Kane County Nuggets

People v. Gomez, 2018 IL App (1st) 150605 (April). Episode 492 (Duration 8:05)

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.

See Also

• In re Jarrell C., 2017 IL App (1st) 170932 (December) (holding your crotch is not indicative of carrying a gun) - Episode 447
• In re D.L., 2017 IL App (1st) 171764 (December) (running away from shots fired scene not suspicious) - Episode 445
• People v. Richardson, 2017 IL App (1st) 130203-B (May) (fidgeting with your waistband gonna get you patted down) - Episode 335
• People v. Evans, 2017 IL App (4th) 140672 (March) (putting your hands in and out of your pockets may get you patted-down) - Episode 327

People v. Gill, 2018 IL App (3d) 150594 (April). Episode 491 (Duration 5:33)

Police had a nurse confiscate defendant's clothes for them.

Gist

Defendant was charged with aggravated arson of a home when people were in it. He ends up at the hospital where a nurse gathers his clothes and gives it to the police.

Defendant was a suspect, due to an altercation between him and an occupant of the house earlier that morning. He was angry at a women who took $310 of drugs from him.

Issue

Defense counsel filed a motion to quash the seizure of defendant’s clothing from the Pekin hospital and suppress the clothing as evidence, arguing that the seizure did not meet any exceptions to the warrant requirement.

Facts

An officer at the scene of the home smelled gasoline and saw a Jeep in the driveway. Inside the house, the fire had originated in the kitchen, against an exterior wall.

Inside the Jeep, he noticed a gas can and white rags similar to the rags found in Defendant's truck at Denny’s. The Jeep belonged to the women's roommate.

Later the next day at the hospital, the nurses told police that defendant was admitted smelling badley of gasoline. The nurse then gave defendant’s clothing to police. The nurse did this because she was asked by police to put his clothes aside and save it for them. A dog was allowed to sniff the clothes and the dog alerted.

Police never secured a warrant for the clothes.

Surveillance video of the truck captured it near the scene of the crime. The truck was towed to the East Peoria Police Department without a warrant. Eventually, a warrant was obtained for the truck to be searched.

The Video

A neighbor turned over surveillance footage from their home security system.

A dark figure can be seen moving about the vicinity of the house across the street. Twenty-one seconds later, that house erupts into fire. An individual carrying a burning object runs into the street from the area of the house and runs down the street, to the right from the perspective of the camera. After running down the street for about 12 seconds, the individual throws the burning object from his person and continues running off screen.

A small fire where the discarded fiery object was thrown remains on screen. Investigators found the burnt debris along with a bic lighter. Police also found an abandoned grey sweatshirt with burn arm sleeves and a Bic lighter in the pocket.

After the defendant’s truck was confiscated and towed. The search revealed a Bic lighter under the truck’s front seat.

The Clothes

The accelerant-detecting canine, Rusty, can alert to the presence of ignitable liquids. Rusty performed a sniff of defendant’s clothing at the Pekin hospital, alerting to a pair of blue jeans. Arndt also took Rusty into defendant’s hospital room, where Rusty alerted to defendant’s hands. Police testified that they could smell the gasoline on defendant’s clothing when conducting the sniff with Rusty.

The grey sweatshirt also had defendant’s blood and DNA on it.

A forensic scientist testified that the white rag and gas can found in the Jeep, as well as debris from the house all tested positive for gasoline.

She also testified that defendant’s clothing tested positive for gasoline, but she could not identify if the gasoline was on an individual piece of clothing, as the clothing was collected in the same container.

Verdict & Sentence

Defendant was found guilty by a jury and sentenced to 12 years. Defendant next contends that the seizure of his clothing from the hospital was illegal on multiple grounds, and that the circuit court therefore erred in failing to suppress evidence stemming from that seizure.

State Action

First, he argues that he had a reasonable expectation of privacy in his clothing, and that the seizure of his clothing was in contravention of the fourth amendment. While defendant emphasizes the seizure of his clothing, it is apparent that the events in question raise issues related to both search and seizure.

The nurse’s testimony at trial was that he had retrieved the bag of defendant’s clothing from his hospital room. Here, none of the nurses’s actions were privately motivated. The evidence at the suppression hearing and trial made clear that he retrieved defendant’s clothing at the explicit request of one of the investigators. Thus, not only did the government know of and acquiesce to the nurse’s action, it specifically requested them. Moreover, the nurse clearly took those actions to assist law enforcement efforts.

On these facts, it is indisputable that when the nurse entered defendant’s room, he did so as an agent of the government for fourth amendment purposes.

The Hospital Room

The evidence in this case shows that defendant was in a single-occupancy hospital room with a door on the seventh floor of the Pekin hospital, what we agreed could be called a “private room.” While doctors and nurses may come and go from his room to provide care, his room was not open to the public in general.

In sum, defendant was legitimately present in a private hospital room suitable for extended stays.

Defendant maintained at least some authority to exclude others from this room, and at all times acted in a manner typical of an occupant of that space, thus demonstrating a subjective expectation of privacy.

The concepts of privacy and confidentiality in a hospital is well covered by law, indicating that society would recognize that expectation of privacy as reasonable.

Accordingly, we find that defendant had a reasonable expectation of privacy in his hospital room.

This doesn't mean all hospital rooms have the same protection as a home. We simply find that this particular defendant, in the type of hospital room described in this record, enjoyed a reasonable expectation of privacy. Because defendant had a reasonable expectation of privacy in his hospital room, the fourth amendment barred governmental intrusions without a warrant.

No Exigent Circumstance

Consequently, we next consider whether the search was supported by some exception to the warrant requirement.

The burden is on the State to prove that an exception to the requirement applies. Those circumstances that make obtaining a warrant impracticable are also known as exigent circumstances. The police definitely had probable cause to believe that his clothing might be evidence of a crime. While the investigators had probable cause to search, the burden remained on the State to show that circumstances existed making it impracticable to obtain a search warrant for the hospital room.

Just as in McNeely, the exigency exception most on point here is the one for imminent destruction of evidence. The McNeely Court explained that the imminent destruction of evidence exception applies where there is a reasonable belief that critical evidence is being destroyed. No investigators testified or expressed any concerns about defendant destroying evidence, let alone imminently. Further, the gasoline-stained clothing is not of the immediately discardable or destroyable nature of the cannabis reference by the McNeely Court. To even possibly destroy the evidentiary value of those clothes, defendant would have had to wash the clothing. Defendant, of course, was in a room in the ICU, and there was no evidence presented that that floor provided the means by which defendant could accomplish that task, or even that defendant was in well enough physical condition to do so.

The list of reasons that the investigator could have practicably obtained a warrant is yet longer.

There is no apparent reason that the investigators could not have obtained a warrant.

Holding

The evidence adduced at the suppression hearing and trial clearly demonstrates that defendant’s clothing was located in a bag within his private hospital room when a group of four investigators arrived at the hospital. When those investigators requested that the nurse enter defendant’s room to retrieve his clothing, he became an agent of the government for fourth amendment purposes.

Because defendant enjoyed an expectation of privacy within that room that society would deem reasonable, the entry for the purpose of finding and taking defendant’s clothing constituted a search under the fourth amendment. While that search was supported by probable cause, there was no evidence on the record that it would have been impracticable for the investigators to obtain a search warrant prior to conducting that search.

Accordingly, this search was conducted in violation of the protections of the fourth amendment.

Everything following the nurse's entry into defendant’s room should be suppressed. This includes the accelerant-detecting canine’s alert to the clothing in the common area of the seventh floor, as well as the forensic testing on the clothing.

Reversed and remanded for further proceedings.

Ok To Take The Truck

Police did have the requisite exigent circumstances necessary to have defendant’s truck seized without a warrant.

The inherent mobility of an automobile creates an exigency in and of itself. Of course, that exigency is reduced where, as here, the car is parked and driverless. Nevertheless, police, at that point, had no idea when defendant might return for the car, and we must look at the likelihoods as known to police at the time. Moreover, even with defendant in the hospital, any number of fates could have befallen the truck, such as an acquaintance moving it at defendant’s request or Denny’s having the truck towed after it sat in the restaurant’s parking lot for a number of hours.

Most important, however, are the nature of the vehicle and some of the potential evidence. The gas can and rag were in the bed of the truck, exposed to the world. Where the presence of gasoline would be pivotal to any evidentiary value, the potential for the evidence being degraded by weather would be a paramount concern.

Police had probable cause to believe there was evidence of a crime in defendant’s truck, and it would have been impracticable for him to obtain a warrant before having the truck towed.

Thus, the seizure of truck did not violate defendant’s fourth amendment protections.

See Also

• People v. Brooks, 2017 IL 121413 (November) - Episode 423 
• People v. Sykes, 2017 IL App (1st) 150023 (December) - Episode 439
• People v. Eubanks, 2017 IL App (1st) 142837 (December) - Episode 438
• People v. Turner, 2018 IL App (1st) 170204 (February) - Episode 462

People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode 488 (Duration 18:22)

Involuntary confession and improper closing arguments lead to this Illinois wrongful murder conviction.

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Gist

In 2013 Maniac Latin Disciples, encountered several members of the Sureños, a rival street gang that operates in Wheeling.

Four gunshots rang out.

One person gets hit in the back and dies.

Holding

The court reversed the conviction due to the insufficiency of the evidence.

We hold that section 103-2.1 required the court to suppress the video recorded statements of Sanchez, made after police initiated unrecorded custodial questioning in a murder investigation, when police had not informed Sanchez of his Miranda rights. Police induced an involuntary, unreliable confession. The trial court erred when it denied the motion to quash the illegal arrest and the motion to suppress statements.

Analysis

Around 9:30 p.m. the police encountered the defendant and a codefendant being chased by Sureños. The Sureños said these two knew something about the shooting.

Defendant is handcuffed and arrested right away. This arrest was illegally and without probable cause.

After the illegal arrest, police questioned Sanchez twice about the murder, without advising Sanchez of his Miranda rights. Police also failed to record the questioning, in violation of section 103-2.1(b) of the Code of Criminal Procedure (Code). 725 ILCS 5/103­ 2.1(b).

The Code expressly places on the prosecution the burden of showing that an exception excuses them from the rule requiring recording of interrogations. 725 ILCS 5/103-2.1(e). The prosecution presented no evidence of when the victim died, and therefore the prosecution did not meet its burden of showing the statement admissible under subsection (e)(viii). 725 ILCS 5/103-2.1(e)(viii).

Due to the violation of section 103-2.1(b), the trial court had a duty to suppress all subsequent statements from Sanchez unless the State showed by a preponderance of the evidence that the subsequent statements were both voluntary and reliable. 725 ILCS 5/103­ 2.1(d), (f).

Involuntary Statement

To determine the voluntariness of a statement, the court should consider “the defendant’s age, intelligence, background, experience, mental capacity, education, and physical condition at the time of questioning; the legality and duration of the detention; the duration of the questioning; and any physical or mental abuse by police, including the existence of threats or promises.” People v. Gilliam, 172 Ill. 2d 484, 500-01 (1996).

