Kane County Nuggets

People v. Kindelspire, 2018 IL App (3d) 150803 (October). Episode 559 (Duration 13:50)

Failure to register conviction is overturned when state changes their theory of the case on appeal.

The Charges

Kindelspire was charged by indictment with two counts of the failure to comply with his duty to report as a sex offender.

Count I alleged that he “failed to notify *** the Chief of Police of Morris *** within three days after leaving his established residence in Morris.”
ount II alleged that Kindelspire “failed to notify *** the Chief of Police of Mazon *** within three days after he established his residence in Mazon.”

Facts

The charges originated from a Grundy County Sheriff’s Office report that Kindelspire “had changed address [sic] from Morris to Mazon without registering properly as a sex offender.”

The evidence presented at trial indicated that the police opened an investigation into defendant because his fiancée, Nicole, had testified in drug court, that he was living with her in Mazon. A Lieutenant from the Grundy County Sheriff’s Department then went to defendant’s Morris address to investigate.

Police spoke to the grandmother of the defendant, who told him that she had not seen him in a month, that he was no longer living at the Morris residence, and that he was living with his girlfriend first in Seneca and now possibly in Mazon. The Lieutenant then went to the Mazon residence, where he saw defendant’s work truck parked in the driveway.

No one answered the door.

Three days later, defendant came to the Grundy County Sheriff’s Department, told the Lieutentant that he had informed the Morris police that he was moving, and said he wanted to register his address as the Mazon residence.

Horrie arrested Kindelspire at that time.

SORA Registration Requirement

We note that the duty to register and the duty to report are distinct concepts that must not be mistaken or conflated. See id. §§ 3, 6; People v. Brock, 2015 IL App (1st) 133404, ¶¶ 15-18. 

Section 6 of the Act, titled “Duty to report; change of address, school, or employment; duty to inform”; contains a lengthy and cumbersome description of the duty persons subject to the Act have to report, inter alia, their residence addresses to the appropriate agency in charge of sex offender registration. See 730 ILCS 150/6.

Despite the fact that there are several distinct ways of violating section 6’s reporting requirement, the statute does not break these distinct violations into separate subsections. For example, section 6 requires that

“[i]f any person required to register under this Article lacks a fixed residence or temporary domicile, he or she must notify, in person, the agency of jurisdiction of his or her last known address within 3 days after ceasing to have a fixed residence and if the offender leaves the last jurisdiction of residence, he or she, must within 3 days after leaving register in person with the new agency of jurisdiction.” 

730 ILCS 150/6 (hereinafter the fixed address provision).

Additionally, and of particular relevance to this case, section 6 also requires that

“[i]f any other person required to register under this Article changes his or her residence address *** he or she shall report in person, to the law enforcement agency with whom he or she last registered, his or her new address *** and register, in person, with the appropriate law enforcement agency within the time period specified in Section 3.”

730 ILCS 150/6 (hereinafter the change-of-address provision).

More Facts On The New Place

Stipulated evidence was admitted that showed defendant registered as a sex offender at the Morris address on January 1, 2014, and at the Mazon address on March 17, 2014.

In addition, a certified copy of his 2008 conviction for aggravated criminal sexual abuse was admitted into evidence without objection.

The State also presented evidence that defendant had set up a water and sewer account with the municipality of Mazon, in both his name and his girlfriend's name. The two had signed a lease for the Mazon residence and that defendant had been seen at the residence at various times between February and March by the landlord and a neighbor.

Defendant's work truck had also been seen frequently at the residence.

More Facts On The Old Place

Defendant's grandmother testified that she could not recall when defendant moved out.

She stated it could have been 3 months, 2 months, or 1 month from the time the police talked to her. She didn't remember. He had a room in the house, and he was mostly there only when sleeping due to his long work hours. He had some belongings there, including toiletries, books, and clothes, but not many as he was essentially living out of a backpack.

She could not say if he slept there every night because some nights she went to sleep before he came back to the residence. Because he did not have a key for the residence, if he returned after she had gone to sleep, he would sleep either in the garage or in his truck. He did not have a key due to problems he had earlier in his life (drug use).

His girlfriend clairified that she may have said in drug court that she and defendant had moved to Mazon, but she meant that they were preparing to move together to live as a family.

Once the lease was signed defendant helped minimally with the move because he had been working. He did not move in right away. Most days, he was gone from sunup to sundown. Some days, she did not see him at all. She also stated that he did not always take his work truck to a job site; he would use her car or a rental. Coworkers would pick up the truck from the Mazon residence. He had no belongings in the residence and did not stay the night there, although he would visit daily if he could.

State's Theory

In his closing argument, the prosecutor stated that there were two propositions that the State needed to prove:

(1) that Kindelspire was subject to the registration requirements of the Sex Offender Registration Act and
(2) “that defendant knowingly failed to report a residence change within three days.”

The evidence was clear that defendant “did not register an address change until March 17, 2014.”

The prosecutor further stated:

“In looking at the big picture in this, it becomes clear with the evidence that the defendant’s truck was there. He’s got the lease. He’s got the accounts. The defendant was living at that address. He knew he had to register. He hadn’t gotten around to it, but as soon as the police started questioning, he tried to register, tried to remedy the situation, but it was too late.”

Found Guilty

The court found defendant guilty because it said the state did not have to prove exactly where he was living. "I think they just have to prove that he had moved out of the residence he was registered at for the requisite time period under the statute.”

Issue

On appeal, Kindelspire argues that the State failed to prove beyond a reasonable doubt that he violated section 6 of the Sex Offender Registration Act (Act) (730 ILCS 150/6).

He does not contest that he was subject to the Act’s reporting requirements or that he had moved out of his Morris residence. Specifically, he contends that, contrary to the circuit court’s ruling, the State was also required to prove that he had established a new address. Because that evidence was lacking, he requests that we reverse his conviction.

State Now Changing It's Theory Of The Case

It is important to note the existence of these distinct violations of section 6 because the State has changed its theory of the case on appeal.

In the circuit court, the State consistently treated this case as a change-of-address violation of section 6. However, for the first time on appeal, the State now argues that count I of the indictment charged defendant with a violation of the fixed-address provision of section 6.

Even if the State had not forfeited its argument, we would not have been persuaded.

The Indictment

The indictment alleged two separate violations of section 6:

(1) Kindelspire “failed to notify *** the Chief of Police of Morris *** within three days after leaving his established residence in Morris”; and
(2) he “failed to notify *** the Chief of Police of Mazon *** within three days after he established his residence in Mazon.”

The indictment contained no allegation of Defendant ceasing to have a fixed residence, nor did the State ever treat this case as such in the circuit court.

In fact, the State’s theory throughout this case below was that Defendant failed to register after he moved out of his Morris residence and into the Mazon residence, i.e., that he violated the change-of-address provision in section 6.

There is simply no indication from the record that the State ever treated this case as a violation of the fixed-address provision. The attempt to do so now is disingenuous and raises due process concerns. See, e.g., People v. Pearse, 2017 IL 121072, ¶ 38 (expressing, in a sex offender registration case, a concern that even after the proofs had been closed, the parties and the court were still debating what statutory section applied, the parameters of the charge, what had to be proven, and what had been proven, and holding that a defendant in a criminal prosecution has a fundamental due process right to notice of the charges against him).

Based On How They Charged State Had To Prove Where He Was Living

The Second District clarified that under section 6 of the Act

“to prove a violation of the duty to report a change of address, the State was required to prove that defendant:

(1) was previously convicted of an offense subjecting him to the Act; and
(2) established a new ‘fixed residence’ or ‘temporary domicile’;
(3) which he knowingly failed to report in person to the law enforcement agency with whom he last registered.”

See People v. Robinson, 2013 IL App (2d) 120087.

Under the Act, a “fixed residence” includes “any and all places that a sex offender resides for an aggregate period of time of 5 or more days in a calendar year.” 730 ILCS 150/2(I).

