Kane County Nuggets

These are the top 13 most important criminal law cases released by Illinois Supreme Court in 2017. Episode 522 (Duration 37:42)

Here's a quick snapshot of the top cases:

1. People v. Holmes

Illinois Supreme Court adopts the federal rule in holding that gun arrests before Aguilar are supported by probable cause.

2. People v. Brooks

Defendant is taken to the hospital kicking and screaming literally against his will and his blood is drawn.

3. People v. Way 

This was the appellate court decision that reversed the aggravated DUI conviction.

4. People v. Hardman

Is is sufficient for a couple officers to testify they are familiar with the neighborhood and that the building is a school?

5. People v. Fort

Illinois Supreme Court says State must charge second degree murder if they want to continue with adult sentencing after they lose a first degree murder count.

6. People v. Ayres

What does defendant have to say to trigger a Krankel inquiry?

7. People v. Shinaul

State is not allowed to reinstate charges after Defendant vacates an invalidated Aguilar AUUW conviction.

8. People v. Howard

Illinois Supreme Court upholds the constitutionality of anti loitering statute for sex offenders.

9. People v. Pearse

Illinois Supreme Court acknowledges that SORA is a big bloody mess and calls for legislative clarification and police practice changes.

10. People v. Sebby

Supreme Court explains how plain error analysis works.

11. People v. Brown

Defendant plead guilty because he was told his sentence was a 50% case when in fact it was an 85% case.

12. People v. Relerford

Just a small part of the Illinois stalking statute was declared unconstitutional.

13. People v. Ringland

Prosecutors cannot designated officials with general policing power.

People v. Varnauskas, 2018 IL App (3d) 150654 (July). Episode 521 (Duration 24:46)

What does the new licensplate obstruction statute say?

2 kilos of heroin and 1 kilo of cocaine were found under defendant's hood. He was sentenced to 40 years on prison.

Defendant was stopped because his rear license plate was obscured by an empty bicycle rack attached to the car. It's quite clear that the straps were hanging down so low that the license plate was obstructed and that only two digits of the license plate could be read.

During the traffic stop a drug detection dog gave a positive alert for the presence of drugs in defendant’s vehicle. The officer obtained a rental agreement for the vehicle. Defendant’s name was not on the rental agreement. The rental agreement indicated that the vehicle was due to be returned to Los Angeles two days later.

The trooper asked defendant to sit in the front passenger seat of his squad car so that he could speak with defendant and determine if defendant was authorized to drive the vehicle.

The officer obtained a rental agreement for the vehicle. Defendant’s name was not on the rental agreement. The rental agreement indicated that the vehicle was due to be returned to Los Angeles two days later.

At the same time, the trooper checked for defendant’s driver’s license information via his telecommunications system. The trooper received information that defendant had a valid driver’s license. Defendant indicated he was coming from Colorado and the vehicle had been rented by his friend, in Los Angeles, California.

Defendant also indicated that he had flown into Los Angeles and was traveling via the car to see his mother in Connecticut. Defendant was unable to specify which day he had flown into Los Angeles and was not sure if he was going to return the rental vehicle to California.

Defendant told police that there was no bicycle on the bicycle rack because he had sold it in Colorado.

Trooper Jarrod Johnson arrived on scene and continued to fill out a warning ticket for defendant while Veryzer walked his canine partner around defendant’s vehicle.

The trooper testified regarding the procedure for walking the canine around a vehicle.

He indicated that he attaches a six-foot lead to one of the canine’s two collars and brings the canine to the front of the vehicle (within three feet of the vehicle) and places the canine in the sit position. He would then give the canine the command to “seek, find dope,” which is the canine’s trained command to look for odors of narcotics that he was trained to alert on—cocaine, heroin, methamphetamines, crack cocaine, and cannabis.

The trooper would then walk the canine around the vehicle twice counterclockwise, returning to the front the vehicle. On the second rotation of walking his canine partner around defendant’s vehicle, his canine partner came to a sudden stop at the trunk area of defendant’s vehicle.

The trooper described the canine alerting to having found narcotics as when the canine has “slowed his process, snapped his head and body back to the left, and began taking short, quick breaths.” After alerting, the canine would then sit as a final response because he is trained to sit when he positively recognizes one of the five odors that he is trained in.

Another police trooper searched defendant’s vehicle on the side of the road. They searched for 20 minutes.

They conducted a cursory search of defendant’s vehicle by checking all the bags and general locations of the vehicle where drugs have been found during other vehicle searches in the past, including searching inside the bags and luggage that were in the trunk of defendant’s vehicle, the interior, under the seats, under the dashboard, and inside the doors by sticking a wedge into the doors to be able to see into the doors.

Due to the weather being below freezing at 20 degrees Fahrenheit and due to safety issues regarding oncoming traffic and low visibility because it was dark outside, the troopers decided to relocate defendant’s vehicle to a nearby police station in order to continue the search.

Drugs were found under the hood.

The troopers then decided to relocate the search to a location where there would be more light to better see into various areas of the vehicle and where it would be safer and warmer because they could not see due to the darkness.

It was dangerous on the side of the road and the temperature was about 20 degrees outside.

They relocated defendant’s vehicle to the Geneseo Police Department and, after searching the vehicle for 10 or 15 minutes, they found the drugs under the hood in the engine compartment in an area covered by a black piece of metal or plastic.

It was 2 kilograms of suspected heroin and a 1 kilogram of suspected cocaine wrapped in black material, in a void area of defendant’s vehicle located by the engine and below the car’s windshield.

He was not able to see the black packages of narcotics in the void compartment area under the windshield on the roadside by just shining a flashlight because a flat piece of plastic or metal covered it. That piece of metal or plastic could easily be removed by removing some clips that covered the compartment, which was part of the vehicle from the factory, was not modified, and could be easily accessed.

Prior to trial, defendant filed a motion to suppress the evidence found during the search of his vehicle, arguing the traffic stop was initiated without probable cause or reasonable suspicion because the bicycle rack was not a violation of section 3-413(b) of the Vehicle Code because it was not attached to the license plate.

People v. Gaytan, 2015 IL 116223 (May).