Here, Sanchez was 18 years old, with no criminal background, at the time of the interrogation. Police arrested him without probable cause and held him for 12 hours before he confessed. Most notably, the detectives told Sanchez he could not call his mother until he told them the truth about the shooting, and they told him they already knew he shot the victim.

The court said the evidence showed that Sanchez did not voluntarily make the statements. By refusing Sanchez’s request to call his mother, the detectives also violated section 103-3(a) of the Code. 725 ILCS 5/103­ 3(a).

Even The State Didn't Believe The Statement

The prosecution conceded that the jurors should not rely on almost all of the statements Sanchez made in the lengthy interrogation.

The prosecutor argued that the jurors should not believe Sanchez’s statement about who brought the gun. Nor believe Sanchez’s statement that Sanchez had the gun between the 540 and 544 buildings when it discharged. The prosecutor argued that the jurors should not believe Sanchez’s statement that the gun discharged accidentally.

Nor can the prosecution accept as true Sanchez’s statement that before he got hold of the gun, the defendant and the codefendants walked in the area to the north and east of the shooting.

The only words Sanchez spoke that the prosecutor wanted jurors to believe came when Sanchez said he held the gun and “it went off.”

Also An Unreliable Statement

Whether defendant’s statement was reliable is a separate inquiry from whether it was voluntary.

Factors other than voluntariness have bearing on the reliability of a confession. Courts have frequently looked to corroboration as the most significant indicator of the reliability of confessions.

The court held that corroboration of a statement should be a factor in determining the reliability of a confession under section 103-2.1(f).

CoDefendant Corroborates Nothing

• The testifying witness said Sanchez headed toward the 540 and 544 buildings, holding the gun, shortly before he heard the shots. But most of the recanted video recorded statements shown at trial flatly contradicted Sanchez’s confession.
• Sanchez said Estrada brought the gun; the testifying witness said Sanchez bought the gun the week before the shooting and brought it to the scene.
• Sanchez described the gun as black with a black handle; the testifying witness described the gun as silver with a brown handle.
• Sanchez said Estrada took the gun from him and ran west from the shooting scene; the testifying witness said Sanchez took the gun, headed east, and threw the gun in the pond north of the 430 building.
• Eyewitness testimony and the physical evidence also contradict Sanchez’s confession. The shot came from Equestrian Drive, south of Orozco, and hit him in the back as he stood facing north. The shot did not come from anywhere near the spot where the testifying witness confirmed that Sanchez stood when he, in his recanted statement, said he heard the shots.

Why Didn't He Just Run To His Car?

Moreover, if Sanchez fired the shots from Equestrian Drive and lied about it, as the prosecutor theorized, Sanchez would have stood no more than 40 yards from his car, which police found parked on the west side of the 492 building.

Why wouldn't he have just jumped in his car?

The Initial Account

The initial account of Sanchez and every other witness to police explains how Sanchez arrived north of the shooting scene. The group defendant was in was trying to go from one care to another when they began to be chased.

The evidence at trial ran counter to Sanchez’s confession.

Insufficient Evidence To Convict

No physical evidence connected Sanchez to the crime.

• Police never found the gun or the casings from the fired bullets, and they found only one of the four fired bullets.
• The prosecutor conceded that police never found the bullet that killed the victim. No witness testified that Sanchez held a gun.
• No witness saw Sanchez on Equestrian Drive, where the shots came from.
• Sanchez’s hands and clothes bore no trace of antimony, no trace of barium, and no trace of lead.
• The testimony of all witnesses and all the physical evidence fits well with the initial account given to police.
• That account, which matched the testifying witness testimony in court, is also consistent with Miguel’s testimony that he stood on Bridle Trail, talking with Sanchez and the others, before he left  and encountered the victim when he was shot.
• When Sanchez and the others realized the shots hit someplace near the 490 building, they had reason to fear Miguel had been shot.
• Moreover, the prosecution failed to present a coherent theory of the case.

Motive Not Required But State Offers No Reason For An Inexplicable Shooting

According to the prosecution,

Defendant went home to get a gun to deal with opposing gang members.

Later that evening, Sanchez was talking with some Maniac Latin Disciples and others on Bridle Trail, when Miguel left to escort a friend to the 490 building. According to the prosecution, a few minutes later, knowing that his friend and gangmate Miguel had gone toward the 490 building, Sanchez walked unseen to Equestrian Drive and fired wildly at a group that included Miguel and Miguel’s father.

Why would he shoot at his own friend?

Then, rather than run to his car, Sanchez ran around the neighborhood for half an hour, with no apparent purpose other than to work up a sweat and persuade an opposing gang to chase him.

Why Did The Jury Convict?

The overwhelming implausibility of the prosecution’s account presents us with the question:

Why did a jury of 12 ostensibly reasonable persons sign a verdict convicting Sanchez of murder?

Well, He Confessed

First, confessions have exceptional persuasive force, and as we have already concluded, the jury should not have heard Sanchez’s incriminating statements.

Prosecution Was Persuasive

Second, the prosecutor insinuated that Sanchez’s hands had gunshot residue and the Sureños accused him of shooting the victim, and the prosecutor shifted the jurors’ focus from the evidence against Sanchez to the issues of whether defense counsel had grievously insulted police and whether jurors doubted the integrity of the officers.

Sanctions Against The Police

The court recommend that if police departments again use the so-called “presumptive GSR test,” the departments should inform officers and the subjects of the tests about what the tests actually measure, and what kinds of contact can produce positive test results.

They also recommend the consideration of possible sanctions against the officers for violating section 103-3(a) of the Code, which establishes the suspect’s right to make phone calls. 725 ILCS 5/103-3(a) (West 2012).

Deception In Interrogations

While our supreme court has expressly approved the use of deception to obtain confessions, this case shows us how the use of deception in interrogations leads to false confessions.

Deceptive practices contribute to an atmosphere in which whole communities act with hostility toward police. The court said if police want the members of the community to treat them with respect and help them in their efforts to reduce crime, police should renounce the use of deceptive practices in law enforcement so that the members of the community learn that they can trust police officers to treat them honestly.

The practice of deception in interrogations and other settings can destroy the trust needed as a foundation for the relationship between police officers and the members of the communities the police officers have a duty to serve and protect.

Conclusion

● No witness saw Sanchez with a gun.

● No witness saw Sanchez near the spot from which the fatal shot came.

● The prosecution showed no connection between Sanchez and the single spent bullet found at the scene.●

●  Police found no trace of antimony, barium, or lead on Sanchez’s hands and clothes.

● The prosecutor did not present a plausible account of Sanchez’s actions around the time of the shooting, and police admitted that Sanchez and the persons with him shortly before the shooting gave a plausible, consistent, exonerating account of Sanchez’s conduct. The court held that the prosecution did not present sufficient evidence to sustain the conviction.

But here, the record leads to a further conclusion. The evidence convincingly shows that Sanchez did not murder the victim.

Accordingly, the court reversed the judgment of the trial court outright.

Defendant Arrested

About 30 minutes after police arrived, an officer saw Sanchez and his buddy, Estrada , running toward the police, chased by several members of the Sureños gang. Conway handcuffed Sanchez and Estrada and ordered them to sit on the curb. 

More Details About The Case

The codefendant who recanted was found in the bushes north of the shooting. Marked with green "FB" on the map.

Defendant and essentially everyone interviewed said defendant was originally located south of the location where the shots where fired.  See green "X.

Originally, they said the got in a car and drove north and parked it north west of the shooting. See white rectangle in upper left corner. They got out and split up  because the Sureños started chasing them. Defendant and a codefendant went left. Sanchez went up and to the right.

Eventually, police see defendant and a codefendant running south towards the are a of the shooting being chased.

GSR Testing

Defendant was given a presumptive GSR test that was positive. Police used that against defendant in his interrogation. Later GSR testing by the state lab found nothing.

Shenanigans In The Interrogation

When the detectives confronted Sanchez with the positive result of the “presumptive GSR test,” Sanchez asserted repeatedly that he had not seen or shot a gun that evening. The detectives told Sanchez that his story was “bullshit,” and repeatedly, falsely asserted that several witnesses had said they saw Sanchez carrying a gun that evening.

The detectives said the “tests don’t lie” and suggested that Sanchez was “scared [he was] going to get shot.”

The detectives suggested that Sanchez should blame Estrada for the shooting. Sanchez began crying and said repeatedly,

“I didn’t do anything.”

Police moved the table out from between them, came right next to Sanchez, and further emphasized that he would not believe Sanchez’s account.

Bush said, “This was an accident. You didn’t mean for this to happen, did you?”

Again, Sanchez said, “I didn’t do anything, sir.”

Bush answered, “[W]e’re over that. There’s too many people that saw you.” This statement was, again, false.

Again, Sanchez said, “I didn’t do anything.”

Then He Begins To Say Something...

About 10 hours after police brought Sanchez to the station, he changed his account. They asked, “Did Brian do something? *** What did Brian do? You’re almost there.”

Sanchez answered, “He’s the one that shot.” Bush asked where Estrada stood when he shot the gun. Sanchez said, “[t]he farthest parking lot.”

The detective suggested that Estrada stood on Equestrian Drive or by the tennis courts. Sanchez pointed to a spot on the map police showed him. Heaccused Sanchez of lying, and said, “Everybody’s telling me that you had the gun.”

Sanchez said, “I didn’t have anything, sir. I put it on my mom’s life right now, ’cause she’s so sick right now, that I didn’t have any gun, sir.”

Bush suggested again, “this was just self-defense?”

Sanchez said, “I didn’t shoot nobody,” “I didn’t have any gun,” and “I want to see my mom.”

The detective said, “I can let you see your mom after we talk about this and get the truth.”

Again Sanchez said, “I did not do anything.”

They again accused Sanchez of lying. The detective said, “it was an accident. Is that correct?”

Sanchez responded, “Sir, I want to see my mom.”

They limited Sanchez’s choices: “I need to hear it from you, then, if it was an accident or did you intend to hit him?”

Sanchez said, “I don’t have a gun.”

The detective persisted: “[E]verybody’s telling me it was you and plus the GSR, you gotta understand it, okay?”

Sanchez said, “Sir, if it was me, sir, I take the blame, I would say it,” and “I’m telling you the truth.”

Ok The Other Guy Did It

The Detective returned to the tactic of getting Sanchez to blame Estrada.

Sanchez eventually said, “I held it, but Brian shot it.”

Through tears he said, “I want to get out of here. My mom is worried about me.”

Sanchez explained in his new story that Estrada showed him the gun and he held it briefly, then Estrada took it back and ran off to shoot. Sanchez said his mother “just had surgery a day ago,” and “[s]he doesn’t know right now. She’s worried about me.”

The detective accused Sanchez of lying and said, “These tests only happen when you fire a weapon.”

Sanchez still said, “I didn’t fire no weapon. It was Brian. I didn’t fire anything, sir.”

Detective said, “Jesus. Unfortunately, we already know that you did.” He encouraged Sanchez to tell his side of the story.

Sanchez said, “I give you my side, sir, you still won’t believe me.”

