Kane County Nuggets

People v. Gore, 2018 IL App (3d) 150627 (April). Episode 502 (Duration 6:36)

Judge doesn't have to open the courtroom to the public to handle how to answer a jury question.

Charges

The State charged defendant with attempted murder (720 ILCS 5/8-4(a), 9-1(a), home invasion (id. § 19-6(a)(2)), and aggravated domestic battery.

Domestic Incident

Defendant entered his girlfriends home and, knowing that she was home, stabbed her in the neck and chest.

Defendant filed a notice of the affirmative defense of self-defense.

They had been in a relationship for 14 years and had a 12-year-old daughter together. They ended their relationship in early 2014.

Following the separation, defendant briefly lived in the home while the mom and child moved out. Eventually, defendant moved into an apartment, and she moved back into the home.

Night Of

Defendant owed her money for various expenses, including unpaid bills and some of her personal property, which he had not returned.

The victim testified that the night before the incident in question, she spent time with a man. The man slept over at her house that night. The next morning, after the man had left, she was in the bathroom when she heard the front door to the house unlock.

Defendant entered the bathroom and confronted her about the man.

The Attack

Defendant hit her in the head, knocked her down, and began choking her.

He dragged her by the hair to the kitchen, where he grabbed a knife from a drawer. They struggled over the knife, and she cut her finger. She distracted defendant by telling him that her father had just arrived at the house. When defendant went to check, she stood up and realized she had been stabbed.

She ran to a neighbor who called 911.

In The Hospital

The victim was in the hospital for six days after the incident, recovering from a stab wound to her throat, two stab wounds to her chest, and a cut on her hand.

Verdict

The jury found defendant guilty of home invasion and aggravated domestic battery, but not guilty of attempted murder.

The court sentenced defendant to 11 years’ and 7 years’ imprisonment for home invasion and aggravated domestic battery, respectively.

Jury Questions

Following closing arguments, the jury retired to deliberate. The court went back on the record when the jury asked a question. The court stated: “They have a question, and I’m reviewing that question in the presence of the defendant and his counsel and the state’s attorney.”

The question asked, with regard to the attempted murder charge, when the requisite intent had to be formed. The parties agreed that the court would answer the question by telling the jury that “it doesn’t matter when [the intent] occurred” and then reading a pattern jury instruction regarding intent.

The jury was brought into the courtroom, at which point the court stated: “Let the record show the jury is in court, but we are, I guess, kind of in open session, because I’ve closed the courtroom to outsiders. Because the jury has a question, I consider that to be a private matter.” The court then answered the question in the manner agreed to by the parties.

Later, the court went back on the record when the jury asked a second question. The court again explained that all parties were present, as was the jury, but “everyone else” had been excluded from the courtroom. The question asked for a transcript of the victim’s testimony. The court informed the jury that there was no transcript, but that the audio recording of her testimony could be replayed if the jury so wished. With the judge and parties still in the courtroom with the jury, the audio recording from portions of the victim’s testimony was replayed.

Issue

On appeal, defendant contends that the circuit court violated his sixth amendment right to a public trial when it excluded the public from the portion of proceedings in which it addressed the jury’s questions.

Public Trial

The United States and Illinois Constitutions both provide criminal defendants with the right to a “public trial.” It says, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,..." U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8.

Where applicable, the right precludes the closure of a courtroom except where it must give way to an overriding interest, “such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” Waller v. Georgia, 467 U.S. 39, 45 (1984) (the right did apply at a suppression hearing, and it would find 26 years later that it applied to the jury selection phase as well). See also Presley v. Georgia, 558 U.S. 209, 212-13 (2010).

What About During Jury Questions?

However, we are aware of no cases that have addressed that question and concluded that the public trial right applies when a court answers a jury’s intradeliberational questions.

Accordingly, we begin with that threshold question.

Closing A Courtroom

Before closing the courtroom, a court must consider alternatives to closure and make factual findings sufficient to support the closure. Few of the concerns identified by the case law are present in this case.

In the context of a judge answering an intradeliberational jury question, there is absolutely no concern for perjury or for encouraging witnesses to come forward. No one is sworn in, and no one testifies. There are no facts adduced, and in turn, nothing turns on resolution of any factual questions.

The proceeding, unlike a suppression hearing, does not resemble a bench trial in any way.

Further, there is no specific, self-evident public interest, such as the public’s interest in police conduct at issue in a suppression hearing or the public’s interest in knowing that a particular jury is fairly and openly selected.

Here, after a brief discussion, the court read a pattern jury instruction back to the jury. Later, the court and parties sat silently while audio of testimony from the trial was played.

But Things Can Get Contentious

While defendant asserts that the question of how to present evidence to a jury in the middle of deliberations is “often contentious,” that is simply not borne out by the record before us.

Thus, the public’s interest in ensuring the court and prosecutor execute their duties properly is less where those duties are minimal compared to the more significant portions of a trial.

Error Could Be Introduced

Further, there are affirmative reasons that the public trial right should not apply in the present context.

It is axiomatic that the deliberations of a jury are to remain private and secret in order to insulate the jury from improper influence. Based on this principle, this court has found error where a courtroom is open even to the parties when a jury must return to the courtroom during its deliberations to review evidence, with those courts proceeding straight to a prejudice analysis.

In the present case, defendant does not argue that it was error for the court and parties to be present while the jury reviewed the victim's testimony. Indeed, he argues that more people should have been welcomed into the courtroom while the court answered the jury’s questions.

While we agree with defendant that the jury’s act of asking a question naturally invites a third party into the fold at the deliberative stage, it is reasonable that the variables that might subconsciously influence the jury at that stage be minimized as much as possible.

The presence of friends and family—of either a defendant or victim—or the media when a jury must return to the courtroom in the middle of its deliberations present no obvious benefits; rather, it is more likely to influence the jury in a way that undermines a defendant’s right to a fair trial.

Holding

In sum, we find that a criminal defendant’s right to a public trial is inapplicable to a portion of proceedings in which the circuit court must answer the jury’s intradeliberational questions.

Accordingly, we find that the court in the present case did not violate defendant’s rights or otherwise commit error when it closed the courtroom in that context.

See Also

Episode 270 - People v. Evans 2016 IL App (1st) 142190 (December) (grandma kept out during jury deliberation)

Episode 501 (Duration 40:36) 3 criminal law cases from the Supreme Court of the United States were released in the second quarter of 2018. Here they are...

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In This Episode...

We discuss the following cases:

• Byrd v. United States (May 2018)
• McCoy v. Louisiana (May 2018)
• Collins v. Virginia (May 2018)

Byrd v. United States

Driver of a rental car not on the renting papers nonetheless has an expectation of privacy.

Gist

Defendant was driving a rental car in Pennsylvania.

When the police discovered he was not on the rental agreement they told him they didn’t need his permission to search the car. They found 49 bricks of heroin and charged him in federal court.

Issue

SCOTUS granted certiorari to address the question whether a driver has a reasonable expectation of privacy in a rental car when he is not listed as an authorized driver on the rental agreement.

Facts

Defendant was given control of the car right at the rental lot after another person rented the car. Defendant was not listed as an additional driver and was prohibited from driving the car by contract. Defendant was stopped because he was driving with his hands at the 10 and 2 position, he was seated way back and it was a rental car. Further, he was very nervous and shaking with the police and admitted he had a blunt in the car.

Police sought his consent to search the car, but then just searched it.

When they found body armor defendant started to run away from the scene. He was caught and admitted there was heroin in the car.

The search resumed and police discovered the 49 bricks.

Lower Court

The lower courts denied his motion because they said he had no standing to raise the issue. 

Property Rights

Expectations of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest. Still, “property concepts” are instructive in determining the presence or absence of the privacy interests protected by that Amendment.

Indeed, more recent Fourth Amendment cases have clarified that the test most often associated with legitimate expectations of privacy, supplements, rather than displaces, “the traditional property-based understanding of the Fourth Amendment.” See Florida v. Jardines, 569 U. S. 1, 11 (2013).

Reference to property concepts aids the Court in assessing the precise question here: Does a driver of a rental car have a reasonable expectation of privacy in the car when he or she is not listed as an authorized driver on the rental agreement?

One who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it. More difficult to define and delineate are the legitimate expectations of privacy of others.

Privacy of Others

On the one hand, as noted above, it is by now well established that a person need not always have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it.

On the other hand, it is also clear that legitimate presence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy, because it creates too broad a gauge for measurement of Fourth Amendment rights.

Although the Court has not set forth a single metric or exhaustive list of considerations to resolve the circumstances in which a person can be said to have a reasonable expectation of privacy, it has explained that legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.

Right To Exclude Others

One of the main rights attaching to property is the right to exclude others, and, in the main, one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.

This general property-based concept guides resolution of this case.

Analysis

Here, the Government contends that drivers who are not listed on rental agreements always lack an expectation of privacy in the automobile based on the rental company’s lack of authorization alone. This per se rule rests on too restrictive a view of the Fourth Amendment’s protections.

On the other hand, merely being the sole occupant of a car doesn’t always create a privacy interest. A thief wouldn’t necessarily have a reasonable expectation of privacy in a car he was caught driving away in.

The Court sees no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it. It does not seem to matter whether a friend owns or leases an apartment he is permitted to use.

Both an owner and invited guest would have the expectation of privacy that comes with the right to exclude.

Lawful Possession

The central inquiry at this point turns on the concept of lawful possession, and this is where an important qualification of Byrd’s proposed rule comes into play. No matter the degree of possession and control, the car thief would not have a reasonable expectation of privacy in a stolen car.

Though new, the fact pattern here continues a well traveled path in this Court’s Fourth Amendment jurisprudence.

Holding

Those cases support the proposition, and the Court now holds, that the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.

The Court leaves for remand two of the Government’s arguments: that one who intentionally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no better situated than a car thief; and that probable cause justified the search in any event.

The judgment of the Court of Appeals is vacated, and the case is remand.

McCoy v. Louisiana

Defendant has the right to maintain his innocence even if his attorney thinks otherwise. Defendant got the death penalty for a triple murder.

Facts

Defendant’s wife’s mother, step father and son were all shot and killed in their home. Defendant says he was out of state in Idaho at the time of the killing and that the police shot and killed the family. The defense attorney believed the evidence was overwhelming against defendant. Defendant didn’t care and wanted to proceed with his alibi defense.

Attorney Concedes Guilt

At the beginning of his opening statement at the guilt phase of the trial, the lawyer told the jury there was “no way reasonably possible” that they could hear the prosecution’s evidence and reach “any other conclusion than Robert McCoy was the cause of these individuals’ death.” McCoy protested; out of earshot of the jury, McCoy told the court that his lawyer was “selling [him] out”.

Continuing his opening statement, counsel told the jury the evidence is “unambiguous,” “my client committed three murders.”

Defendant Testified

McCoy testified in his own defense, maintaining his innocence and pressing an alibi difficult to fathom.

In his closing argument, the attorney reiterated that McCoy was the killer. At the penalty phase, he again conceded “Robert McCoy committed these crimes,” but urged mercy in view of McCoy’s “serious mental and emotional issues.”

Issue

We granted certiorari in view of a division of opinion among state courts of last resort on the question whether it is unconstitutional to allow defense counsel to concede guilt over the defendant’s intransigent and unambiguous objection.

Right To Counsel

The Sixth Amendment guarantees to each criminal defendant “the Assistance of Counsel for his defence.”

As this court has explained, the right to defend is personal, and a defendant’s choice in exercising that right must be honored out of that respect for the individual which is the lifeblood of the law.

Similarly, the right to appear pro se exists to affirm the dignity and autonomy of the accused. The choice is not all or nothing: To gain assistance, a defendant need not surrender control entirely to counsel. For the Sixth Amendment, in granting to the accused personally the right to make his defense, speaks of the assistance of counsel, and an assistant, however expert, is still an assistant.

The Sixth Amendment contemplates a norm in which the accused, and not a lawyer, is master of his own defense. Trial management is the lawyer’s province: Counsel provides his or her assistance by making decisions such as “what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.” Gonzalez v. United States, 553 U. S. 242, 248 (2008).

Decisions For Defendant Alone

Some decisions, however, are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal. See Jones v. Barnes, 463 U. S. 745, 751 (1983).

Autonomy to decide that the objective of the defense is to assert innocence belongs in this latter category.

Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial.

These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are. Counsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty, as counsel did in this case.

Defendant Has Different Motivations

But the client may not share that objective. He may wish to avoid, above all else, the opprobrium that comes with admitting he killed family members. Or he may hold life in prison not worth living and prefer to risk death for any hope, however small, of exoneration.

When a client expressly asserts that the objective of “his defence” is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.

What About Rules of Precessional Responsibility?

ABA Model Rule of Professional Conduct 1.2(a) (2016) says a “lawyer shall abide by a client’s decisions concerning the objectives of the representation”. Preserving for the defendant the ability to decide whether to maintain his innocence should not displace counsel’s, or the court’s, respective trial management roles.

Counsel, in any case, must still develop a trial strategy and discuss it with her client.

Simply stated, the rules of professional responsibility would have allowed counsel to put on defendant's defense.

The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. This attorney harbored no doubt that McCoy believed what he was sayin, the lawyer simply disbelieved McCoy’s account in view of the prosecution’s evidence.

Counsel’s express motivation for conceding guilt was not to avoid suborning perjury, but to try to build credibility with the jury, and thus obtain a sentence lesser than death.

Louisiana’s ethical rules might have stopped counsel from presenting McCoy’s alibi evidence if he knew perjury was involved. But Louisiana has identified no ethical rule requiring him to admit McCoy’s guilt over McCoy’s objection.

Defendant's Have A Right To Steer The Ship Into The Reef

If, after consultations with his attorney concerning the management of the defense, McCoy disagreed with his proposal to concede McCoy committed three murders, it was not open to the attorney to override McCoy’s objection.

Counsel could not interfere with McCoy’s telling the jury “I was not the murderer,” although counsel could, if consistent with providing effective assistance, focus his own collaboration on urging that McCoy’s mental state weighed against conviction.

Here, McCoy opposed his attorney's assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court.

If a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant’s best interest. Presented with express statements of the client’s will to maintain innocence, however, counsel may not steer the ship the other way.

These were not strategic disputes about whether to concede an element of a charged offense; they were intractable disagreements about the fundamental objective of the defendant’s representation. 

It's Structural Error

Violation of a defendant’s Sixth Amendment-secured autonomy ranks as error of the kind our decisions have called “structural”; when present, such an error is not subject to harmless-error review.

Structural error “affect[s] the framework within which the trial proceeds,” as distinguished from a lapse or flaw that is “simply an error in the trial process itself.” An error may be ranked structural, we have explained, “if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest,” such as “the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty.”

An error might also count as structural when its effects are too hard to measure, as is true of the right to counsel of choice, or where the error will inevitably signal fundamental unfairness, as we have said of a judge’s failure to tell the jury that it may not convict unless it finds the defendant’s guilt beyond a reasonable doubt.

Holding

In this stark scenario, we agree with the majority of state courts of last resort that counsel may not admit her client’s guilt of a charged crime over the client’s intransigent objection to that admission.

McCoy must therefore be accorded a new trial without any need first to show prejudice.

McCoy insistently maintained: “I did not murder my family.”

Once he communicated that to court and counsel, strenuously objecting to English’s proposed strategy, a concession of guilt should have been off the table. The trial court’s allowance of Counsel’s admission of McCoy’s guilt despite McCoy’s insistent objections was incompatible with the Sixth Amendment.

Because the error was structural, a new trial is the required corrective. For the reasons stated, the judgment of the Louisiana Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

See Also

Episode 033 - People v. Holt,  2014 IL 116989 (November) (counsel admits his client is unfit against the client's admit protest to the contrary)

Collins v. Virginia

Police need a warrant to search a vehicle on private property.

Issue

This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein.

Facts

Police were aware of a man speeding on an orange and black motorcycle but were unable to catch him. Officers learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. After discovering photographs on Collins’ Facebook profile that featured an orange and black motorcycle parked at the top of the driveway of a house, Officer Rhodes tracked down the address of the house, drove there, and parked on the street.

It was later established that Collins’ girlfriend lived in the house and that Collins stayed there a few nights per week.

From his parked position on the street, Officer Rhodes saw what appeared to be a motorcycle with an extended frame covered with a white tarp, parked at the same angle and in the same location on the driveway as in the Facebook photograph.

No Warrant

Officer Rhodes, who did not have a warrant, exited his car and walked toward the house.

He stopped to take a photograph of the covered motorcycle from the sidewalk, and then walked onto the residential property and up to the top of the driveway to where the motorcycle was parked. When Officer Rhodes searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house.

In order “to investigate further,” Officer Rhodes pulled off the tarp, revealing a motorcycle that looked like the one from the speeding incident. He then ran a search of the license plate and vehicle identification numbers, which confirmed that the motorcycle was stolen.

After gathering this information, Officer Rhodes took a photograph of the uncovered motorcycle, put the tarp back on, left the property, and returned to his car to wait for Collins.

Defendant Gets Home

Shortly thereafter, Collins returned home.

Officer Rhodes walked up to the front door of the house and knocked. Collins answered, agreed to speak with Officer Rhodes, and admitted that the motorcycle was his and that he had bought it without title.

Officer Rhodes then arrested Collins.

Charges

Collins was indicted by a Virginia grand jury for receiving stolen property.

Automobile Exception v. Warrant Requirement

This case arises at the intersection of two components of the Court’s Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home.

Automobile Exception

The Court has held that the search of an automobile can be reasonable without a warrant.

The Court first articulated the so-called automobile exception in Carroll v. United States, 267 U. S. 132 (1925). The “ready mobility” of vehicles served as the core justification for the automobile exception for many years. California v. Carney, 471 U. S. 386, 390 (1985) (citing, e.g., Cooper v. California, 386 U. S. 58, 59 (1967); Chambers v. Maroney, 399 U. S. 42, 51–52 (1970)).

Later cases then introduced an additional rationale based on “the pervasive regulation of vehicles capable of traveling on the public highways.” Carney, 471 U. S., at 392. As the Court explained in South Dakota v. Opperman, 428 U. S. 364 (1976):

“Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.”

Id., at 368.

Homes Are Different

These rationales don’t exist for houses.

Like the automobile exception, the Fourth Amendment’s protection of curtilage has long been black letter law. “[W]hen it comes to the Fourth Amendment, the home is first among equals.” Florida v. Jardines, 569 U. S. 1, 6 (2013). “At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” Ibid. (quoting Silverman v. United States, 365 U. S. 505, 511 (1961)).

Curtilage Part Of The Home

To give full practical effect to that right, the Court considers curtilage—“the area ‘immediately surrounding and associated with the home’”—to be “‘part of the home itself for Fourth Amendment purposes.’” Jardines, 569 U. S., at 6 (quoting Oliver v. United States, 466 U. S. 170, 180 (1984)). “The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.” California v. Ciraolo, 476 U. S. 207, 212–213 (1986).

When a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred. Such conduct thus is presumptively unreasonable absent a warrant.

Just like the front porch, side garden, or area outside the front window the driveway enclosure where Officer Rhodes searched the motorcycle constitutes an area adjacent to the home and to which the activity of home life extends, and so is properly considered curtilage.

State Says Expand Automobile Exception

Virginia asks the Court to expand the scope of the automobile exception to permit police to invade any space outside an automobile even if the Fourth Amendment protects that space. Nothing in our case law, however, suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant.

Expanding the scope of the automobile exception in this way would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and untether the automobile exception from the justifications underlying it. Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 10) (quoting Arizona v. Gant, 556 U. S. 332, 343 (2009)).

Surely, He Couldn't Go In The House

Had Officer Rhodes seen illegal drugs through the window of Collins’ house, for example, assuming no other warrant exception applied, he could not have entered the house to seize them without first obtaining a warrant. Similarly, it is a “settled rule that warrantless arrests in public places are valid,” but, absent another exception such as exigent circumstances, officers may not enter a home to make an arrest without a warrant, even when they have probable cause. Payton v. New York, 445 U. S. 573, 587–590 (1980).

That is because being arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home.

Likewise, searching a vehicle parked in the curtilage involves not only the invasion of the Fourth Amendment interest in the vehicle but also an invasion of the sanctity of the curtilage.

Must Have A Lawful Right To Be There

Just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant, and just as an officer must have a lawful right of access in order to arrest a person in his home, so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception.

The automobile exception does not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it does not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage.

Garages Would Have More Protection

Virginia’s proposed bright-line rule automatically would grant constitutional rights to those persons with the financial means to afford residences with garages in which to store their vehicles but deprive those persons without such resources of any individualized consideration as to whether the areas in which they store their vehicles qualify as curtilage. See United States v. Ross, 456 U. S. 798, 822 (1982) (“[T]he most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion”).

Holding

To allow an officer to rely on the automobile exception to gain entry into a house or its curtilage for the purpose of conducting a vehicle search would unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application.

Given the centrality of the Fourth Amendment interest in the home and its curtilage and the disconnect between that interest and the justifications behind the automobile exception, we decline Virginia’s invitation to extend the automobile exception to permit a warrantless intrusion on a home or its curtilage.

For the foregoing reasons, we conclude that the automobile exception does not permit an officer without a warrant to enter a home or its curtilage in order to search a vehicle therein.

The judgment of the Supreme Court of Virginia is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

See Also

● People v. Smock, 2018 IL App (5th) 140449 (April). Episode 489 - This Hot Pursuit Of A Disorderly Conduct Suspect Didn’t Justify The Warrantless Entry Into The Trailer

● Episode 464 - Constitutionality Based On Structure: Do Houses Have More Protection Than Apartments?

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People v. Anderson, 2018 IL App (4th) 160037 (May). Episode 500 (Duration 10:00)

There is a difference between constructive possession and having immediate access to a gun.

Gist

The charges against defendant stem from an encounter between detectives from the Decatur Police Department’s street-crimes unit and three males, one of whom was defendant.

Defendant was convicted of of armed violence predicated on unlawful possession of a controlled substance while armed with a handgun, a Category I weapon (720 ILCS 5/33A-1(c)(2), 33A-2(a)), unlawful possession of a weapon by a felon, and unlawful possession of a controlled substance with intent to deliver.

Facts

The three males were walking in the middle of a street at approximately 11:30 p.m.

One officer asked defendant to come toward him. Rather than comply with the officer’s request, defendant fled on foot in the opposite direction. Both officers gave chase and were able to take defendant into custody after he fell over a brush pile in a nearby residential backyard.

Officers found a black Glock 27 handgun lying approximately two to three feet in front of defendant. In defendant’s right pocket, officers found seven bags of cannabis and a separate bag containing nine individually packaged bags of suspected crack cocaine.

Issue

The question here is whether the weapon found a few feet from defendant qualifies as the available access to the gun that the legislature sought to avoid.

Armed Violence

Our supreme court has emphasized the purpose of the armed-violence statute is to deter felons from using dangerous weapons, thereby minimizing the deadly consequences that may result when a felony victim resists. People v. Condon, 148 Ill. 2d 96, 109 (1992).

That is, a defendant violates this statute by simply having possession of a firearm during the commission of another predicate felony. Thus, for the purpose of the statute to be served, it would be necessary that the defendant have some type of immediate access to or timely control over the weapon. A felon with a weapon at his or her disposal is forced to make a spontaneous and often instantaneous decision to kill without time to reflect on the use of such deadly force. Without a weapon at hand, the felon is not faced with such a deadly decision. See Condon, 148 Ill. 2d at 109­ 10.

The supreme court has further refined the definition of “otherwise armed” to mean having immediate access to or timely control over the weapon.

Unlawful Possession of A Weapon By A Felon

The State also charged defendant with unlawful possession of a weapon by a felon. 720 ILCS 5/24-1.1(a). A defendant violates this statute if he

“knowingly posses[es] on or about his person *** any firearm *** if the person has been convicted of a felony under the laws of this State or any other jurisdiction.” 720 ILCS 5/24-1.1(a).

“A person is considered armed with a dangerous weapon for purposes of this Article, when he or she carries on or about his or her person or is otherwise armed with a Category I, Category II, or Category III weapon.” 720 ILCS 5/33A-1(c)(1).

Like the proof required for a conviction for armed violence, the State must prove beyond a reasonable doubt the defendant possessed the gun. This element may be satisfied with proof the defendant had constructive possession, i.e., he knew of the gun and it was in his immediate and exclusive control. People v. Hester, 271 Ill. App. 3d 954, 961 (1995).