A “temporary domicile is defined as any and all places where the sex offender resides for an aggregate period of time of 3 or more days during any calendar year.”730 ILCS 150/3(a).

In this case, the circuit court held that the State did not have to prove that defendant had established a new address, i.e., a new fixed residence or temporary domicile. This was error. See Robinson, 2013 IL App (2d) 120087, ¶ 23.

Holding

Here, the circuit court found that the State failed to prove that Defendant had been living at the Mazon residence. Because this proof was a necessary element to prove defendant guilty of violating section 6 of the Act, we hold that no reasonable fact finder could have found him guilty beyond a reasonable doubt. 

Accordingly, we reverse defendant's conviction.

See Also

• Episode 321 - People v. Pearse, 2017 IL 121072 (March) (there is no duty to “reregister” a residence after one has “reestablished” residence there)
• Episode 114 - People v. Brock, 2015 IL App (1st) 133404 (November 2015) (reporting is different than registering)
• Episode 322 - People v. Gomez, 2017 IL App (1st) 142950 (March) (state was required to prove defendant lived in Chicago based on how he was charged, they failed to do that)
• Episode 406 - People v. Jones, 2017 IL App (1st) 143718 (July) (stated didn't establish when defendant got out of jail so they didn't exactly prove he had a duty to register)
• Episode 411 - People v. Jackson, 2017 IL App (3d) 150154 (September) (conviction stands even though defendant was charged incorrectly under section 3 when they meant section 6)
• Episode 510 - People v. Burchell, 2018 IL App (5th) 170079 (April) (SORA indictment dismissed because the indictment does not make it clear that defendant was gone for 3 consecutive days or more as is required under section 3(a))

In re Jose A., 2018 IL App (2d) 180170 (October). Episode 557 (Duration 22:10)

The new juvenile Miranda requirement is discussed here.

How It Begin

A teacher at Lake Zurich High School suspected that a student was under the influence of “something.” A  quick investigation involving the teacher, the dean and the police revealed the kid had taken Xanax.

The student informed the deans that respondent provided the substance to her in the school library.

During the investigation, other drugs were seized from other students, some of whom stated that they had obtained the substances from respondent.

Accused Minor Interrogated At The School

When the investigation began, respondent was off the high school’s premises to attend classes at the College of Lake County.

Two Deans waited outside the main entrance of the high school for respondent to return. When respondent’s bus arrived, the deans “retrieved” respondent and brought him to an office, where they and the Assistant Principal began questioning him. Respondent was told that he was under investigation for possessing or delivering Xanax.

Respondent initially denied the allegations, and a search of respondent’s backpack yielded only an empty tin for mints. After the search of respondent’s backpack, they continued questioning respondent. Respondent eventually admitted that he had possessed pills and given some to a student.

Respondent was not allowed to return to class that day and was suspended for two weeks. At the time of these events, respondent was six days shy of his seventeenth birthday.

Police Then Get Involved

After respondent’s statement, school personnel waited for the officer so that he could conduct a pat-down search of respondent’s person.

An officer patted him down but they found nothing. Then they secured the video in the library which showed defendant passing something to the other student. Without viewing the video, but having been told that there was a video, respondent corroborated the events depicted in the video.

The accused minor was then told that he would have to come to the police station for booking.

A Visit At the Police Station

About a week later the accused minor was asked to come down to the Lake Zurich Police Department to answer some questions and be fingerprinted.

Once the translating officer arrived, the Lake Zurich officer escorted respondent, respondent’s mother, and the translating officer to an interview room adjacent to the lobby. It was an unlocked door. It is accessible to the public. It is not in the secured area by any means. The door was unlocked. There is fingerprint equipment out for other purposes in the police department, and there is a table with four chairs.

Officer Frey added that the room is typically used when someone comes to the police station to make a report or for “private conversation” between a police officer and a member of the public. He also uses the room to interview suspects before taking them into custody.

The officer was dressed in plain clothes, the same way he dresses while on duty at the high school. In addition, he was armed with his duty pistol and carrying handcuffs.

The Interrogation At The Police Station
Not Recorded

In the interview room, the officer read respondent the juvenile Miranda form and then questioned him for 15 minutes regarding the incident at the school.

The officer testified that he was aware of a new statutory recording requirement, effective in 2017 (see 705 ILCS 405/5- 401.5(b)), but that he did not record the interview, because he did not consider respondent to be in custody even though he was clearly there to be charged.

Officer Frey admitted nevertheless that he was seeking incriminating information from respondent.

After the interview concluded, Officer Frey took respondent to the station’s secure area to be booked and fingerprinted. Respondent was permitted to leave the station with his mother after further juvenile court procedures were explained to him. Officer Frey estimated that respondent was at the station for a total of 50 to 55 minutes.

Issue

On appeal, the State argues that, for various reasons, the trial court improperly granted respondent’s motion to suppress the statements he made at both the high school and the police station.

The New "Juvenile Confession" Statute - Miranda Requirement

Subsection (a-5) of section 5-401.5 was added to the Act by an amendment effective January 1, 2017. Pub. Act 99-882, § 10 (eff. Jan. 1, 2017) (amending 705 ILCS 405/5-401.5).

Section 5-401.5(a-5) of the Act provides as follows:

“An oral, written, or sign language statement of a minor, who at the time of the commission of the offense was under 18 years of age, is presumed to be inadmissible when the statement is obtained from the minor while the minor is subject to custodial interrogation by a law enforcement officer, State’s Attorney, juvenile officer, or other public official or employee prior to the officer, State’s Attorney, public official, or employee:

(1) continuously reads to the minor, in its entirety and without stopping for purposes of a response from the minor or verifying comprehension, the following statement: ‘You have the right to remain silent. That means you do not have to say anything. Anything you do say can be used against you in court. You have the right to get help from a lawyer. If you cannot pay for a lawyer, the court will get you one for free. You can ask for a lawyer at any time. You have the right to stop this interview at any time.’; and
(2) after reading the statement required by paragraph (1) of this subsection (a-5), the public official or employee shall ask the minor the following questions and wait for the minor’s response to each question:

(A) ‘Do you want to have a lawyer?’
(B) ‘Do you want to talk to me?’ ”

705 ILCS 405/5-401.5(a-5).

Is The School Statement In Or Out?

In this case, if the school personnel who questioned respondent at the high school were “other public officials or employees” and respondent was subject to a “custodial interrogation,” respondent’s statement is presumed to be inadmissible unless he was read the statement and the questions set forth in subsections (a-5)(1) and (a-5)(2).

Given the plain and ordinary meanings of the terms “public official” and “public employee,” it looks like the term means the following:

Quite simply, as used in section 5-401.5(a-5) of the Act, an “other public official or employee” is an individual, other than those specifically listed, who is elected or appointed to hold a government office or who is employed by a government agency.

But we are not done. Our supreme court has stated that, where a literal enforcement of a statute would result in great injustice or absurd consequences, courts are bound to presume that such consequences were not intended and to adopt a construction which, it is reasonable to assume, was contemplated by the legislature. See Penkava v. Kasbohm, 117 Ill. 2d 149, 154 (1987) (quoting People ex rel. Community High School District No. 231 v. Hupe, 2 Ill. 2d 434, 448 (1954)).

According to the State, requiring every public official and employee to comply with section 5-401.5(a-5) prior to taking a statement from a minor “would result in absurdity and injustice.” We agree.

School District Not The Police

Take the school setting involved in this case. School districts employ hundreds of individuals in a wide variety of positions, including superintendent, principal, dean, teacher, librarian, administrative assistant, classroom aide, nurse, janitor, bus driver, lunchroom personnel, crossing guard, and recess monitor.

Under a literal interpretation of the phrase, each of these individuals would be required to comply with the procedural safeguards set forth in section 5-401.5(a-5). Consider, for example, a bus driver transporting middle-school children home at the end of the school day would be required to comply with the statute. So would a janitor who questions a student after observing the student falsely pull a fire alarm or a lunchroom employee who questions a student after observing the student steal food from the cafeteria.

