Kane County Nuggets

People v. Dailey, 2018 IL App (1st) 152882 (September). Episode 539 (Duration 7:14)

One hand to hand creates reasonable suspicion for a traffic stop.

Charges

Defendant was charged by information with the offense of being an armed habitual criminal, possession of a controlled substance with intent to deliver, unlawful use or possession of a weapon by a felon, and possession of a controlled substance.

Issue

Prior to trial, defendant moved to quash his arrest and suppress evidence, alleging, in pertinent part, that police officers lacked probable cause to believe that defendant or anyone else in the vehicle had committed a crime “from within the vehicle.”

Sentence

The trial court denied the motion and sentenced defendant to 30 months in prison.

One Hand-To Hand

A Chicago police officer and two other officers were driving southbound when he saw a van that was stopped in the middle of the street.

The officer watched a “male black citizen” run from the sidewalk to the driver’s side window, hand the van’s driver currency, and receive “small items” in return. The person who received the items looked in the officer's direction and then fled in one direction, while the van went in the other direction “at kind of a high rate of speed.”

The Officer testified that he observed a “very quick exchange” of “small items” and could not determine what the items were or their consistency. Although he saw currency being given to the driver of the van, he could not determine the amount. The officer acknowledged that he did not see any movement inside the van; rather, he observed defendant stick an arm out of the van and hand over small items.

The officer, who had been a police officer for 20 years, believed that he had observed a narcotics transaction.

Stop The Van

The police followed the van and curbed it.

Defendant, then exited the van. He had not been ordered to exit the vehicle. As defendant walked toward the officer, he stated “ ‘I ain’t got shit.’ ” The officers exited their vehicle at the same time. As defendant continued to approach the officers, the officer observed a “marble-size object” drop from defendant’s right hand and fall to the ground. This was 1.3 grams and contained heroin.

The officer walked past defendant and picked up the object while another officer detained defendant. He described the object as a plastic bag that had seven smaller Ziploc Baggies containing suspect heroin. This item was subsequently inventoried.

Defendant's Statement

After defendant was placed in custody, Carey informed him of the Miranda warnings. Defendant indicated that he understood his rights and then made a statement.

Defendant stated that his mother had just passed away and that he was trying to make some money to keep his buildings. Defendant further stated that he had “a drug case in the morning” and that his attorney told him to “do anything he could to stay out of trouble.”

Defendant also stated that he had “a gun by a garage” and asked whether the officers would let him go if he showed them the gun’s location. The police and his partners then followed defendant’s directions to a certain backyard. There, defendant indicated that a gun was inside a grill. The officer exited his vehicle, walked over, reached through the fence, and opened a grill. Inside the grill was a loaded .45-caliber gun.

During a subsequent conversation, defendant was asked why he had the handgun. He indicated that “the Nashes were mad that he was making money and he was afraid they were going to pop him off.”

Terry Stop

We analyze the reasonableness of traffic stops pursuant to the principles set forth in Terry v. Ohio, 392 U.S. 1 (1968). Here, the parties agree that defendant was subjected to a Terry stop. “Pursuant to Terry, a police officer may conduct a brief, investigatory stop of a person where the officer reasonably believes that the person has committed, or is about to commit, a crime.” Timmsen, 2016 IL 118181, ¶ 9.

In order to justify a stop, “the officer must point to specific, articulable facts which, when considered with natural inferences, make the intrusion reasonable.” People v. Simpson, 2015 IL App (1st) 130303, ¶ 23. Under this reasonable suspicion standard, the facts necessary to justify a Terry stop do not need to rise to the level of probable cause and can be satisfied even if no violation of the law is observed, but the facts must go beyond a mere hunch. People v. Maxey, 2011 IL App (1st) 100011, ¶ 46. A police officer’s decision to conduct a Terry stop is a practical one based on the totality of the circumstances. In re Elijah W., 2017 IL App (1st) 162648, ¶ 36.

A reviewing court applies an objective standard when deciding “whether the facts available to the officer at the time of the incident would lead an individual of reasonable caution to believe that the action was appropriate.” People v. Colyar, 2013 IL 111835, ¶ 40.

##People 

Analysis

Here, given the totality of the circumstances, the decision to stop the van that defendant was driving was proper under Terry. We therefore conclude that the trial court properly denied defendant’s motion to quash arrest and suppress statements. 

There is no requirement that the officer know that the items were definitely contraband or that he assign an innocent explanation to the exchange. Rather, the question is whether the facts “available” to the police at the time would “lead an individual of reasonable caution to believe” that the stop was appropriate.

In the case at bar, there were “specific, articulable facts” upon which Carey relied to justify stopping defendant, that is, a van was stopped in the middle of the road, an exchange of money for small items took place, and the parties involved immediately went their separate ways. See Simpson, 2015 IL App (1st) 130303, ¶ 23 (although “the facts forming the basis of reasonable suspicion” do not require an officer to actually observe a crime, the determination of reasonable suspicion must be based on commonsense judgments about human behavior).

People v. Ocampo

In the case at bar, defendant’s van was not parked; rather, it was stopped in the middle of the street.

Moreover, unlike People v. Ocampo, 377 Ill. App. 3d 150 (2007), where the defendant got into a car and then proceeded to have a conversation with another person. The defendant walked up to the car, tapped on the trunk, and got in the front passenger seat. The driver and the passenger exchanged a look and had a short conversation, and the defendant moved as if he were taking something out of his pants pocket. The officer could not hear the conversation and did not see the defendant’s hands.

Here, a man ran up to the van, exchanged money for small objects, and then immediately ran away.

Additionally, unlike Ocampo, the officer actually observed the exchange.

People v. Petty

We are similarly unpersuaded by defendant’s reliance on People v. Petty, 2012 IL App (2d) 110974.

In that case, police officers observed as two cars parked at a gas station, and the drivers of both cars then exited their vehicles, engaged in a hand-to-hand transaction of “some unknown object or objects,” and got back into their vehicles. Officers then stopped the defendant’s vehicle, and cannabis was recovered.

The trial court denied the defendant’s motion to suppress, finding that officers believed that they had witnessed a drug transaction.

On appeal, the court relied on Ocampo to reverse, determining that the defendant’s conduct was consistent with “any number of innocent scenarios,” that the officers happened upon the defendant by coincidence, and that, other than the observed actions, the officers had no reason to suspect that criminal activity had occurred.

Petty is distinguishable on the basis that in the instant case the officer testified that he observed the hand-to-hand transaction and the fact that defendant’s van was parked in the middle of the street rather than in a parking spot. Moreover, after the exchange, both parties rapidly left the area, that is, the man fled on foot, and defendant drove away “at kind of a high rate of speed.”

Holding

Here, given the totality of the circumstances, the police relied upon “specific, articulable facts", as justification for the stop of the van. Considering the facts available at the time, we conclude that “an individual of reasonable caution” would believe that the officer’s action was appropriate and, accordingly, the trial court properly denied defendant’s motion to quash arrest and suppress evidence.

The judgment of the circuit court of Cook County is affirmed.

We apply the Case Law Memory Formula to 3 confession cases. Episode 538 (Duration 16:32)

1.  People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode 488 (Duration 18:22). Involuntary confession and improper closing arguments lead to a murder conviction that is now reversed outright. Kid kept asking for his mother. Court clearly thinks he didn’t do it.