The Illinois Supreme Court in Gaytan found that a prior version of section 3-413(b) was ambiguous, where the statute required that every registration plate shall be securely fastened to the vehicle “in a place and position to be clearly visible and shall be maintained in a condition to be clearly legible, free from any materials that would obstruct the visibility of the plate, including, but not limited to, glass covers and plastic covers” (625 ILCS 5/3-413(b) (West 2010)).

The Illinois Supreme Court noted the word “materials” in section 3-413(b) could have been interpreted either as:

(1) prohibiting only items attached to the license plate itself because the only examples of the prohibited materials provided in the statute were license plate covers (an item attached to the plate itself); or
(2) prohibiting any obstructing object whatsoever. Id. ¶¶ 30-31.

Because the statute was deemed ambiguous in Gaytan, the Illinois Supreme Court invoked the rule of lenity and applied the more lenient interpretation of section 3-413(b) as prohibiting only those objects that obstructed the visibility and the legibility of the license plate that were physically connected or attached to the plate itself. Id. ¶ 39.

The Illinois Supreme Court further concluded that it was objectively reasonable for the officers to believe that the trailer hitch violated section 3-413(b) so that the vehicle stop was constitutionally valid under the fourth amendment.

The statute had since been changed to remove the language referencing license plate covers.

The Illinois Vehicle Code (625 ILCS 5/3-413(b) (West 2014)), section 3-413(b) provided:

“Every registration plate shall at all times be securely fastened in a horizontal position to the vehicle for which it is issued so as to prevent the plate from swinging and at a height of not less than 5 inches from the ground, measuring from the bottom of such plate, in a place and position to be clearly visible and shall be maintained in a condition to be clearly legible, free from any materials that would obstruct the visibility of the plate. *** Registration stickers issued as evidence of renewed annual registration shall be attached to registration plates as required by the Secretary of State, and be clearly visible at all times.”

In 2014, at the time of the traffic stop in this case, section 3-413(b) of the Vehicle Code had been revised, so that the prohibition against “registration plate covers” was moved from subsection (b) to subsection (g). See 625 ILCS 5/3-413(b), (g) (West 2014).

Subsection (b) did not reference license plate covers, mandating that every registration plate shall be securely fastened to the vehicle “in a place and position to be clearly visible and shall be maintained in a condition to be clearly legible, free from any materials that would obstruct the visibility of the plate.” Id. § 3-413(b).

Subsection (g) indicated, “[a] person may not operate any motor vehicle that is equipped with registration plate covers.” Id. § 3-413(g).

The revised language of section 3-413(b) removed any ambiguity as to whether prohibited obstructions were only those attached to the license plate, making the statute clearly prohibitive of any materials that would obstruct the visibility of a license plate.

In this case, the empty bicycle rack was affixed to the vehicle in such a way that at least two bars or straps of the bicycle rack were secured in a vertical position over the license plate, covering at least two digits of the license plate.

The ends of the straps of the bicycle rack obstructed the license plate at times when the car was traveling and when the car was at a stop. Because the video and photographs showed that black bars or straps of the bicycle rack lay securely over the license plate, obstructing the visibility of the license plate, and at least two digits of the license plate were not legible.

Therefore, we conclude that the manner in which the bicycle rack was attached to the vehicle in this case constituted a violation of section 3-413(b) of the Vehicle Code. Thus, the trial court did not err in denying defendant’s motion to suppress.

See Episode 403 - People v. Pulido, 2017 IL App (3d) 150215 (August).

In Pulido, defendant’s vehicle was stopped for speeding by an Illinois state trooper. Two minutes later, another trooper arrived on scene with his canine partner, and the canine performed a free-air sniff of defendant’s vehicle, which resulted in the canine alerting to the driver’s side door.

Both troopers searched the inside of the vehicle and the engine compartment, and they found no narcotics. Police relocated the defendant’s vehicle to a nearby police station to further search the vehicle because it had begun raining and for safety concerns.

Eventually, tubes containing methamphetamines wrapped with black tape were removed from the air filter of the defendant’s vehicle. 

On appeal in Pulido, a panel of this court held the officers had improperly transported defendant’s vehicle to the police station because the probable cause that had been developed during the traffic stop had dissipated when no drugs or hidden compartments were found during the roadside search of the vehicle.

We decline to follow Pulido.

We do not believe that probable cause had dissipated just because the drugs were so well hidden and certain surrounding conditions made completing a thorough roadside search of the vehicle impractical.

Based on probable cause, the officers conducted a roadside search of readily accessible areas in the vehicle and areas of the vehicle where drugs are typically hidden by drug traffickers. Inclement weather, the time of day with respect to the available lighting, and safety concerns due to being alongside the highway in the dark led to the decision to continue the search of defendant’s vehicle by relocating the vehicle to a better-suited location.

In this case, the evidence of the canine alerting to an odor of drugs provided probable cause for the troopers to believe that defendant’s vehicle contained drugs and to support a search of defendant’s vehicle. After searching all readily accessible areas of the vehicle, the troopers decided that continuing to search the vehicle in the dark, alongside the highway, in freezing temperatures, was unsafe and impractical.

Under the circumstances of this case, the probable cause that supported the search did not dissipate when the troopers decided to relocate the vehicle so that a complete and thorough search of the vehicle could be executed in safer location with better lighting.

The troopers had probable cause to search the vehicle without a warrant based on the canine’s alert and Veryzer’s knowledge that illegal drugs are typically transported from the west coast to east coast on interstate highways, including on I-80 where defendant was stopped, often times in vehicles  rented by third parties, such as was the case with defendant.

The probable cause that supported the warrantless roadside search of defendant’s vehicle continued to exist after the vehicle was relocated to a nearby police station to allow the troopers to conduct a thorough search of the vehicle.

Therefore, the trial court did not err by denying defendant’s motion to suppress evidence. Absent any error, there could be no plain error requiring a review of defendant’s forfeited claim. Accordingly, we affirm the judgment of the trial court.

People v. Mischke, 2018 IL App (2d) 160472 (July). Episode 520 (Duration 8:14) 

Defendant was resentenced to an aggregate sentence larger than his original sentence.

Defendant, Donald J. Mischke Jr., appeals from the judgment of the circuit court of Lake County resentencing him upon remand to consecutive terms of 26 years and 7 years in prison.