A Different Version

A few minutes later, Sanchez tried another revised account.

He said, “It went off by itself,” and then Estrada took it from him.

Detective asked, “Is it a revolver or a semi-automatic?”

Sanchez said, “It was a revolver,” and “I want to go home to my mom.” Sanchez attempted to complete the story.

He pointed on the map to where he said the gun discharged. He found a spot between the buildings numbered 540 and 544, close to 100 yards north of where the victim stood when the bullet hit him. He explained that Estrada wanted to shoot, because “he thought they had shot Miguel.”

Estrada had the gun, and when he handed it to Sanchez, “it went off.” Sanchez said he “ran to the cops” because Sureños “told [him he] was a dead man.”

They asked Sanchez to retell the evening’s events. Sanchez said that Miguel joined Sanchez, Estrada, Flores, and Rodriguez on Bridle Trail. Rodriguez got a call, and Miguel left with Rodriguez just before Scheffler, with Brett and Leslie, stopped by in Scheffler’s white car. Sanchez, Estrada, and Flores got into Scheffler’s car, and Estrada showed Sanchez Estrada’s gun, a black revolver. Estrada said he “was gonna get those guys back.”

Estrada hopped out of the car, and Sanchez ran with him.

Sanchez showed on the map that they got out of Scheffler’s car by the 410 building.

After the gun accidentally discharged, he and Estrada ran in different directions, Estrada carrying the gun. When the Sureños chased them, they met again just before running up to the Sergeant who arrested them.

Why The Crazy Route

Police sought to clarify the route Estrada and Sanchez took when they left Scheffler’s car:

“DETECTIVE OROPEZA: —why did you guys walk around this way? Why?

MR. SANCHEZ: Brian didn’t want to go through cops. *** *** I was just trying to go to my car. I was just trying to go home.”

Earlier that day, Sanchez had parked his car in a lot on the west side of the 492 building. Police found the car there after they arrested Sanchez.

Detective said, “Listen, you did good. I’m glad you were honest with us.”

Sanchez immediately asked to see his mother.

They said the police needed to “clarify some things” first.

Sanchez pleaded, “Let me talk to her. I want to talk to my mom.”

The detective said, “You will talk to your mom, okay? All right? Just not right now, okay?”

An hour later, they asked for a repetition of the confession.

What They Want

Sanchez said Scheffler drove from Bridle Trail to Longacre Lane to Equestrian Drive to Illinois Route 83 to Palatine Road. Scheffler stopped on Palatine Road, and Estrada said he wanted to shoot Sureños because he felt disrespected in the fight that took place around 3:30 p.m. on May 1.

Scheffler drove them on Palatine Road to Wheeling Road and then to the parking lot by the 410 building.

Sanchez marked on the map where he, Estrada, and Flores stood when the gun went off, when they were between the buildings numbered 540 and 544, north of the 486 and 492 buildings near where the victim was shot.

Sanchez said that when Estrada looked ready to shoot, Sanchez tried to take the gun away from him, and it went off in his hand. After the four shots discharged, Estrada took the gun and ran west toward the park. They asked for a further description of the gun, but Sanchez said only it was black with a black handle, and Sanchez did not know the caliber.

Now Can I Talk To My Mom?

The deetective asked, “[W]as it hard to pull the trigger?”

Sanchez answered, “Yeah, it was.”

At the conclusion of the questioning, Sanchez again said, “I just want to talk to my mom.”

The detectives again told Sanchez to wait. More than an hour and a half later, Sanchez knocked on the door of the interview room. He asked, “Can I talk to my mom yet?”

Detective said, “not right now.”

Sanchez asked, “When can I talk to my mom?”

Detective said, “when *** we get to it.”

Five minutes later, Sanchez knocked again and asked again, saying, “She doesn’t know where I am. Please let me talk to her.” He was told him to wait.

Five minutes later Sanchez asked again.

This time they said, “I got food coming for you.”

Sanchez answered, “I don’t want any food. I want to talk to my mom.”

Again the response was “Not right now.”

When they brought food a few minutes later, Sanchez repeated his plea, to the same effect. After five minutes, Sanchez knocked again and asked to talk to his mother, “[j]ust a quick call.”

Detective said, “No, that cannot be done.”

Sanchez waited almost 10 minutes before knocking again, with the same result.

Then 30 minutes later, a different officer said he could call his mother “in a little bit.”

Twenty minutes later, another knock, another request, and another denial.

Fifteen minutes later, another knock, and the detective said, “what was the answer to your question?” Sanchez said only, “Officer, please.”

Police came in of their own accord 15 minutes later, at 2 p.m. on May 2 and searched Sanchez for tattoos. They took Sanchez out of the interview room, listening to Sanchez repeat his plea to call his mother.

They denied the request.

Then they questioned Sanchez anew at 5 p.m. on May 3.

Defendant Recants

Sanchez told the detectives that he had lied on May 2, that he and the others in the car never fired a gun. A member of the Spanish Gangster Disciples he knew only as “Bone Crusher” had threatened Sanchez and Leslie.

Closing Arguements

In closing argument, the prosecutor said that Sanchez’s tears during the interrogation showed that he suffered from a burden of guilt, and “you can see how that burden is in fact lifted from him after he admits being the person who shot Rafael.”

Defense counsel argued that detectives fed an account to Flores and Sanchez and pressured them into assenting to that account.

The detectives used lies about the evidence and emphasis on the words “accident” and “mistake” to induce acceptance of the false accounts. In the prosecution’s rebuttal, the jury heard the following:

“[PROSECUTOR]: It’s bad enough to insult the integrity of the law enforcement people that were involved in this case. It’s bad enough to put dishonor upon their reputations, the people that are out there saving our lives and our communities.

[DEFENDANT’S CO-COUNSEL]: Objection, Judge.

THE COURT: Overruled.

*** [PROSECUTOR]: *** I’ve never seen anybody murdered by a cupcake before. He wants his Mommy. He is nothing but a sniveling, cowardly killer. That’s what he is. What were you doing out there all day, Jesus?

[DEFENDANT’S CO-COUNSEL]: Objection, Judge.

THE COURT: Overruled.

[PROSECUTOR]: [The witness] knew because when he was asked why were you being chased, what did he say? We were being chased by the Sureños because they thought we had shot someone, and that’s why they were being chased—

MS. KOEHLER: Objection, Judge.

THE COURT: What’s your objection?

MS. KOEHLER: It was the subject of a motion—

THE COURT: Overruled.”

The Verdict

The jurors deliberated for five hours before sending a note saying, “We are split.” The judge ordered them to continue deliberating.

Five hours later, the jury returned a verdict finding Sanchez guilty of the murder of the victim but not guilty of attempting to murder.

The judge sentenced Sanchez to 45 years in prison: 20 years for murder, plus 25 years for use of a firearm. 

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People v. Space, 2018 IL App (1st) 150922 (May). Episode 490 (Duration 10:26)

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

Gist

The jury found defendant guilty of felony murder. After denying defendant’s oral motion for a new trial, the trial court sentenced him to 45 years’ imprisonment.

Outcome

We reverse defendant’s conviction for felony murder based on the State’s failure to prove both that the asserted predicate forcible felony of aggravated battery with a firearm

(1) had an independent felonious purpose and
(2) proximately resulted in the victim’s death,

and we remand the case for a new sentencing hearing on the lesser-included offense of aggravated battery with a firearm.

Facts

Defendant shot his ex girlfriend’s new boyfriend. A second man went to help and defendant then shot him.

The new boyfriend was killed.

The good Samaritan survived.

The Charges

Defendant was charged by indictment with 12 counts of first degree murder, as well as two counts of attempt (first degree murder), one count of aggravated battery with a firearm, and one count of aggravated battery as to the good Samaritan.

Go With Felony Murder

The State proceeded to trial on a single count of first degree murder, which charged that defendant “without lawful justification shot and killed [the victim] with a firearm during the commission of a forcible felony, to wit: aggravated battery with a firearm” (count 11).

All other charges were nol-prossed.

The state’s theory that a felony murder happened because the victim died during the aggravated battery of the the victim’s cousin.

Issue

On appeal, defendant first contends that his conviction for felony murder should be reversed because the State did not establish a valid predicate forcible felony to sustain his conviction.

Specifically, defendant argues that his felony murder conviction cannot be based upon the predicate felony of the aggravated battery with a firearm of the good Samaritan where the evidence failed to establish both that the aggravated battery with a firearm of the Samaritan had an independent felonious purpose apart from the murder itself and proximately caused the victim's death.

Aggravated Battery

Aggravated battery, resulting in great bodily harm or permanent disability or disfigurement, is a forcible felony for purposes of the felony murder statute. 720 ILCS 5/2-8.

A person commits aggravated battery with a firearm when he, in committing a battery, knowingly or intentionally by means of the discharging of a firearm causes any injury to another person. 720 ILCS 5/12-4.2(a)(1).

Felony Murder

Under the felony murder statute, a person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death he is attempting or committing a forcible felony other than second degree murder. See 720 ILCS 5/9-1(a)(3).

The purpose of the felony murder statute is to limit the violence that accompanies the commission of forcible felonies, so that anyone engaged in such violence will automatically be subject to a murder prosecution should someone be killed during the commission of a forcible felony.

Felony Murder Intent

To this end, the offense of felony murder is unique because, in order to commit felony murder, the defendant need not have had the intent to kill.

The felony-murder doctrine thus stands as a substitute for intent in cases where the defendant’s commission of a felony causes another person’s death. Therefore, in order to sustain defendant’s felony murder conviction, the State is not required to prove that he had the intent to kill.

Possible Abuse By The State

As a result of this distinction from other forms of first degree murder, our supreme court has repeatedly expressed its concern that a felony murder charge may, in effect, improperly allow the State to both eliminate the offense of second degree murder and avoid the burden of proving an intentional or knowing first degree murder.

This concern was especially paramount in cases where the same conduct forms the basis of the predicate felony and the killing.

When Felony Murder Is Not Allowed

Thus, where the acts constituting forcible felonies arise from and are inherent in the act of murder itself, those acts cannot serve as predicate felonies for a charge of felony murder. See People v. Morgan, 197 Ill. 2d 404, 447 (2001).

Moreover the predicate felony underlying a charge of felony murder must have an independent felonious purpose. It must have some independent motivation or purpose apart from the murder itself. See also People v. Alvarez-Garcia, 395 Ill. App. 3d 719, 733-34 (2009).

Holding

Here, the act constituting the aggravated battery was not an act that gave rise to or was inherent in the murder and, thus, did not run afoul of Morgan on this basis.

The State, however, did not establish that the aggravated battery with a firearm of the victim’s cousin had an independent felonious purpose apart from the murder of the victim. Our examination of the record does not yield that defendant’s conduct in shooting the cousin clearly exhibited a distinct felonious purpose, other than his motive and purpose to accomplish the murder of the victim.

State's Theory

In opening statements, the State told the jury that, on the night of the shootings, defendant went to Douglas Park with a “mission of murder” and a “motive” to “murder” and “get rid of” the new boyfriend. The State further stated that defendant had this “murderous intent” when he shot the victim’s cousin.