Sanchez = Sand-Cheese
April = April Fool (Joker Hat)
2018 = "f" sound = Phone

Picture defendant being interrogated while wearing a court gesture or joker hat. The take sand paper and hold it with a block of cheese. They scrub defendant's face with it. When they are done they let him use the cheese (which is also a phone) to call his mom.

2. People v. Phillips, 2018 IL App (3d) 130270 (February). Episode 479 (Duration 13:35). 18-year-old’s confession ruled involuntary, in part, because defendant is told baby killers get killed in prison.

Phillips = Fill-Up
February = Valentine's Day = Big Hart
2018 = "f sound = fish

Imagine defendant being stripped down to his underwear, but they give a t-shirt to put on. The shirt has a big red hart on it and it says, "I love my mommy." They then put a tube in his mouth and fill him up with sardines. The sardines are basically baby fishes. They are yelling at him and calling him a baby killer. When he's had enough he confesses.

3. People v. Edwards, 2017 IL App (3d) 130190-B (January). Episode 300 (Duration 5:42). This 17 year old’s confession was voluntary even though he had a fifth grade reading level, suffered from various mental disorders, and that the investigating officers did not allow him to speak to his mother. Really bad violent crime. He executed a witness by putting a pillow over his face and shooting. A second victim survived.

Edward = Da-Word
January = New Years Party = Party
2017 = 017 = "s" sound, "t" sound, and "k" sound = steak

Picture Chris Partlow in the interrogation room. He is the stone cold killer from the wire. He speaks in one word intervals. When he says something he's saying Da-Word. When he says "steak" the police instantly run out to get him a rare steak to eat. When he says "party" the police bust out there New Year's celebration material and throw an instant party. When defendant says "mom" the party comes to an abrupt halt and they tell him they can't help him with that. They then get a non coerced confession out of him. 

People v. Hiatt, 2018 IL App (3d) 160751 (August). Episode 537 (Duration 8:40)

Defendant wins his postconviction petition because there were enough signs he was unfit.

Gist

We affirm the trial court’s grant of Defendant's postconviction petition.

Defendant was charged with three counts of unlawful delivery of cannabis. He entered into a plea agreement with the State in which he pled guilty to the charges and was released on his own recognizance to assist the authorities until his sentencing hearing.

A month later, the State requested a revocation of his recognizance bond, which the trial court granted, and a warrant was issued for his arrest. Subsequently, the court sentenced him in absentia to nine years’ imprisonment.

15 Days Later Found In Florida

Fifteen days later, defendant was arrested in Florida and extradited to Illinois, where he was taken into custody.

Defendant appeared in court in July and was shocked to learn that he had been sentenced to nine years’ imprisonment. He stated that he did not agree to nine years.

He believed he would be “employed as a [D]rug Enforcement Agent, assigned to apprehend any Drug Lord or his conspirators/co-conspirators” and would become a police officer like he saw on television if he accepted the plea agreement. Subsequently, defendant went to Florida to “follow[ ] a flow of drugs from Rock Island to Florida” and set up individuals conducting drug activity. He did not know anyone in Florida and continued to “stay[ ] on the streets” until he was arrested.

The plea agreement did not involve defendant going down to Florida and getting “drug lords” but rather involved him working locally with authorities.

Trial Judge Says

The postconviction judge said, “Looking at his testimony in its entirety and these other factors that seem to be right on point and accurate, I don’t have any reason to disbelieve him as he sits here about why he went to Florida, what he was trying to do, and I also believe him when he talks about maybe he’s feeling better now. Based on all that, I do agree with Mr. Nieman with respect to the second prong. I think there is a reasonable probability here that a fitness evaluation would have resulted in the finding of unfitness based upon what was going on in the defendant’s mind at the time.”

Was He Unfit?

Defendant filed a pro se postconviction petition, arguing, inter alia, that his trial counsel rendered ineffective assistance of counsel when he failed to investigate his mental state and that he was prejudiced because he was unfit to plead guilty.

The petition advanced to the third stage of postconviction proceedings, and ultimately, the trial court vacated his guilty plea. The State filed a motion to reconsider, which the trial court denied, and the State appealed.

He Had Issues

He also argues that if his trial attorney had inquired into his mental state, he would have discovered defendant was diagnosed with

• depression
• anxiety disorder
• psychosis
• posttraumatic stress disorder (PTSD)
• obsessive-compulsive disorder (OCD) and
• attention deficit hyperactivity disorder (ADHD) and
• was taking medication.

The Iowa Case

Moreover, counsel would have discovered defendant's Iowa case, in which he was ordered to complete a fitness evaluation. Ultimately he was found fit to stand trial in the Iowa case. In the trial court’s order of disposition, it stated that Defendant must complete mental health treatment and provide proof to the court.

In 2011, Defendant was charged with second degree robbery in Iowa. During the pendency of the case, the court ordered him to perform a fitness evaluation. Counsel never asked him about the fitness evaluation.

Defendant never talked to his attorney about his mental health problems or his medication.

When asked if counsel knew about defendant's prior fitness evaluation in his Iowa case, counsel responded, “You know, now that you say that it may be that I recall something about that, but nothing—I mean, I would have to looked [sic] at the file and notes and so on to have a particular recollection about that. But I guess you saying that makes me think that perhaps I did know about that.”

Defendant Says

He was initially offered a plea deal of two years but “I thought it would be better if I could get out right away because it’s hard for me to be in prison” so he agreed to be released on his own recognizance.

 When he was initially arrested, he was consistently taking his medication in jail. When asked if his attorney asked him about taking psychotropic medication, he stated, “No, I don’t believe he did. He could have, but I don’t recall. He only came to see me I believe two times for 15 minutes and it wasn’t—I can’t remember exactly if he asked me, but if he would have asked me I would have told him the truth.”

He also stated that he did not recall talking to counsel about his psychiatric treatment history.

During The Plea On His Medication

When Defendant entered into the plea agreement he had mental health problems but was taking medication.

He believed his mental conditions and his medication affected his ability to enter into the agreement, and he would not have entered into the agreement under a different mental state. He stated that, “I feel when I have my relapses with mental illness I just feel like I don’t know what’s going on, I don’t know where I’m at really and stuff like that. But right now I’ve been working on my—myself and trying to get better because I have a lot going on. When I get out I want to be better for my family.”

Defendant remembered pleading guilty to all three counts because “that’s what I had to do to go home so I did it” and “at the time I thought it was a good idea. So I thought it was just the best deal or go to prison.” He realized that he had made a bad decision accepting the plea deal when he learned that he was sentenced to nine years’ imprisonment. He knew he was supposed to return for sentencing on March 31 but did not know he would suffer consequences if he did not appear.

While In IDOC

After he began his nine-year sentence, Hiatt received different mental health treatment in the Illinois Department of Corrections (DOC) than he had in the Rock Island County jail. Defendant averred that if he had received the same treatment in the county jail,

“I feel like my head would be more clear and to think about it than just to—just to answer and just say the wrong thing because when I’m—when I’m mentally going on it’s like I don’t understand what’s going on and I don’t know where I’m at. I’ll live right down the street my whole life and I’ll be standing there, like where am I, I don’t know where I’m at. And then I’ll go in the gas station and I’ll ask the clerk to say, will you call my sister for me? And he’ll be like, who is your sister? And that happens from time to time. And that’s how I felt, and it’s a very scary feeling and that’s how I kind of felt around the time that I was going through.”

