¶ 34; People v. Strong, 215 Ill. App. 3d 484, 489-90 (1991).

Still Associated With Criminal Activity 

The majority of jurisdictions have found that decriminalization is not synonymous with legalization and that the odor of cannabis remains indicative of criminal activity despite the passage of statutes decriminalizing the possession of small amounts of marijuana. See In re O.S., 2018 IL App (1st) 171765, ¶ 28.

Although defendant contends that Illinois has decriminalized small quantities of cannabis, marijuana possession remains unlawful under the Act. Section 4, as amended, states that “[i]t is unlawful for any person knowingly to possess cannabis.” 720 ILCS 550/4. As noted in In re O.S., “decriminalization is not synonymous with legalization.” In re O.S., 2018 IL App (1st) 171765, ¶ 29.

Decriminalization Not Legalization

Under Illinois law, the knowing possession of cannabis is still a criminal offense and possession of more than 10 grams remains an unlawful act subject to criminal penalties.

Holding

Here, the officers searched defendant’s vehicle because Trooper detected the odor of cannabis. As we have stated, the odor of cannabis as indicative of criminal activity remains viable notwithstanding the legislature’s decriminalization of the possession of a small amount of marijuana. Once Trooper identified the odor of burnt cannabis, probable cause for the search existed. Thus, the trial court properly concluded that the search was justified and denied defendant’s motion to suppress.

Conviction of Bureau County is affirmed.

See Also

• Episode 509 - In re O.S., 2018 IL App (1st) 171765 (June)(1st District also says smell of weed rule is still valid) 
• Episode 584 - People v. Hill, 2019 IL App (4th) 180041 (January) (4th district says the same thing adding burnt or raw cannabis doesn't matter that car is getting searched) 
• Episode 621 - People v. Brandt, 2019 IL App (4th) 180219 (April) (officer smelled cannabis and that justified the warrant) 
• Episode 556 - Interview With Charles Schierer | The Best Reason To Change The “Smell Of Cannabis” Rule
• Episode 558 - People v. Williams, 2018 IL App (2d) 160683 (October)(odor of alcohol alone means nothing)
• Episode 340 – Kim Bilbrey on The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant
• Episode 015 – Police Car Search Legal in Illinois if They Smell Marijuana…Police Officer Describes A Faint Odor Of Marijuana
• Episode 276 – You Just Can't Ignore The Stench Of Weed In An Auto Accident
• Episode 207 – With Ken Wang – Give Us 24 Minutes And You’ll Get a Comprehensive Debriefing on The New Illinois Marijuana Law
• Episode 251 – With Jeffrey Hall –  On The Latest Developments And Problems With The Illinois Cannabis Decriminalization Law

People v. Patel, 2019 IL App (2d) 170766 (March).

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

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 appear, no discovery procedure shall be noticed or otherwise initiated without leave of court granted upon good cause shown.

(k) Reasonable Attempt to Resolve Differences Required. The parties shall facilitate discovery under these rules and shall make reasonable attempts to resolve differences over discovery. Every motion with respect to discovery shall incorporate a statement that counsel responsible for trial of the case after personal consultation and reasonable attempts to resolve differences have been unable to reach an accord or that opposing counsel made himself or herself unavailable for personal consultation or was unreasonable in attempts to resolve differences.            

Rule 214. Discovery of Documents, Objects, and Tangible Things-Inspection of Real Estate

(a) Any party may by written request direct any other party to produce for inspection, copying, reproduction photographing, testing or sampling specified documents, including electronically stored information as defined under 201(b)(4), objects or tangible things, or to permit access to real estate for the purpose of making surface or subsurface inspections or surveys or photographs, or tests or taking samples, or to disclose information calculated to lead to the discovery of the whereabouts of any of these items, whenever the nature, contents, or condition of such documents, objects, tangible things, or real estate is relevant to the subject matter of the action. The request shall specify a reasonable time, which shall not be less than 28 days after service of the request except by agreement or by order of court, and the place and manner of making the inspection and performing the related acts.

See more on discovery in criminal cases.

Discovery Delayed

25 days later the State ordered all of the requested materials from the arresting police department.