Constructive Possession

Possession of contraband may be actual or constructive.

Actual possession is proved by testimony which shows that defendant has exercised some dominion over the  contraband. The act of dominion may be that defendant had the contraband on his body, that he tried to conceal it, or that he was seen throwing it away.

However, mere proximity is not sufficient evidence to prove actual possession.

Actual possession need not be demonstrated if constructive possession can be inferred.

To establish constructive possession, the State must prove beyond a reasonable doubt that defendant

(1) knew the handgun was present and
(2) exercised immediate and exclusive control over the area where the handgun was found.

Knowledge may be shown by evidence of defendant’s acts, declarations, or conduct from which it can be inferred that he knew the handgun existed in the place where it was found. Control may be shown by evidence that defendant had the intent and capability to maintain control and dominion over the handgun, even if he lacked personal present dominion over it.

Constructive Possession Cases

1)  People v. Wright, 2013 IL App (1st) 111803, ¶ 26, the appellate court reversed the defendant’s conviction of aggravated unlawful use of a weapon because the State failed to sufficiently prove the defendant knowingly possessed the gun. This was so because the State was unable to prove beyond a reasonable doubt that the defendant “exercised exclusive or immediate control over the area where the weapon was found.”

There, the gun was found underneath the defendant’s torso after he had fallen down stairs at the same time as another man. The defendant was one of five people in the immediate area of the basement of a residence that was not the defendant’s.

2) In People v. Sams, 2013 IL App (1st) 121431, ¶ 13, the reviewing court found the State had failed to prove the defendant constructively possessed the weapon found underneath a couch in a residence that was not the defendant’s, but one that the defendant was seen exiting. The court noted the police officers’ “testimony shows only that [the] defendant walked out of a house in which a gun was later found. Mere presence in the vicinity or access to the area in which contraband is found is insufficient to establish constructive possession.” Sams, 2013 IL App (1st) 121431, ¶ 13. 

Analysis

Defendant’s hands were “tucked inside towards the front of his waistband” as he fled from the police, and while he was still on the ground being secured, the gun was found two to three feet away. From this evidence, we find it was reasonable for the jury to believe defendant was armed with the handgun while he was being pursued by the police.

A rational trier of fact could have reasonably concluded, at the time defendant was a convicted felon, he had knowledge of the firearm and exercised immediate and exclusive control over the area where it was found. The jury was entitled to infer defendant was indeed carrying the weapon on his person before he fell.

Thus, we find the evidence was sufficient to support the conclusion defendant had possession of the handgun recovered at the time of his arrest.

What About The Armed Violence Charge?

Defendant also argues he was not in possession of the handgun at the time of his arrest, thus he could not be considered “armed with a dangerous weapon” for the purposes of his armed-violence conviction.

 In Smith, the supreme court concluded the defendant did not have the required access to or control over the weapon in question at the time the police entered the residence because the defendant had dropped the gun out of a window. Smith, 191 Ill. 2d at 412. The court found that allowing a conviction for armed violence to stand against this defendant “would not serve, but rather would frustrate, the statute’s purpose of deterring criminals from involving themselves and others in potentially deadly situations.” Smith, 191 Ill. 2d at 413.

Here, a reasonable jury could have found from the evidence defendant possessed the gun in question in that he was likely carrying the gun on his person during the police pursuit and then either dropped it or discarded it when he fell.

Regardless, defendant had “immediate access to or timely control over the weapon” while he committed the felony offense of unlawful possession of a controlled substance.

Holding

Viewing the evidence in the light most favorable to the State, we conclude a rational trier of fact could have found beyond a reasonable doubt defendant, a convicted felon, had knowledge of, and had immediate access to, the loaded handgun.

We find the facts of this case further the deterrence purpose of the armed-violence statute in that defendant had immediate access to this weapon and, as the legislature recognized, a felon with immediate access to a weapon was predisposed to use it when confronted with resistance, either from victims, law enforcement representatives, or other criminals.

It was reasonable for the jury to conclude this loaded weapon was immediately accessible to defendant before and during defendant’s arrest so that he was “otherwise armed,” as that term is defined, during the commission of the predicate felony of unlawful possession of a controlled substance.

People v. Norwood, 2018 IL App (4th) 150883 (May). Episode 499 (Duration 10:30)

What does it mean for a firearm to be immediately accessible?

Gist

The trial court found defendant guilty of two counts of armed violence. The court sentenced defendant to concurrent 16­ year prison sentences.

Defendant admitted he unlawfully possessed 1 gram or more but less than 15 grams of a substance containing cocaine with the intent to deliver and unlawfully possessed more than 30 grams but not more than 500 grams of a substance containing cannabis.

As a result, with regard to the armed violence convictions, the only real issue was whether the State established beyond a reasonable doubt defendant was armed or had immediate access to the rifle found in his bedroom.

Facts

Police entered a home to execute a search warrant.

An officer went straight to defendant’s room. When he opened the bedroom door, defendant was standing naked with his hands up in the air at the foot of the bed near the door. Walter ordered defendant to get on the ground. Defendant laid on the bed.

Defendant was allowed to put on some pants. Police then found a loaded assault rifle in the far left corner of defendant’s bedroom behind a storage container at the furthest point from the bedroom door.

Defendant was 10 feet from the rifle and he advised officers it was for home security.

Armed Violence Statute

Section 33A-2(a)(1) of the Criminal Code of 2012 (720 ILCS 5/33A-2(a)) states:

“A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law, except [certain excluded offenses].”

According to the statute, a person is considered

“armed with a dangerous weapon” when “he or she carries on or about his or her person or is otherwise armed with a Category I, Category II, or Category III weapon.”

720 ILCS 5/33A-1(c)(1).

"Otherwise Armed"

Our supreme court has interpreted the meaning of “otherwise armed” as follows:

“A felon with a weapon at his or her disposal is forced to make a spontaneous and often instantaneous decision to kill without time to reflect on the use of such deadly force. Without a weapon at hand, the felon is not faced with such a deadly decision. Hence, we have the deterrent purpose of the armed violence statute. Thus, for this purpose to be served, it would be necessary that the defendant have some type of immediate access to or timely control over the weapon.”

People v. Condon, 148 Ill. 2d 96, 109-10, 592 N.E.2d 951, 958 (1992).

Issue

Defendant argues the trial court erred in finding he was guilty of armed violence because the rifle was not immediately accessible to him at the moment the police entered his bedroom because he was 10 feet from the rifle, and it was blocked by the bed.

Defendant argues the trial court erred by considering whether the rifle was immediately accessible to defendant when the police entered the residence prior to seeing defendant.

The Case Law - People v. Smith

In People v. Smith, 191 Ill. 2d 408, 732 N.E.2d 513 (2000), the defendant dropped a handgun out of his apartment window while police officers were approaching his apartment building to execute a search warrant on his apartment.

The Illinois Supreme Court reversed that armed violence conviction.

According to the majority opinion, the court found the deterrent purpose of the statute was not met by convicting Smith. 

The court said that permitting an armed violence conviction to stand against a felon such as defendant, who exhibited no propensity to violence and dropped the unloaded gun out of the window as the police approached his apartment to search for drugs, would not serve, but rather would frustrate, the statute’s purpose of deterring criminals from involving themselves and others in potentially deadly situations.

The court in Smith cited a previous decision, People v. Condon, 148 Ill. 2d 96 (1992). 

The Case Law - People v. Condon

In Condon the court found defendant did not have have immediate access to the guns when he was in the kitchen when police entered and found guns in other parts of the house.

The Case Law - People v. Neylon

In People v. Neylon, 327 Ill. App. 3d 300, 762 N.E.2d 1127 (2002), the defendant was arrested outside his house after the police received a “shots fired” report. 

After defendant’s arrest, the police found a .38-caliber pistol inside the house in a bedroom closet.

The court said,

“In this case it is true the gun was not immediately accessible to defendant. When he was arrested outside the house, the gun was in the house, in a closet and unloaded. The ammunition was not kept with the gun. Even if there were evidence defendant had been in the house minutes before his arrest, the gun was still not immediately accessible to him unless he were standing next to the open closet door and the gun were loaded. Under the facts of this case, the precedent of Smith suggests the danger the armed violence statute seeks to curb was not present and the evidence was not sufficient to support a conviction for armed violence (possession of a firearm).” Neylon, 327 Ill. App. 3d at 309.

Case Going The Other Way - People v. Harre

In People v. Harre, 155 Ill. 2d 392, 394, 614 N.E.2d 1235, 1236-37 (1993), defendant had immiediate access to a gun when he was seen gettigh out of a car and riding on the hood for a brief period.

This clearly supported the inference that defendant had moments before his apprehension been riding in the car on his way to a drug delivery with a weapon inches from his grasp.

The guns were on the front seat. Such circumstantial evidence was not so clearly unreasonable, improbable, or unsatisfactory that no rational trier of fact could have found beyond a reasonable doubt that defendant had immediate access to or timely control over such weapons while riding in the car enroute to the delivery of the cannabis.

The evidence supported the jury’s finding that defendant had immediate access to and control over the weapons during the course of the underlying felony. Plus, defendant was walking towards the car door and was getting closer to the gun. 

Analysis

None of these cases hold that a court should only look at the moment of arrest to determine whether a defendant is armed. Instead, the case law says a court can look back to the moment the police entered the residence while executing the search warrant, not just the moment the police physically encountered or arrested the defendant.

In this case, like Condon and Smith, the police were executing a search warrant on defendant’s home. Contrary to defendant’s suggestion, the question before this court is not whether the rifle was immediately accessible to defendant when the police officer opened the bedroom door.

Instead, the question is whether the State established beyond a reasonable doubt that the rifle was immediately accessible to defendant after the police entered his home. Based on the evidence in this case, the trial court did not err in finding defendant guilty of armed violence.

Holding

The evidence supports a reasonable inference the rifle in the bedroom was immediately accessible to defendant during the period between the police officers entering the home and opening the bedroom door.

Defendant slept on the same side of the bed as the rifle. When the police opened the door to the bedroom, defendant was standing naked with his hands up in the air. Based on this evidence, the trial court could have reasonably inferred defendant heard the police entering the house and got up from the bed in a manner making the rifle immediately accessible.

Further, after Walter opened the bedroom door and ordered defendant to get on the ground, defendant instead laid down on the bed, decreasing the distance between the rifle and defendant. 

Conviction affirmed.

People v. Tatera, 2018 IL App (2d) 160207 (May). Episode 498 (Duration 7:21)

9th DUI for this guy; 8 years seems about right.

Gist

This is defendant’s 9th DUI. He got 8 years.

HGN Issue

There were no fields and no blow but the video showed him all dazed and confused and not follwing instructions. Defendant argues that the trial court abused its discretion by allowing the jury to see a portion of the administration of the HGN test in the arrest video.

Defendant argues that, because the State agreed that the HGN test was improperly conducted, the jury should have been precluded from seeing any footage of the administration of the test.

What The Jury Saw

The trial court, over defendant’s objections, admitted a portion of the recording because it showed defendant disobeying the officer's instructions to keep his hands at his sides and out of his pockets.

Defendant contends that, under People v. McKown, 236 Ill. 2d 278, 306 (2010), the recording was completely inadmissible.

People v. McKown

In McKown, the supreme court held that, for the results of an HGN test to be admitted at trial, a proper foundation must be laid, including the officer’s proper training and administration of the test. The supreme court held that the administration of the HGN test in that case did not meet the standards that the court had enunciated, so the admission of any testimony concerning the test and its results was reversible error. 

Analysis

Here, defendant argues that the officer did not correctly perform the HGN test, so the admission of the recording was likewise erroneous, and that, given the closeness of the evidence, the error cannot be deemed harmless beyond a reasonable doubt.

In McKown, by contrast, the officer testified about the test and the conclusions he drew from the defendant’s performance. Here, Kresen did not testify at all about the test—either his administration of the test or defendant’s performance of the test; likewise, the State made absolutely no argument about the test.

Thus, in this respect, McKown is significantly distinguishable.

