Kane County Nuggets

People v. Green, 2018 IL App (1st) 143874 (June). Episode 512 (Duration 6:09)

Another gun provision is declared unconstitutuional (this version was in effect before conceal and carry changes).

Gist

Defendant was a security guard who possessed a valid Firearm Owner’s Identification Card, was observed with a holstered weapon across the street from Senn High School in November of 2012.

Charges

He was convicted of two counts of unlawful use of a weapon (UUW) for carrying a loaded, accessible firearm while on a public street and while in a vehicle. 720 ILCS 5/24-1(a)(4), (a)(10) (West 2010).

Because he committed those offenses within 1000 feet of a school, he was sentenced on a Class 3 felony. See 720 ILCS 5/24-1(c)(1.5).

Facts

School officials saw defendant standing outside the school in a black uniform and a gun in his holster.

Police were called.

Was This Gun Law Constitutional?

The dispositive issue on appeal is the constitutionality of the 2012 version of section 24-1 of the Code, which provides, in relevant part:

“(a) A person commits the offense of unlawful use of weapons when he knowingly: * * * (4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode *** any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a) (4) does not apply to or affect transportation of weapons that meet one of the following conditions: * * * (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; or * * * (10) Carries or possesses on or about his person, upon any public street, *** 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: (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. * * *

(b) Sentence. A person convicted of a violation of subsection 24-1(a)(1) through (5), [or] subsection 24-1(a)(10) *** commits a Class A misdemeanor. *** (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) *** on 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 (West 2012).

Before The Law Change

Defendant was convicted of subsections (a)(4) and (a)(10) before they were amended in 2015 to exclude weapons carried in accordance with the Firearm Concealed Carry Act by someone with a valid license under that act. See Pub. Act 99-29 (eff. July 10, 2015) (amending 720 ILCS 5/24-1).

Felony Conviction

These offenses would ordinarily be Class A misdemeanors, but because they were committed within 1000 feet of a school, they were enhanced to Class 3 felonies, per subsection (c)(1.5).

People v. Chariez

Here, just as in Chairez, the State’s public-interest justification for the firearm restriction within 1000 feet of a school is to prevent crime and protect children, both of which the supreme court acknowledged are “important public concerns.” Id. ¶ 52.

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

Same Poor Rationale

The State argues that the 1000 foot ban is closely tailored to meet this goal, citing various statistics in support of its proposition.

Significantly, the supreme court rejected the relevance of this identical data in Chairez, stating “we see no direct correlation between the information the State provides and its assertion that a 1000-foot firearm ban around a public park protects children, as well as other vulnerable persons, from firearm violence. The State merely speculates that the proximity of firearms within 1000 feet threatens the health and safety of those in the public park.” Chairez, 2018 IL 121417.

The State’s arguments here are based on the same rationale rejected in Chairez.

The data does not reflect that the gun violence plaguing our schools was perpetrated within 1000 feet of the schools (as opposed to inside the schools themselves) or that the perpetrators of that violence were the law abiding adults whose conduct the statute regulates.

Finding

Accordingly, the State has not shown a close fit between the restriction on gun possession within 1000 feet of a school and the protection of children.

Protected Places

In arguing to the contrary, the State cites Heller, in which the Supreme Court stated that nothing in its opinion “should be taken to cast doubt on *** laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” which it described as “presumptively lawful.” District of Columbia v. Heller, 554 U.S. 570, 626-27, n.26 (2008).

But the State conflates regulations banning the carriage of weapons in certain sensitive places (e.g., schools and government buildings) with subsection (c)(1.5), which bans carriage near those places. This distinction is significant.

Areas Near Protected Places

A ban on firearms in specific places imposes less of a burden on the right to bear arms than one that extends to an area of approximately three city blocks around those same places. While a gun owner can simply choose not to enter locations deemed sensitive, it is manifestly more difficult to avoid areas within 1000 feet of those locations, particularly given that there is no notification where the restriction zone begins or ends.

Indeed, the ban at issue here, just as the ban 1000 feet around public parks at issue in Chairez, effectively operates as a total ban on the carriage of weapons for self-defense outside the home in Chicago. See Chairez, 2018 IL 121417, ¶ 55.3 As such, it runs afoul of Aguilar, in which the supreme court held that the right to carry firearms is particularly important when traveling outside the home. See Aguilar, 2013 IL 112116, ¶¶ 19-20.

Holding

For these reasons, we conclude that sections 24-1(a)(4), (c)(1.5) and 24-1(a)(10), (c)(1.5), prohibiting possession of a firearm within 1000 feet of a school are facially unconstitutional.

We further hold that this portion of the challenged statute is severable from the remaining provisions of the statute. Our holding today is narrow in that it addresses only the pre-2015 version of the UUW statute.

We reverse his convictions for unlawful use of a weapon.

The Current Law

The current version of the statute excepts from its reach those who have a valid license under the Firearm Concealed Carry Act. 720 ILCS 5/24-1(a)(4)(iv) (West 2016).

Significantly, the Firearm Concealed Carry Act continues to prohibit the possession of firearms in “[a]ny building, real property, and parking area under the control of a public or private elementary or secondary school” (430 ILCS 66/65(a)(1) (West 2016)), even for those with valid licenses.

At oral argument, counsel for Green did not take issue with the reasonableness of these prohibitions. And so the limited issue presented here is what burdens the legislature may impose on the rights of law-abiding citizens to bear arms on public ways adjacent to school property.

Reluctantly Reverse

Illinois law, as it presently stands, contains no provisions that define a perimeter around sensitive places, like parks and schools, where even those authorized to carry weapons in public may not enter. If not addressed, the price of the right of law-abiding citizens to carry weapons in public will render it necessary to make fortresses out of places like schools, hospitals, churches, and public housing, with little positive effect on public safety. A bullet fired by an armed security guard can as easily kill a child, patient, or worshiper as one fired by a criminal. And although Green was lawfully authorized to carry a weapon, we can conceive of no reason why his right to do so should outweigh the State’s interest in the safety of school children on public ways adjacent to school property, particularly at dismissal time. It is imperative for the legislature to undertake a nuanced, evidence-based study of measures designed to protect our citizens from gun violence in the vicinity of sensitive public places without unnecessarily burdening the exercise of the second amendment rights of those lawfully authorized to carry weapons in public.