On the first scheduled court date (31 days following the filing of the petition to rescind), the parties appeared on defendant’s petition. Before any hearing began, defendant told the court that he wanted to resolve the State’s failure to comply with his discovery requests.

After the court noted that no motion to compel was in the record, defendant apparently tendered to the court a written motion. That motion is not in the record before this court.

The prosecutor advised the court that, although the State had made a good-faith effort to comply with defendant’s discovery requests, it did not yet have the materials defendant wanted. The prosecutor did not elaborate on what precisely constituted this good-faith effort.

However, the prosecutor agreed that all of the materials that defendant sought were relevant and discoverable, and he indicated that he would have those materials for defendant the following week at the latest.

After advising the court that the parties had not held any conference pursuant to Illinois Supreme Court Rule 201(k), the prosecutor said that the State was ready to proceed on defendant’s petition to rescind.

Defendant told the court that he had tried to talk to the prosecutor that morning about the discovery requests. The prosecutor asserted that that conversation, which consisted solely of the parties’ agreement to present the problem to the court, did not amount to a conference as required under Rule 201(k).

Defendant then indicated that he was not ready to proceed on his petition.

Delay Attributed To Defendant

He asked the court to attribute to the State the delay in holding a hearing or, alternatively, to infer that the requested discovery materials were favorable to him.

Over defendant’s objection, the court

 

(1) held defendant’s motion to compel in abeyance
(2) ordered the State to produce the requested discovery by September 21, 2017, which was the next court date, and
(3) tolled the statutory period in which defendant was entitled to a hearing (see 625 ILCS 5/2-118.1(b)).

 

Motion To Rescind Suspension Based On Timing

On the next court date defendant filed a motion to rescind the suspension, arguing that he was entitled to a rescission because he was not given a timely hearing.

In court that day, the prosecutor advised the court that the State had now complied with all of the discovery requests.

Defendant asked the court to rescind the suspension because the delay in holding the hearing on the petition was attributable to the State. The court refused to do so, observing that, given that the State had tendered discovery to defendant, the issue of the State’s failure to comply was moot.

The court also noted that, mootness aside, there was no indication that the parties had participated in a Rule 201(k) conference, which was necessary before any sanction could be imposed on the State.

Issue

At issue in this appeal is whether the statutory summary suspension of defendant’s driving privileges should have been rescinded because the State’s delay in tendering to defendant the discovery he requested denied him a timely and meaningful hearing.

A Timely Hearing Required

Section 2-118.1(b) of the Illinois Vehicle Code (625 ILCS 5/2-118.1(b)) provides that a defendant “shall” be given a hearing on his petition to rescind within 30 days after the petition is received or on the first appearance date.

In People v. Schaefer, 154 Ill. 2d 250, 253 (1993), our supreme court explained that the statute “created two alternative dates for a hearing on a defendant’s challenge to a summary suspension:

 

(1) on the first court date set in the traffic citation issued to the defendant ***; or
(2) within 30 days of a defendant’s written request for a hearing on his petition to rescind.”

 

“The word ‘shall’ conveys that the legislature intended to impose a mandatory obligation.” People v. Moreland, 2011 IL App (2d) 100699, ¶ 8. The failure to comply with the requirements of section 2-118.1(b) results in the rescission of the suspension, unless the delay is “occasioned by the defendant.” In re Summary Suspension of Driver’s License of Trainor, 156 Ill. App. 3d 918, 923 (1987). See also People v. Mizaur, 376 Ill. App. 3d 1066, 1067 (2007), where we held that a court date set out in a defendant’s bail bond constitutes the “first appearance date” for purposes of section 2-118.1(b) of the Illinois Vehicle Code.

No Reason For The Delay

We find no confirmation in the record that the State produced any discovery to defendant on or before the day it was tendered in.

The State has never disputed that it would have been feasible to produce all responsive discovery to defendant, had the State acted on defendant’s requests in a more timely fashion.

The record shows that the State simply failed to make any effort toward procuring the requested materials until 25 days after defendant served his requests on the State. By that time, the first appearance date was less than a week away. Conspicuously absent from the record is any excuse from the prosecutor as to why it took 25 days to begin the process of procuring the materials or why the process could not be expedited once the prosecutor learned that the materials might be unavailable for the court date.