Such an interpretation of the statute would create a seismic shift in public policy by placing on individuals outside the realm of law enforcement the responsibility of learning and employing procedural safeguards heretofore required only of law enforcement officers.

We find it implausible that the legislature intended the phrase “other public official or employee” as used in section 5-401.5(a-5) to have such a broad scope in the absence of an express definition of the phrase.

But Can't Just Ignore The Terms

The doctrine of ejusdem generis provides that when a statutory clause specifically describes several classes of persons or things and then includes "other persons or things," the "other" is interpreted as meaning "other such like.” See Davis, 199 Ill. 2d at 138 (quoting Farley v. Marion Power Shovel Co., 60 Ill. 2d 432, 436 (1975)).

We agree that the use of this doctrine brings clarity to the language at issue.

In listing who is required to provide a Miranda warning to juveniles subject to custodial interrogation, the legislature specifically named three classes of individuals—“law enforcement officer,” “State’s Attorney,” and “juvenile officer”—followed by an additional class labeled as “other public official or employee.” 705 ILCS 405/5-401.5(a-5). Under the doctrine of ejusdem generis, the phrase “other public official or employee” would refer to individuals “such like” those specifically enumerated in the statute.

Thus, applying the doctrine of ejusdem generis in this case, we hold that the phrase “other public official or employee” as used in section 5- 401.5(a-5) is intended to refer to an elected or appointed government official or an employee who works for a government agency and who has as his or her primary duties the protection of the public interest and the enforcement of the law.

While deans and assistant principals are undoubtedly responsible for administration and discipline, they do not have as their primary mission the same duties as the individuals specifically listed in section 5-401.5(a-5). See People v. Dilworth, 169 Ill. 2d 195, 221-22 (1996) (Nickels, J., dissenting) (recognizing that school districts and law enforcement authorities have different missions); Pankhurst, 365 Ill. App. 3d at 255 (emphasizing that, although school officials are charged with maintaining order and discipline in their schools, the fact that these duties occasionally entail the investigation of criminal conduct does not alone make the school officials agents of the police).

Holding 1 - Statement At The School

Thus, applying this definition, we hold that the school personnel in this case were not “other public official[s] or employee[s]” and therefore not required to precede their questioning of respondent with the statement and questions set forth in section 5-401(a-5). In short, we find that, although the phrase “other public official or employee” as used in section 5-401.5(a-5) is not ambiguous on its face, a literal reading of the phrase renders the absurd result of applying the statute to every individual who is elected or appointed to hold a government office or who is employed by a government agency. Employing the doctrine of ejusdem generis, however, we hold that the phrase “other public official or employee” as used in section 5-401.5(a-5) was intended to apply to an elected or appointed government official or an employee who works for a government agency and who has as his or her primary duties the protection of the public interest and the enforcement of the law.

Because the school personnel in this case did not have as their primary duties the protection of the public interest and the enforcement of the law, they were not “other public official[s] or employee[s]” for the purposes of section 5-401.5(a-5) and they were not required to comply with the procedural safeguards set forth in the statute.

Accordingly, we reverse that portion of the trial court’s judgment suppressing the statement respondent made to the school personnel at the high school.

The New "Juvenile Confession" Statute - Recording Requirement

The recording requirement set forth in section 5-401.5(b) of the Act (705 ILCS 405/5- 401.5(b)) applies only to a custodial interrogation conducted at a police station or “other place of detention.”

Specifically, the statute provides:

“(b) An oral, written, or sign language statement of a minor who, at the time of the commission of the offense was under the age of 18 years, made as a result of a custodial interrogation conducted at a police station or other place of detention on or after the effective date of this amendatory Act of the 99th General Assembly shall be presumed to be inadmissible as evidence against the minor in any criminal proceeding or juvenile court proceeding, for any act that if committed by an adult would be a misdemeanor offense under Article 11 of the Criminal Code of 2012 or any felony offense unless:

(1) an electronic recording is made of the custodial interrogation; and
(2) the recording is substantially accurate and not intentionally altered.”

705 ILCS 405/5-401.5(b).

Overcoming The Presumption

Subsection (f) of section 5-401.5 allows for the presumption of inadmissibility to be overcome “by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.” 705 ILCS 405/5-401.5(f).

Is The Statement at the Police Station In Or Out?

 In this case, it is undisputed that respondent was under the age of 18 years when the alleged offenses were committed and that the statement at issue was made at a police station. It is also undisputed that the petition for adjudication of wardship charged respondent with acts that, if committed by an adult, would be felony offenses.

Thus, if respondent’s statement at the police station was made as a result of a “custodial interrogation,” the statement is presumptively inadmissible against him in any criminal or juvenile court proceeding unless an electronic recording was made of the custodial interrogation. See 705 ILCS 405/5-401.5(b).

They didn't record the interview at the police station.

Was The Kid In Custody At The Police Station?

Subsection (a) of section 5-401.5 defines “custodial interrogation” as “any interrogation (i) during which a reasonable person in the subject’s position would consider himself or herself to be in custody and (ii) during which a question is asked that is reasonably likely to elicit an incriminating response.” 705 ILCS 405/5-401.5(a).

The factors relevant to determining whether an individual is in custody include

(1) the location, time, length, mood, and mode of questioning;
(2) the number of police officers present during the interrogation;
(3) the presence or absence of family and friends of the individual;
(4) any indicia of a formal arrest procedure, such as the show of weapons or use of force, physical restraint, booking, or fingerprinting;
(5) the manner by which the individual arrived at the place of questioning; and
(6) the age, intelligence, and mental makeup of the individual.

See People v. Slater, 228 Ill. 2d 137, 150 (2008).

The record establishes that on, respondent was a 16-year-old high-school student. Following questioning at the high school, an officer informed respondent and his family that they would be in contact to arrange a date for respondent to come to the police station for booking.

In accordance with a request one week later, respondent and his mother reported to the police station. At that time, respondent had just turned 17. An officer then escorted respondent, his mother, and the translating officer to an interview room adjacent to the lobby of the police station. The officer then read respondent the juvenile Miranda form and questioned him for 15 minutes regarding the incident at the school. Although that the interview room was unlocked and accessible to the public, this particular room is used to interview suspects before taking them into custody.

Two officers were present during the questioning and there was fingerprinting equipment in the room. Moreover, although the was dressed in plain clothes, he was armed with his duty pistol and carrying handcuffs. At the conclusion of the interview, they took respondent to a secure area for booking and fingerprinting. Subsequently they charged him with two drug related felony charges.

Under the totality of these circumstances, a reasonable person would have considered himself to be in custody and not free to leave. We find ample evidence to support the trial court’s finding that respondent was subject to a custodial interrogation at the police station.

Holding 2 - Statement At Police Station

Given the foregoing,  Since this finding is not against the manifest weight of the evidence and since the custodial interrogation was not electronically recorded as required by section 5-401.5(b) of the Act, the statement respondent made at the police station is presumptively inadmissible.

For the reasons set forth above, we affirm that portion of the judgment of the circuit court of Lake County granting respondent’s motion to suppress the statement respondent made at the police station.

Episode 556 (Duration 24:34). Charles Schierer of East Peoria, Illinois, explains why it's a good time to change the "smell of cannabis" rule.

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In This Episode...

"Would it be wrong to say well maybe an officer needs to observe something: ashes, a burning joint, rolling papers, a lighter, something?" -- Charles Schierer

Attorney Charles Schierer

Charles Schierer's first love is practicing criminal law in federal court. He started in the Peoria County Public Defender's Office. It didn't take him long before he was practicing before the United States Central District District Court.

Chuck's firm handles civil personal injury claims, auto accidents, federal criminal defense, state criminal defense and appeals. Chuck is currently the CJA Central District Panel Representative. 