In closing arguments, the State again asserted that defendant had the motive “to rub the new boyfriend out” and that he came to the park to carry out that intent. The State further contended that defendant continued his mission to murder the new boyfriend when he shot the boyfriend’s cousin because defendant thought the cousin was “going to save the victim’s life, [maybe] this guy is going to get him to safety.”

The record shows that, when defendant fired the gun in the direction of the victim’s cousin, he was holding the victim in his arms. It is possible, as argued by the State, that defendant fired the gun at that time to prevent the cousin from saving the victim’s life. But it is also possible that defendant was intending again to shoot the victim but he hit the cousin instead.

Both of these reasonable possibilities tend to show that defendant was acting with the same felonious purpose of accomplishing the murder of the victim when he committed the aggravated battery of the cousin.

There's Also Causation Problems

With regard to causation, defendant argues that there is no evidence that the death was the proximate result of the shooting of the helper. The victim was fatally wounded before the aggravated battery with a firearm of his cousin took place.

We agree with defendant.

Proximate Cause Theory of Liability for Felony Muder

Illinois adheres to the "proximate cause" theory of liability for felony murder, meaning liability attaches under the felony-murder rule for any death proximately resulting from the unlawful activity. See People v Brown, 2015 IL App (1st) 131552, ¶ 30 (quoting People v. Lowery, 178 Ill. 2d 462, 465 (1997)); see also Shaw, 186 Ill. 2d at 322 (“Felony murder depends solely on a cause and effect relationship between the crime committed and the resulting murder to impose liability.”).

“For the felony-murder rule to attach, the act causing the death must both occur during the underlying felony and be the direct and proximate result of the felony.” Johns, 345 Ill. App. 3d at 244. Stated differently, the focus of the proximate cause theory of liability is: “when a felon’s attempt to commit a forcible felony sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act.” Lowery, 178 Ill. 2d at 467; Jones, 376 Ill. App. 3d 387.

Analysis On Proximate Cause

Here, the evidence showed that defendant began his crime spree that night by twice shooting the new boyfriend, with one of those gunshots hitting his chest.

Only after defendant twice shot the new boyfriend (and dealt with the weapon becoming jammed) did he turn his gun on the man helping him. Given this sequence of events, the act causing the death—the shooting of the victim—occurred before and not during the asserted predicate felony—the aggravated battery with a firearm of his cousin.

Moreover, the death was not the proximate result of the aggravated battery with a firearm of the cousin.

There was no direct or circumstantial evidence showing that, by shooting the cousin in the leg, defendant set in motion a chain of events that resulted in the death to the new boyfriend. In fact, the medical evidence was that the victim died of the gunshot wounds he sustained prior to defendant’s act of shooting the helper.

Therefore, the death was not the result of the aggravated battery with a firearm of the helper.

Holding

Because the aggravated battery with a firearm felony did not meet the causation requirement of the felony murder rule, we find that the aggravated battery with a firearm of the cousin was not a valid predicate felony.

Accordingly, given our conclusion that the aggravated battery with a firearm did not have an independent felonious purpose and that the aggravated battery with a firearm and the murder did not have the necessary causal relationship, we must reverse defendant’s felony murder conviction.

Reversed and remand for sentencing on the aggravated battery with a firearm of the cousin.

See Also

Episode 239 People v. O'Neal (Felony Murder Cannot Eviscerate A Legitimate Case For Second Degree Murder)

Episode 318 People v. Mandoline (A Little Bonus Nugget About Felony Murder & Foreseeability)

People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode 488 (Duration 18:22)

Involuntary confession and improper closing arguments lead to a murder conviction that is now reversed outright.

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In 2013 Maniac Latin Disciples, encountered several members of the Sureños, a rival street gang that operates in Wheeling.

Four gunshots rang out.

One person gets hit in the back and dies.

Holding

The court reversed the conviction due to the insufficiency of the evidence.

We hold that section 103-2.1 required the court to suppress the video recorded statements of Sanchez, made after police initiated unrecorded custodial questioning in a murder investigation, when police had not informed Sanchez of his Miranda rights. Police induced an involuntary, unreliable confession. The trial court erred when it denied the motion to quash the illegal arrest and the motion to suppress statements.

Analysis

Around 9:30 p.m. the police encountered the defendant and a codefendant being chased by Sureños. The Sureños said these two knew something about the shooting.

Defendant is handcuffed and arrested right away. This arrest was illegally and without probable cause.

After the illegal arrest, police questioned Sanchez twice about the murder, without advising Sanchez of his Miranda rights. Police also failed to record the questioning, in violation of section 103-2.1(b) of the Code of Criminal Procedure (Code). 725 ILCS 5/103­ 2.1(b).

The Code expressly places on the prosecution the burden of showing that an exception excuses them from the rule requiring recording of interrogations. 725 ILCS 5/103-2.1(e). The prosecution presented no evidence of when the victim died, and therefore the prosecution did not meet its burden of showing the statement admissible under subsection (e)(viii). 725 ILCS 5/103-2.1(e)(viii).

Due to the violation of section 103-2.1(b), the trial court had a duty to suppress all subsequent statements from Sanchez unless the State showed by a preponderance of the evidence that the subsequent statements were both voluntary and reliable. 725 ILCS 5/103­ 2.1(d), (f).

Involuntary Statement

To determine the voluntariness of a statement, the court should consider “the defendant’s age, intelligence, background, experience, mental capacity, education, and physical condition at the time of questioning; the legality and duration of the detention; the duration of the questioning; and any physical or mental abuse by police, including the existence of threats or promises.” People v. Gilliam, 172 Ill. 2d 484, 500-01 (1996).

Here, Sanchez was 18 years old, with no criminal background, at the time of the interrogation. Police arrested him without probable cause and held him for 12 hours before he confessed. Most notably, the detectives told Sanchez he could not call his mother until he told them the truth about the shooting, and they told him they already knew he shot the victim.

Following Haynes, we find that the uncontested evidence shows that Sanchez did not voluntarily make the statements admitted against him at trial. By refusing Sanchez’s request to call his mother, the detectives also violated section 103-3(a) of the Code. 725 ILCS 5/103­ 3(a).

Even The State Didn't Believe The Statement

The prosecution conceded that the jurors should not rely on almost all of the statements Sanchez made in the lengthy interrogation.

The prosecutor argued that the jurors should not believe Sanchez’s statement about who brought the gun. Nor believe Sanchez’s statement that Sanchez had the gun between the 540 and 544 buildings when it discharged, as the prosecutor did not dispute the overwhelming evidence that the fatal shot came from Equestrian Drive. The prosecutor argued that the jurors should not believe Sanchez’s statement that the gun discharged accidentally.

Nor can the prosecution accept as true Sanchez’s statement that before he got hold of the gun, he, Flores, and Estrada all walked from Scheffler’s car by the 410 building toward Sanchez’s car by the 492 building, staying north of Pleasant Run Drive to avoid police.

The only words Sanchez spoke that the prosecutor wanted jurors to believe came when Sanchez said he held the gun and “it went off.”

Also An Unreliable Statement

Despite the prosecution’s rejection of virtually every statement Sanchez made, even in the course of his confession, the prosecutor argues that Sanchez’s statements count as reliable within the meaning of section 103-2.1(f) of the Code. 725 ILCS 5/103-2.1(f).

Whether defendant’s statement was reliable is a separate inquiry from whether it was voluntary.

Factors other than voluntariness have bearing on the reliability of a confession. Courts have frequently looked to corroboration as the most significant indicator of the reliability of confessions.

We hold that courts should consider corroboration of the statement, especially corroboration of any new assertions of fact that police did not know before, in determining the reliability of a confession under section 103-2.1(f).

CoDefendant Corroborates Nothing

• Flores said Sanchez headed toward the 540 and 544 buildings, holding the gun, shortly before Flores heard the shots. But most of Flores’s recanted video recorded statements shown at trial flatly contradicted Sanchez’s confession.
• Sanchez said Estrada brought the gun; Flores said Sanchez bought the gun the week before the shooting and brought it to the scene.
• Sanchez described the gun as black with a black handle; Flores described the gun as silver with a brown handle.
• Sanchez said Estrada took the gun from him and ran west from the shooting scene; Flores said Sanchez took the gun, headed east, and threw the gun in the pond north of the 430 building.
• Eyewitness testimony and the physical evidence also contradict Sanchez’s confession. The shot came from Equestrian Drive, south of Orozco, and hit him in the back as he stood facing north. The shot did not come from anywhere near the spot where Flores confirmed that Sanchez stood when Flores, in his recanted statement, said he heard the shots.

Why Didn't He Just Run To His Car?

Moreover, if Sanchez fired the shots from Equestrian Drive and lied about it, as the prosecutor theorized, Sanchez would have stood no more than 40 yards from his car, which police found parked on the west side of the 492 building.

He would not have had cause to circle north of Pleasant Drive if, as the prosecutor argued, he tried to get to his car to escape the scene.

The Initial Account

The initial account Sanchez, Flores, Estrada, Leslie, and others gave police explains how Sanchez arrived north of the shooting scene, trying to go from Scheffler’s car by the 410 building, to Sanchez’s car by the 492 building, when Sureños started to chase him and he headed toward the police.

The evidence at trial did not substantially corroborate Sanchez’s confession.

Insufficient Evidence To Convict

No physical evidence connected Sanchez to the crime.

• Police never found the gun or the casings from the fired bullets, and they found only one of the four fired bullets.
• The prosecutor conceded that police never found the bullet that killed Orozco. No witness testified that Sanchez held a gun.
• No witness saw Sanchez on Equestrian Drive, where the shots came from.
• Sanchez’s hands and clothes bore no trace of antimony, no trace of barium, and no trace of lead.
• The testimony of all witnesses and all the physical evidence fits well with the initial account Sanchez, Flores, Estrada, Leslie, and others gave police.
• That account, which matched Flores’s testimony in court, is also consistent with Miguel’s testimony that he stood on Bridle Trail, talking with Sanchez and the others, before he left  and encountered the victim when he was shot.
• When Sanchez and the others realized the shots hit someplace near the 490 building, they had reason to fear Miguel had been shot.
• Moreover, the prosecution failed to present a coherent theory of the case.

Motive Not Required But State Offers No Reason For An Inexplicable Shooting

According to the prosecution, Sanchez went home to pick up his gun some time after the fight with Edson at 3:30 p.m. He spent the rest of the afternoon and evening with Miguel and other friends, getting into a confrontation with some Sureños after Edson went to the Sureños for help. But Edson, according to the prosecution’s witnesses, flipped from the Maniac Latin Disciples to the Spanish Gangster Disciples, and Sureños count both of those gangs as enemies.

Inexplicably, Edson did not appeal to the Spanish Gangster Disciples for help.

Later that evening, Sanchez was talking with some Maniac Latin Disciples and others on Bridle Trail, when Miguel left to escort a friend to the 490 building. According to the prosecution, a few minutes later, knowing that his friend and gangmate Miguel had gone toward the 490 building, Sanchez walked unseen to Equestrian Drive and fired wildly at a group that included Miguel and Miguel’s father.