Answering Ready Is Not A Discovery Cure

Moreover, the prosecutor’s answer that the State was “ready” for the hearing, unfairly shifted to defendant the burden of the State’s noncompliance with discovery. The State put defendant in the untenable position of having to either

 

(1) proceed to a timely hearing that day without the materials that were needed to attempt to establish a prima facie case for rescission or
(2) answer “not ready” for the hearing, thereby acquiescing to a continuance for purposes of tolling the time requirements contained in section 2-118.1(b) of the Illinois Vehicle Code.

 

See Guillermo, 2016 IL App (1st) 151799, ¶ 25 (holding that an agreed continuance “temporarily suspended the running of the period within which a hearing on the defendant’s petition to rescind had to be held”).

There Was No 201(k) Violation 

The State urges, and the trial court found, that defendant failed to comply with Rule 201(k) before presenting his motion to compel.

The record demonstrates defendant’s compliance with Rule 201(k).

Prior to presenting a motion to compel, defense counsel asked the court to pass the case so that he could continue conferring with the prosecutor about discovery. When the matter was recalled, defense counsel informed the court that he had spoken to the prosecutor about what the State “did not have and wasn’t capable of producing.”

The prosecutor complained to the court that defense counsel had failed to offer to work things out or to get another date the next week.

 

What the prosecutor was essentially arguing, and what the court essentially found, was that Rule 201(k) required defense counsel to waive defendant’s rights under section 2-118.1(b) of the Illinois Vehicle Code by agreeing to a continuance. We are aware of no authority indicating that defense counsel was required to do so.

 

Furthermore, nothing in the record suggests that defendant was aware that the State would be unable to tender discovery in court that day. When it became clear that the State could not produce discovery on, defense counsel appropriately discussed the matter with the prosecutor before presenting a motion to compel.

This Is Not A Discovery Sanction

This holding has nothing to do with discovery sanctions.

Unless defendant occasioned the delay in the proceedings, he was entitled to a hearing that complied with the time constraints of section 2-118.1(b) of the Illinois Vehicle Code.

In the absence of any excuse from the prosecutor as to why the State failed to timely produce the requested materials—which were admittedly discoverable and even integral to the defense—and in the absence of any justification by the trial court for attributing the time to defendant, there is simply no basis to conclude that defendant occasioned the delay of the hearing.

Holding

Under these circumstances, the delay of the rescission hearing, should have been attributed to the State rather than to defendant. Consequently, we determine that the trial court abused its discretion in ruling otherwise, i.e., in its decision to “toll Trainor” for one week while the State complied with its discovery obligations.

Under the circumstances, and in light of the expedited nature of the rescission proceedings at hand, it is not apparent what more defense counsel could have done to resolve the discovery issues, short of waiving his client’s right to a timely hearing.

For the reasons stated, we reverse the judgment of the circuit court of Du Page County denying defendant’s petition to rescind the statutory summary suspension of his driving privileges.

The clerk of this court shall immediately notify the Secretary of State that defendant’s statutory summary suspension has been rescinded. 

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?

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).

For the fifth amendment privilege to apply, “a communication must be testimonial, incriminating, and compelled.” People v. Haleas, 404 Ill. App. 3d 668, 672 (2010) (quoting Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 542 U.S. 177, 189 (2004)).

An act of production is testimonial when the government compels the defendant “to make extensive use of ‘the contents of his own mind’ ” to communicate a statement of fact. United States v. Hubbell, 530 U.S. 27, 43 (2000).

See also voluntary confessions in Illinois.

The Foregone Conclusion Doctrine

The foregone conclusion doctrine is an exception to the fifth amendment privilege.

Per the doctrine, where the existence, location and authenticity of the evidence is a foregone conclusion, that is, it “adds little or nothing to the sum total of the Government’s information,” the fifth amendment does not protect the act of production.

The exception applies when the State demonstrates with “reasonable particularity” that when it sought the act of production, the State knew the evidence existed, the evidence was in the defendant’s possession and it was authentic. United States v. Greenfield, 831 F.3d 106, 116 (2d Cir. 2016).

See also The Exclusionary Rule.