Currently, Haitt was not taking the medication directed by the DOC because they made him feel suicidal. He had been dealing with his mental illnesses on his own. He was no longer taking Xanax or Adderall because “they told me that they—that was the medicine that I felt worked pretty good, but when I got to DOC they said we are not having this, you are not taking this. They started to put me on this other stuff, but I’m not taking it.” 

Trial Attorney Says

Counsel testified that he was an assistant public defender for Rock Island County Public Defender’s Office.

They met at least twice in the jail and other times in the courtroom. Initially, the State had offered defendant a four-year prison sentence. Counsel clarified that he would have explained to him that he could receive day-for-day credit and his sentence could be lessened to two years.

The parties came to an alternative agreement in which Defendant would plead guilty and be released on recognizance bond if he did work for the authorities. “The objective was to keep [Defendant] out of DOC. Mr. [Defendant] has expressed to me several times that he was very, very reluctant to return. Apparently on his last trip to DOC he had gotten a pretty severe injury. He had a facial scar that was pretty prominent and he did not want to go back because he feared further injury or harm to his person.”

They never talked about his medication.

Counsel believed that defendant understood what was happening during his plea and that the plea agreement was the closest deal to meeting defendant's objectives of not returning to DOC. He never had trouble understanding him.

Then He Was Gone

Defendant was told that he had to come back to court for sentencing.

After his was released, counsel did not have contact with him. He tried every number in his file but was unable to reach him. He received a call from the state’s attorney’s office expressing concern that defendant had not been in touch with the authorities.

All Normal Behavior 

Defendant never exhibited any behaviors that would make counsel inquire into his mental condition.

He would have inquired about hiss mental condition if he had known that defendant was taking medication.

Defendant never told counsel about his concerns of being unable to help the authorities because no one would associate with him or about his plan to go to Florida. 

Bona Fide Doubt of Fitness

A defendant is entitled to a pretrial fitness hearing only when a bona fide doubt of his fitness to stand trial or be sentenced exists. People v. Johnson, 183 Ill. 2d 176, 193 (1998). “[T]he question of whether a bona fide doubt of fitness exists is a fact-specific inquiry.” People v. Rosado, 2016 IL App (1st) 140826, ¶ 31.

See 725 ILCS 5/104-11(a) Raising Issue; Burden; Fitness Motions:

The issue of the defendant's fitness for trial, to plead, or to be sentenced may be raised by the defense, the State or the Court at any appropriate time before a plea is entered or before, during, or after trial. When a bonafide doubt of the defendant's fitness is raised, the court shall order a determination of the issue before proceeding further.

Analysis

Here, we find that counsel rendered deficient performance.

Counsel failed to inquire about defendant’s prior fitness evaluation in his Iowa case although he acknowledged some awareness about that fitness evaluation. If he had inquired about the Iowa case, he would have learned that, although defendant had been found fit, Defendant's mental illness could affect his ability to plead guilty in a subsequent case because the trial court in the Iowa case ordered defendant to complete mental health treatment in its order of disposition.

Defendant was prejudiced by counsel’s performance because the evidence shows there was a bona fide doubt of his fitness at the time he pled guilty.

When he was initially taken into custody, he consistently took the medications prescribed to him by the county jail. Defendant testified that, during his guilty plea proceedings, his mental conditions and medications affected his ability to enter into the plea agreement because he was experiencing a “relapse with mental illness” and did not understand what was happening.

Holding

This lack of defendant's understanding is evident in his petition in which he stated that the trial court found defendant to be credible. Therefore, we find that trial counsel rendered ineffective assistance of counsel.

Accordingly, we affirm the trial court’s grant of defendant's postconviction petition.

People v. Walker, 2018 IL App (4th) 170877 (September). Episode 536 (Duration 10:58)

Turns out we've been misreading the "proper turn" statute all along.

Gist

Defendant was stopped for an improper left turn and received a ticket for driving while his license was revoked (625 ILCS 5/6-303 (West 2016)).

He filed a motion to suppress evidence from the stop, asserting the police officer who stopped him lacked reasonable, articulable suspicion defendant had violated the law.

State Argued

The State argued defendant was required to turn into the nearest westbound lane pursuant to section 11-801 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11­ 801). Because defendant did not do so, the traffic stop was valid.

According to the State, section 11-801(a)(2) unambiguously required defendant to enter the leftmost lane legally available when he executed the left turn in this case. In the alternative, the State argues section 11-801(a)(2) is ambiguous.

The Turn

Around 12:30 a.m. on defendant drove his car out of a gas station by making a right turn onto Hershey Road in Bloomington, Illinois. Defendant then proceeded north on Hershey Road, eventually moving into the left turn lane as he approached the intersection of Hershey Road and Empire Street.

The traffic light was red, and defendant stopped at the intersection.

When the light turned green, defendant made a left turn onto Empire Street, exiting the intersection into the farthest available westbound lane, which was the northernmost lane. After making his left turn, defendant was proceeding in a westerly direction on Empire Street, which had two lanes for westbound traffic.

Immediately after defendant exited the intersection, an officer stopped defendant for making an improper left turn because defendant did not exit the intersection into the nearest westbound lane of traffic on Empire Street.

Required Position And Method Of Turning

Section 11-801(a)(2) provides the following:

"(2) The driver of a vehicle intending to turn left at any intersection shall approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle, and after entering the intersection, the left turn shall be made so as to leave the intersection in a lane lawfully available to traffic moving in such direction upon the roadway being entered. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.”

625 ILCS 5/11-801(a)(2) (West 2016).

The first sentence of section 11-801(a)(2) is a compound sentence and states (1) the law as to what lane—“the extreme left-hand lane”—a driver must be in when approaching an intersection to make a left turn and (2) the law as to what lane—“a lane lawfully available to traffic moving in such direction upon the roadway being entered”—the driver should use when exiting the intersection.

The second sentence of subsection (a)(2), which is the focus of the State’s argument, states the law as to what the driver should do within the intersection: “Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.”

Analysis

Pursuant to a plain reading of section 11-801(a)(2), which we do not find to be ambiguous, defendant did not violate the law by exiting the intersection into the farthest westbound lane of traffic on Empire Street. For this court to agree with the State’s interpretation of this subsection, we would have to depart from the plain language of the statute by reading into the statute exceptions, limitations, or conditions the legislature did not express, and we would have to deem other parts of the statute superfluous.

This court would have to determine the legislature intended (1) for the last sentence of subsection (a)(2) to be read to restrict what lane a driver could exit an intersection—without any language in the sentence to that effect—and (2) for language in the first sentence—“the left turn should be made so as to leave the intersection in a lane lawfully available to traffic moving in such direction” (emphasis added)— to be ignored.

We will not interpret this statute in the manner suggested by the State.

Mistake Of Law

The United States Supreme Court in Heien v. North Carolina, 574 U.S. ___, ___, 135 S. Ct. 530, 536, 539 (2014), did hold reasonable suspicion justifying a traffic stop “can rest on a mistaken understanding of the scope of a legal prohibition” as long as the mistaken understanding of the law was objectively reasonable. With regard to the objective standard, the Court stated, “We do not examine the subjective understanding of the particular officer involved.” Heien, 574 U.S. at ___, 135 S. Ct. at 539.