One bullet struck a satellite dish, two may not have hit anything notable, and one bullet killed Orozco.

Then, instead of walking a few feet to the other side of the 492 building, where he had parked his car, Sanchez ran around Winetree for half an hour, with no apparent purpose other than to work up a sweat and persuade Sureños to chase him, while Estrada took the gun over to the pond north of Pleasant Run Drive and threw the gun in the pond.

Notably, in the prosecutor’s account, Estrada did not take the gun to the much closer pond just south of Bridle Trail. According to the prosecution, Sanchez, Flores, Estrada, Scheffler, and Leslie concocted a consistent account for their actions before and after the shooting. They all stuck to the story when they spoke to police, except that after 12 hours in custody, Sanchez finally said that he held the gun when it discharged.

He started to feel so relieved from unburdening himself that he started crying during the questioning well before he actually admitted to holding the gun. The admission made him feel completely unburdened, even though he continued to lie about when and how he got the gun, where he stood, whether police had arrived in the area before the shooting, and all other details of the shooting.

Why Did The Jury Convict?

The overwhelming implausibility of the prosecution’s account presents us with the question:

why did a jury of 12 ostensibly reasonable persons sign a verdict convicting Sanchez of murder?

Well, He Confessed

First, confessions have exceptional persuasive force, and as we have already concluded, the jury should not have heard Sanchez’s incriminating statements.

Prosecution Was Persuasive

Second, the prosecutor insinuated that Sanchez’s hands had gunshot residue and the Sureños accused him of shooting Orozco, and the prosecutor shifted the jurors’ focus from the evidence against Sanchez to the issues of whether defense counsel had grievously insulted police and whether jurors doubted the integrity of the officers.

Sanctions Against The Police

We recommend that if police departments again use the so-called “presumptive GSR test,” the departments should inform officers and the subjects of the tests about what the tests actually measure, and what kinds of contact can produce positive test results.

We also recommend the consideration of possible sanctions against the officers for violating section 103-3(a) of the Code, which establishes the suspect’s right to make phone calls. 725 ILCS 5/103-3(a) (West 2012).

While our supreme court has expressly approved the use of deception to obtain confessions, this case shows us how the use of deception in interrogations leads to false confessions.

Deceptive practices contribute to an atmosphere in which whole communities act with hostility toward police. If police want the members of the community to treat them with respect and help them in their efforts to reduce crime, police should renounce the use of deceptive practices in law enforcement so that the members of the community learn that they can trust police officers to treat them honestly.

The practice of deception in interrogations and other settings can destroy the trust needed as a foundation for the relationship between police officers and the members of the communities the police officers have a duty to serve and protect.

A revision of police department rules, and the actual imposition of significant sanctions for deceptions, might help repair the strained relations between police and some of the communities they have a duty to serve.

Conclusion

No witness saw Sanchez with a gun. No witness saw Sanchez near the spot from which the fatal shot came. The prosecution showed no connection between Sanchez and the single spent bullet found at the scene. Police found no trace of antimony, barium, or lead on Sanchez’s hands and clothes. The prosecutor did not present a plausible account of Sanchez’s actions around the time of the shooting, and police admitted that Sanchez and the persons with him shortly before the shooting gave a plausible, consistent, exonerating account of Sanchez’s conduct. We hold that the prosecution did not present sufficient evidence to sustain the conviction.

But here, the record leads to a further conclusion. The evidence convincingly shows that Sanchez did not murder Orozco.

Accordingly, we reverse the judgment of the trial court outright.

Defendant Arrested

About 30 minutes after police arrived, an officer saw Sanchez and Estrada running toward him, chased by several members of the Sureños gang. Conway handcuffed Sanchez and Estrada and ordered them to sit on the curb. .

More Details About The Case

The codefendant who recanted was found in the bushes north of the shooting. Marked with green "FB" on the map.

Defendant and essentially everyone interviewed said defendant was originally located south of the location where the shots where fired.  See green "X.

Originally, they said the got in a car and drove north and parked it north west of the shooting. See white rectangle in upper left corner. They got out and split up  because the Sureños started chasing them. Defendant and a codefendant went left. Sanchez went up and to the right.

Eventually, police see defendant and a codefendant running south towards the are a of the shooting being chased.

GSR Testing

Defendant was given a presumptive GSR test that was positive. Police used that against defendant in his interrogation. Later GSR testing by the state lab found nothing.

Shenanigans In The Interrogation

When the detectives confronted Sanchez with the positive result of the “presumptive GSR test,” Sanchez asserted repeatedly that he had not seen or shot a gun that evening. The detectives told Sanchez that his story was “bullshit,” and repeatedly, falsely asserted that several witnesses had said they saw Sanchez carrying a gun that evening.

The detectives said the “tests don’t lie” and suggested that Sanchez was “scared [he was] going to get shot.”

The detectives suggested that Sanchez should blame Estrada for the shooting. Sanchez began crying and said repeatedly,

“I didn’t do anything.”

Police moved the table out from between them, came right next to Sanchez, and further emphasized that he would not believe Sanchez’s account.

Bush said, “This was an accident. You didn’t mean for this to happen, did you?”

Again, Sanchez said, “I didn’t do anything, sir.”

Bush answered, “[W]e’re over that. There’s too many people that saw you.” This statement was, again, false.

Again, Sanchez said, “I didn’t do anything.”

Then He Begins To Say Something...

About 10 hours after police brought Sanchez to the station, he changed his account. They asked, “Did Brian do something? *** What did Brian do? You’re almost there.”

Sanchez answered, “He’s the one that shot.” Bush asked where Estrada stood when he shot the gun. Sanchez said, “[t]he farthest parking lot.”

The detective suggested that Estrada stood on Equestrian Drive or by the tennis courts. Sanchez pointed to a spot on the map police showed him. Heaccused Sanchez of lying, and said, “Everybody’s telling me that you had the gun.”

Sanchez said, “I didn’t have anything, sir. I put it on my mom’s life right now, ’cause she’s so sick right now, that I didn’t have any gun, sir.”

Bush suggested again, “this was just self-defense?”

Sanchez said, “I didn’t shoot nobody,” “I didn’t have any gun,” and “I want to see my mom.”

The detective said, “I can let you see your mom after we talk about this and get the truth.”

Again Sanchez said, “I did not do anything.”

They again accused Sanchez of lying. The detective said, “it was an accident. Is that correct?”

Sanchez responded, “Sir, I want to see my mom.”

They limited Sanchez’s choices: “I need to hear it from you, then, if it was an accident or did you intend to hit him?”

Sanchez said, “I don’t have a gun.”

The detective persisted: “[E]verybody’s telling me it was you and plus the GSR, you gotta understand it, okay?”

Sanchez said, “Sir, if it was me, sir, I take the blame, I would say it,” and “I’m telling you the truth.”

Ok The Other Guy Did It

The Detective returned to the tactic of getting Sanchez to blame Estrada.

Sanchez eventually said, “I held it, but Brian shot it.”

Through tears he said, “I want to get out of here. My mom is worried about me.”

Sanchez explained in his new story that Estrada showed him the gun and he held it briefly, then Estrada took it back and ran off to shoot. Sanchez said his mother “just had surgery a day ago,” and “[s]he doesn’t know right now. She’s worried about me.”

The detective accused Sanchez of lying and said, “These tests only happen when you fire a weapon.”

Sanchez still said, “I didn’t fire no weapon. It was Brian. I didn’t fire anything, sir.”

Detective said, “Jesus. Unfortunately, we already know that you did.” He encouraged Sanchez to tell his side of the story.

Sanchez said, “I give you my side, sir, you still won’t believe me.”

A Different Version

A few minutes later, Sanchez tried another revised account.

He said, “It went off by itself,” and then Estrada took it from him.

Detective asked, “Is it a revolver or a semi-automatic?”

Sanchez said, “It was a revolver,” and “I want to go home to my mom.” Sanchez attempted to complete the story.

He pointed on the map to where he said the gun discharged. He found a spot between the buildings numbered 540 and 544, close to 100 yards north of where the victim stood when the bullet hit him. He explained that Estrada wanted to shoot, because “he thought they had shot Miguel.”

Estrada had the gun, and when he handed it to Sanchez, “it went off.” Sanchez said he “ran to the cops” because Sureños “told [him he] was a dead man.”

They asked Sanchez to retell the evening’s events. Sanchez said that Miguel joined Sanchez, Estrada, Flores, and Rodriguez on Bridle Trail. Rodriguez got a call, and Miguel left with Rodriguez just before Scheffler, with Brett and Leslie, stopped by in Scheffler’s white car. Sanchez, Estrada, and Flores got into Scheffler’s car, and Estrada showed Sanchez Estrada’s gun, a black revolver. Estrada said he “was gonna get those guys back.”

Estrada hopped out of the car, and Sanchez ran with him.

Sanchez showed on the map that they got out of Scheffler’s car by the 410 building.

After the gun accidentally discharged, he and Estrada ran in different directions, Estrada carrying the gun. When the Sureños chased them, they met again just before running up to the Sergeant who arrested them.

Why The Crazy Route

Police sought to clarify the route Estrada and Sanchez took when they left Scheffler’s car:

“DETECTIVE OROPEZA: —why did you guys walk around this way? Why?

MR. SANCHEZ: Brian didn’t want to go through cops. *** *** I was just trying to go to my car. I was just trying to go home.”

Earlier that day, Sanchez had parked his car in a lot on the west side of the 492 building. Police found the car there after they arrested Sanchez.

Detective said, “Listen, you did good. I’m glad you were honest with us.”

Sanchez immediately asked to see his mother.

They said the police needed to “clarify some things” first.

Sanchez pleaded, “Let me talk to her. I want to talk to my mom.”

The detective said, “You will talk to your mom, okay? All right? Just not right now, okay?”

An hour later, they asked for a repetition of the confession.

What They Want

Sanchez said Scheffler drove from Bridle Trail to Longacre Lane to Equestrian Drive to Illinois Route 83 to Palatine Road. Scheffler stopped on Palatine Road, and Estrada said he wanted to shoot Sureños because he felt disrespected in the fight that took place around 3:30 p.m. on May 1.

Scheffler drove them on Palatine Road to Wheeling Road and then to the parking lot by the 410 building.

Sanchez marked on the map where he, Estrada, and Flores stood when the gun went off, when they were between the buildings numbered 540 and 544, north of the 486 and 492 buildings near where the victim was shot.

Sanchez said that when Estrada looked ready to shoot, Sanchez tried to take the gun away from him, and it went off in his hand. After the four shots discharged, Estrada took the gun and ran west toward the park. They asked for a further description of the gun, but Sanchez said only it was black with a black handle, and Sanchez did not know the caliber.

Now Can I Talk To My Mom?

The deetective asked, “[W]as it hard to pull the trigger?”

Sanchez answered, “Yeah, it was.”

At the conclusion of the questioning, Sanchez again said, “I just want to talk to my mom.”