Fisher v. United States

In this case the government wanted defendant’s tax records which he took from his accountant and gave to his lawyer. See Fisher v. United States, 425 U.S. 391 (1976). The court said…

It is doubtful that implicitly admitting the existence and possession of the papers rises to the level of testimony within the protection of the Fifth Amendment. The papers belong to the accountant, were prepared by him, and are the kind usually prepared by an accountant working on the tax returns of his client…The existence and location of the papers are a foregone conclusion, and the taxpayer adds little or nothing to the sum total of the Government’s information by conceding that he, in fact, has the papers. Under these circumstances, by enforcement of the summons, ‘no constitutional rights are touched. The question is not of testimony, but of surrender.”

Fisher v. United States, 425 U.S. 391, 425 (1976); quoting In re Harris, 221 U. S. 274, 221 U. S. 279 (1911). See Also Matter of Harris

In this case the defendant was in bankruptcy and he was ordered to tender his books to the receiver. He refused claiming “the fifth” and the court said…

But no constitutional rights are touched. The question is not of testimony, but of surrender, not of compelling the bankrupt to be a witness against himself in a criminal case, present or future, but of compelling him to yield possession of property that he no longer is entitled to keep. If a trustee had been appointed, the title to the books would have vested in him by the express terms of § 70, and the bankrupt could not have withheld possession of what he no longer owned on the ground that otherwise he might be punished. That is one of the misfortunes of bankruptcy if it follows crime. The right not to be compelled to be a witness against oneself is not a right to appropriate property that may tell one’s story.”

Matter of Harris, 221 U.S. 274 (1911). Is It Testimonial? Before this case, Illinois courts have not decided whether compelling a defendant to provide his passcode is testimonial.

Courts from foreign jurisdictions are split on the issue. 

G.A.Q.L. v. State (Florida case)

This opinion relied on G.A.Q.L. v. State, 257 So.3d 1058 (Fla. Dist. Ct. App., Oct. 24, 2018) and found it to be persuasive and well reasoned.

In G.A.Q.L., the State of Florida sought to compel the driver involved in a fatal car accident to reveal the passcodes to access his phone and to his iTunes account which was needed to update the phone.

The reviewing court determined that forcing a person to reveal his passcode was testimonial and could be violative of the person’s fifth amendment rights.

 

The court reasoned that forcing a person to reveal a passcode results in “implied factual statements” and necessitates use of the mind not to obtain the decryption for its own sake, but for the purpose of obtaining the files protected by the encryption.

The State was not seeking the passcode itself but the information unlocked by the passcode, the court found the defendant was required to use his mind and demonstrate the factual basis that he could access his phone. 

Accordingly, the court considered the requested information to be testimonial and protected by the fifth amendment. 

Foregone Conclusion Doctrine Does Not Apply To This Case Here, the State is not seeking the passcode per se but the information it will decrypt.

The cases that declare the passcode to be a nontestimonial communication operate under a finding that a passcode merely reveals information that is a foregone conclusion. Thus, the exception to the fifth amendment privilege applies.

So too, in this case the focus is not on the passcode but the information the passcode protects. The State claims it sustained its burden of proving with reasonable particularity that it knew the passcode existed, that Defendant knew the passcode and that it would be authenticated by entering it into Defendant’s phone.

However, what the State actually needed to establish with reasonable particularity was the contents of the phone, which it did not do.

This Is A Fishing Expedition

The State does not know what information might be on Defendant’s phone but surmises that cell phones are often used in unlawful drug distribution and such information would be available on Defendant’s phone.

The State has not provided a particularized description of that information or even evidence that any useful information exists on the phone.

The State does not identify any documents or specific information it seeks with reasonable particularity. The State is engaging in a fishing expedition and the foregone conclusion exception does not apply here. Forgone Conclusion Doctrine Itself Not Met Here

Even if we were to conclude that the foregone conclusion exception properly focuses on the passcode, the State did not and could not satisfy the requirements for the foregone conclusion exception.

While the State is aware that the passcode existed and that Defendant knew it, the State could not know that the passcode was authentic until after it was used to decrypt Defendant’s phone.

Moreover, the production of Defendant’s passcode would provide the State more information than what it already knew. Therefore, the foregone conclusion does not apply.