Following a bench trial, defendant was found guilty of, among other things, one count of first-degree murder (720 ILCS 5/9-1(a)(3)) and one count of aggravated driving while under the influence (DUI) with cocaine in his urine (625 ILCS 5/11-501(a)(6), (d)(1)(A).

The charges arose out of defendant’s killing another driver while fleeing from a retail store into which he had intentionally driven his vehicle and from which he had stolen a television.

Defendant was sentenced to concurrent terms of imprisonment of 26 years on the murder conviction and 7 years on the DUI conviction.

In a prior appeal this court vacated his sentences, as they were required to be consecutive (see 730 ILCS 5/5-8-4(d)(1)), and remanded for resentencing. See People v. Mischke, 2014 IL App (2d) 130318, ¶¶ 23, 25.

Upon resentencing the trial judge did not budge.

Thus, the court resentenced defendant to consecutive terms of 26 years’ imprisonment on the murder conviction and 7 years’ imprisonment on the DUI conviction.

On appeal, defendant contends that the trial court abused its discretion in imposing the same sentence for each offense when the aggregate sentence of 33 years exceeded the original aggregate of 26 years.

Generally, under section 5-5-4(a) of the Unified Code of Corrections (730 ILCS 5/5-5­ 4(a)), a trial court at resentencing may not impose a more severe sentence.

Specifically, the code says:

Where a conviction or sentence has been set aside on direct review or on collateral attack, the court shall not impose a new sentence for the same offense or for a different offense based on the same conduct which is more severe than the prior sentence less the portion of the prior sentence previously satisfied unless the more severe sentence is based upon conduct on the part of the defendant occurring after the original sentencing.

See also 730 ILCS 5/5-4.5-50(d), which imposes the same restriction on a trial judge after a motion to reduce sentence is filed. It says:

"...The court may not increase a sentence once it is imposed..."

Our supreme court has long held that “a harsher sentence imposed after a successful appeal or motion to reconsider is only proper if it is based on additional bad conduct performed by the defendant after the original sentencing.” People v. Moore, 177 Ill. 2d 421, 433 (1997). A defendant should not have to run the risk that challenging a sentence might result in a longer sentence and should not be penalized for his efforts to seek relief from the sentence he received. People v. McBride, 395 Ill. App. 3d 204, 209 (2009).

However, when a trial court is required to resentence a defendant to consecutive sentences, section 5-5-4(a) applies only to the individual sentences, not the aggregate sentence. People v. Harris, 366 Ill. App. 3d 1161, 1165-66 (2006).

Indeed, our supreme court has stated that each conviction results in a discrete sentence that must be assessed individually. People v. Carney, 196 Ill. 2d 518, 530 (2001). As such, consecutive sentences do not constitute a single sentence and cannot be combined as though they were one sentence for one offense. 

Thus, regardless of any increase in the aggregate sentence, an individual sentence on remand does not violate section 5-5-4(a), provided that it does not, in the absence of any new aggravating evidence, exceed the original individual sentence. Harris, 366 Ill. App. 3d at 1165-66; People v. Sanders, 356 Ill. App. 3d 998, 1005 (2005).

Thus, defendant’s reliance on the increase in the aggregate of the sentences is misplaced.

Here the trial judge explained that the appropriate sentence for each offense remained the same as originally imposed and that to shorten either sentence would deprecate the seriousness of the offense. 

Affirmed.

See Also People v. Amans, 2018 IL App (2d) 170405 (June).

People v. Brown, 2018 IL App (3d) 150070-B (July). Episode 519 (Duration 5:48)

UUW Felon does not merge with armed violence predicated on drug possession.

The issue on appeal is whether the trial court’s sentencing determination violated one-act, one-crime principles.

Brown argues that his conviction for unlawful possession of a weapon by a felon must be vacated under one-act, one-crime principles because it was based on the same physical act of gun possession as used in his armed violence conviction.

The trial court imposed an 18-year term of imprisonment for the armed violence conviction and an 8-year term for unlawful possession of a weapon by a felony with the sentences to be served consecutively to each other and at 85%.

The drug offense merged into the armed violence.

The cause proceeded to a bench trial.

Two Peoria County detectives testified that Brown had a gun on his person when they arrested him for an unrelated first degree murder. An officer patted down Brown prior to bringing him to the police station and conducted another pat down search before uncuffing Brown at the station.

Brown was interviewed, used the bathroom, and was again searched prior to transport to the county jail. During this search, a small baggie of cocaine was found in the watch pocket in Brown’s jeans.

Brown argues that his conviction for unlawful possession of a weapon by a felon must be vacated under one-act, one-crime principles because it was based on the same physical act of gun possession as used in his armed violence conviction.

Courts employ a two-step analysis in applying one-act, one-crime principles. See People v. King, 66 Ill. 2d 551, 566 (1977).

First, the court decides whether the defendant’s conduct was a single physical act or multiple acts. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996). If a single act, multiple convictions based on the act are prohibited. 

Second, where the conduct consisted of multiple acts, the court must determine whether any of the offenses are lesser-included offenses. 

See People v. Coats, 2018 IL 121926 (January). Episode 466 (Duration 7:24).

The Coats court resolved the conflict between the Second District case of People v. Williams, 302 Ill. App. 3d 975 (1999), and the Fourth District decision in People v. White, 311 Ill. App. 3d 374 (2000). Coats, 2018 IL 121926, ¶ 26.

The King court defined “act” as “any overt or outward manifestation which will support a different offense.” King, 66 Ill. 2d at 566.

Brown’s felon status is not an “overt or outward manifestation” but “a state of being.” Coats, 2018 IL 121926, ¶¶ 15, 27. But the drugs is a different thing.

We first decide whether Brown’s conduct constituted a single act or multiple acts.

We find that Brown’s acts of armed violence based on drug possession and possession of a weapon by a felon are separate acts.  Although possession of a handgun was a common act shared by both offenses, the armed violence conviction included the separate act of drug possession.

Despite that both offenses involve possession of a gun, the armed violence count also includes the separate act of simultaneously possessing drugs. See Rodriguez, 169 Ill. 2d at 188 (citing People v. Lobdell, 121 Ill. App. 3d 248, 252 (1983) (where there is an additional act that can support an additional offense defendant may be convicted on both offenses even if they share a common act)).