The detectives again told Sanchez to wait. More than an hour and a half later, Sanchez knocked on the door of the interview room. He asked, “Can I talk to my mom yet?”

Detective said, “not right now.”

Sanchez asked, “When can I talk to my mom?”

Detective said, “when *** we get to it.”

Five minutes later, Sanchez knocked again and asked again, saying, “She doesn’t know where I am. Please let me talk to her.” He was told him to wait.

Five minutes later Sanchez asked again.

This time they said, “I got food coming for you.”

Sanchez answered, “I don’t want any food. I want to talk to my mom.”

Again the response was “Not right now.”

When they brought food a few minutes later, Sanchez repeated his plea, to the same effect. After five minutes, Sanchez knocked again and asked to talk to his mother, “[j]ust a quick call.”

Detective said, “No, that cannot be done.”

Sanchez waited almost 10 minutes before knocking again, with the same result.

Then 30 minutes later, a different officer said he could call his mother “in a little bit.”

Twenty minutes later, another knock, another request, and another denial.

Fifteen minutes later, another knock, and the detective said, “what was the answer to your question?” Sanchez said only, “Officer, please.”

Police came in of their own accord 15 minutes later, at 2 p.m. on May 2 and searched Sanchez for tattoos. They took Sanchez out of the interview room, listening to Sanchez repeat his plea to call his mother.

They denied the request.

Then they questioned Sanchez anew at 5 p.m. on May 3.

Defendant Recants

Sanchez told the detectives that he had lied on May 2, that he and the others in the car never fired a gun. A member of the Spanish Gangster Disciples he knew only as “Bone Crusher” had threatened Sanchez and Leslie.

Closing Arguements

In closing argument, the prosecutor said that Sanchez’s tears during the interrogation showed that he suffered from a burden of guilt, and “you can see how that burden is in fact lifted from him after he admits being the person who shot Rafael.”

Defense counsel argued that detectives fed an account to Flores and Sanchez and pressured them into assenting to that account.

The detectives used lies about the evidence and emphasis on the words “accident” and “mistake” to induce acceptance of the false accounts. In the prosecution’s rebuttal, the jury heard the following:

“[PROSECUTOR]: It’s bad enough to insult the integrity of the law enforcement people that were involved in this case. It’s bad enough to put dishonor upon their reputations, the people that are out there saving our lives and our communities.

[DEFENDANT’S CO-COUNSEL]: Objection, Judge.

THE COURT: Overruled.

*** [PROSECUTOR]: *** I’ve never seen anybody murdered by a cupcake before. He wants his Mommy. He is nothing but a sniveling, cowardly killer. That’s what he is. What were you doing out there all day, Jesus?

[DEFENDANT’S CO-COUNSEL]: Objection, Judge.

THE COURT: Overruled.

[PROSECUTOR]: [Flores] knew because when he was asked why were you being chased, what did he say? We were being chased by the Sureños because they thought we had shot someone, and that’s why they were being chased—

MS. KOEHLER: Objection, Judge.

THE COURT: What’s your objection?

MS. KOEHLER: It was the subject of a motion—

THE COURT: Overruled.”

The Verdict

The jurors deliberated for five hours before sending a note saying, “We are split.” The judge ordered them to continue deliberating.

Five hours later, the jury returned a verdict finding Sanchez guilty of the murder of Orozco but not guilty of attempting to murder Edson.

The judge sentenced Sanchez to 45 years in prison: 20 years for murder, plus 25 years for use of a firearm. 

People v. Smock, 2018 IL App (5th) 140449 (April). Episode 489 (Duration 7:09)

Defendant is getting arrested for disorderly conduct when recedes further into his house to prevent arrest, police follow him in and arrest him.

Gist

Police were responding to a noise complaint at a trailer park. Defendant gets arrested for Disorderly Conduct.

A jury found the defendant guilty of possession of methamphetamine and disorderly conduct. He got 5 years.

Complainant

The complainant indicated that someone inside the trailer next door was banging on its walls, while yelling and cursing.

As the officers were speaking, they too were able to hear the noise coming from inside the trailer. The complaintant agreed to sign a complaint for discorderly conduct because this was not the first time the police had been called out. 

The officers proceeded next door to the defendant’s residence to arrest him for disorderly conduct.

Defendant Says

Originally, defendant refused to come outside when police knocked on the defendant’s door. The officers assured the defendant that they just needed to talk to him.

The defendant testified that when the officers knocked on his front door, he told them three times not to enter his house without a warrant. He assured the police officers he “would cease and desist as far as the noise was concerned.”

The officers told the defendant they would not enter his home.

The Old Standing In The Doorway Ruse

Nevertheless, when he opened the door, an officer informed the defendant that he was under arrest and reached out to grab the defendant by the hand.

The door opened outwards and the officer stepped in front of it so it could not be closed.

Defendant was asked to come outside. That's when he told the police he wasn’t coming outside.

He told them 3 times not to come into his house without a warrant.

Then It Got Physical

The defendant then testified that when the officer reached out to grab him, he ran inside his trailer. The defendant stated that when he ran,

“They chased me from my porch into my living room.”

One of the officers tazed the defendant in his living room before placing him under arrest.

Little Taser Action

When they entered the kitchen area, the defendant threatened an officer with a two-liter plastic bottle.

That’s when they tased him.

The officers then placed the defendant under arrest.

Controlled Substance Discovered

A search of the defendant’s person incident to his arrest yielded a hypodermic needle and a wadded-up coffee filter that ultimately proved to contain a small amount of methamphetamine.

Constitution Protects The Home

The chief evil against which the fourth amendment to the United States Constitution is directed is the physical entry into the home. People v. Wear, 229 Ill. 2d 545, 562 (2008). To protect against the unjustified entry by law enforcement into the home, the fourth amendment has “drawn a firm line at the entrance to the house.” Payton v. New York, 445 U.S. 573, 590 (1980); People v. Davis, 398 Ill. App. 3d 940, 948 (2010).

Thus, the warrantless entry by police officers into a home and seizures inside the home are presumptively unreasonable under the fourth amendment, even with probable cause. Wear, 229 Ill. 2d at 562. Police need a warrant to cross the threshold of a private citizen’s home, unless exigent circumstances justify the intrusion.

Hot Pursuit

“Hot pursuit” doctrine says a person cannot defeat a public arrest simply by retreating to the safety of their home. See United States v. Santana, 427 U.S. 38, 42 (1976) (women standing at the threshold of her apartment vestibule was getting arrested for drug dealing retreated further into the apartment building). See also People v. Wear, 229 Ill. 2d 545, 562 (2008) (another case with a defendant making it to his home after police started following him for a DUI arrest).

The case sub judice is distinguishable from both Santana and Wear. This was not a "hot pursuit" case.

Not A Public Arrest

In this case, the pursuit of the defendant did not originate in a public place. The defendant and both of the officers testified that the defendant never left the confines of his home. Additionally, there was no testimony describing the degree to which the defendant was exposed to public view, speech, hearing, and touch once he opened the door of his trailer.

Unlike Wear, this is not a case where the officers were in “hot pursuit” when they knocked on the defendant’s door. And there are no facts similar to Santana, where the suspect was in public view as the police were approaching the house and the officers saw that she was holding a brown bag suspected to contain heroin.

In this case, the chase of the defendant began only after he was assured by the officers, as they spoke to the defendant through his closed door, that they were not there to arrest him. It is apparent that the officers only made these statements to convince the defendant to open his door. Once the door was opened, the officer attempted to grab the defendant through the doorway to effectuate the arrest. Only then did the alleged “hot pursuit” begin.

Exigent Circumstances

In reviewing the propriety of a warrantless entry into a private residence under claimed exigent circumstances, the guiding principle is reasonableness. The following is a nonexhaustive list of factors that a reviewing court may consider to help determine whether the police acted reasonably, given the totality of the circumstances at the time of the warrantless entry:

(1) whether the offense under investigation was recently committed;
(2) whether there was any deliberate or unjustifiable delay by the officers during which time a warrant could have been obtained;
(3) whether a grave offense is involved, particularly one of violence;
(4) whether the suspect was reasonably believed to be armed;
(5) whether the police officers were acting upon a clear showing of probable cause;
(6) whether there was a likelihood that the suspect would have escaped if not swiftly apprehended;
(7) whether there was strong reason to believe that the suspect was on the premises; and
(8) whether the police entry, though nonconsensual, was made peaceably.

The questions are whether the officers acted reasonably and whether the circumstances militated against delay such as to justify the intrusion into the defendant’s trailer.

Analysis

In this case, the entry into the defendant’s home was neither peaceable nor consensual.

Factors In Favor

While it is true that the defendant’s arrest occurred in close proximity to the commission of the misdemeanor offense, that the officers did not engage in any unjustifiable delay in their arrest of the defendant, that the police officers had probable cause to arrest the defendant, and that the officers knew the defendant was in his trailer, we are not persuaded that, without more, the officers’ warrantless intrusion was justified.

Factors Against

Rather than procuring a warrant, the officers proceeded directly from their meeting with Reed to the defendant’s residence in order to arrest him for disorderly conduct.

The Class C misdemeanor of disorderly conduct is neither a grave offense nor a crime of violence.

There was clearly reason to believe the defendant was on the premises, but there was no reason to believe that he possessed any weapons, posed a threat of current danger, or was a flight risk. The circumstances indicate that the defendant was not going to evade his arrest by leaving the area where he resided. There is simply nothing in the record that indicates why the slight delay involved in obtaining an arrest warrant for the defendant would have impeded the officers’ investigation of the offense or the ultimate apprehension of the defendant.

The State offered no evidence that the defendant had a violent criminal background or that he was likely to flee unless apprehended immediately. Likewise, at the time the officers entered the defendant’s home, they did not know that there was a substantial risk that evidence, the methamphetamine, would be lost.

Didn't Need To Arrest Him

They were at the defendant’s trailer to arrest him for the misdemeanor offense of disorderly conduct. In fact, they could have simply handed him the ticket, with an appearance date, and left. Instead, the officers crossed the threshold of the defendant’s home and chased him into his kitchen.

Holding

We find there was insufficient evidence to show the existence of exigent circumstances to justify the warrantless entry into the defendant’s trailer to effectuate his arrest.

We find that the trial court’s denial of the defendant’s motion to suppress was against the manifest weight of the evidence and that the defendant’s motion to suppress should have been granted. 

Reversed and remanded.

People v. Sanchez, 2018 IL App (1st) 143899 (April). Episode 488 (Duration 18:22)

Involuntary confession and improper closing arguments lead to a murder conviction that is now reversed outright.

Gist

In 2013 Maniac Latin Disciples, encountered several members of the Sureños, a rival street gang that operates in Wheeling.

Four gunshots rang out.

One person gets hit in the back and dies.

Holding

The court reversed the conviction due to the insufficiency of the evidence.

We hold that section 103-2.1 required the court to suppress the video recorded statements of Sanchez, made after police initiated unrecorded custodial questioning in a murder investigation, when police had not informed Sanchez of his Miranda rights. Police induced an involuntary, unreliable confession. The trial court erred when it denied the motion to quash the illegal arrest and the motion to suppress statements.