Contact Information

Schierer & Ritchie, LLC
1009 Illini Drive
East Peoria, IL 61611

(309) 839-2024

[email protected]

"Can't Miss" Moments:

✓ Why you have to divide the world into how things were before the Cannabis Control Act and how things are after the act. Before the act, the law clearly, unmistakably allowed police certain liberties. Anybody who did criminal defense work came across these cases. How do you defend against this kind of stop? Now the rules are up for grab. (Go to 4:30)

✓ Under 10 grams possession of cannabis is not a crime. Should the liberties we give to the police change accordingly? Jump to this section to listen to Chuck's personal opinion on what the best version of the "smell of cannabis" rule should be. The rippling-domino effect gets ignored at your own peril. (Go to 5:40)

✓ The truth about what decriminalization really means. What does it mean for us? What does it mean for the police? Do we really "get it?" How is this the same as the smell of alcohol? How is this different from the smell of alcohol? (Go to 6:18)

✓ Decriminalization means possessing minor amounts of cannabis is not a crime anymore. It means all our problems are gone and we don't have to worry about the government having their nose in our business anymore...WRONG. Decriminalization is not exactly the same as legalization.  (Go to 8:18)

✓ The burning leaves example...the difference between burning yard leaves and burning cannabis leaves...a real life practical example...The absurdity of police action...What police are really looking for in these cases. Nothing wrong with being a little  intellectually honest and consistent. (Go to 9:12)

✓ "Would it be wrong to say well maybe an officer needs to observe something: ashes, a burning joint, rolling papers, a lighter, something?" (Go to 13:10)

✓ We may have to rethink what we are doing in light of what other states are doing. See Massachusetts for a great example. Believe it or not, New York looks like it got it right. The further west you go, the more people begin to lose their minds. California, Arizona and Colorado got whacky with this, quite the opposite of what you would have expected from those weed loving states.  Here's the best way to interpret what those states have said on this issue. (Go to 14:40)

✓ Does smell equal probable cause? Is it a done deal when the whiff is in or is it just one factor in the probable cause determination? That's what courts have to figure out. What the cases do and don't say matter. For example, there's a difference between raw cannabis and burnt cannabis. (Go to 15:45)

✓ The reason why Chuck says In re O.S. was well reasoned but still wrong...It does a good job of describing a situation that will happen over and over again. The case also did this one other thing very well. (17:50)

✓ This is what will happen if the court tries to distinguish between a strong odor, a moderate odor and a faint odor of cannabis. You'll invite certain conduct by the police. Is that what we want? Lead the police down this path and don't you worry they will go down it. (Go to 19:40)

✓ More absurdity: They arrest you for being addicted to opioids, encourage you to smoke weed via the Alternative To Opioids Act, then at the first scent of cannabis they toss your life and pull you out of your car as they proceed to go through everything in it. (Go to 21:13)

Links & Resources

• In re O.S., 2018 IL App (1st) 171765 (June)
• Central District of Illinois | United States District Court
• CJA Central District Panel
• Peoria County Public Defender's Office
• Illinois Cannabis Control Act - Pub. Act 99-697, § 40, (eff. July 29, 2016) (amending section 4 of the Illinois Cannabis Control Act (720 ILCS 550/4)
• People v. Rice - Third District Appellate Court - Case No. 3-17-0134
• Commonwealth v. Cruz, 945 N.E.2d 899, 908-10 (Mass. 2011) (mere odor of marijuana no longer provided reasonable suspicion of criminal activity following decriminalizing of small amounts)
• People v. Brukner, 25 N.Y.S. 3d 559, 572 (2015) (mere odor of marijuana emanating from a pedestrian, without more, does not create reasonable suspicion that a crime has occurred)
•  People v. Strasburg, 56 Cal. Rptr. 3d 306, 311 (Ct. App. 2007) (odor of marijuana in a parked car provided police officer with probable cause to search the vehicle and the occupants therein)
• State v. Sisco, 373 P.3d 549, 553 (Ariz. 2016) (rejecting the argument the odor of marijuana no longer provided law enforcement officers with probable cause to believe that criminal activity)
• People v. Zuniga, 372 P.3d 1052, 2016 CO 52 (Colo., 2016) (concluding that the odor of marijuana remains relevant to probable cause determinations and can support an inference that a crime is ongoing)
• Robinson v. State, 152 A.3d 661, 681 (Md. 2017) (amendment to Maryland’s marijuana statute decriminalizing, but not legalizing, the possession of less than 10 grams of marijuana did not “alter existing case law concerning the search, seizure, and forfeiture of marijuana)
• State v. Senna, 2013 VT 67, 194 Vt. 283, 79 A.3d 45 (concluding that the passage of Vermont’s medical marijuana law does not undermine the significance of the smell of marijuana as an indicator of criminal activity)
• The Illinois Alternative To Opioids Act
• Illinois Policy.org on the Alternative To Opioids Act

See Also

You may also want to check out...

• Episode 509 - Analysis of In re O.S. The Stench Of Weed Still Supports Probable Cause For A Full Vehicle Search
• 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 196 - Dog Sniff Alert To Drugs Will Lead To Car Search
• 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

Before You Go...

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People v. Montgomery, 2018 IL App (2d) 160541 (October). Episode 555 (Duration 14:02)

It's unclear if the video ever existed, regardless, it was not tendered to defense counsel, and it's unclear what's the best remedy.

Gist

Defendant was cited for DUI involving alcohol, DUI involving drugs, and various traffic offenses. Before trial, the state was ordered to provide defendant with a squad-car video of the traffic stop. It failed to do so, and defendant moved to bar evidence of the events captured by the video, as a sanction.

The trial court denied the motion.

What Happened To The Video?

The parties stipulated that the deputy would testify that he recorded the stop, the video was never uploaded to the system where videos were stored, he could not explain why it was not uploaded, and he was unsure if the recording was still “in the cloud.”

According to the deputy, the video equipment was not malfunctioning, but, when he checked the system where the videos were stored, he noticed that it was not there, so no video was ever uploaded. He thought the video entered the cloud, because he saw space for video on his computer free up after uploading, but that, since there were multiple videos, he could not say for sure whether the video from defendant’s stop was uploaded.

When he tried to download the video, he was unable to find defendant’s stop or any of the other stops that he had uploaded. The video either did not exist or was irretrievable.

The court sought to clarify by asking, “It was not sent to the [c]loud and unretrieved? It was actually not sent anywhere?”

The state responded that, because of a malfunction in the computer, the video was not sent to the cloud.

The court then stated that there was nothing to indicate that the video ever existed and was destroyed.

Motion For Sanctions

Defendant moved in limine for the following nonpattern jury instruction:

“If you find that the State has allowed to be destroyed or lost any evidence whose content or quality are in issue, you may infer that the true fact is against the State’s interest.”

The court denied the motion, noting that nothing showed that the State intentionally destroyed evidence. See People v. Danielly, 274 Ill. App. 3d 358, 367 (1995), and Arizona v. Youngblood, 488 U.S. 51 (1988) (officers failed to refrigerate clothing of a rape victim, later resulting in the inability to perform serological tests no denial of due process absent a showing of bad faith on the part of the police).

See Also Civil JI 5.01 

Here a jury is told that it may infer that missing evidence that was within a party's power to produce would have been adverse to that party.

Civil JI 5.01. 

The DUI Case

At around 11 p.m., the deputy saw defendant make a wide right turn and cross over the centerline multiple times. Defendant was driving 59 miles per hour in a 45-mile-per-hour zone. Car pulled over. The squad car had an audiovisual system that automatically turned on at that time.

The deputy approached from the passenger side of the vehicle, observing that there was also a person in the passenger seat.

Defendant gave his driver’s license but could not locate his insurance card. The deputy observed that defendant’s movements were slow and lethargic. The deputy also smelled alcohol coming from the vehicle, and the odor got stronger when defendant spoke.

Defendant’s eyes were bloodshot and glassy.

He ran defendant’s plates and found that his license was expired.