Having determined that Brown’s convictions were not based on a single act, we must address the second step in the King analysis, whether any of the offenses are lesser included.

A lesser-included offense is an offense “established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.” 720 ILCS 5/2-9(a).

To determine that question, we apply the abstract elements approach. See People v. Miller, 238 Ill. 2d 161, 173 (2010). The abstract elements approach compares the statutory elements of the two offenses, and if all of the elements of the first offense are included in the second offense and do not contain any elements not included in the second offense, the first offense is a lesser-included offense.

Unlawful possession of a gun by a felon is not a lesser-included offense of armed violence. Both counts include the possession of a weapon. The possession of a weapon count contains the additional element of felon status. The armed violence count includes the additional element of drug possession.

We find entry of judgment on both convictions did not violate one act, one-crime principles and was not error. Because there was no error, we conclude plain error review is not applicable and affirm Brown’s convictions.

This is the July 2018 Illinois criminal case law audio round-up (the fast case law summary). Episode 518 (Duration 14:57)

Here's a quick snapshot of the top cases:

1. Carpenter v. Varnauskas

What does the new license plate obstruction statute say?

2. People v. Mischke

Defendant was resentenced to an aggregate sentence larger than his original sentence.

3. People v. Brown 

UUW Felon does not merge with armed violence predicated on drug possession.

4. People v. Ingram

Defendant plead on a non-automatic transfer charge and now wants a do-over.

5. People v. Jindra

Defendant filed his own motion but didn't really complain about his attorney.

6. People v. Echols

Constitutional speedy trial rights were not violated when the state missed that he was in IDOC.

People v. Cunningham, 2018 IL App (1st) 153367 (June). Episode 517 (Duration 12:37)

Dismissal of the charges was not warranted when police destroyed some of the evidence.

Police see a man take a shotgun out of the back door of an abandoned house.

Two men with him run away as the man runs further into the house.

The man gets away before dropping the gun inside the house. Later that day other police detain defendant. The witness officer went to the location approximately one block away from where he initially observed defendant with the shotgun. Upon arriving at that location, he saw another officer and his partner detaining defendant, whom the witness officer recognized as “the individual with the mohawk haircut, the Chicago Bulls clothes that had the shotgun at the abandoned house.”

The witness officer later clarified that when he first saw defendant, he recognized the following distinguishing features, other than the Bulls jacket: “blue jeans, medium skin, and roughly about five-five in height.” Defendant’s hair as “a fresh clean mohawk haircut.

The officer’s partner also testified and ID’d defendant saying he saw his face right before the chase.

Defendant later said that “the DOD was in the area shooting, so he went to go get the shotgun to protect him and his friends.”

Defendant was not wearing the Chicago Bulls jacket at that time but was wearing blue jeans, a shirt, and “obviously his mohawk.”A different officer found the Bulls jacket abandoned underneath a car in an alley in the direction the defendant ran. The jacket was destroyed and not preserved for trial.

Defense counsel filed a motion to dismiss based on the discovery violation.

Defendant asserts that his due process rights were violated when the police acted in bad faith by not following proper procedure and destroying the Bulls jacket, an essential piece of evidence that was not otherwise available.

A discovery violation may be analyzed as either a due process violation under Arizona v. Youngblood, 488 U.S. 51, 58 (1988), or under Illinois Supreme Court Rule 415(g)(i). People v. Borys, 2013 IL App (1st) 111629, ¶ 17.

The State responds that the trial court properly denied defendant’s motion to dismiss because the Bulls jacket and ID were not materially exculpatory evidence and were only inadvertently destroyed.

They said the jacket and the ID of defendant was only “borderline irrelevant” and thus were only potentially useful evidence.

The Supreme Court noted that the police do not have “an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution” and held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Youngblood, 488 U.S. at 58.

Fourteenth Amendment, as interpreted in Brady v. Maryland, 373 U.S. 83 (1963), makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence.” 

Defendant argues that the Bulls jacket and ID were “key pieces of evidence” and were exculpatory because they could have established misidentification. 

Defendant was not wearing the jacket when he was detained, and shortly thereafter, he was identified. There is no evidence that the officers were shown the jacket that was recovered from under the car before identifying defendant as the individual they were looking for. Thus, there is no evidence that the Bulls jacket played any role in defendant’s identification.

Further, one officer unambiguously testified that he recognized defendant’s face and had gotten a clear view of his face because defendant had looked “directly in [his] direction.”

The destroyed evidence here was merely potentially useful, rather than exculpatory.

The court further reasoned that the federal and state case law was such that unless defendant can show bad faith on the part of the police, the failure of the police to preserve potentially useful evidence will not constitute a denial of due process of law.

Defendant argues that the police here acted in bad faith where they failed to follow proper procedure that resulted in the destruction of otherwise unavailable evidence. It looks like the jacket was destroyed when the defendant did not respond to a notice that the property was released.

Sure it was an error but no bad faith was demonstrated. The destruction of evidence was inadvertent. 

Further, the evidence does not clearly indicate whether a discovery violation did or did not occur.

Defendant filed his motion for discovery approximately three months after defendant’s arrest. Additionally, defendant never requested a "hold" on the jacket.

A trial court may properly fashion a sanction for a discovery violation when it is proportionate to the magnitude of the violation. The trial court is in the best position to determine an appropriate sanction based upon the effect the discovery violation will have upon the defendant.

We agree with the State and find that the trial court properly denied defendant’s motion to dismiss. Dismissal of the charges against defendant would have been a disproportionate sanction.

We find that the trial court did not abuse its discretion when it denied defendant’s motion to dismiss based on destruction of evidence.

Here, the only sanction sought by defendant was dismissal of the charges. Thus, the trial court was faced with determining whether the dismissal of the charges here would be proportional to the conduct that led to the destruction of evidence, and ultimately determined it would not be.

We agree. 

Affirmed.