The question remains, however, whether the jury should have observed the portion of the recording admitted to illustrate defendant’s inability or refusal to comply with Kresen’s instructions. See People v. King, 2014 IL App (2d) 130461. We then held that “a motorist’s failure to follow directions on a particular field sobriety test does not lose all relevance simply because the test might not have been designed for the precise purpose of gauging the ability to follow directions.” Id. ¶ 12.

Thus, we determined that our holding did not imply that, where the State is aware that the HGN test was not conducted properly and, thus, that the results were inadmissible, the officer’s otherwise relevant and material observations could or should have been characterized as part of the administration of an HGN or other field sobriety test.

That the defendant did not follow the officer’s instructions was separate and apart from any scientific evidence that would have been associated with the HGN test (and which neither the officer nor the State commented upon).

In This Case...

Here, the State conceded that the HGN test was improperly conducted.

Unlike in King, the officer did not even mention the HGN test; rather, he testified that defendant did not follow his instructions, and the portion of the recording of the HGN test admitted and published to the jury illustrated defendant’s failure to follow those instructions.

Moreover, the State did not mention or make any argument regarding the HGN test; rather, the State focused solely on defendant’s inability to follow the officer's instructions during the portion of the recording that was published to the jury. This was proper under King, and it did not violate the requirements of McKown, because the admitted portion of the recording and all of the testimony and argument dealt only with defendant’s failure to follow instructions and there was no mention whatsoever of the HGN test.

HGN Holding

Accordingly, we hold that the portion of the recording containing a part of the administration of the HGN test was properly admitted and published to the jury.

Sentencing Issue

Defendant also argues that the trial court erred in passing sentence by double-counting his previous convictions, both as a qualifying factor for a Class X offense and as an aggravating factor to increase the length of his sentence.

Defendant next contends that the trial court improperly used his previous convictions of DUI both for his eligibility for a Class X sentence and as aggravating factors to justify the eight-year sentence.

Sentencing Analysis

It has long been established that the fact of a defendant’s prior convictions may determine his or her eligibility for a Class X sentence, but in determining the length of the defendant’s sentence the trial court remains free to consider the nature and circumstances of those prior convictions along with all of the other factors in mitigation and aggravation. People v. Thomas, 171 Ill. 2d 207, 227-28 (1996). See also People v. Morrow, 2014 IL App (2d) 130718, ¶¶ 19-20.

Here, the trial court considered that defendant had not only the five DUI convictions necessary to qualify for Class X sentencing but also four additional DUI convictions (nine in total) in imposing a sentence of eight years—two years above the minimum sentence.

Although the trial court was terse in its explanation, the nine convictions illustrated defendant’s recidivism, his failure to rehabilitate, and the significant possibility of harm each and every time defendant got behind the wheel while under the influence of alcohol. We note that the trial court’s discussion with defendant following his statement in allocution touched on these factors, and we consider the sentencing hearing as a whole.

Sentencing Holding

Defendant’s double enhancement arguement is without merit. For the foregoing reasons, the judgment of the circuit court of McHenry County is affirmed.

See Also

Episode 347 - People v. Motzko, 2017 IL App (3d) 160154 (April) (Officer’s Inaccurate Reliance On HGN Throws His Credibility Into Question)

Episode 468 - People v. Meo, 2018 IL App (2d) 170135 (March) (Citizen’s Tip That Driver Almost Hit The Building Justifies Investigatory Stop For DUI & Defendant Couldn't Follow Directions During The HGN)

People v. Pepitone, 2018 IL 122034 (April). Episode 497 (Duration 6:20)

State has a rational basis for keeping sex offenders from parks.

No Sex Offender At A Park

Section 11-9.4-1(b) of the Criminal Code of 2012 provides,

“It is unlawful for a sexual predator or a child sex offender to knowingly be present in any public park building or on real property comprising any public park.”

720 ILCS 5/11-9.4-1(b).

The statute, then, completely bars sex offenders who have targeted children from public parks.

A violation of section 11-9.4-1(b) is a Class A misdemeanor. See § 11-9.4-1(d).

Issue

The sole issue in this case is whether this statute is facially violative of substantive due process.

The defendant asserts that section 11-9.4-1(b) is facially violative of substantive due process. The fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2) both provide that no person shall be deprived of life, liberty, or property without due process of law.

Facts

Village of Bolingbrook police officer was patrolling a municipal park around 4:30 p.m. when he observed a van improperly parked across three spaces. The officer checked the van’s plates and learned that it was registered to the defendant.

While Officer Alexander was standing near the van, the defendant approached with his dog.

The defendant related that he was a child sex offender but that his registration requirement had expired in 2010. Officer Alexander informed the defendant that, as a child sex offender, he was forbidden to be on park property.

Though the defendant was unaware of such a ban, he was arrested for violating section 11-9.4-1(b).

Appellate Court Said The Law Was Unconstitutional

For the reasons why the appellate court reversed the conviction.

The appellate court majority highlighted the “overly broad sweep” of section 11-9.4-1(b) and provided an “extensive” list of activities that occur on public park property, in which persons like the defendant cannot participate. The majority concluded that the statute violated due process because “it is not reasonably related to its goal of protecting the public, especially children,” from individuals fitting the definition of a child sex offender and because it is not “drafted in such a way as to effect that goal without arbitrarily stripping a wide swath of innocent conduct and rights” from such individuals who have already “paid the penalty” for their crimes.

See Also 

Episode 298 - Third District Declares The Crime Of Being a Sexual Offender In A Park Unconstitutional 

Constitutional 

There are two aspects to that guarantee—procedural and substantive.

Procedural due process bars governmental action that infringes upon a protected interest when such action is arbitrary because it was not preceded by procedural safeguards.

Substantive due process bars governmental action that infringes upon a protected interest when such action is itself arbitrary. See People v. Cardona, 2013 IL 114076, ¶ 17 (“a procedural due process claim asserts that the deprivation at issue is constitutionally invalid because the process leading up to it was deficient, whereas a substantive due process claim asserts that the deprivation at issue is constitutionality invalid in and of itself, irrespective of the process leading up to it”).

Rational Basis Test

Here, section 11-9.4-1(b) affects the freedom to visit public parks.

The defendant acknowledges that being present in a park is not a fundamental right. Thus, the proper gauge for his substantive due process claim is the so-called rational basis test. Under that test, our inquiry is twofold:

“We must determine whether there is a legitimate state interest behind the legislation, and if so, whether there is a reasonable relationship between that interest and the means the legislature has chosen to pursue it.”

While the rational basis test is not toothless it remains highly deferential to the findings of the legislature.

The legislature’s judgments in drafting a statute are not subject to judicial fact finding and may be based on rational speculation unsupported by evidence or empirical data.

If there is any conceivable set of facts to justify the statute, it must be upheld.

Court Is Not A Super Legislature

This court will not second-guess the wisdom of legislative enactments or dictate alternative means to achieve the desired result.

The only dispute between the parties is whether there is the requisite constitutional nexus—a rational relation—between the statute’s aim and its means. The problem for the defendant is that, regardless of how convincing that social science may be, the legislature is in a better position than the judiciary to gather and evaluate data bearing on complex problems. See Minnis, 2016 IL 119563, ¶ 41. Simply put, we are not a super legislature. See M.A., 2015 IL 118049, ¶ 70.

No Narrow Tailoring Required

More fundamentally, the rational basis test does not require narrow tailoring; it only requires rationality.

That is, the means chosen by the legislature need not be the best; they need only to be reasonable.

Whether there are better means to achieve this result *** is a matter better left to the legislature.

Holding

We conclude that there is a rational relation between protecting the public, particularly children, from sex offenders and prohibiting sex offenders who have been convicted of crimes against minors from being present in public parks across the state.

By keeping sex offenders who have committed offenses against children away from areas where children are present ***, the legislature could have rationally sought to avoid giving certain offenders the opportunity to reoffend. 

There is also a direct relationship between the *** presence restrictions of sex offenders and the protection of children. Because section 11-9.4-1(b) is rationally related to a legitimate government interest, the appellate court erred in holding that the statute is facially unconstitutional under substantive due process.

The appellate court’s decision in this case, is overruled.

Episode 496 (Duration 13:26) Here's a quick summary of 5 recent "pat down" cases. 3 Go for the State, and 2 come out in favor of the defense.

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In This Episode...

We discuss the following cases:

• People v. Richardson, 2017 IL App (1st) 130203-B (May)
• People v. Evans, 2017 IL App (4th) 140672 (March)
• In re Jarrell C., 2017 IL App (1st) 170932 (December)
• People v. Gomez, 2018 IL App (1st) 150605 (April)
• In re D.L., 2017 IL App (1st) 171764 (December)

...and the bonus:

• People v. Timmsen, 2016 IL 118181 (March)

People v. Richardson

Fidgeting With Your Waistband At The Wrong Time Gonna Get You Patted Down.

This pat down was justified after Defendant was fidgeting with his waistband and reaching for something after he was told to show them his hands.

Facts

Officers stop a car matching the general description of a stolen car.

Officer Akinbusuyi approached the vehicle from the passenger's side while Officer Johnson approached the driver's side.

Officer Johnson requested that the driver exit the vehicle after the driver was unable to produce a driver's license or insurance information. As the driver exited the vehicle, Officer Akinbusuyi observed the defendant mumbling and reaching "into the center console with his right hand but with his left hand it was stuffing something in his waistband."

Kind of Fishy

Officer Akinbusuyi testified that he found the defendant's actions unusual, because "he had no reason to be doing that after I verbally told him let me see your hands."

Officer Akinbusuyi testified that his "best judgment was that he was hiding something in his waistband."

Based on his experience, he believed that "[i]t was mostly likely a weapon, drugs or something he didn't want me to find."

Defendant Ordered Out

Officer Akinbusuyi asked the defendant to exit the vehicle, and the defendant complied.

Officer Akinbusuyi handcuffed the defendant, "patted down the area" and discovered a handgun in the defendant's waistband.

The officers subsequently searched the vehicle and found the victim's culinary tools confirming it was the stolen car.

Issue

Defendant contends that his motion to suppress evidence and quash arrest should have been granted because the arresting officer's pat-down search was unconstitutional.

He argues that the pat-down search was not justified pursuant to Terry v. Ohio, 392 U.S. 1 (1968), because Officer Akinbusuyi lacked a reasonable belief that the defendant was armed and dangerous.

Law

Both the fourth amendment and the Illinois Constitution of 1970 guarantee the right of individuals to be free from unreasonable searches and seizures. See U.S. Const., amend. IV; Ill. Const. 1970, art I., section 6. Courts have divided police-citizen encounters into three tiers:

(1) arrests which must be supported by probable cause;
(2) brief investigative detentions, or 'Terry stops,' which must be supported by a reasonable, articulable suspicion of criminal activity; and
(3) encounters that involve no coercion or detention and thus do not implicate fourth amendment interests.

Terry Stop Pat Down

In Terry, the United States Supreme Court held "that a brief investigatory stop, even in the absence of probable cause, is reasonable and lawful under the fourth amendment when a totality of the circumstances reasonably lead the officer to conclude that criminal activity may be afoot and the subject is armed and dangerous."

Terry further specifies when a pat-down search for weapons during an investigative stop is permissible if:

"...nothing in the initial stages of the encounter serves to dispel [the officer’s] reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

"The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger."

Terry, 392 U.S. at 27.

Reasonableness

"[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given *** to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience."

Defendant argues that the circumstances described in that testimony did not justify a reasonable belief that the defendant was armed and dangerous. He asserts that, in reviewing the legality of the pat-down search, the court may not consider the reason why the police stopped the vehicle.

He claims: "Although the officer[s] may have suspected that the vehicle they pulled over may have been" the vehicle reported stolen 90 minutes earlier, "they had absolutely no proof of it at the time they pulled it over."

He further argues that because he was "merely the passenger" and did not control the vehicle, "the status of the car plays no part in the search of [the defendant] by Officer Akinbusuyi."

The defendant suggests that, to support a pat-down search, the officer needed to testify to a more definite belief that the defendant was armed.

Holding

Regardless of whether the officers had yet found proof that the vehicle was stolen, in considering the "totality of circumstances", it was reasonable for Officer Akinbusuyi to take into account that the vehicle matched the description of a car stolen approximately 90 minutes earlier. See People v. Simpson, 2015 IL App (1st) 130303, ¶ 25 (finding that the Terry stop of a vehicle shortly after a reported home invasion was supported by the fact that the vehicle fit the victim's description of the suspects' car).