Holding

Although the focus of the foregone conclusion is on the passcode, in our view, it properly should be placed on the information the State is ultimately seeking, which is not the passcode but everything on Defendant’s phone.

We find that requiring Defendant to provide his passcode implicates his fifth amendment right against self-incrimination and the trial court did not err in denying the State’s motion to compel.

For the foregoing reasons, the judgment of the circuit court of Rock Island County is affirmed.

This is the March 2019 Illinois criminal case law audio round-up (the fast case law summary).

The March 2019 Top Illinois Criminal Law Cases (The Monthly Round-Up)

 

Here’s a quick snapshot of the top cases:

1. People v. Patel

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

2. People v. Caraballo

Officer was not certified at the time of the breathalyzer, but he was substantially certified.

3. People v. Sanchez

Defendant is arrested at his home where he found plastered and driven back to the crash scene by police.

4. People v. Thomas

Police see a defendant hand a gun to another person and then try to run and hide.

5. People v. Holmes

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

6. People v. Webb

Another version of UUW is held unconstitutional; this time it’s the one banning tasers.

7. People v. Cunningham

Defendant gets 3 years for shooting himself in the leg in a housing project; this UUW version is constitutional.

8. People v. Drake

Although the reversal is still good the lower court judgement that double jeopardy barred a retrial is reversed.

9. People v. Lewis

One gun expert testified about the work done a different expert who was out on medical leave.

10. People v. Spicer

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

11. People v. Othman

Has the plain error gotten much more liberal?

12. People v. Smith

Kid is available for cross even though they don’t remember the actual allegation of sexual abuse.

13. People v. McArthur

17 year old held for more than 70 hours before his probable cause hearing, nonetheless, his confessions were all voluntary.

14. People v. Ruiz

Defendant’s conversation with his coarresttee is recorded and his friend kept telling him he always takes things too far.

15. People v. Corral

Kid got his eyewitness expert witness on the stand, but the witness was not allowed to get into what she thought about the reliability of the witness.

16. People v. Macklin

Was defense counsel ineffective for not calling an eyewitness expert witness?

17. In re J.P.

Juvenile court act allows a judge to order the removal of a gang tattoo.

18. People v. Rebollar-Vergara

Defendant gets into an argument with a guy and his buddy ups and shoots him, then sloppy questioning happens in the grand jury room.

19. People v. Garcia

Prosecutor used an inartful example to illustrate accountability, but this was not plain error.

20. People v. Holt

The split deepens between the Second, Fourth and Third Districts on these burglary/retail theft convictions.

21.  People v. Bausch

Grabbing your wife’s purse can constitute insulting and provoking contact.

22. People v. McCurine

Defendant says he was prejudiced and due process was violated when the state was allowed to tell the jury he was charged with being a habitual criminal.

23. People v. James

Another SORA conviction reversed because police failed to investigate the circumstances of his living arrangement.

24. People v. Johnson

No valid jury waiver in the record even though he apparently signed the waiver form.

25. People v. Thomas

Defendant refused to sign the jury waiver but still wanted a bench trial.

26. People v. Maya

Even “obvious” matters of sound trial strategy may be rebutted by defendant, here the lawyer kept a sheriff’s deputy on the jury.

27. People v. Mooney

Agreeing to continuance was ineffective, outright reversal is the only remedy.

People v. Mooney, 2019 IL App (3d) 150607 (March). Episode 599 (Duration 9:21)

Agreeing to continuance was ineffective, outright reversal is the only remedy.

Charge

Defendant, Bryant K. Mooney Jr., appeals following his conviction for driving while license suspended.

Issue

He argues, inter alia, that defense counsel was ineffective for twice agreeing to the State’s motions for continuances on the day of trial, thus tolling the speedy trial clock.

On appeal, defendant argues that defense counsel rendered ineffective assistance by failing to move for dismissal based on a violation of his statutory speedy trial rights. Alternatively, he argues that counsel was ineffective for twice agreeing to continuances and agreeing that the speedy trial clock should be tolled when it was the State that needed the second continuance and the State’s actions that necessitated the third.

Gist

The State concedes that the first continuance in defendant’s case, issued on October 27, 2014, was wholly attributable to the prosecution. Between the filing of defendant’s speedy trial demand on August 19, 2014, and the second continuance on January 5, 2015, 139 days elapsed that are indisputably attributable to the State.