• People v. Acevedo, 2017 App (3d) 150750 (March) - Episode 309 (Here’s A DUI Discovery Sanction With No Teeth (It’s Not The Civil Inference Thing)
• People v. Moore, 2016 IL App (1st) 133814 (February). Episode 149 (Discovery Sanction is No Sanction At All)
• People v.  Tsiamas, 2015 IL App (2d) 140859 (December). Episode 122 (DUI Discovery Violation | You Can’t Ignore the Notice)
• People v. Moravec, 2015 IL App (1st) 133869 (November) - Episode 105 (DUI Discovery Sanctions Upheld)
• People v. Olson, 2015 IL App (2d) 140267 (June) - Episode 077 (DUI Discovery Violation Suppression of Evidence)

People v. Jackson, 2018 IL App (3d) 170125 (May). Episode 516 (Duration 14:55)

A per se conflict of interest is waveable.

Defendant was on trial for murder.

Defendant argues that the trial court erred in denying his motion to withdraw his guilty plea because his appointed attorney who had a private practice labored under a per se conflict of interest, and defendant never validly waived the conflict.

The parties agree that the attorney labored under a per se conflict of interest in that, a former assistant state’s attorney who represented the State during the pretrial proceedings prior to defendant’s stipulated bench trial, worked for his private law office at the time of the plea.

A per se conflict of interest exists where certain facts about a defense attorney’s status, by themselves, engender a disabling conflict.

An attorney labors under a per se conflict of interest where defense counsel’s past or present commitments raise the possibility that the attorney is unwilling or unable to effectively represent the defendant.

“Unless a defendant waives his right to conflict-free representation, a per se conflict is automatic grounds for reversal. A per se conflict of interest occurs:

(1) where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution;
(2) where defense counsel contemporaneously represents a prosecution witness; and
(3) where defense counsel was a former prosecutor who had been personally involved with the prosecution of defendant.

The parties dispute whether defendant validly waived this conflict.

The right to conflict-free counsel may be waived, but such a waiver must be knowing.

A defendant will not be deemed to have waived a conflict unless he is admonished as to the existence of the conflict and its significance. It is well settled that trial courts must adequately inform defendants of a conflict’s significance before any waiver of such a conflict can be accepted.

A defendant must actually understand how the conflict could affect his attorney’s representation, before his right to a conflict-free attorney can be knowingly waived.

The court advised defendant that an attorney in his attorney's firm had previously worked as a coprosecutor on his case. The court told defendant that the former ASA currently worked at his attorney's private law office as an associate. While defendant initially had concerns about the conflict, defendant told the court that he was fine with it after speaking with his attorney regarding the matter.

THE COURT: And that she is part of his private law office, which is separate and apart, but we still would like to put on the record that you don’t have any problem with that if you don’t; is that all right with you?

THE DEFENDANT: I mean not really...He never talked to me about none of this.

[They took a break so counsel and defendant could talk.]

THE COURT: And that she is part of his private law office, which is separate and apart, but we still would like to put on the record that you don’t have any problem with that if you don’t; is that all right with you?

THE DEFENDANT: I mean not really...No, I’m fine. He explained to me the situation.

THE COURT: I’m going to phrase it this way, the fact that [the former ASA] at some point I guess, like I said I wasn’t involved in this case at that point, was one of the co-prosecutors in this case...And she is now part of his private law office; that gives you no concern, sir, you are comfortable?

THE DEFENDANT: Yeah, I’m all right.”

Here, the trial court adequately admonished defendant as to the conflict and its significance.

The duty to admonish the defendant as to the general nature of the conflict does not mean that the trial court must painstakingly detail every potential ramification of a potential conflict.

• Episode 375 - Nrupa Patel Helps Dissect Conflict Of Interest Confronting Former Prosecutors
• People v. Schutz, 2017 IL App (4th) 140956 (June). Episode 379 (Jailhouse Client Turned Informant On Another Client – Ethical Dilemma Ensues)
• Episode 056 - See People v. Shepherd, 2015 IL App (3d) 140192 (February) (Ethical Violation After a Meeting With Prosecutor)
• People v. Nelson, 2017 IL 120198 (June). Episode 252 (Did The Defense Team Pick The Wrong Defense Because Of A Conflict Of Interest?)

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.

Seventeen-year-old defendant Jamari McArthur was arrested for allegedly engaging in sexual conduct with M.W., an 11-year-old boy. 

A jury found defendant guilty of the aggravated criminal sexual abuse of M.W. and the trial court sentenced him to four-years’ imprisonment.

Defendant confessed to the police in writing after having spent 73 hours in custody without a probable cause determination. Well above the Gersteing limit.

Defendant filed a motion to suppress his confession, arguing that his time spent in custody without a judicial determination of probable cause was unreasonable and rendered his confession involuntary.

When defendant was arrested at 2:57 pm and taken to the Calumet City Police Department.

Later that day at 7:53 p.m., he was placed in an interview room, read Miranda rights and presented him with a preprinted waiver form. Defendant said he understood his Miranda rights, initialed and signed the waiver form, and confessed to placing his mouth around the penis of M.W., an 11-year-old boy.

Defendant was questioned again at 9:20 p.m. that night and defendant offered additional details about the incident.

The next day at 1:02 p.m., defendant consented to a mouth swab, placed a call to his grandmother and was not questioned for the rest of the day.

The next day a Cook County assistant state’s attorney attended four victim sensitive interviews (VSIs) of M.W. and other potential child witnesses. The last VSI concluded at 2:14 p.m.. The ASA then met with defendant in an interview room at the police station at 3:45 p.m.

The ASA read defendant his Miranda rights and questioned him in the presence of the detective. Defendant indicated that he understood his Miranda rights and over the course of a half hour, provided a detailed confession and chronological account of the events leading up to, and following, the incident.

At around 5:02 p.m., defendant was asked to make a written confession and defendant agreed. The ASA proceeded to summarize defendant’s statements in writing on a preprinted form. When completed, defendant read the statement aloud without any difficulty.

Defendant asked the ASA to add three sentences to his statement and then signed the statement on each of its four pages. Defendant also signed a picture of himself showing him signing the statement.

The next morning defendant was brought before a judge for a probable cause determination. More than 73 hours had passed since the time of his arrest. The judge found probable cause for defendant’s arrest and he was subsequently charged.

Defendant was brought before a judge the morning after the interviews were conducted.

Police could offer “no reason” as to why they did not release defendant before the VSIs were conducted and re-arrest defendant if the victim and child witnesses confirmed the content of defendant’s confession.

Defendant denied being verbally or physically threatened, or abused, by the police.