When the deputy went to the driver’s side of the vehicle he saw defendant shove something under the rear seat and cover it with the floor mat. So he asked defendant to step out of the vehicle and asked him what he was hiding. Defendant said that it was alcohol, and the deputy’s partner retrieved an empty bottle of hard lemonade.

Failed The FSTs

Defendant failed the FSTs.

The deputy opined that defendant was under the influence of alcohol and narcotics.

The jury found defendant guilty of the DUI charge involving alcohol and two of the traffic offenses but acquitted him of the DUI charge involving drugs.

He was sentenced to five days in jail and 12 months’ probation.

Issue

Defendant first contends that the trial court abused its discretion when it refused his requested nonpattern instruction that the jury could infer that the contents of the missing video were against the State’s interest.

Analysis

Here, contrary to the portion of the requested instruction concerning “evidence whose content or quality are in issue,” defendant never suggested that the missing video would have shown something different from the circumstances the deputy described in his testimony.

Defendant’s theory of the case was not that the deputy misstated the observable facts. Instead, it was that those facts were insufficient to support a conclusion that defendant was impaired.

Thus, given that there was nothing to suggest that the video would have shown anything contrary to the deputy’s testimony, the requested instruction was not in accordance with a defense theory of the case that was supported by the evidence.

Holding

Accordingly, the court did not abuse its discretion in declining to give it.

The trial court did not abuse its discretion when it declined to instruct the jury that it could infer that the contents of the missing video recording were detrimental to the State.

Accordingly, the judgment of the circuit court of Lake County is affirmed.

See Also

• People v. Kladis, 2011 IL 110920
• People v. Danielly, 274 Ill. App. 3d 358, 367 (1995)
• Arizona v. Youngblood, 488 U.S. 51 (1988) (Officers failed to refrigerate clothing of a rape victim, later resulting in the inability to perform serological tests no denial of due process absent a showing of bad faith on the part of the police.)
• People v. Aronson, 408 Ill. App. 3d 946 (2nd Dist. 2011) (Very similar to facts in this case where court denied sanctions but then ruled in favor of defendant at the SSS hearing in part because the FST's were being challenged.)
• Episode 105 - People v. Moravec, 2015 IL App (1st) 133869 (November 2015) (Defendant wins sanctions to exclude all evidence after CPD ignores repeated requests for the POD video.)
• Episode 149 - People v. Moore, 2016 IL App (1st) 133814 (February) (Photo arrays were lost but without bad faith inappropriate to dismiss or exclude evidence; defense was given Civil JI 5.01.)
• Episode 122 - People v. Tsiamas,  2015 IL App (2d) 140859 (December) (Some remedy is appropriate when state failed to tender booking room video after proper notice which definitely existed at some point.)
• Episode 309 - People v. Acevedo, 017 App (3d) 150750 (March) (Cracked CD is tendered court declined to bar the officer’s testimony of the arrest, her observations, and the SFSTs as a sanction; instead imputing that the defendant had met his burden of proof regarding a prima facie case for rescission was the appropriate sanction.)
• Episode 077 - People v. Olson, 2015 IL App (2d) 140267 (June) (No sanctions or remedy when defendant is given a blank disk because there is no proof the recording ever existed.)
• Episode 517 - People v. Cunningham, 2018 IL App (1st) 153367 (June) (Police destroy a jacket inadvertently not in bad faith but dismissal is too strong a sanction; defendant didn't ask for anything else.)

This is the October 2018 Illinois criminal case law audio round-up (the fast case law summary). Episode 554 (Duration 26:09)

The October 2018 Top Illinois Criminal Law Cases (The Monthly Round-Up)

Here's a quick snapshot of the top cases:

1. People v. Harris

Illinois Supreme Court reveals the path 18-21 year olds should follow if they want their youthfulness to seriously affect their sentence.

2. People v. Bonilla

Constitutional violation did not depend on whether the common door to the apartment was locked.

3. People v. Lindsey

Third District also said you can't bring a drug dog to a hotel door.

4. People v. Zimmerman

You can hide lascivious pretrial motions from the press.

5. People v. Newton

It it looks like a church it's a church.

6. People v. Lopez

Is the identity of a driver subject to suppression after an illegal traffic stop?

7. People v. Crump

Looks like breathalyzer evidence can come in as a self-authentication document.

8. People v. Williams

Challenging this DUI traffic stop went nowhere fast.

9. In re Jose A.

The new juvenile Miranda requirement is discussed here.

10. People v. Dunbar

Defendant was convicted in this punched baby case because there was no plausible alternative to explain the child's spontaneous injuries.

11. People v. Montgomery

It's unclear if the video ever existed, regardless, it was not tendered to defense counsel, and it's unclear what's the best remedy.

12. People v. Khan

Dude posted a message on Facebook that he carries a gun on the college campus and people gonna end up in a body bag if they don't stop messing with him.

13. People v. Garcia

It's tough to argue your own ineffectiveness in a postrial motion.

14. People v. Kindelspire

Failure to Register conviction is overturned when the state changed their theory of the case on appeal.

15. People v. Choate

The state did not instruct the jury that they had to prove the crime occurred in Illinois.

People v. Zimmerman, 2018 IL 122261 (October). Episode 553 (Duration 10:21)

You Can hide lascivious pretrial motions from the press.

See Also

Episode 336 - People v. Zimmerman,  2017 IL App (4th) 170055 (March).

Murder Case

In July 2015, defendant was charged in McLean County with the first degree murder of his former spouse.

The Motions

Defendant filed a motion for leave to file his fourth and fifth motions in limine under seal and a motion to close the court proceedings on the motions. The motions in limine sought to exclude “sensitive, private, and/or inflammatory information” about defendant, possible witnesses, and other third parties that had been provided to him by the State during discovery.

The underlying discovery evidence sought to be excluded was described in extensive detail in the motions themselves.

Defendant asserted that due to the “high level of media saturation regarding th[e] case” publication of the information would violate his privacy rights and taint the jury pool.

Intervenors Got Involved

Intervenors filed a petition to intervene and objections to defendant’s motion to close the courtroom and to file the two motions under seal. They argued that the right of access under the first amendment and the common law applied to defendant’s motions in limine and any proceedings on those motions and that defendant had failed to allege a sufficient basis to overcome the presumption of access.

The Hearing On The Two Motions

At the hearing, defendant withdrew his request to close the proceedings because the State agreed not to introduce the evidence at issue at trial.

Consequently, the only issue that remained was defendant’s request to continue to seal the motions until a jury was impaneled. At the hearing, the assistant state’s attorney informed the trial court:

“I take no position on whether the court continues to seal these. I will only say that this is a little frustrating because we are not, nor did we, intend on offering these things in our case in chief. During a big case like this, there may be any number of things the State is aware of through an investigation that the press would never become privy of because the State never intends on offering those things as evidence. These things fall into that vein. *** But as to whether the court decides to seal indefinitely or not, we’ll leave that to the court.”

In ruling on defendant’s request to continue to seal the motions, the trial court concluded that intervenors did not have a first amendment right to the motions that sought to exclude material that had not been introduced into evidence but, rather, had been obtained by defendant from the State in discovery.

The trial court said the public’s right of access to court proceedings and records is not absolute, and the court has supervisory authority over its own records and files and may deny access at its discretion.

The trial court ordered that the two motions would remain sealed until after selection of a jury. At that time, the court would revisit intervenors’ motion to unseal and would have a hearing on the same.

Issue

Intervenors filed a notice of interlocutory appeal under Illinois Supreme Court Rule 307(a)(1) and now want us to adopt the reasoning of the appellate court.

First Amendment Right

The United States Supreme Court first recognized a first amendment public right to attend criminal trials in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (1980). Thereafter, this court specifically found a public right of access to court records embodied in the first amendment to the United States Constitution.

Includes Right To Access

The determination of whether a first amendment right of access attaches to a particular record requires a two-step process under what is typically known as the “experience and logic test.” Press-Enterprise II, 478 U.S. at 9-10 (1986).