This fact could contribute to the officer's reasonable suspicion that the occupants were involved in criminal activity and were potentially armed and dangerous.

More importantly, Officer Akinbusuyi testified that, after the driver was asked to exit the vehicle and the defendant

• was asked to show his hands,
• the defendant reached toward the center console with one hand
• and used his other hand to put something into his waistband.

Officer Akinbusuyi testified that based on his experience, he believed the defendant was attempting to hide something, "most likely a weapon, drugs or something he didn't want me to find."

The officer's belief that the defendant was "mostly likely" hiding a weapon indicated a sufficient suspicion to warrant the pat-down search.

Certainty Not Required

We reiterate that an arresting officer need not be "certain" that the defendant is armed to have a reasonable suspicion, and that the officer may rely on "reasonable inferences in light of his experience."

The defendants' furtive movements —especially after being asked to keep his hands visible—could support the reasonable suspicion that the defendant was armed.

We conclude that the pat-down search was justified under the Terry standard, where

(1) the police officers encountered two individuals at night in a vehicle that matched the description of a recently stolen car and
(2) the defendant's movements in the car supported a reasonable suspicion that he was armed or had access to a weapon in the vehicle.

People v. Evans

Putting Your Hands In Your Pockets May Get You Patted-Down.

Defendant kept putting his hands in his pocket after he was repeatedly told to take them out; frisk for weapons justified.

Facts

Officer is responding to a call of a possible burglary.

He sees defendant walking.

He approached defendant for the purpose of determining whether he was involved in the burglary or saw any possible suspects or other suspicious activity.

Safety Concern

He asked where defendant was coming from, to which defendant responded he just left his friend’s house down the block. During the conversation, defendant placed his hands in his pockets, and the officer asked him to remove them several times. When asked, defendant would remove his hands and then place them back into his pockets.

Officer testified he was concerned for his safety because he was alone with defendant and defendant was much larger than he was.

Officer testified he did not know whether defendant was armed, but his concern grew after defendant refused to keep his hands visible during the conversation.

Officer testified he knew the area was a high-narcotics-crime area, and in his experience, those involved with narcotics were often armed with a firearm.

Officer specifically testified the reason he frisked defendant was to determine whether defendant had a weapon in his pocket.

Issue

On appeal, defendant argues the trial court erred by denying his “motion to quash arrest and suppress evidence.”

Defendant asserts his constitutional rights were violated because he was unlawfully searched and, therefore, the items seized during the search should have been suppressed.

The central point of inquiry is at what point was defendant seized.

Mendenhall Factors

The court adhered to the view that a person is seized only when, by means of physical force or a show of authority, his freedom of movement is restrained.

Here, defendant was walking down the street when his encounter with the police began; thus, Mendenhall applies, and the standard under Bostick (where accused stops himself) is inapplicable.

Under Mendenhall, the proper inquiry is whether “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Mendenhall, 446 U.S. at 554.

Officer's Questions

This defendant’s path of travel was not blocked or interfered with in any way.

The record suggests the officer saw defendant walking in the vicinity of a possible crime and the officer peaceably approached defendant to speak to him. There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.

No Seizure

The initial encounter here was a consensual encounter.

None of the Mendenhall factors were present, and nothing indicated defendant did not feel free to leave.

Indeed, “a seizure does not occur simply because a law enforcement officer approaches an individual and puts questions to that person if he or she is willing to listen.

First Request To Hands From Pockets

Defendant next argues he was seized at the moment the officer first requested­ he remove his hands from his pockets.

The two got into a pattern where the officer would ask him to take his hands out of his pockets he would briefly then put them back in his pockets.

Here, defendant continued to consent to the conversation with the officer even after the officer asked defendant to remove his hands from his pockets several times and never indicated an intent to terminate the conversation prior to being frisked.

The fact defendant continued to place his hands back into his pockets shows defendant did not fully submit to the officer’s request.

Defendant did not appear to believe compliance was compulsory because he did not comply with the officer’s obvious wish.

Repeated Requests

Defendant opines the repeated requests he remove his hands from his pockets may have signaled he was suspected of wrongdoing, thus impacting his willingness to continue the encounter.

Defendant’s willingness to continue the conversation is evidenced by the fact he continued speaking to the officer even after the officer asked him several times to remove his hands from his pockets.

Further, the nature of the conversation indicated defendant was not a suspect or even a witness to the possible crime the officer was investigating.

The thrust of defendant’s claim is that the officer’s request for defendant to remove his hands from his pockets was a show of authority.

Even if the request was a show of authority, defendant resisted the authority by continuing to place his hands back into his pockets.

Right To Terminate

Further, the central question remains whether a reasonable person would have felt free to terminate the encounter.

The request for defendant to keep his hands visible did not prevent him from exercising his right to terminate the encounter, and a reasonable person in his place should not have believed that right had been extinguished by the request.

The touchstone of the fourth amendment is reasonableness, and the request to keep one’s hands visible is not an unreasonable restraint of liberty. It merely serves as a protection to both officer and citizen.

Terry

The court rejected defendant’s argument he was seized when the officer requested he remove his hands from his pockets and conclude defendant was not seized until the officer frisked him.

Under Terry, the officer may conduct an investigatory frisk for weapons upon reasonable suspicion the individual is armed and dangerous. See also 725 ILCS 5/107-14, & 725 ILCS 5/108-1.01.

Armed & Dangerous

When an officer has a reasonable suspicion during an investigatory stop that the individual may be armed and dangerous, the officer is permitted to take necessary measures to determine whether the person is armed and to neutralize any threat of physical harm.

Police officers need not have reasonable suspicion of criminal activity to conduct a Terry frisk for weapons during a consensual encounter but, rather, need only have reasonable suspicion the citizen is armed and potentially dangerous.

No Suspicion of Crime Required

The fourth appellate district now holds that a police officer may conduct a Terry frisk during a consensual encounter upon developing reasonable suspicion the citizen is armed and dangerous; the officer need not develop reasonable suspicion of criminal activity. In such cases, the seizure and frisk will occur contemporaneously because a consensual encounter is, by definition, not a seizure.

Accordingly, a police officer must have reasonable suspicion the individual is armed and dangerous at the time of the frisk.

By so concluding, defendant’s arguments relating to the lack of reasonable suspicion defendant was involved in criminal activity became inapplicable. Thus, A Terry frisk during a consensual encounter must be predicated by reasonable suspicion the individual is armed with a weapon and, therefore, presently dangerous.

More Than a Hunch

To develop reasonable suspicion, the officer must have more than an “inarticulate hunch”; the officer must “point to specific and articulable facts which, taken together with rational inferences from those facts” demonstrate the suspicion is reasonable. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

Officer's Inferences

When reviewing the reasonableness of an officer’s conduct, it is appropriate to give due weight to the specific reasonable inferences which the officer is entitled to draw from the facts in light of his experience.

This is an objective standard asking if an individual of reasonable caution would believe that the action was appropriate.

Holding

This is what the officer new:

He was alone with defendant at a late hour in an area he knew was a high-narcotics crime area. He was substantially smaller than defendant. Defendant was coming from a known drug house, in the officer’s experience individuals who deal with narcotics are often armed with a weapon.

Plus, Defendant acted peculiarly by continually placing his hands in his pockets, even after being asked him to remove his hands from his pockets several times defendant ultimately refused to remove his hands and asked why he needed to.

It was objectively reasonable for the officer to suspect defendant may have been armed with a weapon. This officer did not decide to frisk defendant based solely on one fact alone; he decided to frisk defendant based on the quantum of facts he learned while speaking to defendant, coupled with defendant’s refusal to keep his hands visible.

In sum, the court concluded the totality of the circumstances known to the officer at the time of the frisk warranted the reasonable suspicion defendant was armed and thus dangerous, thereby permitting him to conduct a Terry frisk.

In re Jarrell C.

Holding Your Crotch Is Not Indicative Of Carrying A Gun.

Illinois fails to apply the exclusionary rule after police discover a warrant notwithstanding Utah v. Strieff.

See Utah v. Strieff

Episode 185 – Thomas Guts the Exclusionary Rule – Utah v. Strieff

Utah v. Strieff 

In Strieff, a law enforcement officer conducting surveillance on a suspected drug house noticed the defendant exit the house and walk away. The officer followed and eventually confronted the defendant in a nearby parking lot. Then the officer asked for and received the defendant’s identification card and conveyed the information to the police dispatcher. A warrant check revealed the defendant had an outstanding warrant, and he was placed under arrest. During a search incident to arrest, the officer discovered drugs and drug paraphernalia on the defendant’s person. The Court found that the discovery of an outstanding arrest warrant was “a critical intervening circumstance” that “broke the causal chain between an unconstitutional stop and the discovery of incriminating evidence.” See Utah v. Strieff, 579 U.S. ___, ___, 136 S. Ct. 2056, 2061 (2016).

This Case

While driving in an unmarked car, Officer Ustaszewski was showing the commander and the captain areas of concern in a high-crime area so they could determine where to best deploy resources. He observed respondent standing on Kenneth Avenue in front of a building that is a known Latin Eagles hangout, holding his waistband or the material of his shorts between the waist and the crotch area like he was “holding something” with his right hand.

Ustaszewski testified that, in his opinion as an intelligence officer familiar with different areas where street gangs hang out, when people hold their waistbands, they are concealing objects, most likely guns. Officer Ustaszewski observed respondent for a few minutes and saw him looking in the direction of the officers and then walking inside the currency exchange.

The commander and the captain followed respondent inside the currency exchange. 

The Encounter

Defendant was waiting in line to purchase a bus card.

Less than a minute and a half later, a police officer (the commander) entered the currency exchange. Respondent indicated that the police officer motioned with his finger for respondent to “come here.” Respondent replied “Who me?” The officer said “Yes, you.”

Respondent stated that the officer had his hand on his gun.

Respondent walked over to the officer at that point. Two other officers entered the currency exchange. One of officers told him to lift up his shirt. Respondent replied,

“What’s the problem, sir? I didn’t do anything.”

The officer told respondent to lift up his shirt “before we go over there and do it for you.”

Respondent lifted up his shirt while turning around.

Next, the officers told him to put his hands on the railing so they could search him. One officer unholstered his gun. Another officer searched and recovered a gun from respondent’s left side.

Respondent was then taken outside to a police car.

The police recovered some drugs from his person.

Other Police Testimony

The officer asked respondent to lift up the front of his T-shirt, but respondent only lifted up the back of the shirt slightly and turned around. Ustaszewski could not see the front of respondent. Respondent then turned around and pulled out his shirt, and the officer saw that the shirt “buckled up on the front.” Ustaszewski stated that at that point, he knew that respondent had a gun.

Ustaszewski testified that he believed respondent was behaving similarly to other gun offenders he had previously arrested based on “the nervousness, the holding of the front waistband, reluct[ance] to lift his shirt up.”

Ustaszewski had respondent place his hands on the railing while Commander Escamilla recovered a handgun from respondent’s front waistband.

He Had A Warrant

The State admitted into evidence a certified copy of a previous juvenile arrest warrant for respondent issued by the circuit court on pursuant to an unrelated case. There was no evidence presented that any of the officers were aware of the arrest warrant issued by the circuit court before or at the time respondent was stopped and searched.

Trial Judge Applies Attenuation Doctrine

After closing arguments, the trial court found that respondent holding the area between his waist and crotch did not give the officers a reasonable articulated suspicion to seize respondent. The court held there was an attenuation of the illegal seizure due to the existence of a valid arrest warrant for respondent at the time of the seizure, and the police conduct was not flagrant.

The court denied respondent’s motion to suppress the evidence.

Issue

On appeal, respondent argues that the trial court erred in denying his motion to suppress.

Respondent contends that the trial court properly determined the investigatory stop was lacking reasonable suspicion but the court erred in its application of the attenuation doctrine. According to respondent, his previous arrest warrant did not attenuate the unlawful detention from the discovery of the evidence when the officers were not aware of the existence of the warrant at the time of the search, before or during the discovery of the gun and the drugs.

Crotch Holding

The mere holding up someone’s pants or putting something in one’s pockets is not a hallmark of criminal activity. In addition, the video exhibit included in the record on appeal corroborates respondent’s testimony that he was not holding his waistband at the time respondent was inside the currency exchange.