People v. Vara, 2018 IL 121823 (June). Episode 511 (Duration 8:45)

Supreme Court says appellate courts don't have jurisdiction to fix improper fines imposed by the circuit clerk.

Gist

18 months after his conviction the circuit clerk imposed certain fines on defendant. He challenged them on appeal because they were not court ordered.

Clerk Exceeded Authority

As set forth above, the clerk of the circuit court of Stephenson County exceeded his statutorily prescribed authority by recording mandatory fines against defendant that were not imposed by the trial judge at the time of sentencing.

That action was not the entry of a judgment but was, instead, the erroneous recording of the circuit court’s judgment.

Analysis

Because the circuit clerk had no authority to levy any fines against defendant, the recording of the additional fines was invalid and unenforceable.

However, the fact that the clerk’s action was improper does not mean that defendant can challenge the unauthorized fines through the appeal process. The appellate court is constitutionally vested with jurisdiction to review final judgments entered by circuit courts.

The recording of a fine is a clerical, ministerial function and is not a judgment—void or otherwise. Therefore, the improper recording of a fine is not subject to direct review by the appellate court.

Jurisdiction

Accordingly, we agree with the State that the appellate court lacked jurisdiction to review the clerk’s recording of mandatory fines that were not included as part of the circuit court’s final judgment.

Holding

Where the appellate court has addressed the merits of a case over which it had no jurisdiction, we must vacate that court’s judgment and dismiss the appeal. Any questions as to the accuracy of the data entries included in the payment status information must be resolved through the cooperation of the parties and the circuit clerk or by the circuit court in a mandamus proceeding. See People ex rel. Senko v. Meersman, 2012 IL 114163, ¶ 9 (recognizing that a writ of mandamus is a judicial order used to compel a public official to perform a nondiscretionary, ministerial duty); see also Dennis E. v. O’Malley, 256 Ill. App. 3d 334, 346 (1993) (holding that an action for mandamus can be used to compel a circuit clerk to comply with statutory duties).

Another Admonishment To Clerks

However, we take this opportunity to firmly reiterate our admonishment to circuit clerks that they may not, on their own initiative, assess any criminal fines or fees that must be imposed by a court. See Gutierrez, 2012 IL 111590, ¶ 26. Such overstepping by circuit clerks of their statutory authority cannot be condoned.

The Dissent

Holy crap read the strong dissent saying the majority has set defendant’s back unnecessarily.

Narrow Ruling

Court said,

In applying these principles to the question of appellate jurisdiction here, it is essential to bear in mind what defendant challenged in his appeal and what he did not. Defendant sought relief as to certain fines that were recorded by the circuit clerk on the payment status information sheet but were not referenced by the circuit court. Defendant did not attack the validity of his conviction, his prison sentence, or the fines imposed by the circuit court at the time of sentencing. Thus, this case presents the anomalous circumstance in which a defendant has filed an appeal seeking to uphold the judgment entered by the circuit court.

See Also These Cases With Fines & Costs Chart

• People v. Williams, 2013 IL App (4th) 120313 (June)
• People v. Johnson, 2015 IL App (3d) 140364 (December)

People v. Burchell, 2018 IL App (5th) 170079 (April). Episode 510 (Duration 9:59)

State's SORA complaint was insufficient.

Gist

Defendant is successful with this motion to dismiss.

The Illinois Sex Offender Registration Act (SORA)

Found within section 3(a) of SORA is a paragraph that states, in its entirety:

“A sex offender or sexual predator who is temporarily absent from his or her current address of registration for 3 or more days shall notify the law enforcement agency having jurisdiction of his or her current registration, including the itinerary for travel, in the manner provided in Section 6 of this Act for notification to the law enforcement agency having jurisdiction of change of address.”

730 ILCS 150/3(a).

As the State aptly notes, section 6 explains how to notify a law enforcement agency having jurisdiction of a change of address but does not specify a time frame for so doing, instead stating that the change of address notification must be made

“within the time period specified in Section 3”.

730 ILCS 150/6.

Charge

The state tried to charge defendant with a version of failure to register.

The defendant was charged, in a one-count information, with “Unlawful Failure of Sex Offender to Report Absence From Address of Registration.” The State further alleged that the defendant committed the offense of “Unlawful Failure of Sex Offender to Report Absence From Address of Registration” during the time frame of “on, about or between the 12th day of November, 2016, through the 12th day of February, 2017” in Clinton County when the defendant “knowingly failed to report within 3 days, in person, to the *** agency of jurisdiction of his last known address, that he was temporarily absent from his current address of registration *** for 3 or more days.”

Right To Be Informed

As the Illinois Supreme Court has recognized, an individual accused of a crime “has a fundamental right, under both the Federal Constitution (U.S. Const., amend. VI) and the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 8), to be informed of the ‘nature and cause’ of criminal accusations made against” that individual. People v. DiLorenzo, 169 Ill. 2d 318, 321 (1996).

The failure to charge an offense “implicates due process concerns.” 

Charges Must State An Offense

Section 114-1(a)(8) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114-1(a)(8)) provides that,

“[u]pon the written motion of the defendant made prior to trial before or after a plea has been entered,” the trial court may dismiss an information if “[t]he charge does not state an offense.”

This court has noted that, pursuant to the Code, to sufficiently allege the commission of an offense, the charging instrument must

• state the name of the offense
• cite the statutory provision alleged to have been violated
• set forth the nature and elements of the offense charged
• state the date and county of the offense and
• state the name of the accused.

See, e.g., People v. Terry, 342 Ill. App. 3d 863, 867 (2003); see also 725 ILCS 5/111-3(a).

The purpose of the Code’s requirements “is to inform the accused of the nature of the offense with which he is charged so that he may prepare a defense and to assure that the charged offense may serve as a bar to subsequent prosecution arising out of the same conduct." The Illinois Supreme Court has held that the pivotal question when evaluating the sufficiency of a charging instrument is “whether there was sufficient particularity to allow the accused to prepare a defense.” People v. Klepper, 234 Ill. 2d 337, 351 (2009).

Strict Compliance

When the sufficiency of the charging instrument is attacked in a pretrial motion, our de novo standard of review requires us to determine whether the instrument strictly complies with the Code.