First, a court must consider whether the document is one that has historically been open to the press and general public (the “experience” prong). 

Second, a court must consider whether public access to the document plays a significant positive role in the functioning of the particular judicial process in question (the “logic” prong).

If the test of experience and logic is met, a qualified first amendment right of public access attaches to the material.

Plus There's A Third Prong

But even when a first amendment right of public access attaches to a document, it is not absolute. As the Supreme Court explained, although open criminal proceedings give assurances of fairness to both the public and the accused, there are some limited circumstances in which the right of the accused to a fair trial might be undermined by publicity.

In such cases, the trial court must determine whether the situation is such that the rights of the accused override the qualified first amendment right of access to the proceeding or material. In Press-Enterprise II, the Court held:

“The [first amendment] presumption may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”

Press-Enterprise II, 478 U.S. at 9-10 (quoting Press-Enterprise I, 464 U.S. at 510).

Analysis

In this case, the “experience” prong weighs against a first amendment right of access.

Defendant’s motions sought to exclude from trial “sensitive, private, and/or inflammatory information” about him, possible witnesses, and other third parties that had been provided to him by the State during discovery. It is undisputed that the State does not intend to introduce any of the evidence contained in the motions at trial. 

Intervenors fail to acknowledge that there is no tradition of access to discovery material not yet admitted at trial.

Unrelated or Tangentially Related Information

Information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action.

The Court instructed that “restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.” Whether in a civil or criminal case, discovery is “essentially a private process because the litigants and the courts assume that the sole purpose of discovery is to assist in trial preparation.”

Generally, the documents themselves contain no evidentiary value until admitted into evidence at trial or other proceedings. Public access to such material would therefore not play a significant role in the administration of justice in the case.

First Step Holding

The State and defendant are correct that because the material at issue in the two motions was disclosed during the discovery process, is not otherwise publicly available, is wholly tangential to the criminal case, and will not be admitted at trial, it is not subject to a tradition of access.

Second Step Holding

Similarly, we find the “logic” prong weighs against a presumption of first amendment access in this case. Intervenors do not provide any authority to support a finding that public access to the type of pretrial discovery at issue here would play a significant positive role in the judicial process. The discovery process often generates a significant amount of irrelevant and unreliable material that plays no role in the criminal proceeding and in which the public has limited interest.

Not Everything Becomes Public Record Nor Should It

As the State informed the trial court in this case, there may be any number of matters of which the State becomes aware in the course of an investigation that are shared with a defendant through discovery. Such material, however, generally does not become public because there is no intention of offering it into evidence.

In fact, had it not been for defendant’s fourth and fifth motions in limine, there would be no material on file for intervenors to seek access to, as the State has no intention of introducing it.

Third Prong Analysis

Additionally, disclosure of the discovery evidence in this case could potentially play a negative role by exposing the public and potential jurors to irrelevant information that will not be used to support a conviction and could taint the jury pool.

“If it were otherwise and discovery information and discovery orders were readily available to the public and the press, the consequences to the smooth functioning of the discovery process would be severe.” United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986).

Common-Law Right of Access Does Not Mean Anything Filed Is Accessible

Under the common law there is a presumption that allows the public to inspect and copy public records and documents, including all documents filed with the court. The availability of court files for public scrutiny is also essential to the public’s right to “monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system.” In re Continental Illinois Securities Litigation, 732 F.2d 1302, 1308 (7th Cir. 1984)).

“When courts are open, their work is observed and understood, and understanding leads to respect.” In re Marriage of Johnson, 232 Ill. App. 3d 1068, 1074 (1992).

The common-law right of access symbolizes the recognition “that the public interest is best served by increasing the public’s knowledge about what is transpiring inside the judicial process.” Skolnick, 191 Ill. 2d at 230 (quoting Newell v. Field Enterprises, Inc., 91 Ill. App. 3d 735, 748 (1980)).

It's In The Code

In Illinois, the legislature has also codified this common-law right of access to judicial records in section 16 of the Clerks of Courts Act, which provides, in pertinent part:

“All records, dockets and books required by law to be kept by [circuit court] clerks shall be deemed public records, and shall at all times be open to inspection without fee or reward, and all persons shall have free access for inspection and examination to such records, docket and books, and also to all papers on file in the different clerks’ offices and shall have the right to take memoranda and abstracts thereto.”

705 ILCS 105/16(6) (West 2016).

This court has held, however, that the common-law right of access to judicial records is not absolute.

Not Absolute

Consequently, “whether court records in a particular case are opened to public scrutiny rests with the trial court’s discretion, which must take into consideration all facts and circumstances unique to that case.” For purposes of review, the trial court must provide findings on the record specific enough for a reviewing court to consider whether closure of the records was proper.

No Common Law Problem

The trial court in this case did not abuse its discretion by allowing defendant’s two motions in limine to remain sealed until after a jury is empaneled. In denying intervenors’ request to immediately access the documents, the trial court specifically recognized the common-law right of public access to all documents filed with the court. The trial court also recognized that this right is not absolute, that the evidence at issue in the two motions was not publicly available, and that the court possesses supervisory authority over its own records and files and may deny access at its discretion.

The trial court was familiar with the history of the case and the serious charges against defendant, as well as the publicity that this case has already received and will likely continue to receive in the future. The trial court was also aware that the State does not intend to introduce into evidence any of the tangential matters referred to in the motions in limine, which the court granted without objection.

Holding

A thorough review of the hearing on intervenors’ request to unseal the motions reveals that the trial court attempted to strike a careful balance among competing interests. The trial court recognized the common-law right of access to court records, as well as defendant’s right to a fair trial, which might be undermined by publicity of discovery material that will not be admitted at trial.

The court’s order was also of a limited duration. After a jury is seated in this case, the trial court has agreed to revisit the issue to determine whether it would be proper to allow public access to the motions at that time.

The judgment of the appellate court is reversed, and the judgment of the circuit court is affirmed.

People v. Bonilla, 2018 IL 122484 (October). Episode 552 (Duration 8:50)

Constitutional violation did not depend on whether the common door to the apartment was locked.

See Also

• Episode 364 - People v. Bonilla - Do Single Family Homes Have More Constitutional Protection Than Apartment Buildings?
• Episode 464 - Constitutionality Based On Structure: Do Houses Have More Protection Than Apartments? - A review of:
  - Florida v. Jardines, 133 S. Ct. at 1409 (2013)
  - People v. Burns, 2016 IL 118973 (March)
  - People v. Bonilla, 2017 IL App (3d) 160457 (June)
  - People v. Martin, 2017 IL App (1st) 143255 (June)

Issue

The question of law at issue in this appeal is whether the warrantless use of a drug-detection dog at the threshold of an apartment door, located on the third floor of an unlocked apartment building containing four apartments on each floor, violated defendant’s fourth amendment rights.

Facts

Defendant, Derrick Bonilla, lived in an apartment at Pheasant Ridge Apartment Complex in Moline, Illinois.

The East Moline Police Department received a tip that defendant was selling drugs from his apartment. Acting on that tip officers brought a trained drug-detection dog to defendant’s apartment building. The exterior doors to the apartment building were not locked. The three-floor apartment building contained four apartments on each floor.

Once inside the building, the canine officer walked his drug-detection dog through the second-floor common area. The dog showed no interest in the second-floor common area and did not alert on any of the apartment thresholds. The officer then walked his dog through the third-floor common area. The dog showed no interest in units 301, 302, or 303. As the dog came to defendant’s apartment, unit 304, however, it moved back and forth in the doorway, sniffed at the bottom of the door, and signaled a positive alert for the presence of narcotics.

Got A Warrant

Officers obtained a search warrant for defendant’s apartment based on the drug-detection dog’s alert.

Officers searched defendant’s apartment and found cannabis.

Was The Use Of The Dog Legal?