In addition, the Court declared, “[A]n officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is dutybound to enforce.” Heien, 574 U.S. at ___, 135 S. Ct. at 539. According to Justice Kagan: “A court tasked with deciding whether an officer’s mistake of law can support a seizure thus faces a straightforward question of statutory construction. If the statute is genuinely ambiguous, such that overturning the officer’s judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not. As the Solicitor General made the point at oral argument, the statute must pose a ‘really difficult’ or ‘very hard question of statutory interpretation.’ [Citation.] And indeed, both North Carolina and the Solicitor General agreed that such cases will be ‘exceedingly rare.’ ” Heien, 574 U.S. at ___, 135 S. Ct. at 541. 

Holding

Based on the evidence and a plain reading of the unambiguous language of section 11-801(a)(2), defendant did not violate any statute justifying the traffic stop by exiting the intersection in the farthest westbound lane of Empire Street. As we have concluded section 11-801(a)(2) is not ambiguous, the State’s alternative argument “the traffic stop was still lawful due to the ambiguity of the statutory language” also fails.

In this case, the plain language of section 11-801(a)(2) does not present a difficult or hard question of statutory interpretation. The statute clearly allows a driver making a left turn to exit the intersection into any available lane of traffic moving in the proper direction. The officer’s misunderstanding of section 11-801(a)(2) was not objectively reasonable. As a result, the officer’s stop of defendant’s vehicle was not justified. As we have found the stop of defendant’s vehicle was not constitutionally justified, we next turn to the State’s argument the exclusionary rule should not be applied under the circumstances in this case.

For the reasons stated, we affirm the circuit court’s judgment.

See Also

Episode 506 - In re Maurice J., 2018 IL App (1st) 172123 (June) (driver goes around a speed bump) 

Episode 073 – People v. Gaytan (ball hidge on a license plate blocking the numbers)

Episode 238 – People v. Theus (defendant fails to signal when rodeway jumped from one to two lanes)

Heien v. North Carolina, 135 S. Ct. 530 (2014), (truck stopped because of broken tail light)

People v. Long, 2012018 IL App (4th) 150919 (August). Episode 535 (Duration 7:35)

Defendant is guilty of a conspiracy but the state had to prove how much they meth they made with his camping fuel.

Gist

The State charged defendant with unlawful methamphetamine conspiracy. Het delivered Coleman fuel, a methamphetamine manufacturing material, for that purpose, resulting in the manufacture of 486 grams of methamphetamine.

The court then sentenced him to 30 years in prison.

Facts

Defendant and an individual named MB agreed to manufacture methamphetamine. It was defendant's bad luck because law enforcement officers executed a search warrant on the trailer where they were cooking.

The trailer was owned by DB.

Inside The Trailer

The officers discovered a “shake-and-bake meth lab” and methamphetamine manufacturing materials, including Coleman fuel.

The State’s evidence showed two containers of Coleman fuel were found in the trailer—one half-empty, one gallon container that was found on the bathroom sink area and one empty, 32 ounce container that was found in a bathroom cabinet.

3 Batches Discovered

Additionally, methamphetamine was discovered in three separate containers.

Specifically, 285.5 grams of methamphetamine were found in a Gatorade bottle in the trailer’s bathroom sink and two bottles containing 133 grams and 268.2 grams of methamphetamine were found in a bedroom.

Both MB and DB were present when the search warrant was executed and were arrested. Defendant was not there.

Actively Cooking When Police Showed Up

On the morning that defendant delivered Coleman fuel to MB, later that day, the police executed a search warrant on DB’s trailer. According to MB, “there was a meth cook going on at that time.”

Evidence further showed that three methamphetamine “cooks” were discovered in DB's trailer. While two of the cooks were located in the trailer’s bedroom, one was located in the bathroom sink and was found to contain 285.5 grams of methamphetamine.

In fact, all three meth­amphetamine “cooks” each contained over 100 grams of methamphetamine.

Defendant Confesses

During an interview, defendant acknowledged providing a can of Coleman fuel to DB on the day that the search warrant was executed. It could be inferred that he knew they were going to use it to cook meth.

The Other Sentences

The actual cook in the case plead to 6 years.

The Sentencing Range

The State alleged he conspired to manufacture 400 to 900 grams of methamphetamine, a Class X felony with an applicable sentencing range of 12 to 50 years in prison. 720 IILCS 646/15(a)(2)(D).

There is also conspiracy to manufacture 100 to 400 grams of methamphetamine, a Class X felony with an applicable sentencing range of 9 to 40 years in prison (id. § 15(a)(2)(C)).

Finally, there is a Class 1 felony based on the manufacture of less than 15 grams of methamphetamine (id. § 15(a)(2)(A))

Issue

Defendant argues, however, that the State’s evidence failed to establish the quantity of methamphetamine that “was actually attributable to [the charged] conspiracy.”

Although he acknowledges that a total amount of over 400 grams of methamphetamine was found in the trailer in three separate containers, he contends the evidence failed to show that all, or any, of that methamphetamine was attributable to the alleged conspiracy and the Coleman fuel he gave to MB.

Defendant is looking for a reduction of his conviction.

Conspiracy

The Act provides that a person who engages in a methamphetamine conspiracy “shall face the penalty for the offense that is the object of the conspiracy” and that the person “may be held accountable for the cumulative weight of any methamphetamine, substance containing methamphetamine, methamphetamine precursor, or substance containing methamphetamine precursor attributable to the conspiracy for the duration of the conspiracy.” 720 ILCS 646/65(b).

Further, the State is required to prove that defendant intended and agreed with MB to participate in methamphetamine manufacturing and that one of the conspirators committed an act in furtherance of the agreement, it also had to prove the amount of methamphetamine attributable to the conspiracy.

As indicated, the object of the conspiracy in this case was a violation of section 15(a)(1) of the Act, i.e., participation in methamphetamine manufacturing.

Element Of The Crime

Any fact that increases the range of penalties for a crime is considered an element of the charged offense and must be submitted to a jury and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

Analysis

Here, we agree with the parties that the evidence failed to establish that all of the methamphetamine discovered in DB's trailer was attributable to the conspiracy involving defendant.

Any methamphetamine already in DB's possession had to have been manufactured prior to defendant’s delivery of the Coleman fuel and could not be attributable to defendant’s agreement with MB.

Nevertheless, we also agree with the State’s position that it presented sufficient evidence to show that at least one of the methamphetamine “cooks” discovered in the trailer was attributable to the conspiracy at issue.

Cook Of The Day

A reasonable inference from the evidence presented is that at least one of the methamphetamine “cooks” found in DB’s trailer occurred on the day the police showed up, after MB received the Coleman fuel from defendant.

Further, because MB and DB had no other Coleman fuel on or immediately prior to the search, the “cook” that occurred that day had to have been accomplished through the use of the Coleman fuel provided by defendant.

A reasonable inference may also be made that the methamphetamine “cook” found in the bathroom sink and in close proximity to the Coleman fuel provided by defendant was the “cook” that occurred on the day of arrest.

Thus, the 285.5 grams of methamphetamine associated with that “cook” were attributable to the conspiracy.

Holding

Here, the evidence sufficiently established that 100 to 400 grams of methamphetamine was attributable to the conspiracy involving defendant rather than the 400 to 900 grams charged by the State.