Police are required to provide a defendant with a “fair and reliable determination of probable cause” before or promptly after arrest. Gerstein v. Pugh, 420 U.S. 103, 125 (1975). A prompt determination of probable cause is one made within 48 hours of arrest. City of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Here, police clearly exceeded the law’s 48-hour limit by providing defendant with a probable cause determination 73 hours after his arrest.

However, even if police do not provide a defendant with a prompt determination of probable cause, a confession will not be suppressed unless it was given involuntarily. See People v. Willis, 215 Ill 2d 517. 535 (2005) (holding that a trial court facing a Gerstein/McLaughlin violation asks the question whether the confession was voluntary). We therefore turn to consider whether, in light of the delay of defendant’s probable cause determination, his confession was voluntary.

To determine whether defendant’s confession was voluntary, we consider the totality of the circumstances and the following factors:

(1) age
(2) intelligence
(3) education
(4) experience
(5) physical condition at the time of the detention and interrogation
(6) the duration of the interrogation
(6) the presence of Miranda warnings
(7) the presence of any physical or mental abuse and
(8) the legality and duration of the detention.

Defendant’s statement was voluntary unless his will was overcome by the police at the time he confessed. People v. Gilliam, 172 Ill. 2d 484, 500 (1996).

The trial court supported its decision with the following factual findings adduced from the evidentiary hearing on defendant’s motion to suppress his confession: Under a totality of the circumstances analysis...

• defendant was 17 years of age 
• a high school student
• living with family members
• he was currently looking for a job
• was of average intelligence
• had no special needs
• clearly waived his Miranda rights
• was open and cooperative
• understood his Miranda Warnings

Within five hours of his first interview he gives an incriminating statement. Now at this point the Detective needs to continue to speak with the other children who were involved. 

Understandably it took some time to locate and set up the children interviews. Nonetheless, at that time the victim sensitive interviews were being conducted you’re still within the forty-eight hour timeframe.

This was an investigation. This was not an attempt to get the defendant to confession and keep him in custody past forty-eight hours.

It's quite clear the detective's explanation for the delay was not “specious,” as defendant contends, but rather demonstrative of his intent to corroborate defendant’s account of the incident with statements obtained from M.W. and other child witnesses through VSIs.

When the VSIs were all completed and defendant reinterviewed on the latest findings and a judge found probable cause for his arrest the next morning. Any delay by police was attributed to the need to speak with the child witnesses before charging defendant with a felony offense. We find that the police did not engage in “delay for delay’s sake.” 

Defendant was never interviewed longer than 30 minutes. The trial court’s factual findings as to defendant’s personal characteristics and the lack of police mistreatment support its ruling. When defendant was arrested, he was over the age of 17 and in the tenth grade taking geometry, chemistry, physical education, journalism and speech classes. The trial court noted the absence of any facts demonstrating that defendant was “below intelligence” or “a special needs student.” There was no indication of police mistreatment or mental abuse during defendant’s questioning.

True, defendant points out, he had no prior involvement with the police and no criminal background, but his inexperience alone does not support the suppression of his confession.

This case was nothing like Westomorlond.

Westmoreland examined the confession of an “immature” and “terrified” 17-year-old defendant after police refused to contact his mother and detained him beyond the 48 hour limit imposed by McLaughlin. 372 Ill. App. at 869. The Westmoreland court held that the defendant’s physical characteristics, the interrogating police officer’s statement that “I don’t give a shit if you go to jail or not” and the fact that police refused defendant’s requests to contact his mother during questioning warranted the suppression of his confession. Westmoreland, 372 Ill. App. 3d at 890.

The police made no such statement here and defendant did not share the physical characteristics of the defendant in Westmoreland. 

Further, Defendant was not subject to the exclusive jurisdiction of the JCA when he was questioned by police. See 705 ILCS 405/5-120 (West 2014) (prior to its amendment under Public Act 98–61, section 5 (eff. Jan. 1, 2014), the exclusive jurisdiction statute of the JCA applied to minors under the age of 17). Defendant therefore cannot avail himself of the protections afforded by this provision.

Alternatively, defendant argues that we should consider the “concerned adult” factor to find that his confession was involuntary. The concerned adult factor requires a determination of whether: (1) defendant had an opportunity to consult with an interested adult before or after interrogation; and (2) whether a police prevented defendant from contacting an interested adult or vice versa.

But unlike Westmoreland, there are no facts indicating that the police prevented defendant from contacting his parent or vice versa. To the contrary, defendant placed a phone call to his grandmother 15 hours after his arrest. We recognize that defendant was permitted to contact his grandmother after he made an oral confession, but do not find that this factor renders his written confession, which was given after he spoke with his grandmother, involuntary.

The totality of the circumstances do not warrant the suppression of defendant’s confession.

We hold that the trial court’s factual findings were not against the manifest weight of the evidence and its ultimate ruling was not in error. The delay of defendant’s probable cause determination beyond 48 hours was not the result of a willful disregard by police, indifference to defendant’s presence in custody or the product of police misconduct.

The police did not overbear defendant’s will and the State was at liberty to publish the written confession to the jury at trial.

People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode 488 (involuntary confession in part because 17 year old defendant not allowed to call his mom)

People v. Suggs, 2016 IL App (2d) 140040 (June). Episode 199 (Defendant held for 98 hours before his probable cause hearing) 

People v. Lewis, 2018 IL App (4th) 150637 (April). Episode 514 (Duration 6:27)

It's within the court's full discretion to bring the jury back into the courtroom to view recorded evidence after deliberation has already begun.

Defendant was charged with home invasion and domestic battery. He was acquitted of home invasion but convicted of home invasion.

During the deliberation the jury requested to hear the 911 call again.

Defendant argues it was a structural error to influence the jury’s deliberations by bringing the jury back into the courtroom for the replaying of the 911 recording.

Because structural errors require “automatic reversal,” whether a structural error was invited is irrelevant because reversal nevertheless would be “automatic” in order to preserve the integrity of the judicial process. People v. Belknap, 2014 IL 117094, ¶ 85.

With all due respect to our distinguished Third District colleagues, we disagree with all of the views they expressed in McKinley. See People v. McKinley, 2017 IL App (3d) 140752, ¶ 44 (March)

To be clear, we now reject outright the argument that this procedure is even erroneous, let alone structurally erroneous.