The State argues that use of the drug-detection dog did not violate defendant’s fourth amendment rights because the common-area hallway in front of defendant’s apartment door did not constitute curtilage.

Defendant counters that use of the drug-detection dog at the threshold of his apartment door violated the fourth amendment to the United States Constitution (U.S. Const., amend. IV). According to defendant, “a citizen’s home is first among equals in Fourth Amendment jurisprudence, and the threshold is part of the home as a matter of law.”

Burns & Jardines

The State argues that this case is distinguishable from Burns because, here, the officers conducted a dog sniff in the unlocked common-area hallway outside of defendant’s apartment door and the landing was not part of the defendant’s curtilage under the “property-based” analysis announced in Jardines.

According to the State, under Burns, an unlocked apartment common area is not curtilage.

Defendant counters that under Burns and Jardines, the threshold of defendant’s apartment is constitutionally protected curtilage. Here, if the area at the threshold to the door of defendant’s apartment falls within the curtilage of the home, then the officer’s act of approaching defendant’s apartment door to have the narcotics-detection dog sniff the threshold of the apartment would constitute an unlicensed physical intrusion on a constitutionally protected area.

Narrow Issue

Accordingly, this court must determine whether the threshold of the door to defendant’s apartment falls within the curtilage of the home.

Locked Door Is The Difference

The facts of this case are nearly identical to those in Burns, other than the unlocked status of the apartment building.

Analysis

We conclude that this distinction does not create a difference. The common-area hallway immediately outside of defendant’s apartment door is curtilage.

As the appellate court acknowledged in this case, “the fourth amendment does not differentiate as to type of home involved.” 2017 IL App (3d) 160457, ¶ 18. We agree with the trial court that “it would just be unfair to say you can’t come up on a person who lives in a single family residence and sniff his door but you can go into someone’s hallway and sniff their door if they happen to live in an apartment. That’s a distinction with an unfair difference.” See also Bonilla, 2017 IL App (3d) 160457, ¶ 18 (“As the trial court noted, to reach the opposite conclusion would be to draw a distinction with an unfair difference.”); and United States v. Whitaker, 820 F.3d 849, 854 (7th Cir. 2016) (recognizing that to distinguish Jardines based upon the differences between the front porch of a single family home and the closed hallway of an apartment building would be to draw an arbitrary line that would apportion fourth amendment protections on vagaries of the circumstances that decide home ownership or rental property).

We conclude that the threshold of the door to defendant’s apartment falls within the curtilage of the home.

Apartment v. House

“Were this court to hold that an apartment uniformly lacks fourth amendment curtilage, we would additionally hold that those who live in apartments have less property-based fourth amendment protection within their homes than those who live in detached housing.” Burns, 2016 IL 118973, ¶ 96.

Further, the officer’s conduct of using a trained narcotics-detection dog at the threshold of defendant’s apartment for the purpose of detecting contraband inside defendant’s home is the precise activity the Supreme Court condemned in Jardines. See Jardines, 569 U.S. at 11-12 (“The government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.”).

See Also Collins

When a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred. Jardines, 569 U. S., at 11. Such conduct thus is presumptively unreasonable absent a warrant.” Collins, 584 U.S. at ___, 138 S. Ct. at 1670.

Accordingly, the Supreme Court concluded that by physically intruding on the curtilage of the defendant’s home to search the motorcycle, the police invaded the defendant’s fourth amendment interest in the item searched and also invaded his fourth amendment interest in the curtilage of his home. Collins v. Collins, 584 U.S. at ___, 138 S. Ct. at 1671.

Applying the relevant legal principles articulated by the Supreme Court in Jardines and Collins to this case yields the same result. Just like the front porch, side garden, or area outside the front window, the threshold of defendant’s apartment door constitutes an area adjacent to the home and to which the activity of home life extends and so is properly considered curtilage. Collins, 584 U.S. at ___, 138 S. Ct. at 1671 (quoting Jardines, 569 U.S. at 6-7, quoting Oliver, 466 U.S. at 182 n.12).

Holding

Accordingly, we hold that in physically intruding on the curtilage of defendant’s apartment to conduct a dog sniff of the threshold,­ officers violated defendant’s fourth amendment rights. We hold that the warrantless use of a drug-detection dog at the threshold of defendant’s apartment door violated his rights under the fourth amendment to the United States Constitution.

We also conclude that the good-faith exception to the exclusionary rule does not apply. 

We affirm the judgment of the appellate court and affirm the trial court’s judgment granting defendant’s motion to suppress.

People v. Harris, 2018 IL 121932 (October). Episode 551 (Duration 14:08)

Illinois Supreme Court reveals the path 18-21 year olds should follow in order to have their their youthfulness considered as a factor at sentencing.

See Episode 281 - People v. Harris

People v. Harris, 2016 IL App (1st) 141744 (December) (Duration 12:32)

Defendant was charged with several offenses following a shooting at a Chicago gas station. One man was killed, another shot and injured and the third was fired at but the gun jammed.

Facts

Defendant shot and killed one person at a gas station.

He shot another person but that person survived. Then he pointed his gun at a third person and pulled the trigger. But he had run out of bullets. Defendant was 18 years old and this appeared to be some kind of dispute between defendant and the victims.

Sentence

The aggregate sentence was 76 years: 45 years of imprisonment on the murder conviction (20 years for the offense plus 25 years for the mandatory firearm enhancement), 26 years for one attempt murder (6 years plus 20 years for the mandatory firearm enhancement); and 31 years for the other attempt murder (6 years plus 25 years enhancement).

The attempted murder counts were to run concurrently with each other, but consecutively to the murder sentence.

Issue

Defendant alleges that this lengthy term is actually a “mandatory de facto life sentence,” and the interaction of these statutes prevented the trial court from exercising any discretion or taking into account his youth or rehabilitative potential. This statutory scheme, according to defendant, violates both the federal and state constitutions as applied to him. He challenges these statutes under both the eighth amendment of the federal constitution and the “proportionate penalties” clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11).

On appeal to the Illinois Supreme Court, the State contends that the appellate court erred in holding defendant’s aggregate 76-year sentence unconstitutional under the proportionate penalties clause of the Illinois Constitution.

Appellate Court Moral Sense Shocked

The appellate court rejected defendant’s claim that his aggregate sentence violated the eighth amendment prohibition against cruel and unusual punishment. 2016 IL App (1st) 141744, ¶¶ 55-56.

On the Illinois constitutional claim, however, the appellate court held defendant’s aggregate sentence was contrary to the “rehabilitation clause” of article I, section 11, providing that penalties must be determined with “the objective of restoring the offender to useful citizenship.” 2016 IL App (1st) 141744, ¶ 64 (quoting Ill. Const. 1970, art. 1, § 11).

The appellate court stated that “[w]hile we do not minimize the seriousness of [defendant’s] crimes, we believe that it shocks the moral sense of the community to send this young adult to prison for the remainder of his life, with no chance to rehabilitate himself into a useful member of society.” 2016 IL App (1st) 141744, ¶ 69.

Amicus Brief's Filed

We also allowed the Children and Family Justice Center, Chicago Lawyers’ Committee for Civil Rights, Civitas ChildLaw Clinic, Criminal and Juvenile Justice Project Clinic, Juvenile Justice Initiative of Illinois, Juvenile Law Center, Law Office of the Cook County Public Defender, and the James B. Moran Center for Youth Advocacy to file a joint amicus curiae brief. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

New Research

Defendant argues that emerging scientific research on the neurological development of young adults supports extending Miller to adults under the age of 21. Defendant acknowledges that “this brain research is new.” The State contends the scientific research is inconclusive, citing various articles. The State asserts that “the neuroscientific and legal communities continue to debate the limitations of neuroimaging and its implications for criminal justice and other areas of the law.”