General &  Specific Offenses

If the statute defining an offense specifies the type of conduct prohibited, the particular act at issue need not be alleged, and the charging instrument may simply set out the offense in the language of the statute.

However, if the statute defines the offense only in general terms, a charge couched in the language of the statute is insufficient, and instead the facts which constitute the crime must be specifically set forth.

Must Register Before The Absence

We agree with the State that the only logical construction of the temporary absence notification requirement of section 3(a), as written, is one that requires the notification to be made on, or prior to, the third day of temporary absence.

Elsewhere in SORA, where a “grace period” for compliance with a provision of the statute exists, the legislature makes this clear.

But Must The Days Be Consecutive Or In Aggregate?

This, however, does not end our inquiry.

As the defendant points out, section 3(a) does not explicitly state whether to qualify thereunder the temporary absence in question may consist of three aggregate days of temporary absence in a calendar year (which the State, on appeal, seems to suggest is the case) or must consist of three consecutive days of temporary absence.

If a registrant is not required to make a notification unless there is a three-consecutive-day temporary absence, that registrant clearly has much more latitude than if a temporary absence of three aggregate days in a calendar year triggers the notification requirement.

For Example

For example, under a three-consecutive-day scenario, a registrant could be temporarily absent from the registered address for a two-consecutive-day period each week without ever triggering the notification requirement. Obviously, that would not be the case under a three-aggregate-day scenario.

Thus, a three-aggregate-day construction of section 3(a) would impose a greater burden, and/or restriction, on registrants.

The code is silent on this point.

Holding

The reviewing court looked at the rest of the SORA law and concluded that unless the legislature explicitly uses aggregate-day language in a particular provision of SORA, it intends to refer to consecutive days in that provision.

Analysis

Recalling that if a statute defines the offense only in general terms, a charge couched in the language of the statute is insufficient and instead the facts which constitute the crime must be specifically set forth. In this case, as explained above, section 3(a) does not explicitly specify the type of conduct that is prohibited by the statute—a temporary absence of three or more consecutive days—but instead defines the offense only in the more general terms of a temporary absence of three or more days.

The code generally requires absence for 3 or more days. It does not get into the specifics of wheather or not the days must be consecutive or in the aggregate.

The amended information in this case does not allege that the defendant was temporarily absent from his registered address for three or more consecutive days. Thus, it omits one of the elements of the offense the defendant was alleged to have committed.

Accordingly, we conclude that a charge under section 3(a) that is couched in the language of section 3(a) is insufficient and does not set forth the nature and elements of the offense charged.

Therefore, the charge does not adequately apprise the defendant of the nature of the offense with which he is charged so that he may prepare a defense and does not assure that the charged offense may serve as a bar to subsequent prosecution arising out of the same conduct.

Insufficient Complaint

In light of the fact that the offense in question here required the State to prove, as one of the elements of the offense, a temporary absence of three or more consecutive days over the course of the broad three-month time period, we do not believe that the instrument’s less-specific allegation that the defendant was temporarily absent for “3 or more days” during that time period contained sufficient particularity to allow the defendant to prepare a defense.

Therefore, the charging instrument in this case fails to strictly comply with the requirements of the Code and does not sufficiently charge an offense in this case.

For the foregoing reasons, we affirm the order of the circuit court of Clinton County that granted the defendant’s motion to dismiss the one-count information that charged him with Unlawful Failure of Sex Offender to Report Absence From Address of Registration.

In re O.S., 2018 IL App (1st) 171765 (June). Episode 509 (Duration 7:03)

Can the odor of weed still justify a traffic stop even after the cannabis legislation?

Charges

Minor respondent O.S. was adjudicated delinquent of the offenses of aggravated unlawful use of a weapon and unlawful possession of a weapon and committed to the Department of Juvenile Justice for an indeterminate period of time.

Facts

During the course of an encounter with Chicago police officers, minor respondent was found to be in possession of a firearm.

The minor was a passenger in the car in the front seat. They parked in front of the building. The car was running. The windows were up. The rear seat passenger had a blunt behind his ear and another burned blunt was recovered from the vehicle.

The officer's car pulled up diagonally in front of them. The driver was asked for his license and registration. The police asked the driver to roll down his window first, and that’s when the smell was even stronger.

Another officer then opened the door on the passenger side. The respondent got out, was patted down, and arrested for the concealed weapon that was recovered in his jacket—jacket pocket.

There is a no parking sign.

The Odor Of Cannabis

The officer said he smelled cannabis coming from the car parked in a no parking zone.

When the got to the car windows and started interacting with the passengers they again smelled an even stronger smell of marijuana. They also saw that the person sitting behind the respondent had a hand-rolled cigar in his ear.

See Also

• Episode 015 - People v. Abdur-Rhamim - Police Car Search Legal in Illinois if They Smell Marijuana, So Why is There an Illegal Traffic Stop Here?
• Episode 340 - Interview With Kim Bilbrey - The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant 
• Episode 276 - People v. Kavanaugh - You Just Can’t Ignore The Stench Of Weed…And An Accident

Discovery Of The Gun

As the respondent got out of the car, he reached for his right jacket pocket. The officer said, "Don’t do that."

The officer touched the pocket, immediately realized it was a gun, and arrested the respondent. In the rear seat, a partially smoked hand-rolled blunt was recovered.

Issue

Respondent acknowledges this legal precedent; however, he submits that the odor of marijuana can no longer furnish police officers with probable cause or reasonable suspicion of criminal activity in light of the recent amendment decriminalizing the possession of small amounts of marijuana in Illinois.

The minor submits that his constitutional right to be free from unreasonable searches and seizures was violated when police officers “seized the stopped vehicle in which he was a passenger even though the driver was merely standing temporarily in a no parking zone and the smell of burnt cannabis near the vehicle did not indicate *** criminal activity.”

The Roll Up Was A Stop

Upon review, we agree with the parties.

The manner in which the police vehicle was positioned effectively blocked the idling car from driving away from the scene. In addition, we find the positioning of the officers around the idling vehicle further supports the conclusion that respondent and the other occupants were subject to an immediate seizure.

The seizure was initiated after he observed the vehicle stopped in a no parking zone and smelled cannabis coming from the direction of the idling vehicle. Upon making those two aforementioned observations— the location of the stopped vehicle and the smell emanating from that vehicle—that's when one officer instructed his partners to “put a stop” to the vehicle.