As a result, we accept the relief suggested by the parties and reduce defendant’s conviction to the offense of methamphetamine conspiracy based on his participation in the manufacture of 100 or more grams but less than 400 grams of a substance containing methamphetamine (720 ILCS 646/15(a)(2)(C) (West 2012)) and remand for resentencing. See Ill. S. Ct. R. 615(b)(3) (eff. Apr. 26, 2012) (providing that a reviewing court may “reduce the degree of the offense of which the appellant was convicted”).

Here are the top 10 most recent Illinois criminal law confession cases in September of 2018. Episode 534 (Duration 31:11).

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Top 10 Recent Confession Cases From The Illinois Court System (September 2018)

Here's a quick snapshot of the most important cases cases:

A Block - Coerced Confessions With "Normal" Defendants

1.  People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode 488 (Duration 18:22). Involuntary confession and improper closing arguments lead to a murder conviction that is now reversed outright. Kid kept asking for his mother. Court clearly thinks he didn’t do it.

2. People v. Phillips, 2018 IL App (3d) 130270 (February). Episode 479 (Duration 13:35). 18-year-old’s confession ruled involuntary, in part, because defendant is told baby killers get killed in prison.

B Block - Clear Wrongdoing By Police But Confession Saved

3. People v. McArthur, 2018 IL App (1st) 150626 (June). Episode 515 (Duration 8:15). 17 year old held for 73 hours before a probable cause hearing nonetheless gave a voluntary confession. It's a sex case. Time limit thing is not an absolute rule.

4. People v. Soto, 2017 IL App (1st) 140893 (January). Episode 291 (Duration 11:45). Third confession 24 hours after first Mirandaless confession was cured of the taint of the constitutional violation. This was the homeless guy who was “staying” at the station when they finally “realized” he was the main suspect.

5. People v. Mandoline, 2017 IL App (2d) 150511 (February). Episode 316 (Duration 12:31). The police misconduct here did not overbear defendant’s will so as to deprive him of the opportunity to knowingly and intelligently relinquish his rights and give statements to the police. Arson case. Wind blew the smoke into the house killing the victim sleeping inside.

C Block - Police Don't Overreact But Defendant Not "Normal"

6. In re S.W.N., 2016 IL App (3d) 160080 (July). Episode 210 (Duration 11:57). Minor had an IQ of 70, otherwise voluntary confession suppressed because minor likely didn’t understand the Miranda warnings. Forceful sexual assault case.

7. People v. Edwards, 2017 IL App (3d) 130190-B (January). Episode 300 (Duration 5:42). This 17 year old’s confession was voluntary even though he had a fifth grade reading level, suffered from various mental disorders, and that the investigating officers did not allow him to speak to his mother. Really bad violent crime. He executed a witness by putting a pillow over his face and shooting. A second victim survived.

D Block  - Overwhelming Police Presence

8. People v. Hernandez, 2017 IL App (1st) 150575 (March). Episode 332 (Duration 11:51). Confession is out; giving the defendant a fake gun residue test did not sufficiently attenuate the bad arrest. Defendant was arrested by 20 officers immediately after his ex girlfriend was found dead in her car with a shotgun wound to her head.

9. People v. Gutierrez, 2016 IL App (3d) 130619 (December). Episode 273 (Duration 9:35) Appellate court disagrees with trial court; defendant was arrested before he was transported to Kendall County thus the case is remanded for an attenuation hearing to see if the confession is out.

People v. Gutierrez, 2016 IL App (3d) 130619 (December). Episode 274 (Duration 12:33) Part 2. I also break down a bunch of older cases.

E Block - Wild Card 

10. People v. Hardimon, 2017 IL App (3d) 120772 (May). Episode 378 (Duration 9:56). Jury should not have seen that portion of the recorded interrogation where the police go at the defendant more aggressively. He didn’t confess per se but the jury got to see what the police really thought happened.

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People v. Thomas, 2018 IL App (4th) 170440 (August). Episode 533 (Duration 18:57)

The court takes the time to go through the signs of drug trafficking interdiction officers are trained to look for.

Charges

Count I charged defendant with trafficking in cannabis (more than 2500 grams) (720 ILCS 550/5.1(a) (West 2016)), count II charged him with unlawful possession of cannabis with the intent to deliver it (more than 5000 grams) (id. § 5(g)), and count III charged him with unlawful possession of cannabis (more than 5000 grams) (id. § 4(g)).

Issue

Defendant moved to suppress the introduction of the cannabis as evidence against him. His motion argued that the police officer who pulled him over for an obstructed windshield “unreasonably prolonged the duration of the stop,” thereby subjecting him to an “unlawful seizure.”

The Video

The video shows that when the Deputy walks up to the driver’s side of the SUV, he first requests defendant’s driver’s license and proof of insurance.

He asks defendant, “You from Washington?”

Then tells him to take the bandana off the rearview mirror because it obstructs his vision. Defendant removes the bandana. 

The deputy asks defendant, “Where you headin’?” and “Travellin’ straight through?” A semi goes by on the highway, drowning out defendant’s answer. Then he asks defendant, “How long you plan on bein’ there?”

It is still difficult to hear defendant, but he seems to answer either “a few days” or “two days.”

He asks defendant, “[unintelligible] know you’re coming?” and then, “Anybody know you’re comin’?” Defendant answers, “Yeah.” The deputy returns to his squad car.

The dispatcher can be heard stating on the radio: “Kentucky for Joshua Thomas, male white, 6 foot, 225, born in ’79, multiple for traffic, also multiple for drug trafficking and [unintelligible].” 

Still On The Video

Deputy again approaches the SUV.

At his request, defendant pulls forward, past the guardrail and the overpass. The deputy goes to the passenger side of the SUV with what appears to be documents in his hand. He leans into the front passenger window, so that his forearms go into the open window, and tells defendant, “Ah, the traffic stop’s over, ah, you’re free to go, all right.”

Questions Keep Coming

The deputy then withdraws from the window, without the documents, and asks him, “Ahm, you said you’re going to see ***Alabama?” Defendant answers, “Yes, sir.”

The deputy asks him, “How old’s your daughter?” “She 14,” defendant replies. Deputy says, “Fourteen. OK. She does know you’re comin’?” “Yes,” defendant answers. He replies, “OK. All right. Um, did you get arrested in Kentucky a while back?”

Defendant says, “Yeah. It’s been a long time ago.” The deputy asks him, “What was that for?” Defendant explains he used to have a “bad habit” and that he “went down a bad path” but that he had “changed [his] life” and “now [taught] martial arts” to “law enforcement and military.”

Deputy makes appreciative noises.

Here We Go The Big Question

Then deputy tells defendant, “Um, we’re out working a drug interdiction detail today. I’m not accusing you of anything. Do you have any contraband in the car, any large amounts of money, firearms, anything like that?” Defendants denies having any of those things.

Deputy then asks him, “No? Would it be OK if I searched your car?”

Defendant responds, “What’d you pull me over for?”

Deputy answers, “I pulled you over for having an obstructed windshield.” Defendant asks, “You said I’m free to go?” Deputy says, “Yeah.” Defendant says, “All right, well, thank you, sir.”

Deputy says, “All right. Have a safe trip.”

Defendant says, “All right, you have a good one.”