If a deliberating jury requests to hear an audio recording or to see a video recording again, the trial court does not have to send the recording and equipment to the jury room but may instead exercise its discretion to bring the jury into the courtroom for a replaying of the recording.

When a deliberating jury returns to the courtroom and, in the presence of the judge, the parties, the lawyers, and court personnel listens again, in silence, to an audio recording, the jury does nothing different from what it did before, when the recording originally was played. Assuming the trial court has properly instructed the jury regarding this procedure, we adhere to the majority view and reject the notion that replaying an audio or visual recording is improper.

1. If the court chooses to have the recording replayed in the courtroom, the court, parties, and counsel must be present to view or hear the evidence, and the court should instruct the jury not to discuss the evidence while in the courtroom.

2. The court should also in the jury’s presence admonish everyone else in the courtroom not to comment on the evidence, communicate with the jury, or try in any manner to influence the jury. 

3. Further, to avoid the concerns expressed by Justice Holdridge in his dissent, the court should instruct the jury that after the replay, the jury will return to the jury room and should then continue its deliberations, which may include, if it wishes, the replay.

Accordingly, we conclude that if a jury, during its deliberations, requests to see or hear a recording again, the trial court need not send the recording and equipment into the jury room but instead may, in its discretion, have the jury brought back into the courtroom for a replaying of the recording.

Justice Carter is correct that “the mode and manner in which a circuit court allows a jury to review a piece of evidence” (in this case, the 911 recording) “falls directly within the scope of the court’s inherent authority to manage its courtroom.” McKinley, 2017 IL App (3d) 140752, ¶ 22 (majority opinion).

 In the present case, the trial court did not give any instructions and admonitions, but in the record before us, we find no indicia of prejudice or anything improper having occurred during the replay of the recording.

Conviction affirmed.

• Episode 452 - People v. Henderson, 2017 IL App (3d) 150550 (November) (judge brings the jury out to see a video and leaves them alone in the courtroom with court personnel)
• Episode 502 - People v. Gore, 2018 IL App (3d) 150627 (April). (judge locks the doors during a jury question)
• Episode 270  - People v. Evans, 2016 IL App (1st) 142190 (December). (grandma kept out during voir dire)
• People v. McKinley, 2017 IL App (3d) 140752 (March) (not plain error to allow jury back into the courtroom to see the video with admonishments)
• People Johnson, 2015 IL App (3d) 130610, ¶ 49 (December) (no prejudice to defendant in allowing jury back into courtroom to see the video)
• People v. Rouse, 2014 Il App (1st) 121462, ¶¶ 78-79 (finding no error where the trial court allowed the jury to view surveillance footage in the presence of both parties and the trial judge during deliberations)

People v. Bell, 2018 IL App (1st) 153373 (June). Episode 513 (Duration 7:40)

This UUW provision in a park is found constitutional.

Following a bench trial, defendant Armani Bell was found guilty of unlawful use of a weapon in a public park and sentenced to two years in the Illinois Department of Corrections.

On appeal, defendant claims that the unlawful use of a weapon in a public park provision of the unlawful use of a weapon (UUW) statute is facially unconstitutional. Defense counsel argued that the UUW statute at issue in this case was identical to the aggravated UUW statute analyzed in Aguilar.

He was charged under section 720 ILCS 5/24-1(a)(10), (c)(1.5).

The version of the law was changed with the new conceal and carry legislation.

The version of the UUW statute that was in effect at the time defendant was charged stated in pertinent part:

“(a) A person commits the offense of unlawful use of weapons when he knowingly: * * * (10) Carries or possesses on or about his person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town, except when an invitee thereon or therein, for the purpose of the display of such weapon or the lawful commerce in weapons, or except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person’s permission, any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a)(10) does not apply to or affect transportation of weapons that meet one of the following conditions: (i) are broken down in a non-functioning state; or (ii) are not immediately accessible; or (iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner’s Identification Card.

(c) Violations in specific places. (1.5) A person who violates subsection 24-1(a)(4), 24-1(a)(9), or 24-1(a)(10) in any school, regardless of the time of day or the time of year, in residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development, in a public park, in a courthouse, on the real property comprising any school, regardless of the time of day or the time of year, on residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development, on the real property comprising any public park, on the real property comprising any courthouse, in any conveyance owned, leased, or contracted by a school to transport students to or from school or a school related activity, in any conveyance owned, leased, or contracted by a public transportation agency, or any public way within 1,000 feet of the real property comprising any school, public park, courthouse, public transportation facility, or residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 3 felony.”

720 ILCS 5/24-1(a)(10), (c)(1.5) (West 2014). 

Police responded to a call of a person with a gun. The man was on the corner of Washington Park.

Defendant didn’t match the description, but he started running when police got there. He then slips and falls and the gun is dropped. Police take custody of the gun and 15 seconds later catch and arrest defendant.

Our supreme court in Aguilar recognized that “the second amendment protects the right to possess and use a firearm for self-defense outside the home,” and therefore, the offense set forth in section 24-1.6(a)1, (a)(3)(A) of the AUUW statute, which prohibited carrying on one’s person or in any vehicle, outside the home, an uncased, loaded, and immediately accessible firearm, to be unconstitutional on its face. Aguilar, 2013 IL 112116, ¶¶ 21-22.

Two years later, in Mosley, 2015 IL 115872, ¶ 25, our supreme court extended Aguilar’s finding of facial unconstitutionality to another portion of the AUUW statute, section 24-1.6(a)(2), (a)(3)(A), which prohibited carrying an uncased, loaded, and immediately accessible firearm on a public way.

Most recently in Chairez, the question was whether the offense of possessing a firearm within 1000 feet of a public park, as set forth under section 24-1(a)(4), (c)(1.5) of the UUW statute, impermissibly encroached on the conduct at the core of the second amendment. Chairez, 2018 IL 121417, ¶ 26.

See Episode 457 - People v. Chairez, 2018 IL 121417 (February) (Gun ban prohibiting guns within 1,000 feet of a park found unconstitutional).

Defendant contends that section 24-1(a)(10) of the UUW statute is facially unconstitutional because it amounts to a flat ban on carrying ready-to-use guns outside the home, which violates the second amendment of the United States Constitution.