The Law On The Odor

It is well established that distinctive odors can be “persuasive evidence” of criminal activity. People v. Stout, 106 Ill. 2d 77, 87 (1985).

More specifically, Illinois courts have repeatedly recognized that the distinctive smell of burning cannabis emanating from a vehicle will provide police officers familiar with and trained in the detection of controlled substances with probable cause to search a vehicle and all persons seated therein. See, e.g., id.; People v. Zayed, 2016 IL App (3d) 140780, ¶ 22; People v. Williams, 2013 IL App (4th) 110857, ¶ 34; People v. Hansen, 326 Ill. App. 3d 610, 615 (2001); People v. Boyd, 298 Ill. App. 3d 1118, 1122 (1998).

Such searches are justified pursuant to the “automobile exception” to the warrant requirement, which is derived from the recognition that there is a diminished expectation of privacy with respect to automobiles. Stout, 106 Ill. 2d at 86.

Defendant's Argument

Respondent acknowledges this legal precedent; however, he submits that the odor of marijuana can no longer furnish police officers with probable cause or reasonable suspicion of criminal activity in light of the recent amendment decriminalizing the possession of small amounts of marijuana in Illinois.

See Pub. Act 99-697, § 40, (eff. July 29, 2016) (amending section 4 of the Illinois Cannabis Control Act (720 ILCS 550/4).

See Also

Episode 207 - Interview With Ken Wang - Give Us 24 Minutes And You’ll Get a Comprehensive Debriefing on The New Illinois Marijuana Law

Episode 251 - Interview With Jeffrey Hall -  On The Latest Developments And Problems With The Illinois Cannabis Decriminalization Law

Analysis

The recent amendment to the Cannabis Control Act simply treats the possession of “not more than 10 grams of any substance containing cannabis” as a “civil law violation” punishable by a fine. Id. § 4(a).

It is still very much "unlawful for any person knowingly to possess cannabis."

Decriminalization Not Legalization

Because decriminalization is not synonymous with legalization, even though possession of less than 10 grams of cannabis is no longer a crime in Illinois, it remains illegal.

In This Case...

The record establishes that at the time of the seizure, the police had smelled the distinctive odor of marijuana coming from the direction of a car that was idling in a no parking zone.

Given that Illinois prohibits the knowing possession of marijuana and prohibits operating a vehicle while impaired and under the influence of marijuana, the distinctive odor of marijuana was indicative of criminal activity and provided the officers with reasonable suspicion to believe that criminal activity was afoot.

When the officers approached the idling vehicle and spoke to the occupants through lowered windows, the odor of marijuana became more apparent. In addition, an officer was able to see a marijuana cigarette tucked behind the ear of the rear seat passenger. Such observations provided the officers with probable cause to search the vehicle and the vehicle’s occupants.

Holding

We therefore conclude that case law holding that the odor of marijuana is indicative of criminal activity remains viable notwithstanding the recent decriminalization of the possession of not more than 10 grams of marijuana.

Applying the aforementioned viable legal precedent, we further find that the search and seizure of respondent did not run afoul of the fourth amendment.

Accordingly, we find that the circuit court properly denied respondent’s motion to suppress.

Carpenter v. United  States, SCOTUS June 2018. Episode 508 (Duration 17:52)

Police need a warrant to capture your CSLI.

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The Search & Seizure Case List   The Charges

Defendant was charged with six counts of robbery and an additional six counts of carrying a firearm during a federal crime of violence.

He was convicted and sentenced to more than 100 years in prison.

Issue

This case presents the question whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.

Defendant argued the Government’s seizure of the records violated the Fourth Amendment because they had been obtained without a warrant supported by probable cause.

Cell Site Location Information
(The Technology)

Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site.

Most modern devices, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone’s features. Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI).

The precision of this information depends on the size of the geographic area covered by the cell site. The greater the concentration of cell sites, the smaller the coverage area. As data usage from cell phones has increased, wireless carriers have installed more cell sites to handle the traffic. That has led to increasingly compact coverage areas, especially in urban areas.

Wireless carriers collect and store CSLI for their own business purposes.

The Investigation

The FBI was investigating a series of robberies of Radio Shack and TMobile stores in Detroit.

They obtained the suspects CSLI under the Stored Communications Act. That statute, as amended in 1994, permits the Government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” 18 U. S. C. §2703(d).

That showing falls well short of the probable cause required for a warrant.

Altogether the Government obtained 12,898 location points cataloging Carpenter’s movements—an average of 101 data points per day.

His Location Convicted Him

The prosecution produced maps that placed the defendant’s phone near four of the charged robberies. In the Government’s view, the location records clinched the case: They confirmed that he was “right where the . . . robbery was at the exact time of the robbery.” 

The Fourth Amendment

 The Fourth Amendment protects

“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

The “basic purpose of this Amendment,” our cases have recognized, “is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” For much of our history, Fourth Amendment search doctrine was “tied to common-law trespass” and focused on whether the Government “obtains information by physically intruding on a constitutionally protected area.” United States v. Jones, 565 U. S. 400, 405, 406, n. 3 (2012).

More recently, the Court has recognized that “property rights are not the sole measure of Fourth Amendment violations.” Soldal v. Cook County, 506 U. S. 56, 64 (1992). In Katz v. United States, 389 U. S. 347, 351 (1967), we established that “the Fourth Amendment protects people, not places,” and expanded our conception of the Amendment to protect certain expectations of privacy as well.

Expectation of Privacy

When an individual “seeks to preserve something as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause.

Point Is To Restrict Government

Our cases have recognized some basic guideposts.

First, that the Amendment seeks to secure “the privacies of life” against “arbitrary power.” Boyd v. United States, 116 U. S. 616, 630 (1886).

Second, and relatedly, that a central aim of the Framers was “to place obstacles in the way of a too permeating police surveillance.” United States v. Di Re, 332 U. S. 581, 595 (1948).

Two Lines Of Cases

This sort of digital data—personal location information maintained by a third party—does not fit neatly under existing precedents. Instead, requests for cell-site records lie at the intersection of two lines of cases, both of which inform our understanding of the privacy interests at stake.