Deputy then tells defendant, “Tell you what, um.” The taillights of the SUV light up, but the SUV does not move. Deputy says, “Um.” The taillights go off. Deputy continues, “You don’t want me, you don’t want me searching your car, right?”

Defendant again asks, “You said I was free to go?” Deputy answers, “Yeah.” Defendant says something unintelligible.

Deputy explains to him that, in Illinois, “if you have any personal use cannabis, or anything like that, or drug paraphernalia, that’s not, it’s not even arrestable anymore, it’s a simple ticket.” Deputy asks him, “Do you have anything like that in your car?” Defendant answers, “No,” and says he does not smoke.

Deputy tells him, “OK. All right. All right. Ahm, I’m gonna have, ah, the state police walk their K-9 around your car, and if it doesn’t alert, obviously then I won’t search your car, all right? All right. Cool.”

Deputy walks back to his squad car.

About two minutes later, he returns to the SUV and tells defendant, “Trooper’s here, just put up your windows, all right?” and then walks back to his squad car.

The DVD shows the dog and its handler, the state trooper, doing the walk-around. The dog alerts on the SUV. Deputy asks defendant to get out. Deputy and the trooper then search the SUV and find the cannabis.

He places defendant under arrest. 

Deputies Testimony

He saw a black GMC Yukon sports utility vehicle (SUV) with Washington state license plates going east at 68 miles per hour. The SUV was within the 70­ mile-per-hour speed limit. Nevertheless, the deputy, noticed that a bandana was hanging from the rearview mirror of the SUV, and the bandana looked wide enough to be a material obstruction of the driver’s view (see 625 ILCS 5/12-503(c) (West 2016)).

The Deputy followed the SUV and pulled up next to it, on the left.

That is what he typically did before pulling someone over: pull up alongside the vehicle to see how many people were in the vehicle and to observe their reaction when they saw his marked squad car. Defendant appeared to be the only person in the SUV, and he would not look over at him as they went side by side down the highway.

Instead, defendant kept his gaze riveted straight ahead as he held onto the steering wheel tightly at 10 o’clock and 2 o’clock. This tunnel vision seemed “very strange and odd behavior”. He then pulls him over. 

Defendant continued to look straight ahead and would not look at the deputy. He appeared to be very nervous, and, in response to his questions, he mumbled instead of speaking clearly.

Deputy Had Problems With His Itinerary

Deputy asked him about his travel plans.

Defendant answered “he was going to Alabama” and that “he was driving straight through.” This answer caught the deputy's attention for two reasons. First, it was about a 35­ hour drive from Washington to Alabama, and although it would have been possible, it would have been very unusual to drive 35 hours “straight through.” Second, it appeared to the deputy from a map of the interstate highway system, which he accessed on his cell phone in his squad car, that “Illinois was way too far north” and there would have been no reason for defendant to drive through Illinois to get from Lakewood, Washington, where, according to his driver’s license, he resided, to even the northernmost city of Alabama.

Additionally, the deputy thought to himself it made little sense to “travel 70 hours in a car to spend two days somewhere,” especially since it would have been cheaper to fly than to drive an SUV such a long way.

This Didn't Happen This Way

The Deputy asked defendant if his daughter knew he was coming.

Initially, defendant “could not answer [him].” Deputy testified: “He mumbled something out that wasn’t even a word, so I had to ask him a second time, and he finally told me that, yes, she did know.” Defendant was, Deputy admitted, soft-spoken.

The difficulty in understanding him lay not so much in the softness of his voice as in his mumbling. Further into the traffic stop, however, his articulation grew clearer.

What Was In The SUV

He testified that inside the SUV he saw a large amount of “road trash”: at least five energy drinks and “lots of empty wrappers of several bags of beef jerky, chips, [and] snacks”—the kind of stuff that “would be used to keep people up to drive long distances.” He also saw “a backpack, no large amounts of luggage, [and] a large speaker box.” From his vantage in the traffic stop, he could not see anything else inside the SUV.

Consensual Encounter? 

The State’s position on appeal is that, after Deputy ended the first detention of defendant by returning his documents to him and telling him he was free to go, he and defendant had a consensual encounter, in which he asked questions of defendant, and that, after this consensual encounter, he then detained defendant a second time by telling him he was going to have a dog smell his vehicle.

In other words, it is the State’s position that there was a consensual encounter sandwiched between two detentions.

Unreasonable Delay

Although a police officer may stop and briefly detain a motorist when the officer has seen the motorist commit a traffic offense, the traffic stop can become an unreasonable seizure “if it is prolonged beyond the time reasonably required to satisfy its initial purpose.” People v. Heritsch, 2017 IL App (2d) 151157, ¶ 9.

“[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop.” Rodriguez, 575 U.S. at ___, 135 S. Ct. at 1614. “Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” Id. at ___, 135 S. Ct. at 1614.

Analysis

In this case, the mission of the traffic stop was done when the deputy gave defendant a verbal warning for an obstructed windshield and told­ him he was free to leave.

When deputy gave defendant a verbal warning, returned his documents to him, and told him he was free to leave, the traffic stop ended. “Generally, a traffic stop ends when the paperwork of the driver *** has been returned *** and the purpose of the stop has been resolved.” People v. Leach, 2011 IL App (4th) 100542, ¶ 12.

After the traffic stop ended, Deputy continued to ask defendant questions, such as how old his daughter was, whether she knew he was coming, whether defendant had any contraband in the vehicle, and whether he would consent to a search of the vehicle.

Holding

In the totality of those circumstances, we conclude that the deputy lacked reasonable suspicion to detain defendant for the dog sniff.

After telling defendant he was free to leave, the depyty did not glean any additional information that would have aroused reasonable suspicion, and yet he told defendant, “I’m gonna have *** the state police walk their K-9 around your car,” thereby signifying to defendant that he was not free to leave.

This was an unreasonable seizure, unsupported by reasonable suspicion of criminal wrongdoing, and, consequently, the fruit of the unreasonable seizure, the cannabis, must be suppressed as evidence.

Yeah But Did The Deputy Have Independent Probable Cause For The Sniff?

The State disputes the court’s finding that the deputy lacked a reasonable, articulable suspicion of drug trafficking.

The State argues that, considered in their totality, the facts known to him at the time and the inferences his law-enforcement training and experience had taught him to draw from such facts made him reasonably suspicious and “justif[ed] the detention of defendant and his vehicle for the canine sniff and all that followed.”

The Reasons He Suspected Drug Trafficking...

He testified he suspected defendant of drug trafficking for the following reasons—

1. Excessive Nervousness. Although nervousness can contribute to reasonable suspicion (People v. Moore, 341 Ill. App. 3d 804, 811 (2003)), nervousness is not enough to arouse reasonable suspicion (see People v. Sinegal, 409 Ill. App. 3d 1130, 1135-36 (2011)).

2. Driving Under the Speed Limit. Because it is illegal to drive faster than the speed limit, driving a mere two miles per hour below the speed limit does not contribute to reasonable suspicion.

3. Out of State Plates and His Purported Destination. Defendant’s presence on Interstate 74, near Carlock, Illinois, contributed little to reasonable suspicion. On Google Maps, one of the suggested routes from Lakewood, Washington, to Alabama is through Idaho, Montana, North Dakota, Minnesota, Wisconsin, Illinois, Kentucky, and Tennessee. In Illinois the suggested route goes through Bloomington, via Interstate 39. Carlock is only 13.4 miles from Bloomington and, therefore, is not far out of the way.