Analysis

Around 9:30 p.m. the police encountered the defendant and a codefendant being chased by Sureños. The Sureños said these two knew something about the shooting.

Defendant is handcuffed and arrested right away. This arrest was illegally and without probable cause.

After the illegal arrest, police questioned Sanchez twice about the murder, without advising Sanchez of his Miranda rights. Police also failed to record the questioning, in violation of section 103-2.1(b) of the Code of Criminal Procedure (Code). 725 ILCS 5/103­ 2.1(b).

The Code expressly places on the prosecution the burden of showing that an exception excuses them from the rule requiring recording of interrogations. 725 ILCS 5/103-2.1(e). The prosecution presented no evidence of when the victim died, and therefore the prosecution did not meet its burden of showing the statement admissible under subsection (e)(viii). 725 ILCS 5/103-2.1(e)(viii).

Due to the violation of section 103-2.1(b), the trial court had a duty to suppress all subsequent statements from Sanchez unless the State showed by a preponderance of the evidence that the subsequent statements were both voluntary and reliable. 725 ILCS 5/103­ 2.1(d), (f).

Involuntary Statement

To determine the voluntariness of a statement, the court should consider “the defendant’s age, intelligence, background, experience, mental capacity, education, and physical condition at the time of questioning; the legality and duration of the detention; the duration of the questioning; and any physical or mental abuse by police, including the existence of threats or promises.” People v. Gilliam, 172 Ill. 2d 484, 500-01 (1996).

Here, Sanchez was 18 years old, with no criminal background, at the time of the interrogation. Police arrested him without probable cause and held him for 12 hours before he confessed. Most notably, the detectives told Sanchez he could not call his mother until he told them the truth about the shooting, and they told him they already knew he shot the victim.

Following Haynes, we find that the uncontested evidence shows that Sanchez did not voluntarily make the statements admitted against him at trial. By refusing Sanchez’s request to call his mother, the detectives also violated section 103-3(a) of the Code. 725 ILCS 5/103­ 3(a).

Even The State Didn't Believe The Statement

The prosecution conceded that the jurors should not rely on almost all of the statements Sanchez made in the lengthy interrogation.

The prosecutor argued that the jurors should not believe Sanchez’s statement about who brought the gun. Nor believe Sanchez’s statement that Sanchez had the gun between the 540 and 544 buildings when it discharged, as the prosecutor did not dispute the overwhelming evidence that the fatal shot came from Equestrian Drive. The prosecutor argued that the jurors should not believe Sanchez’s statement that the gun discharged accidentally.

Nor can the prosecution accept as true Sanchez’s statement that before he got hold of the gun, he, Flores, and Estrada all walked from Scheffler’s car by the 410 building toward Sanchez’s car by the 492 building, staying north of Pleasant Run Drive to avoid police.

The only words Sanchez spoke that the prosecutor wanted jurors to believe came when Sanchez said he held the gun and “it went off.”

Also An Unreliable Statement

Despite the prosecution’s rejection of virtually every statement Sanchez made, even in the course of his confession, the prosecutor argues that Sanchez’s statements count as reliable within the meaning of section 103-2.1(f) of the Code. 725 ILCS 5/103-2.1(f).

Whether defendant’s statement was reliable is a separate inquiry from whether it was voluntary.

Factors other than voluntariness have bearing on the reliability of a confession. Courts have frequently looked to corroboration as the most significant indicator of the reliability of confessions.

We hold that courts should consider corroboration of the statement, especially corroboration of any new assertions of fact that police did not know before, in determining the reliability of a confession under section 103-2.1(f).

CoDefendant Corroborates Nothing

• Flores said Sanchez headed toward the 540 and 544 buildings, holding the gun, shortly before Flores heard the shots. But most of Flores’s recanted video recorded statements shown at trial flatly contradicted Sanchez’s confession.
• Sanchez said Estrada brought the gun; Flores said Sanchez bought the gun the week before the shooting and brought it to the scene.
• Sanchez described the gun as black with a black handle; Flores described the gun as silver with a brown handle.
• Sanchez said Estrada took the gun from him and ran west from the shooting scene; Flores said Sanchez took the gun, headed east, and threw the gun in the pond north of the 430 building.
• Eyewitness testimony and the physical evidence also contradict Sanchez’s confession. The shot came from Equestrian Drive, south of Orozco, and hit him in the back as he stood facing north. The shot did not come from anywhere near the spot where Flores confirmed that Sanchez stood when Flores, in his recanted statement, said he heard the shots.

Why Didn't He Just Run To His Car?

Moreover, if Sanchez fired the shots from Equestrian Drive and lied about it, as the prosecutor theorized, Sanchez would have stood no more than 40 yards from his car, which police found parked on the west side of the 492 building.

He would not have had cause to circle north of Pleasant Drive if, as the prosecutor argued, he tried to get to his car to escape the scene.

The Initial Account

The initial account Sanchez, Flores, Estrada, Leslie, and others gave police explains how Sanchez arrived north of the shooting scene, trying to go from Scheffler’s car by the 410 building, to Sanchez’s car by the 492 building, when Sureños started to chase him and he headed toward the police.

The evidence at trial did not substantially corroborate Sanchez’s confession.

Insufficient Evidence To Convict

No physical evidence connected Sanchez to the crime.

• Police never found the gun or the casings from the fired bullets, and they found only one of the four fired bullets.
• The prosecutor conceded that police never found the bullet that killed Orozco. No witness testified that Sanchez held a gun.
• No witness saw Sanchez on Equestrian Drive, where the shots came from.
• Sanchez’s hands and clothes bore no trace of antimony, no trace of barium, and no trace of lead.
• The testimony of all witnesses and all the physical evidence fits well with the initial account Sanchez, Flores, Estrada, Leslie, and others gave police.
• That account, which matched Flores’s testimony in court, is also consistent with Miguel’s testimony that he stood on Bridle Trail, talking with Sanchez and the others, before he left  and encountered the victim when he was shot.
• When Sanchez and the others realized the shots hit someplace near the 490 building, they had reason to fear Miguel had been shot.
• Moreover, the prosecution failed to present a coherent theory of the case.

Motive Not Required But State Offers No Reason For An Inexplicable Shooting

According to the prosecution, Sanchez went home to pick up his gun some time after the fight with Edson at 3:30 p.m. He spent the rest of the afternoon and evening with Miguel and other friends, getting into a confrontation with some Sureños after Edson went to the Sureños for help. But Edson, according to the prosecution’s witnesses, flipped from the Maniac Latin Disciples to the Spanish Gangster Disciples, and Sureños count both of those gangs as enemies.

Inexplicably, Edson did not appeal to the Spanish Gangster Disciples for help.

Later that evening, Sanchez was talking with some Maniac Latin Disciples and others on Bridle Trail, when Miguel left to escort a friend to the 490 building. According to the prosecution, a few minutes later, knowing that his friend and gangmate Miguel had gone toward the 490 building, Sanchez walked unseen to Equestrian Drive and fired wildly at a group that included Miguel and Miguel’s father.

One bullet struck a satellite dish, two may not have hit anything notable, and one bullet killed Orozco.

Then, instead of walking a few feet to the other side of the 492 building, where he had parked his car, Sanchez ran around Winetree for half an hour, with no apparent purpose other than to work up a sweat and persuade Sureños to chase him, while Estrada took the gun over to the pond north of Pleasant Run Drive and threw the gun in the pond.

Notably, in the prosecutor’s account, Estrada did not take the gun to the much closer pond just south of Bridle Trail. According to the prosecution, Sanchez, Flores, Estrada, Scheffler, and Leslie concocted a consistent account for their actions before and after the shooting. They all stuck to the story when they spoke to police, except that after 12 hours in custody, Sanchez finally said that he held the gun when it discharged.

He started to feel so relieved from unburdening himself that he started crying during the questioning well before he actually admitted to holding the gun. The admission made him feel completely unburdened, even though he continued to lie about when and how he got the gun, where he stood, whether police had arrived in the area before the shooting, and all other details of the shooting.

Why Did The Jury Convict?

The overwhelming implausibility of the prosecution’s account presents us with the question:

why did a jury of 12 ostensibly reasonable persons sign a verdict convicting Sanchez of murder?

Well, He Confessed

First, confessions have exceptional persuasive force, and as we have already concluded, the jury should not have heard Sanchez’s incriminating statements.

Prosecution Was Persuasive

Second, the prosecutor insinuated that Sanchez’s hands had gunshot residue and the Sureños accused him of shooting Orozco, and the prosecutor shifted the jurors’ focus from the evidence against Sanchez to the issues of whether defense counsel had grievously insulted police and whether jurors doubted the integrity of the officers.

Sanctions Against The Police

We recommend that if police departments again use the so-called “presumptive GSR test,” the departments should inform officers and the subjects of the tests about what the tests actually measure, and what kinds of contact can produce positive test results.

We also recommend the consideration of possible sanctions against the officers for violating section 103-3(a) of the Code, which establishes the suspect’s right to make phone calls. 725 ILCS 5/103-3(a) (West 2012).

While our supreme court has expressly approved the use of deception to obtain confessions, this case shows us how the use of deception in interrogations leads to false confessions.

Deceptive practices contribute to an atmosphere in which whole communities act with hostility toward police. If police want the members of the community to treat them with respect and help them in their efforts to reduce crime, police should renounce the use of deceptive practices in law enforcement so that the members of the community learn that they can trust police officers to treat them honestly.

The practice of deception in interrogations and other settings can destroy the trust needed as a foundation for the relationship between police officers and the members of the communities the police officers have a duty to serve and protect.

A revision of police department rules, and the actual imposition of significant sanctions for deceptions, might help repair the strained relations between police and some of the communities they have a duty to serve.

Conclusion

No witness saw Sanchez with a gun. No witness saw Sanchez near the spot from which the fatal shot came. The prosecution showed no connection between Sanchez and the single spent bullet found at the scene. Police found no trace of antimony, barium, or lead on Sanchez’s hands and clothes. The prosecutor did not present a plausible account of Sanchez’s actions around the time of the shooting, and police admitted that Sanchez and the persons with him shortly before the shooting gave a plausible, consistent, exonerating account of Sanchez’s conduct. We hold that the prosecution did not present sufficient evidence to sustain the conviction.

But here, the record leads to a further conclusion. The evidence convincingly shows that Sanchez did not murder Orozco.

Accordingly, we reverse the judgment of the trial court outright.

Defendant Arrested

About 30 minutes after police arrived, an officer saw Sanchez and Estrada running toward him, chased by several members of the Sureños gang. Conway handcuffed Sanchez and Estrada and ordered them to sit on the curb. .

More Details About The Case

The codefendant who recanted was found in the bushes north of the shooting. Marked with green "FB" on the map.

Defendant and essentially everyone interviewed said defendant was originally located south of the location where the shots where fired.  See green "X.