Expectation of Privacy In
Physical Location & Movement

The first set of cases addresses a person’s expectation of privacy in his physical location and movements.

In United States v. Jones, FBI agents installed a GPS tracking device on Jones’s vehicle and remotely monitored the vehicle’s movements for 28 days. The Court decided the case based on the Government’s physical trespass of the vehicle. 565 U. S., at 404–405.

Since GPS monitoring of a vehicle tracks “every movement” a person makes in that vehicle, the concurring Justices concluded that “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy”—regardless whether those movements were disclosed to the public at large.

Third Party Doctrine
(Shared Information Is Not Private)

In a second set of decisions, the Court has drawn a line between what a person keeps to himself and what he shares with others.

We have previously held that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith, 442 U. S., at 743–744. This third-party doctrine largely traces its roots to Miller.

Bank Records

While investigating Miller for tax evasion, the Government subpoenaed his banks, seeking several months of canceled checks, deposit slips, and monthly statements. See United States v. Miller, 425 U. S. 435, 443 (1976).

Pen Register

Three years later, Smith applied the same principles in the context of information conveyed to a telephone company. The Court ruled that the Government’s use of a pen register—a device that recorded the outgoing phone numbers dialed on a landline telephone—was not a search. See Smith v. Maryland, 442 U. S. 735.

The Court explained, such an expectation “is not one that society is prepared to recognize as reasonable.”

Intersection Of The Cases

The question we confront today is how to apply the Fourth Amendment to a new phenomenon:

the ability to chronicle a person’s past movements through the record of his cell phone signals.

1. Such tracking partakes of many of the qualities of the GPS monitoring we considered in Jones. Much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.

2. At the same time, the fact that the individual continuously reveals his location to his wireless carrier implicates the third-party principle of Smith and Miller. But while the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records.

After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements.

Analysis-Even Greater
Privacy Concerns

The location information obtained from Carpenter’s wireless carriers was the product of a search.

A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, “what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz, 389 U. S., at 351–352.

Although such records are generated for commercial purposes, that distinction does not negate Carpenter’s anticipation of privacy in his physical location. Mapping a cell phone’s location over the course of 127 days provides an all-encompassing record of the holder’s whereabouts. As with GPS information, the timestamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his “familial, political, professional, religious, and sexual associations.” These location records “hold for many Americans the ‘privacies of life.’” Riley, 573 U. S., at ___ (slip op., at 28) (quoting Boyd, 116 U. S., at 630).

In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring of a vehicle we considered in Jones.

Feature of Human Anatomy

Unlike the bugged container in Knotts or the car in Jones, a cell phone—almost a “feature of human anatomy,” Riley, 573 U. S., at ___ (slip op., at 9)—tracks nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time.

A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.

Like An Ankle Monitor
That Travels Backwards In Time

Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.

Moreover, the retrospective quality of the data here gives police access to a category of information otherwise unknowable. With access to CSLI, the Government can now travel back in time to retrace a person’s whereabouts, subject only to the retention polices of the wireless carriers, which currently maintain records for up to five years.

Everyone Is Tracked

Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation— this newfound tracking capacity runs against everyone.

Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when. Whoever the suspect turns out to be, he has effectively been tailed every moment of every day for five years, and the police may—in the Government’s view—call upon the results of that surveillance without regard to the constraints of the Fourth Amendment.

Only the few without cell phones could escape this tireless and absolute surveillance.

Seismic Shift In Technology

Accordingly, when the Government accessed CSLI from the wireless carriers, it invaded Carpenter’s reasonable expectation of privacy in the whole of his physical movements.

The Government’s position fails to contend with the seismic shifts in digital technology that made possible the tracking of not only this defendant's location but also everyone else’s, not for a short period but for years and years.

Sprint Corporation and its competitors are not your typical witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible. There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.

Holding

Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.

The Government thus is not asking for a straightforward application of the third-party doctrine, but instead a significant extension of it to a distinct category of information.

Yet this case is not about “using a phone” or a person’s movement at a particular time. It is about a detailed chronicle of a person’s physical presence compiled every day, every moment, over several years. Such a chronicle implicates privacy concerns far beyond those considered in Smith and Miller.

We therefore decline to extend Smith and Miller to the collection of CSLI. Given the unique nature of cell phone location information, the fact that the Government obtained the information from a third party does not overcome Carpenter’s claim to Fourth Amendment protection.

The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment.

Get A Warrant

Having found that the acquisition of Carpenter’s CSLI was a search, we also conclude that the Government must generally obtain a warrant supported by probable cause before acquiring such records.

The standard in the Stored Communications Act is not a permissible mechanism for accessing historical cell-site records. Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a warrant.

Subpoena Not Going To Do It

If the choice to proceed by subpoena provided a categorical limitation on Fourth Amendment protection, no type of record would ever be protected by the warrant requirement.

Under JUSTICE ALITO’s view, private letters, digital contents of a cell phone—any personal information reduced to document form, in fact—may be collected by subpoena for no reason other than “official curiosity.” This is certainly not to say that all orders compelling the production of documents will require a showing of probable cause.

The Government will be able to use subpoenas to acquire records in the overwhelming majority of investigations.

Exigent Circumstances Still Apply

We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party.

Further, even though the Government will generally need a warrant to access CSLI, case-specific exceptions may support a warrantless search of an individual’s cell-site records under certain circumstances. 

One well recognized exception applies when ‘“the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment."

Fleeing Suspect, Imminent Harm, Destruction of Evidence

Such exigencies include the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence.

As a result, if law enforcement is confronted with an urgent situation, such fact-specific threats will likely justify the warrantless collection of CSLI. Lower courts, for instance, have approved warrantless searches related to

• bomb threats
• active shootings and
• child abductions.

Our decision today does not call into doubt warrantless access to CSLI in such circumstances.

This Is A Narrow Decision

Further, the decision today is a narrow one.

-We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval).

-We do not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras.

-Nor do we address other business records that might incidentally reveal location information.

-Further, our opinion does not consider other collection techniques involving foreign affairs or national security.

Conclusion

We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information. In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government’s acquisition of the cell-site records here was a search under that Amendment. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

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This is the June 2018 Illinois criminal case law audio round-up (the fast case law summary). Episode 507 (Duration 21:03)

Click here to download the written summary of these cases:  June 2018 Round-Up 

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

Here's a quick snapshot of the top cases:

1. Carpenter v. United States

Police need a warrant to phone cell site data.