Attenuation Doctrine

Three of the exceptions to the warrant requirement involve the causal relationship between the unconstitutional act and the discovery of evidence. 

Those exceptions are known as (1) the independent source doctrine, (2) the inevitable discovery doctrine, and (3) the attenuation doctrine. The attenuation doctrine allows for the admission of evidence obtained unlawfully when the connection between the unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.

In Utah v. Strieff, the Supreme Court considered whether the discovery of a valid existing warrant is sufficient to break the causal chain between an unlawful stop and the discovery of evidence.

The Court looked to the three factors espoused in Brown v. Illinois, 422 U.S. 590, 602 (1975) for determining whether the attenuation doctrine applied:

(1) the temporal proximity between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search, 
(2) the presence of intervening circumstances, and 
(3) the purpose and flagrancy of the official misconduct. 

Analysis

In Strieff, the officer stopped the defendant without reasonable suspicion and then conducted a warrant check, and based on the warrant he discovered, he arrested defendant. The drugs at issue were found pursuant to the search incident to the arrest.

As a result, the causal chain between the officer’s illegal action—the initial, unjustified Terry stop—and the search was “broken” by the intervening discovery of the warrant.

Unlike Strieff, the instant case presents a different situation.

Nothing in the record shows that the officers were aware of the warrant before or at the time respondent was detained and searched. Neither Officer Ustaszewski, nor Commander Escamilla investigated or learned of the existence of the warrant after stopping respondent and before searching him. In other words, there were no intervening circumstances between the initial illegal stop and the discovery of the evidence.

Indeed, an intervening circumstance is one that dissipates the taint of unconstitutional police conduct by breaking the causal connection between the illegal conduct and the evidence. Where an intervening circumstance has been held sufficient to break the causal chain it has been newly discovered information, untainted by illegality. Notably, in all these cases, there was a break in the causal chain prompted by new information or intervening event subsequent to the illegal stop and before the discovery of the evidence.

In sharp contrast, here, the arrest warrant, although a valid one, was unknown information to the police at the time of the search and the discovery of the evidence. Accordingly, the arrest warrant did not do anything to attenuate the taint of the illegal stop.

Unlike Strieff, here, the officers did not discover the arrest warrant between the unlawful stop and the discovery of the gun and the drugs.

Holding

Accordingly, since there was no intervening circumstance to cause a break between the police misconduct and the evidence recovered, we find that the second factor favors suppression of the evidence.

We reverse the court’s holding on this issue.

Based on the foregoing, we conclude that the trial court erred in denying respondent’s motion to quash arrest and suppress evidence obtained as a result of the illegal stop. Because the State cannot prevail on remand without the suppressed evidence, we reverse respondent’s adjudication of delinquency.

Reversed outright.

People v. Gomez

Acting Kooky In The Back Seat Is Going To Get You Ordered Out Of The Car.

Police roll up on a parked car and order everyone out; they find a gun.

Gist

Defendant was sentenced to 7 years for a gun.

The Car

3 officers are in an unmarked squad car when they notice the same Grand Marquis driving around the neighborhood. Eventually, the car pulls over. Defendant is in the back seat with another guy. The police talk to the driver window to window from the cars.

He asked the driver “what he was doing, [and] if he lived around there.” They did not box in the car.

The driver initially responded that he lived down the street; however, the driver admitted that he did not live down the street, but resided somewhere on the “other side of Pulaski.”

Rear Seat Passenger

As he spoke to the driver of the Grand Marquis, Detective Amato was able to observe defendant, who was seated directly behind the driver in the rear of the vehicle. When the conversation began, defendant was “seated upright” with his torso visible to the officers.

As the conversation proceeded, however, defendant began “slouching down in the car.

He just kept on like steadily slouching down as the officers were talking to the driver. So his head was, you could only see like his head at one point in time.

That seemed suspicious.

Cops Had Enough

The cops get out of their car.

As a detective stood by the driver’s side of the Grand Marquis, he observed defendant leaning away from him and toward the middle portion of the seat with his right forearm covering the waistband of his pants. Defendant’s right hand was actually under his shirt.

The detective again found defendant’s behavior to be “suspicious,” and as a result, he asked to see defendant’s hands.

Initially, defendant only raised his left hand into the air and continued positioning his right arm and hand along his waistband. He then started showing his right hand, while still attempting to use his right forearm to shield the waistband of his pants.

He Has A Gun

Based on his observations of defendant’s behavior, the detective believed that defendant had a weapon on him and ordered all three occupants of the Grand Marquis to exit the vehicle. As defendant was exiting the vehicle, he still had his arm over his waistband.

After he completely extricated himself from the car, however, he then immediately turned around and he bent his entire body over the rear of the car. In response, the Sergeant grabbed defendant by his arms and stood him upright.

When he did so, a handgun dislodged from defendant’s waistband and fell to the ground. The detective immediately recovered the gun, which was loaded, and defendant was then placed into custody.

Statements About The Gun

After the police recovered defendant’s weapon, defendant “spontaneously” explained that he had just discovered the gun in a garbage can and asked the officers to “give [him] a break.” At the police station defendant admitted that he “was holding the gun for S.D.’s from 59th Street.”

Defendant and the two other occupants of the Grand Marquis were not acting aggressively toward the officers before they were ordered out of the vehicle.

3 Tiers Of Police Contact

Courts evaluating the nature and propriety of police-citizen encounters have grouped those interactions into three tiers:

(1) an arrest or detention of an individual supported by probable cause; 
(2) brief investigative stops, commonly referred to as “Terry stops,” supported by a reasonable, articulable suspicion of criminal activity; and 
(3) consensual encounters involving neither coercion nor detention and do not implicate the fourth amendment.

See People v. Luedemann, 222 Ill. 2d 530, 544 (2006); People v. Smith, 2016 IL App (3d) 140648, ¶ 28.

Seizure

For purposes of fourth amendment analysis, a person is considered seized when a law enforcement officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.

More specifically, the relevant inquiry to determine whether an individual seated in a parked vehicle has been seized is whether a reasonable person in the defendant’s position would have believed that he was free to decline the officer’s requests or otherwise terminate the encounter.

Our supreme court has emphasized that this “test presupposes a reasonable innocent person.” Relevant factors to consider when determining whether an individual was seized and not involved in a consensual encounter include:

(1) the threatening presence of multiple officers; 
(2) the display of a weapon by an officer; 
(3) some physical touching of the individual’s person; and 
(4) the use of language or tone of voice indicating that compliance might be compelled.

United States v. Mendenhall, 446 U.S. 544, 554 (1980).

“In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.” People v. Fields, 2014 IL App (1st) 130209, ¶ 22.

Police Can Still Ask Questions

It is well-established, however, that a seizure does not occur simply because a law enforcement officer approaches and poses questions to an individual as long as that individual is willing to listen.

Indeed, even where an officer has no basis for suspecting an individual, he may nonetheless question that individual, request identification, and seek the individual’s consent to search. Importantly, “a confrontation with a police officer is not a seizure on the basis that the officer’s authority produces an inherent pressure to cooperate.

Rather, an encounter between a police officer and a civilian is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse.

Analysis

The record establishes that after the detective stopped his vehicle alongside the car, he conversed briefly with the driver while the windows of both vehicles were lowered. Although the detective was accompanied by two other officers at the time, none of the officers brandished weapons or physically touched defendant or any of the other occupants of the vehicles while he spoke to the driver.

Moreover, there is no evidence that the tone and tenor of the detective’s voice when he posed several questions to the driver was forceful or coercive. Although defendant characterizes the questioning as “relentless” and “persistent,” the record does not support that characterization.

Rather, it appears that the detective simply posed two general inquiries to the driver, asking him “what he was doing, [and] if he lived around there.” After hearing the driver’s responses, the detective testified that he then posed one follow-up question, and requested the driver to identify his “exact address.” 

A seizure does not occur simply because a law enforcement officer approaches and poses questions to an individual as long as that individual is willing to listen and the officers do not convey by their words or actions that compliance with their requests is required.

Accordingly, we find that defendant was not subject to an immediate seizure when the squad car was stopped alongside of the parked Grand Marquis and asked the driver several questions, which he was willing to answer.

The Order To Get Out Of The Car

This does not end our inquiry, however, given that “a consensual encounter will lose its consensual nature if law enforcement officers convey a message, by means of physical force or show of authority, that induces the individual to cooperate.” Gherna, 203 Ill. 2d at 179.

Although the officers approached with flashlights, the use of a flashlight is not per se coercive, especially where, as here, the police-citizen encounter took place at night and the flashlights were simply used to illuminate the scene.

Immediately after the officers approached the car, however, defendant began leaning way from the officers toward the center of the car and used his forearm to shield his waist from view. At that point, the officers ordered all of the occupants of the Grand Marquis to put their “hands up.”

When defendant did so in a manner that allowed him to continue to conceal his waistband, the occupants were then ordered to exit the vehicle. We find that the positioning of the officers around the vehicle, coupled with orders for the vehicle’s occupants to put their hands up and to exit the vehicle, constituted a show of force and authority, which transformed the consensual encounter to a seizure.

So, Was The Seizure Reasonable?

To justify a Terry stop, an officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.

Here, we find that based on the totality of the circumstances, the police had reasonable suspicion to suspect that criminal activity was afoot at the time they initiated the seizure.

The police had initially pulled alongside of the vehicle after he had noticed it in the neighborhood he was patrolling on three occasions during a short 30-40 minute period. The vehicle had been mobile on the first two viewings, but was parked when he saw it for the third time. Upon encountering the vehicle for the third time, the detective pulled up alongside of it and issued several questions to the driver, who was responsive to his questions. Although responsive, the driver admitted that he lied when he stated that he lived “down the street.”

During the course of this brief encounter, the detective observed defendant slouch further and further down in his seat until only his head was visible. At that point, the officers exited their unmarked car and approached the Grand Marquis.

Upon his approach to the driver’s side of the car, defendant immediately leaned toward the center of the vehicle with his right hand inside his shirt and his right forearm covering his waist. Based on his years of experience as a police officer, defendant found defendant’s continued furtive movements to be suspicious and became concerned with officer safety.

The Terry standard does not require an inevitable conclusion or absolute certainty; rather, it simply requires a reasonable suspicion that criminal activity is afoot.

In an effort to dispel his suspicions that criminal activity was afoot and in order to ensure officer safety, the detective ordered defendant and the other occupants of the Grand Marquis to raise their hands into the air. When defendant did so in a manner that allowed him to continue concealing his waist, the detective’s suspicion that defendant was armed was strengthened, and he subsequently ordered defendant and the other occupants of the Grand Marquis.

The gun then fell to the ground when defendant exited the vehicle.

See Also

People v. Holmes, 2017 IL 120407 (July)(notwithstanding Aguilar probable cause for an arrest exist when police see a gun) – Episode 387

The record rebuts defendant’s argument that he was seized “solely because [the officers] suspected he possessed a firearm.” As such, we need not consider his argument concerning the propriety of a hypothetical Terry stop predicated solely on an officer’s suspicion that a defendant was in possession of a firearm. Defendant emphasizes throughout his brief that mere possession of a firearm is not a crime and that the officers lacked reasonable suspicion that his possession of the firearm was unlawful until after the seizure occurred.

Although it is true that simple possession of a firearm is not itself a crime, the fact that the officers were not aware of defendant’s status as a convicted felon and parolee or his lack of a FOID card, which ultimately formed the basis for the specific criminal weapons charges filed against him in this matter, is not dispositive because defendant’s furtive behavior and repeated efforts to conceal the weapon provided the officers with reasonable suspicion that defendant was not in lawful possession of the firearm.

To accept defendant’s argument that the initial detention was invalid because the officer did not yet know the specific crime that had been committed would be directly contrary to the goals of Terry to encourage crime prevention and detection where there is reasonable suspicion that a crime has been committed.

See also Colyar, 2013 IL 111835, ¶ 49 (rejecting a defendant’s argument that police officers are required to completely eliminate any legal explanation for a defendant’s suspected possession of a firearm and establish that the defendant was committing a weapons offense before investigating further during a Terry stop).

Holding

The circuit court did not err in denying defendant’s motion to suppress.

In re D.L.

Running Away From A Shot’s Fired Scene Seems Reasonable.

Kid is seen walking away from the location of a “shots fired”, he starts to run, when they catch him he has a gun.