4. Evidence of Hard Travel. This was a 35 hour drive. “Road trash” was evidence of “hard travel.” Couriers of drugs wanted to minimize their risk by getting rid of the drugs as soon as they could. So, instead of stopping at restaurants, they typically drove straight through, keeping themselves awake and boosting their stamina by loading up on energy drinks and junk food from gas stations. Problem is, innocent drivers likewise consume energy drinks and junk food to stay awake on the road, and they drive straight through to avoid spending money on hotels. Because fast-food wrappers and containers litter the floors of many cars traveling long distances on interstate highways, such supposed signs of “hard travel” contribute little to reasonable suspicion. “The facts used to support an investigatory detention are insufficient when they describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures.” People v. Ortiz, 317 Ill. App. 3d 212, 225 (2000).

5. Driving Instead of Flying, Only to Stay a Few Days.  First, we note that, contrary to the deputy's testimony, “a few days” does not necessarily mean only two days. Instead, “few” means “a small number of”—which could be more than two and all the way up to whatever number one regards as the upper limit of “small.” New Oxford American Dictionary 626 (2001). ¶ 90 Second, it is not unusual for people to drive even if flying would be cheaper. They want to see the scenery or stop at places along the way, or they need transportation once they reach their destination. Defendant’s choice to drive rather than to fly contributes little to reasonable suspicion.

6. No Luggage in Sight. Deputy testified he saw no luggage. He saw, however, a backpack. Not everyone owns luggage, and if defendant intended to stay only a few days with his daughter, he could have stuffed his backpack full of clothing. So, the lack of luggage other than a backpack makes no contribution to reasonable suspicion.

7. A Criminal History of Drug Trafficking. The dispatcher told the deputy that defendant had “multiple for drug trafficking” in Kentucky. A criminal history and nervousness, without more, do not arouse reasonable suspicion. People v. Davenport, 392 Ill. App. 3d 19, 28 (2009). 

This is the August 2018 Illinois criminal case law audio round-up (the fast case law summary). Episode 532 (Duration 14:54)

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

Here's a quick snapshot of the top cases:

1. In re N.G.

McFadden is overruled.

2. People v. Lee

The officer said the baggie looked like it had oatmeal in it, later testing revealed it to be cocaine.

3. People v. Kochevar 

Another Romeo and Juliet Defender escapes from having to register as a sex offender.

4. People v. Coty

Defendant had an IQ between 55 and 65, his 50 year sentence was a life sentence, and he needs a new sentencing hearing.

5. People v. Peel

Defendant shot his gun off in his yard into the ground in the middle of the night.

6. People v. King

State's expert witness who came in to plug the holes in their case got a little carried away.

7. People v. Johnson

Forgery reversed; state proved he made the funny money but that he he was going to pass it.

8. People v. Hiatt

Defendant wins his postconviction petition because there were enough signs he was unfit.

9. People v. Slabon 

Court did not error in refusing this guy to argue he was too intoxicated to know she was a nurse.

10. People v. Long

Defendant is guilty of a conspiracy but the state had to prove how much they meth they made with his camping fuel.

11. People v. Thomas

The court takes the time to go through the signs of drug trafficking interdiction officers are trained to look for.

People v. Peel, 2018 IL App (4th) 160100 (August). Episode 531 (Duration 10:11) 

Defendant shot his gun off in his yard into the ground in the middle of the night.

Gist

Defendant fired a handgun from somewhere in the vicinity of the front door of his home located in a residential subdivision of Heyworth, Illinois.

Defendant Said

According to defendant, he decided to test-fire a Smith & Wesson 9-millimeter semiautomatic handgun in his front yard sometime after 8 p.m. because his girlfriend was going to be using it while qualifying for her concealed carry permit.

Defendant said test-firing was necessary because the gun had jammed previously and he was trying new ammunition at the suggestion of his father. Defendant testified he exited his front door after consuming one or two beers, went down the front steps, and fired a number of rounds into the ground in his front yard, in a location he previously cleared of snow for his dogs.

He could not recall the exact number of rounds fired, but he estimated it to be “five to nine.” He saw the holes where the rounds landed and did not see any ricochet. Defendant described his angle of fire as, “I would guess 30 degrees, less than 45 degrees right out in front of me.”

The empty shell casings were ejected back and to the right of defendant as he fired.

He said he fired the rounds as quickly as possible because that was when the gun jammed previously, and he estimated it took no more than three to four seconds. 

Witnesses Said

Neighbors reported hearing different groupings of shots, up to 3.

7 casings were found near or in Defendant’s house.

A witness said he saw a series of four flashes followed by loud booms coming from the front door, straight across from the doorbell at a height just below the deadbolt lock on the front door.

Also, although Defendant said he was test-firing the handgun because it had jammed previously, so he had loaded it with new Federal brand ammunition, yet the police recovered casings of two different types, brass and nickel.

Reckless Discharge of a Firearm

the State charged defendant with reckless discharge of a firearm (720 ILCS 5/24-1.5(a), alleging defendant discharged a firearm in a reckless manner, which endangered the bodily safety of an individual.

After a jury trial he was convicted. The court sentenced defendant to 30 months of probation and 4 days of imprisonment.

“A person commits the offense of reckless discharge of a firearm when he (1) recklessly discharges a firearm, and (2) endangers the bodily safety of an individual.” People v. Collins, 214 Ill. 2d 206, 212, 824 N.E.2d 262, 265 (2005).

Recklessness

“A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” (Internal quotation marks omitted.) People v. Watkins, 361 Ill. App. 3d 498, 500, 837 N.E.2d 943, 945 (2005).

Issue

Defendant argues his conviction should be overturned where the evidence showed he fired a handgun into the ground, there was no evidence of ricochet, and no one was near him when he discharged his weapon.

Endangerment Required

“[I]n order to satisfy the element of ‘endangerment’ contained in the statute, the State must establish that a defendant’s reckless conduct created a dangerous situation—such that an individual was in peril of probable harm or loss.” Collins, 214 Ill. 2d at 215.

Defendant argues he shot into the ground, a practice he believed to be safe because it lessened the possibility of any ricochet. Moreover, he said he saw no evidence of ricochet when he fired.

Why He Lying?

Defendant admitted on cross-examination he initially told police he had not fired a gun that night. 

The Point Of The Law

As our supreme court has stated in Collins, part of the danger inherently caused by a reckless discharge of a firearm is the ricochet effect when bullets hit the ground. Collins, 214 Ill. 2d at 218. Further, the supreme court noted a defendant’s conduct need not actually endanger anyone but instead could be conduct that might result in harm, citing the legislative history for section 24-1.5 of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/24-1.5 (West 2012)).

They pointed out how prior to enactment of the reckless discharge of a firearm statute, there were only two choices for someone firing a firearm recklessly—a Class A misdemeanor for reckless conduct or a Class 1 felony for aggravated discharge of a firearm.

People v. Moreno

Defendant appears to erroneously argue the State must show there was an identifiable “someone” in his vicinity when he fired his handgun in order to establish reckless endangerment under the statute. This is a misreading of People v. Moreno, 2015 IL App (3d) 130119, 29 N.E.3d 660, and contrary to the supreme court’s express finding in Collins.