2. People v. Varga

Supreme Court says appellate courts don't have jurisdiction to fix improper fines imposed by the circuit clerk.

3. People v. Wilkinson 

Defendant beats back a racist aggressor; he's still doing 3 years.

4. People v. Middleton

Reversible error for the state to spring a doctored image before the jury on rebuttal argument.

5. People v. Krisik

Forfeiture by wrongdoing meant all her statements were coming in.

6. People v. Pablo 

The state was allowed to withdraw a stipulation and this really upset the defense.

7. People v. McArthur

17 year old held for 73 hours before a probably casue hearing nonetheless gave a voluntary confession.

8. People v. Haiman

Defendant has to be better than just say she had a prescrption to the pills.

9. In re Maurice J.

Officer not knowing the traffic law he says he was enforceing is not the same as being reasonably confused about the law.

10. In re O.S. 

Can the odor of weed still justify a traffic stop even after the cannabis legislation?

11. People v. Moore 

Second District goes with the Fourth District on burglary or retail store cases.

12. People v. Cunningham 

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

13. People v. Green

Another gun provision is declared unconstitutuional (this version was ineffect before conceal and carry changes).

14. People v. Bell 

This UUW provision in a park is found constitutional.

15. In re J'Lavon T. 

No contact order is unreasonable becasue the judge didn't look at the minor's specific life, associations, and contacts with gangs.

16. In re K.M. 

More "no gang contact" orders are found unconstitutional.

17. In re Jawan 

This "no gang activity" order was found constitutional.

18. People v. Amans

Defendant gets prison, then probation, then prison for having a grow room in his basement.

19. People v. Gauger 

Conviction for Stalking stands even though one small provision of the statute is unconstitutional.

In re Maurice J., 2018 IL App (1st) 172123 (June). Episode 506 (Duration 8:18)

Officer not knowing the traffic law he says he was enforcing is not the same as being reasonably confused about the law.

Gun Case

The minor respondent was charged in juvenile court and adjudicated for UUW under 21. The minor was sent to JIDOC

Facts

Police see a car “go around a speed bump.” 

Specifically, the driver went toward the curb so that one set of tires was on the speed bump and the other set was level. Although the driver steered around the bump, he did not swerve.

The Stop & The Gun

After the traffic violation, the officer  activated the emergency equipment in order to curb the vehicle.

From 12 to 15 feet away, he “observed the front passenger pass a handgun to the rear passenger.”

The officer could see the gun because the police car was an elevated SUV and illuminated the inside of the car.

Everyone Removed

The driver and respondent, who was in the front passenger seat, were immediately removed form the car and handcuffed. The officer testified that he knew to look for the firearm “[i]n the direction [that] the offender gave it to the co-offender.”

Moreover, the officers searched the occupants and found a firearm in a purse. 

Wells was released with a traffic citation for driving around the speed bump.

Issue

On appeal, respondent first asserts that the trial court erred in denying his motion to suppress evidence because it was not reasonable for an officer to believe that the driver committed a traffic violation.

Specifically, the testimony failed to show that the car drove upon or through private property to avoid a traffic control device.

Fourth Amendment

Under the fourth amendment and the Illinois Constitution of 1970, individuals have the right to be free from unreasonable searches and seizures. U.S. Const., amend. IV, and Ill. Const. 1970, art. I, § 6.

In addition, the stop of a vehicle for a suspected violation of law constitutes a seizure, regardless of whether the seizure is brief and is made for a limited purpose. People v. Gaytan, 2015 IL 116223, ¶ 20. Pursuant to Terry v. Ohio, 392 U.S. 1 (1968), police officers may conduct a brief, investigatory stop if the officer reasonably believes that the individual in question committed or is about to commit a crime.

Mistakes Of Law

In Heien v. North Carolina, 574 U.S. ___, ___, 135 S. Ct. 530, 536 (2014), the United States Supreme Court held that a reasonable suspicion can be supported by an officer’s misunderstanding of the scope of a law.

Consequently, a police officer does not violate the fourth amendment when he stops a vehicle based on an objectively reasonable, albeit mistaken, belief that the driver’s conduct leading to the stop violated traffic laws. 

This reflects that the fourth amendment permits government officials to make some mistakes.

...but

The Court stated in Heien, “an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.” Heien, 574 U.S. at ___, 135 S. Ct. at 539.

It's An Objective Standard

That being said, courts apply an objective standard in determining whether a police officer made a reasonable mistake of law, without examining the particular officer’s subjective understanding.

Respondent essentially contends that, even taking the officer’s account as true, the traffic stop lacked a reasonable articulable basis.

The Traffic Code On Avoiding Traffic Control Devices

Section 11-305 of the Illinois Vehicle Code states, in pertinent part, that

“[i]t is unlawful for any person to leave the roadway and travel across private property to avoid an official traffic control device.”

625 ILCS 5/11-305(b).

Thus, section 11-305 clearly applies only where a driver enters private property.

Accordingly, the ordinance unambiguously applies only where the driver enters private property or an alley, or drives on a traffic island.

This Is Pretty Clear

We find the distinction between the street itself and private property, alleys, or traffic islands to be obvious.

The State nonetheless argues that the officer could have reasonably, albeit mistakenly, believed that this was a violation of the ordinance because maneuvering around a speed bump while remaining in the roadway is similar to driving onto a traffic island. While vehicles are permitted to be driven on a public street in most instances, they should almost never be driven on a raised traffic island.

We categorically disagree.

No Mistake Of Law Here

 The case before us does not present an officer’s misunderstanding of the law. Instead, it presents an officer’s failure to know the law.

Here the officer’s mistaken belief that the driver committed a traffic violation was unreasonable where Wells never left the street to avoid a speed bump.

Holding

It follows that the seizure of respondent as an occupant in Wells’s car, which occurred when the police activated their lights and siren, was also unreasonable. Consequently, respondent was entitled to the suppression of such evidence. 

Accordingly, we reverse the adjudication of delinquency outright. 

See Also

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. Brock, 2015 IL App (1st) 133404 (November 2015). Episode 114 (Duration: 4:24)

Reporting is different than registering, and Defendant is required to have documentation with his new address in order to register that address.