Each of the second and third continuances resulted in delays of more than 21 days, and thus either continuance would have caused the speedy trial period to elapse unless attributable to defendant.

Speedy Trial Demand

On August 19, 2014, defense counsel filed a speedy trial demand, requiring that defendant be tried no later than January 26, 2015. That same day, pursuant to defense counsel’s request, the court set the matter for a jury trial on October 27, 2014. 

First Delay

Six days before the scheduled jury trial, the State filed a motion for continuance.

In the motion, the State claimed that the arresting officer would be unavailable on the scheduled trial date because of a previously scheduled court appearance in a different county. On October 27, 2014, defense counsel announced ready for trial, but the court granted the State’s motion and set the matter for trial on January 5, 2015. 

Second Delay

On the morning of January 5, 2015, defense counsel again announced ready for trial, adding that defendant was requesting a bench trial.

The court immediately told counsel, without further explanation: “[Y]ou understand the predicament I am in so if it is going to go, it is not going to go until this afternoon probably.”

The prosecutor explained that its testifying officer in the case had not slept in two days and had to work that night at 6 p.m. The prosecutor opined that such a situation was not desirable but conceded “there is a speedy trial demand by the defendant so we have to fit it within a certain time frame.” The court agreed, stating, “[w]e have to get this done” and noting that only 20 days remained on the speedy trial clock.

The court instructed the parties to return at 12:15 that afternoon in an attempt to begin the trial.

The prosecutor commented: “And if we know it is going to go long, I will make my motion at that time.”

Then a written order bearing that date appears in the common law record. The order, a preprinted form with some items circled and blanks filled in, schedules a trial for March 24, 2015, a date significantly later than the January 26 deadline established by defendant’s speedy trial demand. The order indicates that the continuance is on the motion of defendant. It also indicates that “Defendant agrees that speedy is tolled.”

Third Delay

On March 24, 2015, defense counsel again requested a bench trial but told the court that she had been tendered a video instanter and would be requesting a new trial date.

The court inquired as to why, in a matter originally scheduled for trial the previous October, a video was only now being tendered. The prosecutor responded that he did not know. The following colloquy ensued:

“THE COURT: Is there any way you can watch the video and try the case?[DEFENSE COUNSEL]: Today?

THE COURT: Well, yeah, we do have a short day today. We have to find something to do in the afternoons.[DEFENSE COUNSEL]: If Your Honor prefers, I can try. I would prefer—

THE COURT: You can try? What does the video entail in driving?[THE STATE]: Him driving? I have an expert on that topic coming up.

THE COURT: Because if defense counsel is vehemently moving for the motion to continue this date because you gave her the discovery late, she has grounds to do it. Are you vehemently moving for the motion for continuance?[DEFENSE COUNSEL]: Judge, I am asking for a motion to continue.

THE COURT: All right, I am going to grant your continuance. Sorry, officer. She’s got grounds. New date. When can he be back?”

The parties did not set a date while on the record. However, the written order (again a preprinted form) issued that day shows that the trial was set for April 21, 2015. The written order again indicates that the continuance was on the motion of defendant and that “[d]efendant agrees that speedy is tolled.”

The Trial

The matter proceeded to a bench trial on April 21, 2015, at which the court found defendant guilty of driving while license suspended. The court sentenced defendant to a term of 24 months’ probation.

Speedy Trial By Statute

Section 103-5(b) of the Code holds that a defendant free on bail or recognizance must be brought to trial within 160 days of his speedy trial demand. 725 ILCS 5/103-5(b).

The Code further dictates that “[d]elay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried.” Id. § 103-5(f). Thus, to show a violation of his speedy trial right, a defendant must show that he did not “cause or contribute to the delays.” People v. Staten, 159 Ill. 2d 419, 426 (1994).

“A defense counsel’s express agreement to a continuance may be considered an affirmative act contributing to a delay which is attributable to the defendant.” People v. Kliner, 185 Ill. 2d 81, 114 (1998). 

What Were The Reasons For TheDelay?