Summary Of The Arguments

On the merits, the State maintains that defendant’s mandatory minimum aggregate prison term does not violate the proportionate penalties clause because defendant has not demonstrated that, as applied to his circumstances, the sentence is so wholly disproportionate to his offenses that it shocks the moral sense of the community. Defendant responds that as applied to him, the statutory sentencing scheme, resulting in a mandatory de facto life sentence, “violates the rehabilitation clause of [article I, section 11,] of the Illinois Constitution.” Defendant contends that it shocks the moral sense of the community to impose a mandatory de facto life sentence given the facts of this case, including his youth and the other mitigating factors present.

Defense

Defendant contends that, as applied to his specific circumstances, the sentencing statutes resulting in a mandatory aggregate sentence of 76 years’ imprisonment violate the Illinois Constitution. In particular, defendant relies on the United States Supreme Court’s decisions in Roper v. Simmons, 543 U.S. 551, 578-79 (2005) (the eighth and fourteenth amendments prohibit capital sentences for juveniles who commit murder), Graham v. Florida, 560 U.S. 48, 82 (2010) (the eighth amendment prohibits mandatory life sentences for juveniles who commit nonhomicide offenses), and Miller v. Alabama, 567 U.S. 460, 489 (2012) (the eighth amendment prohibits mandatory life sentences for juveniles who commit murder), and claims the reasoning from those cases should be extended to his specific circumstances as an 18-year-old young adult.

As-Applied Challenge

Defendant’s claim is an as-applied challenge.

The distinction between facial and as-applied constitutional challenges is critical. People ex rel. Hartrich v. 2010 Harley-Davidson, 2018 IL 121636, ¶ 11. A party raising a facial challenge must establish that the statute is unconstitutional under any possible set of facts, while an as-applied challenge requires a showing that the statute is unconstitutional as it applies to the specific facts and circumstances of the challenging party. Hartrich, 2018 IL 121636, ¶ 12; People v. Rizzo, 2016 IL 118599, ¶ 24; Thompson, 2015 IL 118151, ¶ 36.

All as-applied constitutional challenges are, by definition, dependent on the specific facts and circumstances of the person raising the challenge. “ ‘Therefore, it is paramount that the record be sufficiently developed in terms of those facts and circumstances for purposes of appellate review.’ ” Hartrich, 2018 IL 121636, ¶ 31 (quoting Thompson, 2015 IL 118151, ¶ 37).

We have reiterated that: “A court is not capable of making an ‘as applied’ determination of unconstitutionality when there has been no evidentiary hearing and no findings of fact. Without an evidentiary record, any finding that a statute is unconstitutional 'as applied' is premature.” Rizzo, 2016 IL 118599, ¶ 26 (quoting People v. Mosley, 2015 IL 115872, ¶ 47, quoting In re Parentage of John M., 212 Ill. 2d 253, 268 (2004)).

No As-Applied Challenge Here

Here, defendant did not raise his as-applied constitutional challenge in the trial court.

Thus, an evidentiary hearing was not held on his constitutional claim, and the trial court did not make any findings of fact on defendant’s specific circumstances. The appellate court held defendant’s sentence violated the Illinois Constitution without a developed evidentiary record on the as-applied constitutional challenge.

The critical point is not whether the claim is raised on collateral review or direct review, but whether the record has been developed sufficiently to address the defendant’s constitutional claim.

As we have emphasized, a reviewing court is not capable of making an as-applied finding of unconstitutionality in the “factual vacuum” created by the absence of an evidentiary hearing and findings of fact by the trial court.

The Basic Research Is Not Enough

As we stated in Holman, “The defendant’s claim in Thompson illustrated that point. The defendant there maintained that the evolving science on juvenile maturity and brain development highlighted in Miller applied not only to juveniles but also to young adults like himself between the ages of 18 and 21. We rejected that claim because the record contained ‘nothing about how that science applies to the circumstances of defendant’s case, the key showing for an as-applied constitutional challenge.’ We stated the trial court was the most appropriate tribunal for such factual development.” Holman, 2017 IL 120655, ¶ 30.

Defendant contends that the record includes sufficient information about his personal history and the state of the research to determine whether the evolving science on juvenile maturity and brain development applies to him.

The record, however, includes only basic information about defendant, primarily from the presentence investigation report. An evidentiary hearing was not held, and the trial court did not make any findings on the critical facts needed to determine whether Miller applies to defendant as an adult. As in Thompson, the record here does not contain evidence about how the evolving science on juvenile maturity and brain development that helped form the basis for the Miller decision applies to defendant’s specific facts and circumstances.

Accordingly, defendant’s as-applied challenge is premature.

Defendant Wanted The Whole Enchilada 

Defendant sought a categorical ruling extending Miller to all young adults under age 21.

Exactly How Are Juveniles Different?

In Roper and Graham, the Supreme Court established that “children are constitutionally different from adults for purposes of sentencing” in several important ways. Miller, 567 U.S. at 471. First, children are less mature and have an underdeveloped sense of responsibility, leading to recklessness, impulsive behavior, and heedless risk-taking. Miller, 567 U.S. at 471 (citing Roper, 543 U.S. at 569).

Second, children are more vulnerable to negative influences and pressures, including from their family and peers. Miller, 567 U.S. at 471 (citing Roper, 543 U.S. at 569).

Third, a child’s character is less fixed, making his or her actions less likely to be indicative of irretrievable depravity. Miller, 567 U.S. at 471 (citing Roper, 543 U.S. at 570). Those differences between adults and juveniles diminish a juvenile’s moral culpability and result in increased prospects for reform. Miller, 567 U.S. at 471-73. The Miller Court, therefore, held that a sentencing scheme mandating life in prison without the possibility of parole for juvenile offenders violates the eighth amendment prohibition on cruel and unusual punishment. Miller, 567 U.S. at 479.

Youth Matters In Sentencing But A Line Has To Be Drawn

In Roper, Graham, and Miller, the Supreme Court “unmistakably instructed that youth matters in sentencing.” Holman, 2017 IL 120655, ¶ 33. The Miller Court “identified a foundational principle that ‘imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.’ ” Holman, 2017 IL 120655, ¶ 35 (quoting Miller, 567 U.S. at 474).

But The Supreme Court has never extended its reasoning to young adults age 18 or over.

“Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach. For the reasons we have discussed, however, a line must be drawn. *** The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest.” Roper, 543 U.S. at 574.

The Supreme Court has clearly and consistently drawn the line between juveniles and adults for the purpose of sentencing at the age of 18.

True, the line drawn by the Supreme Court at age 18 was not based primarily on scientific research. The Supreme Court acknowledged its line at age 18 was an imprecise “categorical rule[ ]” but emphasized that “a line must be drawn.” Roper, 543 U.S. at 574. The Court drew the line at age 18 because that “is the point where society draws the line for many purposes between childhood and adulthood.” Roper, 543 U.S. at 574.

New research findings do not necessarily alter that traditional line between adults and juveniles.

Holding

We agree with those decisions and our appellate court that, for sentencing purposes, the age of 18 marks the present line between juveniles and adults. As an 18-year-old, defendant falls on the adult side of that line. Defendant in this case was 18 years old at the time of his offenses. Because defendant was an adult, Miller does not apply directly to his circumstances. 

We believe defendant’s claim is also more appropriately raised in another proceeding like a postconviction petition. Accordingly, we decline to remand this matter for an evidentiary hearing.

 Accordingly, defendant’s facial challenge to his aggregate sentence under the eighth amendment necessarily fails. The record must be developed sufficiently to address defendant’s claim that Miller applies to his particular circumstances.

For the above reasons, we reverse the appellate court’s judgment vacating defendant’s sentences and remanding for resentencing. The original sentence stands.

See Also

Episode 413 (Duration 10:27) - Discretionary Life Sentence For Youngsters, De Facto Life Sentences, And More Fun With Young Violent Offenders

Episode 525 (Duration 7:56) -  People v. Coty - Intellectually Disabled Defendant’s Should Be Treated Like Minors When It Comes To Sentencing

Episode 457 (Duration 6:24) - People v. Rodriguez - An Extension Of De Facto Life Sentences