The sex offender registration act (730 ILCS 150/1 et seq.) imposes two separate requirements. The first imposes a general duty to register on all sex offenders. 730 ILCS 150/3. The second, is the duty to report. 730 ILCS 150/6. The statute also imposes a separate and additional duty on those sex offenders specifically adjudicated "dangerous" or "violent," and it is clear from the language of the statute that the legislature intended to distinguish a duty to report that does not simply duplicate the registration requirement.

Thus, the language of the statute clearly distinguishes "report" and "register" and when it requires one, or both, it does so by expressly stating such requirement. Logically, one can "report" without registering, but may not "register" without reporting, because registration requires the creation of a signed writing.

This defendant did report on time but was turned away because he could not pay the registration fee. However, defendant did violate the failure to register a new address provision because he did not have an ID or some type of documentation with the new address as is required. See 730 ILCS 150/3(c)(5).

Additionally, the defendant had only two prior felony convictions—one for aggravated criminal sexual assault and a second for indecent liberties with a child. The indictment listed defendant's prior conviction for aggravated criminal sexual assault as the basis for establishing his duty to comply with the Act. Establishing a defendant's duty to register under the Act is an element of the offense.

This conviction was also necessarily used as one of his two prior felony convictions to mandate Class X sentencing. The sentence was improper. See People v. Hall, 2014 IL App (1st) 122868.

 

People v. Moore, 2018 IL App (2d) 160277 (June). Episode 505 (Duration 4:40)

Second District goes with the Fourth District on burglary or retail store cases.

Gist

Defendant was convicted of burglary after he and another man entered a Wal-Mart intentions to commit a theft therein.

Facts

The other man grabbed 4 bottles of liquor and put them in a diapar bag and left without paying. Defendant ran out the store shortly thereafter. He had no money on him and did not buy anything.

He was sentenced to 6 years and challenged the conviction for burglary.

Burglary

Section 19-1(a) of the Criminal Code of 2012 provides, in part, that

“[a] person commits burglary when without authority he or she knowingly enters or without authority remains within a building, *** or any part thereof, with intent to commit therein a felony or theft.”

720 ILCS 5/19-1(a).

Thus, under the statute, one can commit a burglary in one of two ways:

(1) by entering without authority and with the intent to commit a felony or theft or
(2) by remaining without authority and with the intent to commit a felony or theft.

Defendant was charged with, and convicted of, the first type of burglary—burglary by unauthorized entry.

The Case Law

For more than 100 years, the supreme court has recognized that entering a retail establishment with the intention of committing a theft constitutes burglary. Authority to enter a business building, or other building open to the public, extends only to those who enter with a purpose consistent with the reason the building is open.

Thus, patrons of a business lack the authority to enter if they intend to commit a theft inside the establishment.

People v. Bradford

Defendant relies on People v. Bradford, 2016 IL 118674, ¶¶ 25, 31, where the supreme court declined to extend People v. Weaver, 41 Ill. 2d 434, 435 (1968) to a case of burglary by unlawfully remaining.

There, the defendant was convicted of burglary by unlawfully remaining in a Walmart store with the intent to commit a theft.

Bradford addressed only the second type of burglary: burglary by remaining.

Analysis

The supreme court’s concerns about establishing when authority is revoked and when a defendant has remained in the store longer than necessary to complete the theft are simply not present in a case like this one.

Further, as noted, the historical development of the crime of burglary by remaining, the court emphasized, includes only scenarios where the defendant is discovered in a place where he or she is not authorized to be.

Finally, nothing in Bradford purports to overrule Weaver, where the court held that the burglary statute applied to the entry of an establishment otherwise open to the public (Weaver, 41 Ill. 2d at 438-39).

Holding

We agree with the Fourth District that the history and nature of the burglary-by-remaining provision distinguish it from burglary by unauthorized entry such that Bradford’s rationale cannot be mechanically applied to the latter provision. The distinction is further justified by the fact that one who enters a store with a preconceived plan to steal merchandise is at least arguably more culpable than one who, once inside a store, impulsively takes merchandise.

We follow Burlington. Affirmed.

Decline To Follow Johnson

In People v. Johnson, 2018 IL App (3d) 150352, ¶ 35, a case upon which defendant relies, the Third District came to a different conclusion than the Fourth District in Burlington. In Johnson, the Third District held that Bradford changed longstanding law and applies to cases of burglary by unauthorized entry. The court concluded that “Bradford’s physical authority test applies to all retail theft cases, regardless of when the defendant forms the intent to shoplift.”

We disagree with and do not follow Johnson.

Not The Court's Job To Limit Prosecutorial Discreation

The court’s primary concern there appears to have been that allowing the same act to be charged as either burglary or retail theft (or both) gives prosecutors “unbridled discretion.”

We, however, do not find that limiting a prosecutor’s discretion to charge a defendant when his or her conduct falls under one or more provisions is a basis to depart from more than 100 years of precedent. The state’s attorney has the responsibility of evaluating evidence and other pertinent factors and determining what, if any, offense should be charged. Further, as the Burlington court noted, “[c]oncerns over the exercise of prosecutorial discretion cannot alter the plain language of a statute.” Burlington, 2018 IL App (4th) 150642, ¶ 32.

See Also

Episode 155 – People v. Bradford – Pimpy Burglary Is Now Off The Books 

Episode 456 – People v. Johnson – Retail Theft Statute Countermands This Class Of Burglaries

Episode 472 - People v. Burlington - Fourth District Declines To Follow Third District

People v. Wilkinson, 2018 IL App (3d) 160173 (June). Episode 504 (Duration 15:06)

Defendant beats back a racist aggressor; now he's doing 3 years.

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Gist

A big white dude walks up to defendant’s front door with another guy. When Defendant gets to the door the white dude punches defendant who is African American. A struggle ensues. Defendant grabs a hammer and hits defendant in the head. Either he doesn’t stop and repeatedly hits him or the struggle ensues.

Issue

On appeal, defendant argues that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that defendant did not reasonably believe that the force he used was necessary to prevent great bodily harm.

The parties on appeal limit their arguments to the reasonableness of defendant’s belief that striking the victim with a hammer was necessary to prevent great bodily harm to himself.

Facts

Big white dude was jacked up.