Defendant’s argument requires this court to ask the questions:

(1) Why would counsel agree that the speedy trial clock would be tolled and

(2) What impact did these agreements have on defendant’s right to a speedy trial?

Notably, the reports of proceedings from the dates of the second and third continuances demonstrate unequivocally that neither continuance was factually attributable to defendant. State Witness Had A Problem

On January 5, 2015, the date of the second continuance, defense counsel announced ready for trial. Thereafter, the court and prosecutor discussed an apparent scheduling issue with the testifying officer, and the matter was ultimately continued. Delays occasioned by the unavailability of a State’s witness or by the court’s schedule cannot be attributed to a defendant. See Bonds, 401 Ill. App. 3d at 677; Kliner, 185 Ill. 2d at 119.

Late Discovery Causes The Last Continuance

While the third continuance, on March 24, 2015, was explicitly on defense counsel’s motion, that motion was made only after the State tendered a video of the arrest moments before trial. The delay caused by defense counsel’s motion should not be held attributable to a defendant if that motion was necessitated by the State’s late filing of discovery.

At oral argument, the State emphasized that the prosecutor was under no obligation to tender the video at all in this misdemeanor case. We find this to be irrelevant. Whether or not any obligation existed, the fact is that the prosecutor did tender the video, and it would have been inappropriate for defense counsel to proceed to a trial without thoroughly reviewing that piece of evidence.

Analysis

Despite these facts and the relevant law, counsel twice agreed that the speedy trial clock would be tolled.

On the occasion of the second of the three continuances, counsel even allowed an order to be entered indicating that the continuance was on her motion. Having announced she was ready for trial on January 5, 2015, there is no apparent trial strategy motive for agreeing to any delay.

Similarly, on March 24, 2015, there is no apparent strategic benefit to defendant from counsel agreeing to toll the speedy trial clock.

Defendant having asserted his statutory right to a speedy trial, defense counsel was duty bound to zealously protect that right.

Instead, counsel twice agreed, despite her expressed readiness for trial on both of the scheduled dates, to allow both continuances and concessions of tolling to be attributed to defendant. This, failure was objectively unreasonable under prevailing professional norms, and it rendered counsel’s performance deficient.

Clearly Prejudicial To Defendant

The more difficult question is that of prejudice.

Had counsel’s performance not been deficient—that is, had counsel not agreed to twice toll the speedy trial clock—is there a reasonable probability that the outcome would have been different? There is no perfect way to reconstruct what would have happened had counsel acted appropriately.

Hanging over this uncertainty is the actuality that defendant was—had the final two continuances been properly attributed—brought to trial outside of the 160-day window. In a similar situation, our supreme court found that a continuance was attributable to the circuit court, even though the record indicated it had been on defendant’s motion. People v. Beyah, 67 Ill. 2d 423, 426, 428-29 (1977).

The Beyah court did not engage in any reconstruction, or speculate as to what would have happened had the circuit court’s order been correct in the first place. Instead, the court found that the defendant had been tried outside of the applicable window and reversed defendant’s conviction outright. 

In so doing, the court commented: “To conclude, under these circumstances, that the delay was occasioned by defendant would be a mockery of justice.” Id. at 428.

The same is no less true here.

Must Prevent A Mockery Of Justice

Defendant’s speedy trial period should have ended on January 26, 2015, but because of counsel’s deficient performance, it did not. To pretend otherwise would be a mockery of justice. On a broader scale, a finding of no prejudice here would leave this defendant, and myriad other defendants who might find themselves in this situation, with absolutely no recourse.

The legislature has granted criminal defendants a statutory right to a speedy trial. Where counsel’s actions serve to undermine that right, those actions must be subject to an ineffectiveness challenge. “A right without a remedy is no right at all.” People ex. rel Endicott v. Huddleston, 34 Ill. App. 3d 799, 807 (1975).

To hold the inevitable speculation against a defendant would be to hold that counsel’s actions in agreeing to the continuances or agreeing to toll the speedy trial clock are, essentially, unreviewable.

Holding

Accordingly, we find that defense counsel’s performance was deficient and that this deficiency was prejudicial in that it resulted in defendant being brought to trial outside of the statutorily prescribed 160-day period.

We therefore reverse defendant’s conviction for driving while license suspended outright.