He cites to Mosley, 2015 IL 115872, People v. Burns, 2015 IL 117387, and Aguilar, 2013 IL 112116. In Burns, the defendant was convicted of violating section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)). Burns, 2015 IL 117387, ¶ 1. At sentencing, pursuant to the sentencing provision of the AUUW statute, section 24-1.6(d), the State presented proof of defendant’s prior felony conviction to enhance the classification of the offense from a Class 4 felony to a Class 2 felony. Id. ¶ 13.

The defendant argued before the Illinois Supreme Court that his conviction of the Class 2 form of the offense must be reversed in light of Aguilar, which found the Class 4 form of the same AUUW offense to be unconstitutional. Id. ¶ 20. The court agreed with the defendant’s contention and reversed his conviction.

See Episode 119 - People v. Burns, 2015 IL 117387 (December).

Here, defendant argues that the penalty enhancement found under section 24-1(c)(1.5) of the UUW statute acts similarly to the sentencing enhancement of section 24-1.6(d) of the AUUW statute, and thus is a sentencing factor and not an element of the offense.

This exact issue was recently addressed by our supreme court in People v. Chairez, 2018 IL 121417. In Chairez, this court noted that “[u]nlike in Burns where the felony enhancement came after the defendant was found guilty of the charged offense, the felony enhancement under section 24-1(c)(1.5) is a specific fact that must be proved to the trier of fact prior to a guilty finding.” 

Our supreme court elaborated, stating “[t]his difference is significant to our finding because any fact, other than a prior conviction, which, by law, increases the penalty for a crime, is an element of a distinct and aggravated crime that must be submitted to the jury.” 

That is the precise situation here, where, in order to enhance the offense from a Class A misdemeanor to a Class 3 form of UUW, the State must prove the aggravating fact that defendant was within a public park. 720 ILCS 5/24-1(a)(10), (c)(1.5) (West 2014). Our supreme court found that this conclusion was supported by the plain language of the UUW statute, where, unlike in Burns, section 24-1(c)(1.5) is separate and apart from the sentencing provision of the UUW statute, section 24-1(b).

The second amendment to the United States Constitution provides that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const., amend. II.

Through the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), this right is “fully applicable to the States.” McDonald v. City of Chicago, 561 U.S. 742, 750 (2010). Our supreme court in Chairez noted that in District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the United States Supreme Court determined that there is a guaranteed “individual right to possess and carry weapons in case of confrontation,” based on the second amendment.

While Heller instructs that even though the second amendment guarantees an individual right to bear arms, that right is “not unlimited.” Chairez, 2018 IL 121417, ¶ 24 (quoting Heller, 554 U.S. at 626).

The Supreme Court explained, in dicta, that its holding should not “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” Heller, 554 U.S. at 626.

We now turn to the constitutionality of section 24-1(a)(10), (c)(1.5) of the UUW statute.

The Chairez court addressed section 24-1(a)(4), (c)(1.5), of the UUW statute, but only made a finding as to the portion of that section that criminalized possessing a firearm within 1000 feet of a public park. While the only portion of the section before us is that criminalizing possession of a firearm within a public park.

It appears that public parks may be considered sensitive places.

We find this argument compelling, especially in light of the fact that public parks are notoriously “where large numbers of people, including children, congregate for recreation,” and that “[s]uch circumstances justify reasonable measures to secure public safety.”

Our supreme court found that some level of scrutiny must apply at the second step, and noted that courts generally recognized that Heller’s reference to any standard of scrutiny means any heightened level of scrutiny, not rational-basis scrutiny. Chairez, 2018 IL 121417, ¶ 32. Under this approach, the Chairez court noted that “the second step of the inquiry requires the court to examine the strength of the government’s justifications for restricting certain firearm activity by evaluating the restriction the government has chosen to enact and the public-benefits ends it seeks to achieve.” Id. ¶ 35.

The idea here is that that a blanket prohibition on carrying a gun in public prevents a person from defending himself anywhere except inside his home; and so substantial a curtailment of the right of armed selfdefense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment. While conversely, when a state bans guns merely in particular places, such as public schools, a person can preserve an undiminished right of self-defense by not entering those places; since that’s a lesser burden, the state does not need to prove so strong a need.

Our supreme court noted in Chairez that the closer in proximity the restricted activity was to the core of the second amendment right and the more people affected by the restriction, the more rigorous the means-end review. Chairez, 2018 IL 121417, ¶ 45.

The court noted that if the State could not proffer evidence establishing both the law’s strong public-interest justification and its close fit to this end, the law must be held to be unconstitutional.

We now turn to whether the possession of a firearm in a public park provision of the UUW statute is facially unconstitutional by examining the strength of the government’s justifications for restricting certain firearm activity by evaluating the restriction the government has chosen to enact and the public-benefits ends it seeks to achieve. Id. ¶ 35.

We find that public parks are areas “where large numbers of people, including children, congregate for recreation,” and that such circumstances justify reasonable measures to secure public safety. While the Chairez court ultimately found that the “most troubling aspect” of the 1000­ feet from a public park provision was “the lack of any notification where the 1000-foot restriction zone starts and where it would end,” no such issues exist in the portion of the statute at issue here.

The Chairez court noted that “[i]nnocent behavior could swiftly be transformed into culpable conduct if an individual unknowingly crosses into a firearm restriction zone. The result could create a chilling effect on the second amendment when an otherwise law-abiding individual may inadvertently violate the 1000-foot firearm-restricted zones by just turning a street corner.” Chairez, 2018 IL 121417, ¶ 55.

These “troubling aspects” are not present here, and a person can certainly preserve an undiminished right of self-defense by simply not entering a public park.

Accordingly, we find that the firearm restriction’s “within a public park” provision continues to accomplish this aim without “effectively prohibit[ing] the possession of a firearm for self-defense within a vast majority of the acreage in the city of Chicago.”

We reiterate that all statutes carry a strong presumption of constitutionality, and that we will find a statute constitutional if it can be reasonably done. Aguilar, 2013 IL 112116, ¶ 15. We find that it can reasonably be done in this case, and decline to find section 24-1(a)(10), (c)(1.5) of the UUW statute facially unconstitutional.