The victim testified that he suffered fractures to his eye socket, sinus cavity, and “nose socket” as a result of the altercation. Looks like it came from one blow with the hammer.

He required 12 staples and a number of stitches. A tendon was also severed. He continued to suffer from eye spasms and headaches.

The Verdict

The State concedes “that the record in this case supports defendant’s and trial court’s beliefs that Cook was the initial aggressor. More pointedly, the State concedes that Cook punched defendant in the face. The State, however, argues that defendant used “excessive force,” or “an amount of force far greater than needed to neutralize the threat posed by Cook.”

Here, the jury was free to conclude that defendant struck the victim repeatedly in the head with a hammer while he was on top of him and the victim was trying to get away.

It follows that the jury could rationally conclude that any belief defendant held at that point that those hammer strikes were necessary to protect himself was unreasonable.

Racist Victim

The trial court noted that “the elephant in the room” was that “this case [was] about being black.” The court found it clear that the victim did not like defendant because of his race, based on his comments that defendant was not welcome in the neighborhood. The court noted that defendant had been made well aware of that racial animosity before the physical altercation.

The victim’s untruthfulness about his initial intentions did not fatally undermine his credibility as to his later actions. Indeed, it is plausible that a hammer strike to his face, leaving a large gash between his eyes, was enough to convince the initially aggressive victim that it was time to leave.

In sum, testimony from the victim in this case tended to show that defendant continued to strike him with a hammer after any threat had subsided. The jury could reasonably have concluded that this testimony was credible and, in turn, that defendant did not reasonably believe those continued hammer strikes were necessary to prevent great bodily harm to himself.

Self Defense?

Defendant claimed self defense.

The court concluded that victim was the aggressor.

The court noted that while defendant had been initially justified in using force, the State had proven beyond a reasonable doubt that he used “excessive force in the lawful act of self-defense.” The court commented that defendant would not have been guilty if he had only struck the aggressor with the hammer “once or twice.” The court made clear that it was sentencing defendant not for initially striking the victim with the hammer, but “for not stopping.”

Police Investigation

The court also condemned the actions of the investigating officers in the case, opining:

“[T]he police already made up their mind what the charge was before they ever spoke to you. They didn’t even come and ask you what happened. They didn’t come and ask your girlfriend what happened, even though she was the one that called the police. They just went directly to the victim and got his side of the story and the case was opened, and closed, and shut.”

Sentence

The court sentenced defendant to a term of three years’ imprisonment.

Statue on Self Defense

 Section 7-1(a) of the Criminal Code of 2012 holds as follows:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

720 ILCS 5/7-1(a).

The section further provides that a person who is an “aggressor” may not invoke self-defense. Id. § 7-1(b).

Self Defense Elements

A claim that self-defense justified a use of force that was likely to cause great bodily harm contemplates six distinct elements:

(1) unlawful force was threatened against a person,
(2) the person threatened was not the aggressor,
(3) the danger of great bodily harm was imminent,
(4) the use of force was necessary,
(5) the person threatened actually and subjectively believed a danger existed that required the use of the force applied, and
(6) the beliefs of the person threatened were objectively reasonable.

Once a defendant raises the affirmative defense of self-defense, the burden shifts to the State to prove beyond a reasonable doubt that defendant did not act in self-defense.

The State satisfies this burden if it negates any of the six elements beyond a reasonable doubt.

Holding

We find the State produced evidence sufficient to prove beyond a reasonable doubt that defendant was not acting in self-defense. The judgment of the circuit court of Whiteside County is affirmed.

But See The Dissent

The dissent says he was only hit once with the hammer.

Defendant's Injuries

The photographs showed a swollen nose and a knot on defendant’s head, apparently confirming the punch to his face, and “welt-like marks on his right arm, redness and a small wound on his left arm, and scrapes on his elbow, knee, and knuckles.”

The photographic evidence in the case, including the welts and redness on the Defendant’s arms, thus casts doubt upon the victim’s testimony in two ways:

(1) How did the victim have only one significant injury to his face if he was struck in the head multiple times with a hammer while defendant was on top of him? and
(2) How did the defendant acquire such a variety of injuries if the victim was merely trying to flee?

Indeed, nothing in the victim’s version explains defendant’s injuries.

In affirming, the majority not only does not address these questions; it makes no reference to the photographs at all in its analysis.

Victim's Testimony

The victim’s testimony, the most significant basis for Wilkinson’s conviction, is precisely the type of “unreasonable, improbable, or unsatisfactory” evidence that creates a reasonable doubt as to Wilkinson’s guilt.

Just One Solid Hammer Blow

Further, the majority’s holding is that the defendant was no longer acting in self-defense when, at least according to the victim, he continued to beat the victim with the hammer outside.

Yet the evidence unequivocally shows that the major wound to the victim’s face—the wound that clearly was the source of the frontal sinus fracture referenced in the charging instrument—was the result of the first, justified hammer strike.

No Serious Injuries After First Blow

To sustain a conviction on the theory that it was defendant’s continued hammer strikes that negated the reasonableness of his belief in the necessity of his actions, the State would need to prove that defendant caused great bodily harm after the point at which he was no longer reasonably defending himself.

Even accepting as true victim’s later testimony that he was merely trying to get away when defendant repeatedly struck him with the hammer outside, the photographs show that those alleged additional hammer strikes caused—at most—some cuts, scrapes, and slight bruising.

These injuries conformed with the suggestion that the strikes may have been glancing blows.

No rational juror could conclude that injuries of that nature rise to the level of great bodily harm. It does not appear to me that the State was engaged in creating and presenting a fair and objective record to facilitate the jury’s search for truth. For all of these reasons, I would reverse the conviction of Michael Wilkinson outright.

Before You Go...

It doesn't matter where you're at in your criminal law practice. Right now you can make a decision that leads to explosive litigation growth.

You can't argue with the idea that steady, persistent attention to the cases increases your litigation game. But what if you could double, triple, even quadruple the number of cases your brain can digest and process?

Are you ready to join the other attorneys who have discovered how to make their ears their secret weapon?

I'm Ready To Start Making Better Use Of My Drive Time And Ready To...

Increase my litigation skills.
Easily identify winning scenarios. 
Get fast and efficient case law updates.

Subscribe Now!

Subscribe Now To The
Premium Nuggets Podcast