Gist

Respondent was charged with various gun charges in juvenile court. He filed a motion to quash defendant’s arrest and suppress evidence, alleging that he was subjected to an unreasonable search and seizure.

Shots Fired

Officer Scaduto testified that on the evening of March 28, 2017, he was working with three partners—Officers Borne, Riley, and Boubach—in an unmarked squad car. The officers were in plainclothes, wore “CPD badges” and had “police” on the back of their vests.

Around 8:20 p.m., the officers received a dispatch concerning multiple calls of shots fired on “the 117th block of Loomis.” The dispatch gave no information about the identity of the suspects or callers, other than “more than one person called in th[e] incident.”

Quick Response

Officer Scaduto and his partners, who were about “one minute away on Halsted Street,” responded to the dispatch and began to drive toward the 117th block of South Loomis Street. One minute later, while travelling westbound on 116th Street, the officers saw respondent and another male walking eastbound on the sidewalk about “two houses away from Loomis.”

Officer Scaduto did not know respondent, or see any bulges in his clothing. Officer Scaduto observed that respondent and the other male were “walking quickly” away from the area of the shots fired call. There were no other people on the street at the time, and Officer Scaduto observed respondent for approximately five seconds.

Approach The Kid

Officer Scaduto stated that, “[d]ue to the fact that it was a shots fired call in that area and [respondent] was walking quickly away from that shots fired call, we attempted to conduct a street stop *** [to] have a conversation about the shot[s] fired call and if they heard anything.”

The officers approached, and Officer Scaduto “told [respondent] to stop so we could have a conversation about the shots fired call.” When asked whether this was “a request or *** an order,” Officer Scaduto clarified that “[i]t was an order.” The male who was walking with respondent “complied” and headed toward the police car. Respondent, however, “did not comply with [Officer Scaduto’s] order and began running” northbound down an alley.

They Catch Him

Officer Scaduto pursued respondent on foot, did not lose sight of him, and detained respondent less than one minute later. Once he apprehended respondent, Officer Scaduto handcuffed respondent, “detained him[,] and placed him in custody.” Officer Scaduto conducted a pat-down because he had “reason to believe that [respondent] ran *** because he was concealing a firearm.”

Officer Scaduto denied that respondent was arrested at this point, stating that it was “part of the field interview.”

The Pat Down

During the pat-down, Officer Scaduto recovered a .380-caliber semiautomatic handgun from inside the pocket of respondent’s jacket. The handgun was “stove piped,” meaning it had a malfunction that “only happens after you actually shoot the firearm.” After he recovered the weapon, Officer Scaduto placed respondent under arrest.

Officer Scaduto explained that he performed a pat-down “[b]ased on the totality of the circumstances, the shots fired call, the minor respondent walking away from the area of the shots fired call ***, and that he and another individual were the only ones on the street at the time of the shots fired call in that area.” He further asserted that he had “reason to believe that he was concealing a firearm” based on the “shots fired call” and “that he fled from me and didn’t obey *** my verbal commands.”

Defendant’s Argument

Based on the above testimony, respondent argued that before Officer Scaduto had ordered him to stop, the officer had only observed him for five seconds, at which time he had been engaged in “normal behavior” by “walking away from a shooting scene.” Respondent pointed out that Officer Scaduto did not observe any bulges or weapons and that there was no description, eyewitness, or informant connecting respondent to the shots fired. Respondent further argued that it was not enough to be in an area where criminal activity occurred and that flight from the police was not, standing alone, sufficient to establish probable cause.

State’s Argument

The State specifically contends that the totality of the circumstances supported a reasonable articulable suspicion that respondent “may have been involved in criminal activity” and a reasonable belief that respondent was armed and dangerous.

In this case, the State argues that Officer Scaduto’s intent at the time he ordered respondent to stop is irrelevant, because respondent was only “seized” for purposes of the fourth amendment when Officer Scaduto captured him after he fled down an alley.

The State asserts that the officer was justified in stopping respondent at that point, describing the “totality of the circumstances” as “there were numerous calls of shots fired; *** respondent and his companion were walking quickly away from the crime scene of shots fired; *** no other people were in the area except for respondent and his companion; [and] *** the officers attempted to conduct a field interview but respondent turned around and fled.” ¶ 21 In so arguing, the State seemingly concedes that Officer Scaduto lacked reasonable suspicion to conduct a Terry stop of respondent at the time that he initially ordered him to stop.

We agree.

Trial Court Agrees

The circuit court granted respondent’s motion to quash arrest and suppress evidence. The court concluded that “the fact that two individuals happen to be on the street where shots are fired, does not make them subject to give up their fundamental civil rights.”

Fourth Amendment

The fourth amendment to the United States Constitution guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV. “This provision applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.” People v. Thomas, 198 Ill. 2d 103, 108 (2001).

Under the Terry exception, the police may conduct a brief investigatory stop “when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). The police officer “must be able to point to specific and articulable facts which, taken together with rational inferences therefrom, reasonably warrant that intrusion.” Thomas, 198 Ill. 2d at 109. “While ‘reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop.

The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity. [Citation.]” Wardlow, 528 U.S. at 123-24. The underlying facts are viewed “from the perspective of a reasonable officer at the time that the situation confronted him or her.” Thomas, 198 Ill. 2d at 110.

Analysis

At that time, the officer had observed respondent for five seconds as he was “walking quickly” on the sidewalk of 117th Street. Although the officer described respondent as walking “away from the area of the shots fired call,” his testimony also established that respondent was not walking on either 116th Street or Loomis Street, the intersection where the shots were reported to have originated, and instead respondent was between one and two blocks away from that location. Nevertheless, as the trial court concluded, most people would be inclined to make a quick departure from the scene of gunfire, and accordingly, such behavior would not be unusual. Even Officer Scaduto implicitly acknowledged that he had no suspicion that respondent had engaged in criminal conduct at that time, since his claimed intent was to “have a conversation” with him about whether he had “heard anything” regarding the shots fired.

Moreover, the circumstances surrounding Officer Scaduto’s order were clearly meant to exhibit a show of authority that would be indicative of a seizure. Specifically, Officer Scaduto and three other officers approached respondent, and Officer Scaduto used particular language when testifying, which indicated that he intended to convey to respondent that compliance with his request was mandatory.

Yea But He Ran

The court quoted Professor LaFave: “The flight of a person from the presence of police is not standing alone sufficient to establish probable cause, unless of course the circumstances are such that the flight from the officer itself constitutes a crime. Were it otherwise, “anyone who does not desire to talk to the police and who either walks or runs away from them would always be subject to legal arrest,” which can hardly “be countenanced under the Fourth and Fourteenth Amendments.”  (quoting 2 Wayne R. LaFave, Search and Seizure § 3.6(e), at 323-24 (3d ed. 1996)).

The State argues, without supporting authority, that a “reasonable person innocent of a crime would not flee from the police” (emphasis in original). However, the United States and Illinois Supreme Courts have held otherwise. See Wardlow, 528 U.S. at 125 (Accepting as “undoubtedly true” that “there are innocent reasons for flight from police and that, therefore, flight is not necessarily indicative of ongoing criminal activity.”)

Even considering respondent’s flight as part of the totality of the circumstances, we still conclude that Officer Scaduto lacked reasonable suspicion to conduct a Terry stop at the time that respondent was apprehended.

Although “[u]nprovoked flight in the face of a potential encounter with police may raise enough suspicion to justify the ensuing pursuit and investigatory stop” (emphasis added) (Thomas, 198 Ill. 2d at 113), there is no bright-line rule authorizing the temporary detention of anyone who flees at the mere sight of the police (see Wardlow, 528 U.S. at 126. To the contrary, it is well settled that flight alone is not sufficient to establish reasonable suspicion that a person has committed, or is about to commit, a crime.

It is only when that flight is coupled with other factors that it may support reasonable suspicion justifying a Terry stop. In this case, the trial court found no other factors supporting a finding that Officer Scaduto had reasonable suspicion that respondent committed or was about to commit a crime. As discussed above, aside from his flight, there was no testimony showing that respondent was acting suspiciously in any way. In these circumstances, we conclude that respondent’s flight alone did not justify the subsequent Terry stop.

Wardlow Rejected

In so holding, we also reject the State’s reliance on Wardlow, 528 U.S. 119. In Wardlow, the Supreme Court held that the defendant’s unprovoked, “[h]eadlong flight” was one factor among several that, taken together, supported an officer’s reasonable suspicion of criminal activity.

In particular, the Supreme Court noted that the officers saw defendant in an “area known for heavy narcotics trafficking,” where the officers expected to encounter “drug customers” and “lookouts.” The officers saw the defendant standing next to a building holding an opaque bag, and upon looking in the direction of the officers, the defendant fled through a gangway and an alley. The Supreme Court held that the above circumstances created a reasonable suspicion of criminal activity which justified a Terry stop.

Here, however, unlike in Wardlow, the trial court found no other factor supporting reasonable suspicion to justify a Terry stop when considering the totality of the circumstances. We do not find the trial court’s conclusion on this point to be manifestly erroneous.

Bad Stop Bad Pat Down

Having concluded that the police were not justified in temporarily detaining respondent, we must also conclude that the subsequent search was not justified. A police officer making a reasonable investigatory stop may conduct a protective search if he has reason to believe the suspect is armed and dangerous. Adams v. Williams, 407 U.S. 143, 146 (1972).

“The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.” However, the right to perform a protective search presupposes the right to make the stop. The police may only perform a protective search if they are entitled to stop the person in the first place.  In order for a frisk to be constitutionally reasonable, (1) the stop must be proper, (2) the officer must have reason to know that the defendant is armed and dangerous, and (3) the scope of the search must be strictly limited to a search for weapons.

Since Officer Scaduto did not provide specific and articulable facts justifying the Terry stop, the protective search performed during that stop also lacked a sound constitutional basis.

Holding

After giving the appropriate deference to the trial court’s findings of fact, we cannot conclude that the trial court was manifestly erroneous when it found the defendant had met his burden of showing that the seizure and search were unreasonable and violated his rights under the fourth amendment.

For the foregoing reasons, we affirm the decision of the circuit court of Cook County.

People v. Timmsen

Avoiding A Traffic Roadblock May Create Reasonable Suspicion Justifying a Traffic Stop.

Apparently, the police can stop you for trying to legally avoid a roadblock.

Facts

Defendant made a U-turn 50 feet from a roadblock to avoid it.

He was stopped and arrested for DWLS and possession of cannabis.

Issue

Does avoiding a traffic roadblock itself create a reasonable suspicion of criminal activity justifying a traffic stop by police?

Holding

The Illinois Supreme court held that defendant’s avoidance of the police roadblock provided reasonable suspicion for an investigatory stop.

Reasoning

The court felt that Defendant’s U-turn across railroad tracks just 50 feet before the roadblock is the type of evasive behavior that is a pertinent factor in determining reasonable suspicion.

Further, since the roadblock was well-marked, it was readily identifiable as a roadblock rather than being mistaken for an accident site or a road hazard, which one may generally desire to avoid.

Moreover, the roadblock was not busy, which suggests that a driver would not have feared a lengthy delay. When considering “the totality of the circumstances—the whole picture,” the deputy had reasonable suspicion to conduct an investigatory stop. Evasive behavior and a person’s refusal to speak with an officer when an officer approaches him are not one and the same.

Kinda-Like Head-Long Flight

This defendant was acting comparable to Wardlow who was do anything but going about his business. He was suspiciously actively avoiding contact with the police.

The court refused to adopt any bright line rules and said its always a totality of the circumstances determination. Avoidance as simply one factor in determining the existence of reasonable suspicion.

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Collins v. Virginia, May 2018. Episode 495 (Duration 11:20)

Police need a warrant to search a vehicle on private property.

Issue

This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein.

Facts

Police were aware of a man speeding on an orange and black motorcycle but were unable to catch him. Officers learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. After discovering photographs on Collins’ Facebook profile that featured an orange and black motorcycle parked at the top of the driveway of a house, Officer Rhodes tracked down the address of the house, drove there, and parked on the street.

It was later established that Collins’ girlfriend lived in the house and that Collins stayed there a few nights per week.

From his parked position on the street, Officer Rhodes saw what appeared to be a motorcycle with an extended frame covered with a white tarp, parked at the same angle and in the same location on the driveway as in the Facebook photograph.