In Collins, the court noted how the specific identity of the victim is not an essential element and the danger or peril need only be potential or a possibility. Collins, 214 Ill. 2d at 215-19.

The Moreno court merely noted how, under the facts of the case, the only potential victims were behind the defendant when he fired, and the danger due to a potential ricochet was “virtually zero.” Moreno, 2015 IL App (3d) 130119, ¶ 44.

The court’s reasoning in Moreno cannot be used to say firing into the ground is inherently safe either, as the possibility of a round ricocheting off the ground when fired at an angle is always possible.

In this case, it was midwinter, which, as we can note just as well as the jury, means the ground is possibly frozen or nearly so. The facts before this court do not fall under the narrow exception for which Moreno applies.

 See People v. Moreno, 2015 IL App (3d) 130119 (March). (dude shoots into the ground with people standing right behind him)

Analysis

Defendant faced toward the house of his neighbor by his own description as he fired and would have been standing closer than the 138 feet measured by the deputy. This significantly undermines the supposed safety of defendant’s own version of events.

Here, even if defendant’s version of events was accepted, he fired “five to nine” rounds, not straight or nearly straight down into wintertime, recently snow-covered ground, but at an angle of he “would guess 30 degrees, less than 45 degrees right out in front of” him, in the immediate vicinity of a number of neighbors’ houses.

More importantly, if the jury did not believe defendant’s version, he fired a number of rounds off his front porch, almost straight out from the doorway, and these were not the only rounds fired that night. Witnesses described a series of three shootings. The first two, not as loud as the third, were fired somewhere and consisted of “five or so” each time.

It is reasonable for the jury to conclude defendant was firing from at least two different locations since the first two series of shots were not seen by neighbors and were not as loud as those off the front porch.

Contrary to defendant’s argument, this sounds exactly like the sort of conduct for which this statute was intended: For someone who just recklessly discharges a firearm. Doesn’t necessarily aim it at someone or aim it into a occupied building, but goes around town or out in the country or wherever it is shooting off a gun recklessly, with reckless abandon? See Collins, 214 Ill. 2d at 216 (quoting 88th Ill. Gen. Assem., House Proceedings, April 22, 1993, at 210 (statements of Representative Homer)). 

Holding

Looking at the evidence in the light most favorable to the State, we find there was enough evidence in the record upon which a jury could find defendant guilty of reckless discharge of a firearm.

Seriously, What If Nobody Is Around?

See People v. Grant, 2017 IL App (1st) 142956 (February). (dude shoots his hand in his own apartment)

Note:

Jury asked if the law required risk to others other than defendant. They punted and said they had enough information in the instructions.

Legally, the answer is definitely "yes."

See “[O]ur legislature intended the term ‘an individual’ to mean someone other than the ‘person’ who is charged with the offense of reckless discharge of a firearm.” People v. Grant, 2017 IL App (1st) 142956, ¶ 24, 73 N.E.3d 585.

Prior to the First District’s holding in Grant, 2017 IL App (1st) 142956, no Illinois decision had interpreted the meaning of “an individual” in the reckless discharge statute. The dispute in Grant centered on whether that phrase could be interpreted to include the defendant. Grant, 2017 IL App (1st) 142956, ¶ 8.

See Also

People v. Olivieri, 2016 IL App (1st) 152137 (August). Episode 215 (Duration 8:18) (Sympathetic Nervous System Reaction Wins The Day In This Gun Case)

What’s so wrong about about a little firearm discharging during the holidays? That’s why we have guns. Am I right? Am I right?

Well, this case begins with a little holiday celebrating. See People v. Moreno, 2015 IL App (3d) 130119 (03/25/2015).

Facts

It is News Year’s Eve! Defendant is at home doing a little celebrating with family and friends.

Defendant owns a gun. However, he is a responsible gun owner. He keeps his gun locked up in a box and only takes it out when it is appropriate to do so.

- Like after he has been drinking, is a little drunk, and has guests with their children over for a party.

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But any how…

Defendant walks out of his house and onto his porch and fires his gun. It was a little .22. And I know it was a little gun from mob movies.

Now, this is important. Defendant shoots the gun into ground; into a grassy dirt area. The gun was not fired while aimed in the air nor in anyone's direction.

Police just happened to be in the area because they were reporting to shots fired. Not Defendant’s shots but other shots. Maybe they were shooting guns earlier maybe not. Who knows?

Defendant is quickly arrested and his guns confiscated. Shell cases are recovered in the dirt right where Defendant had fired his gun.

Defendant was convicted of Reckless Discharge of a Firearm.

Easy Case

Now this in every respect to me seemed like an easy case. Caught, literally with a smoking gun in his hand by the police.

Lets move on to sentencing.

Issue

But Defendant in his appeal was saying: “Hey, not so fast.”

“Hey Man, (sounds like something he would say)

• I was on my own property
• I used my little gun
• The kids stayed inside
• Everyone was behind me
• I fired away from people
• I fired into the ground

There was nothing reckless about this shooting.”

The prosecution was, on the other hand was arguing that this shooting occurred in a residential area.

There is more than enough case law around saying that shots fired in a residential area is per se reckless. Defendant is not denying that he did this. His house was in a residential area.

Even though he fired into the ground it was still reckless because there is a chance of

• Ricochet off the ground
• Gravel is often found in the ground
• Metal pipes are in the ground

Can we move on to sentencing?

What is a Reckless Discharge of a Firearm?

So, what did the appellate court decide?

Essentially, we are asking the question: What is a Reckless Discharge of a Firearm?

The Illinois Criminal Code says that a …

“person commits reckless discharge of a firearm by discharging a firearm in a reckless manner which endangers the bodily safety of an individual.” 720 ILCS 5/24-1.5(a).

Recklessness is further described as when a person …

“...consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow... and that disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation...” 720 ILCS 5/4-6.

The “Residential” Case Law

The prosecution is correct in pointing out that there is a plethora of cases out there saying that shots fired in a residential area is reckless.

But that is not exactly the rule. Its not a per se rule unless the courts say it is.

What the Illinois Supreme Court has actually said about the charge of Reckless Discharge comes down to things:

(1) The discharging of a firearm; and

(2) Endangering the bodily safety of an individual

See People v. Collins, 214 Ill. 2d 206 (2005).

Furthermore, the argument that shooting a gun into the air in a residential area is dangerous because we all know that bullets shot into the air must come down. The bullets coming down can hurt someone.

There are indeeds recorded cases in the books of individuals being killed by a bullets fired into the air miles away in a residential area.

Arguement

The reviewing court said that firing into a dirt patch is not the same as firing into the air.

“[Defendant's shots into the ground were not per se reckless.”  ¶ 43. Even the cop testified that “a dirt pile is utilized at the Illinois State Police headquarters to absorb bullets fired at the range and that defendant fired his gun into a grassy dirt area.” ¶  43.

The court went on to hold that nobody was ever in any real or demonstrated danger here.

There was evidence that -

• Defendant shot blanks and life rounds
• Shots aimed at the ground
• The partygoers were behind Defendant

Thus, the risk of danger by potential ricochet was virtually zero. See ¶  44.

Holding

Conviction for reckless discharge is overturned. Conviction for possession of controlled substance the cops found in Defendant's room stands.

There was a dissenting opinion.

The dissent pointed out the police are guns experts and they testified that this was reckless. This should be good enough for a conviction, argued the dissent.