No Warrant

Officer Rhodes, who did not have a warrant, exited his car and walked toward the house.

He stopped to take a photograph of the covered motorcycle from the sidewalk, and then walked onto the residential property and up to the top of the driveway to where the motorcycle was parked. When Officer Rhodes searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house.

In order “to investigate further,” Officer Rhodes pulled off the tarp, revealing a motorcycle that looked like the one from the speeding incident. He then ran a search of the license plate and vehicle identification numbers, which confirmed that the motorcycle was stolen.

After gathering this information, Officer Rhodes took a photograph of the uncovered motorcycle, put the tarp back on, left the property, and returned to his car to wait for Collins.

Defendant Gets Home

Shortly thereafter, Collins returned home.

Officer Rhodes walked up to the front door of the house and knocked. Collins answered, agreed to speak with Officer Rhodes, and admitted that the motorcycle was his and that he had bought it without title.

Officer Rhodes then arrested Collins.

Charges

Collins was indicted by a Virginia grand jury for receiving stolen property.

Automobile Exception v. Warrant Requirement

This case arises at the intersection of two components of the Court’s Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home.

Automobile Exception

The Court has held that the search of an automobile can be reasonable without a warrant.

The Court first articulated the so-called automobile exception in Carroll v. United States, 267 U. S. 132 (1925). The “ready mobility” of vehicles served as the core justification for the automobile exception for many years. California v. Carney, 471 U. S. 386, 390 (1985) (citing, e.g., Cooper v. California, 386 U. S. 58, 59 (1967); Chambers v. Maroney, 399 U. S. 42, 51–52 (1970)).

Later cases then introduced an additional rationale based on “the pervasive regulation of vehicles capable of traveling on the public highways.” Carney, 471 U. S., at 392. As the Court explained in South Dakota v. Opperman, 428 U. S. 364 (1976):

“Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.”

Id., at 368.

Homes Are Different

These rationales don’t exist for houses.

Like the automobile exception, the Fourth Amendment’s protection of curtilage has long been black letter law. “[W]hen it comes to the Fourth Amendment, the home is first among equals.” Florida v. Jardines, 569 U. S. 1, 6 (2013). “At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” Ibid. (quoting Silverman v. United States, 365 U. S. 505, 511 (1961)).

Curtilage Part Of The Home

To give full practical effect to that right, the Court considers curtilage—“the area ‘immediately surrounding and associated with the home’”—to be “‘part of the home itself for Fourth Amendment purposes.’” Jardines, 569 U. S., at 6 (quoting Oliver v. United States, 466 U. S. 170, 180 (1984)). “The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.” California v. Ciraolo, 476 U. S. 207, 212–213 (1986).

When a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred. Such conduct thus is presumptively unreasonable absent a warrant.

Just like the front porch, side garden, or area outside the front window the driveway enclosure where Officer Rhodes searched the motorcycle constitutes an area adjacent to the home and to which the activity of home life extends, and so is properly considered curtilage.

State Says Expand Automobile Exception

Virginia asks the Court to expand the scope of the automobile exception to permit police to invade any space outside an automobile even if the Fourth Amendment protects that space. Nothing in our case law, however, suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant.

Expanding the scope of the automobile exception in this way would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and untether the automobile exception from the justifications underlying it. Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 10) (quoting Arizona v. Gant, 556 U. S. 332, 343 (2009)).

Surely, He Couldn't Go In The House

Had Officer Rhodes seen illegal drugs through the window of Collins’ house, for example, assuming no other warrant exception applied, he could not have entered the house to seize them without first obtaining a warrant. Similarly, it is a “settled rule that warrantless arrests in public places are valid,” but, absent another exception such as exigent circumstances, officers may not enter a home to make an arrest without a warrant, even when they have probable cause. Payton v. New York, 445 U. S. 573, 587–590 (1980).

That is because being arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home.

Likewise, searching a vehicle parked in the curtilage involves not only the invasion of the Fourth Amendment interest in the vehicle but also an invasion of the sanctity of the curtilage.

Must Have A Lawful Right To Be There

Just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant, and just as an officer must have a lawful right of access in order to arrest a person in his home, so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception.

The automobile exception does not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it does not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage.

Garages Would Have More Protection

Virginia’s proposed bright-line rule automatically would grant constitutional rights to those persons with the financial means to afford residences with garages in which to store their vehicles but deprive those persons without such resources of any individualized consideration as to whether the areas in which they store their vehicles qualify as curtilage. See United States v. Ross, 456 U. S. 798, 822 (1982) (“[T]he most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion”).

Holding

To allow an officer to rely on the automobile exception to gain entry into a house or its curtilage for the purpose of conducting a vehicle search would unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application.

Given the centrality of the Fourth Amendment interest in the home and its curtilage and the disconnect between that interest and the justifications behind the automobile exception, we decline Virginia’s invitation to extend the automobile exception to permit a warrantless intrusion on a home or its curtilage.

For the foregoing reasons, we conclude that the automobile exception does not permit an officer without a warrant to enter a home or its curtilage in order to search a vehicle therein.

The judgment of the Supreme Court of Virginia is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

See Also

● People v. Smock, 2018 IL App (5th) 140449 (April). Episode 489 - This Hot Pursuit Of A Disorderly Conduct Suspect Didn’t Justify The Warrantless Entry Into The Trailer

● Episode 464 - Constitutionality Based On Structure: Do Houses Have More Protection Than Apartments?

This is the May 2018 Illinois criminal case law audio round-up (the fast case law summary). Episode 494 (Duration 15:35)

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

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

Here's a quick snapshot of the top cases:

1. Collins v. Virginia

Police need a warrant to search a vehicle on private property.

2. People v. Plank

Definition of motorized bicycle is not unconstituionally vague.

3. People v. Space 

Felony murder must be reversed because the defendant shared the same felonous purpose as the underlying offense.

4. People v. Norwood 

What does it mean for a firearm to be immediately accessible?

5. People v. Anderson

There is a difference between constructive possession and having immediate access to a gun.

6. People v. Curry 

Peppery spray is considered a dangerous weapon for armed robbery purposes.

7. People v. Webb

How do you prove up the great bodily harm part of an aggravated battery in a habitual criminal trial?

8. People v. Williams

Defendant wins his postconviction and gets a knew sentencing hearing.

9. People v. McClinton

Defendant is entitled to a certificate of innoncense after her gun conviction was invalidated after Aguilar.

10. People v. Tatera 

9th DUI for this guy; 8 years seems about right.

11. People v. Jackson 

per se conflict of interest is waveable.

12. People v. Romero 

Latin Kings, Brain eating martians, and insults to a judge all appear in this case.

13. People v. Lovelace 

After acquittal should defendant get all the bond money back including the 10% the clerk usually keeps.

People v. Plank, 2018 IL 122202 (May). Episode 493 (Duration 8:45)

Definition of motorized bicycle is not unconstitutionally vague.

Gist

When the State charged defendant John Plank with driving a motor vehicle with a revoked license, he claimed that the statute did not clearly tell him which vehicles he could and could not drive. Specifically he argued that the Vehicle Code’s definition of “low-speed gas bicycle” was unconstitutionally vague in violation of the due process clauses of the United States and Illinois Constitutions.

The trial court agreed.

Facts

An officer saw defendant riding a motorized bicycle down a Douglas County road at a speed of 26 miles per hour.

He signaled to defendant to stop, and defendant pulled over.

Defendant admitted that his license was revoked. The State charged defendant with violating section 6-303(a) of the Vehicle Code. See 625 ILCS 5/6-303(a).

The officer said the bicycle was powered by one those weed eater motors.

Charged As A Felony

 Generally, driving a motor vehicle on state highways with a revoked license is a Class A misdemeanor. However, the State alleged that defendant’s license had been revoked previously following a conviction for driving under the influence of drugs or alcohol (DUI). After that DUI conviction, defendant was convicted for driving without a valid license in 2011, 2012, and 2013.

This background led the State to increase the new charge to a Class 4 felony, requiring at least 180 days’ incarceration. Id. § 6-303(d-3).

The Law On "Low-Speed-Gas-Bicycle"

The Illinois Vehicle Code prohibits anyone with a revoked driver’s license from driving a “motor vehicle.” 625 ILCS 5/6-303(a) (West 2012).

The term “motor vehicle” includes

“[e]very vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, except for vehicles moved solely by human power, motorized wheelchairs, low-speed electric bicycles, and low-speed gas bicycles.”

625 ILCS 5/1-146.

However, someone with a revoked license may still drive a “low-speed gas bicycle” without violating this statute. Id. § 1-146.

The Vehicle Code defines “low-speed gas bicycle” as a

“2 or 3-wheeled device with fully operable pedals and a gasoline motor of less than one horsepower, whose maximum speed on a paved level surface, when powered solely by such a motor while ridden by an operator who weighs 170 pounds, is less than 20 miles per hour.”

625 ILCS 5/1-140.15. 

Issue

He claimed both that the definition fails to provide persons of ordinary intelligence with a reasonable opportunity to understand what is prohibited and that the definition encourages arbitrary and discriminatory enforcement.

The circuit court agreed with defendant that this definition of “low-speed gas bicycle” was unconstitutionally vague and, thus, violated the due process clauses of the United States and Illinois Constitutions. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2.

Constitutional Vaguness

A statutory provision can be too vague to satisfy the requirements of due process of law in two ways:

first, the statute does not provide individuals of ordinary intelligence a reasonable opportunity to understand what conduct the law prohibits, or
second, the statute does not provide law enforcement with reasonable standards to avoid arbitrary or discriminatory enforcement. City of Chicago v. Morales, 527 U.S. 41, 56 (1999); Bartlow v. Costigan, 2014 IL 115152, ¶ 40.

By allowing government actors to enforce only those statutes with definite content, the vagueness doctrine protects the rule of law from potential abuses of discretion.

Analysis

Defendant is not reading the statute correctly.

It essentially describes a standard. The statute actually defines “low-speed gas bicycle” as a “2 or 3-wheeled device with fully operable pedals and a gasoline motor of less than one horsepower, whose maximum speed on a paved level surface, when powered solely by such a motor while ridden by an operator who weighs 170 pounds, is less than 20 miles per hour.”

The statute is explaining that a defining characteristic of a low-speed gas bicycle is an engine that is incapable of transporting 170 pounds at 20 miles per hour without help from gravity or pedaling.

A bicycle’s motor will either have this capability or not, regardless of the weight of any particular driver.

No Subjective Elements

The vagueness doctrine also does not require that a statute’s application to a particular set of facts be readily apparent. The General Assembly may constitutionally require people to seek additional information before they engage in legally questionable behavior.

When courts have struck down statutes under the vagueness doctrine, they have done so because the statutes depended on “wholly subjective judgments.” 

The Vehicle Code does not depend on any subjective judgements. Instead, a particular vehicle either is a “low-speed gas bicycle” for everyone or it is not for everyone, just as a driver’s blood-alcohol content either is or is not over 0.10%.

This is all that the vagueness doctrine requires.

It's Not Obvious But Not Vague

Even if defendant is correct that an officer might have difficulty estimating engine power, the vagueness doctrine does not require officers to precisely gather sufficient data to prove all the elements of a crime at the moment of citation or arrest.

An officer need only have probable cause to believe the suspect has committed a crime. This inability to immediately gather precise data about a driver’s state does not render the DUI statute prohibiting driving while intoxicated unconstitutionally vague. Similarly, if an officer sees someone driving a motorized bicycle at a speed well over 20 miles per hour down a level road, those facts support the officer’s initial conclusions that this vehicle’s motor is powerful enough to move someone who weighs 170 pounds over a paved, level surface at a speed over 20 miles per hour and that the driver needs a valid license to operate this vehicle.

As far as the vagueness doctrine is concerned, the Vehicle Code’s definition of “low-speed gas bicycle” provides both law enforcement and other law-abiding Illinoisans with definite criteria to determine if a certain vehicle is a “motor vehicle.”

It is not so ineffective that it “provides no standard of conduct at all.” Fabing, 143 Ill. 2d at 55.

Holding

The Vehicle Code’s definition of “low-speed gas bicycle” satisfies the requirements of due process of law. We reverse the circuit court’s dismissal of the charge and remand for further proceedings.