Originally, they said the got in a car and drove north and parked it north west of the shooting. See white rectangle in upper left corner. They got out and split up  because the Sureños started chasing them. Defendant and a codefendant went left. Sanchez went up and to the right.

Eventually, police see defendant and a codefendant running south towards the are a of the shooting being chased.

GSR Testing

Defendant was given a presumptive GSR test that was positive. Police used that against defendant in his interrogation. Later GSR testing by the state lab found nothing.

Shenanigans In The Interrogation

When the detectives confronted Sanchez with the positive result of the “presumptive GSR test,” Sanchez asserted repeatedly that he had not seen or shot a gun that evening. The detectives told Sanchez that his story was “bullshit,” and repeatedly, falsely asserted that several witnesses had said they saw Sanchez carrying a gun that evening.

The detectives said the “tests don’t lie” and suggested that Sanchez was “scared [he was] going to get shot.”

The detectives suggested that Sanchez should blame Estrada for the shooting. Sanchez began crying and said repeatedly,

“I didn’t do anything.”

Police moved the table out from between them, came right next to Sanchez, and further emphasized that he would not believe Sanchez’s account.

Bush said, “This was an accident. You didn’t mean for this to happen, did you?”

Again, Sanchez said, “I didn’t do anything, sir.”

Bush answered, “[W]e’re over that. There’s too many people that saw you.” This statement was, again, false.

Again, Sanchez said, “I didn’t do anything.”

Then He Begins To Say Something...

About 10 hours after police brought Sanchez to the station, he changed his account. They asked, “Did Brian do something? *** What did Brian do? You’re almost there.”

Sanchez answered, “He’s the one that shot.” Bush asked where Estrada stood when he shot the gun. Sanchez said, “[t]he farthest parking lot.”

The detective suggested that Estrada stood on Equestrian Drive or by the tennis courts. Sanchez pointed to a spot on the map police showed him. Heaccused Sanchez of lying, and said, “Everybody’s telling me that you had the gun.”

Sanchez said, “I didn’t have anything, sir. I put it on my mom’s life right now, ’cause she’s so sick right now, that I didn’t have any gun, sir.”

Bush suggested again, “this was just self-defense?”

Sanchez said, “I didn’t shoot nobody,” “I didn’t have any gun,” and “I want to see my mom.”

The detective said, “I can let you see your mom after we talk about this and get the truth.”

Again Sanchez said, “I did not do anything.”

They again accused Sanchez of lying. The detective said, “it was an accident. Is that correct?”

Sanchez responded, “Sir, I want to see my mom.”

They limited Sanchez’s choices: “I need to hear it from you, then, if it was an accident or did you intend to hit him?”

Sanchez said, “I don’t have a gun.”

The detective persisted: “[E]verybody’s telling me it was you and plus the GSR, you gotta understand it, okay?”

Sanchez said, “Sir, if it was me, sir, I take the blame, I would say it,” and “I’m telling you the truth.”

Ok The Other Guy Did It

The Detective returned to the tactic of getting Sanchez to blame Estrada.

Sanchez eventually said, “I held it, but Brian shot it.”

Through tears he said, “I want to get out of here. My mom is worried about me.”

Sanchez explained in his new story that Estrada showed him the gun and he held it briefly, then Estrada took it back and ran off to shoot. Sanchez said his mother “just had surgery a day ago,” and “[s]he doesn’t know right now. She’s worried about me.”

The detective accused Sanchez of lying and said, “These tests only happen when you fire a weapon.”

Sanchez still said, “I didn’t fire no weapon. It was Brian. I didn’t fire anything, sir.”

Detective said, “Jesus. Unfortunately, we already know that you did.” He encouraged Sanchez to tell his side of the story.

Sanchez said, “I give you my side, sir, you still won’t believe me.”

A Different Version

A few minutes later, Sanchez tried another revised account.

He said, “It went off by itself,” and then Estrada took it from him.

Detective asked, “Is it a revolver or a semi-automatic?”

Sanchez said, “It was a revolver,” and “I want to go home to my mom.” Sanchez attempted to complete the story.

He pointed on the map to where he said the gun discharged. He found a spot between the buildings numbered 540 and 544, close to 100 yards north of where the victim stood when the bullet hit him. He explained that Estrada wanted to shoot, because “he thought they had shot Miguel.”

Estrada had the gun, and when he handed it to Sanchez, “it went off.” Sanchez said he “ran to the cops” because Sureños “told [him he] was a dead man.”

They asked Sanchez to retell the evening’s events. Sanchez said that Miguel joined Sanchez, Estrada, Flores, and Rodriguez on Bridle Trail. Rodriguez got a call, and Miguel left with Rodriguez just before Scheffler, with Brett and Leslie, stopped by in Scheffler’s white car. Sanchez, Estrada, and Flores got into Scheffler’s car, and Estrada showed Sanchez Estrada’s gun, a black revolver. Estrada said he “was gonna get those guys back.”

Estrada hopped out of the car, and Sanchez ran with him.

Sanchez showed on the map that they got out of Scheffler’s car by the 410 building.

After the gun accidentally discharged, he and Estrada ran in different directions, Estrada carrying the gun. When the Sureños chased them, they met again just before running up to the Sergeant who arrested them.

Why The Crazy Route

Police sought to clarify the route Estrada and Sanchez took when they left Scheffler’s car:

“DETECTIVE OROPEZA: —why did you guys walk around this way? Why?

MR. SANCHEZ: Brian didn’t want to go through cops. *** *** I was just trying to go to my car. I was just trying to go home.”

Earlier that day, Sanchez had parked his car in a lot on the west side of the 492 building. Police found the car there after they arrested Sanchez.

Detective said, “Listen, you did good. I’m glad you were honest with us.”

Sanchez immediately asked to see his mother.

They said the police needed to “clarify some things” first.

Sanchez pleaded, “Let me talk to her. I want to talk to my mom.”

The detective said, “You will talk to your mom, okay? All right? Just not right now, okay?”

An hour later, they asked for a repetition of the confession.

What They Want

Sanchez said Scheffler drove from Bridle Trail to Longacre Lane to Equestrian Drive to Illinois Route 83 to Palatine Road. Scheffler stopped on Palatine Road, and Estrada said he wanted to shoot Sureños because he felt disrespected in the fight that took place around 3:30 p.m. on May 1.

Scheffler drove them on Palatine Road to Wheeling Road and then to the parking lot by the 410 building.

Sanchez marked on the map where he, Estrada, and Flores stood when the gun went off, when they were between the buildings numbered 540 and 544, north of the 486 and 492 buildings near where the victim was shot.

Sanchez said that when Estrada looked ready to shoot, Sanchez tried to take the gun away from him, and it went off in his hand. After the four shots discharged, Estrada took the gun and ran west toward the park. They asked for a further description of the gun, but Sanchez said only it was black with a black handle, and Sanchez did not know the caliber.

Now Can I Talk To My Mom?

The deetective asked, “[W]as it hard to pull the trigger?”

Sanchez answered, “Yeah, it was.”

At the conclusion of the questioning, Sanchez again said, “I just want to talk to my mom.”

The detectives again told Sanchez to wait. More than an hour and a half later, Sanchez knocked on the door of the interview room. He asked, “Can I talk to my mom yet?”

Detective said, “not right now.”

Sanchez asked, “When can I talk to my mom?”

Detective said, “when *** we get to it.”

Five minutes later, Sanchez knocked again and asked again, saying, “She doesn’t know where I am. Please let me talk to her.” He was told him to wait.

Five minutes later Sanchez asked again.

This time they said, “I got food coming for you.”

Sanchez answered, “I don’t want any food. I want to talk to my mom.”

Again the response was “Not right now.”

When they brought food a few minutes later, Sanchez repeated his plea, to the same effect. After five minutes, Sanchez knocked again and asked to talk to his mother, “[j]ust a quick call.”

Detective said, “No, that cannot be done.”

Sanchez waited almost 10 minutes before knocking again, with the same result.

Then 30 minutes later, a different officer said he could call his mother “in a little bit.”

Twenty minutes later, another knock, another request, and another denial.

Fifteen minutes later, another knock, and the detective said, “what was the answer to your question?” Sanchez said only, “Officer, please.”

Police came in of their own accord 15 minutes later, at 2 p.m. on May 2 and searched Sanchez for tattoos. They took Sanchez out of the interview room, listening to Sanchez repeat his plea to call his mother.

They denied the request.

Then they questioned Sanchez anew at 5 p.m. on May 3.

Defendant Recants

Sanchez told the detectives that he had lied on May 2, that he and the others in the car never fired a gun. A member of the Spanish Gangster Disciples he knew only as “Bone Crusher” had threatened Sanchez and Leslie.

Closing Arguements

In closing argument, the prosecutor said that Sanchez’s tears during the interrogation showed that he suffered from a burden of guilt, and “you can see how that burden is in fact lifted from him after he admits being the person who shot Rafael.”

Defense counsel argued that detectives fed an account to Flores and Sanchez and pressured them into assenting to that account.

The detectives used lies about the evidence and emphasis on the words “accident” and “mistake” to induce acceptance of the false accounts. In the prosecution’s rebuttal, the jury heard the following:

“[PROSECUTOR]: It’s bad enough to insult the integrity of the law enforcement people that were involved in this case. It’s bad enough to put dishonor upon their reputations, the people that are out there saving our lives and our communities.

[DEFENDANT’S CO-COUNSEL]: Objection, Judge.

THE COURT: Overruled.

*** [PROSECUTOR]: *** I’ve never seen anybody murdered by a cupcake before. He wants his Mommy. He is nothing but a sniveling, cowardly killer. That’s what he is. What were you doing out there all day, Jesus?

[DEFENDANT’S CO-COUNSEL]: Objection, Judge.

THE COURT: Overruled.

[PROSECUTOR]: [Flores] knew because when he was asked why were you being chased, what did he say? We were being chased by the Sureños because they thought we had shot someone, and that’s why they were being chased—

MS. KOEHLER: Objection, Judge.

THE COURT: What’s your objection?

MS. KOEHLER: It was the subject of a motion—

THE COURT: Overruled.”

The Verdict

The jurors deliberated for five hours before sending a note saying, “We are split.” The judge ordered them to continue deliberating.

Five hours later, the jury returned a verdict finding Sanchez guilty of the murder of Orozco but not guilty of attempting to murder Edson.

The judge sentenced Sanchez to 45 years in prison: 20 years for murder, plus 25 years for use of a firearm. 

Episode 487 (Duration 32:12) Illinois has one of the broadest expungement and sealing laws in the country. Listen in to this 30 minute interview with an Illinois attorney who explains the issues in terms easy to understand and follow.

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In This Episode...

"With a stroke of the pen from Governor Rauner we became the most liberal state, I would say perhaps a better word 'permissive' state, on sealing, specifically, in the entire country ." -- Paul Meyers.

Attorney Paul Meyers

Paul Meyers graduated from the University of Tulsa law school in 2011, where he was on law review and interned for the Tulsa County Public Defender’s Office.

After passing the bar, Paul worked for the Kane County Public Defender’s office for 5 years before joining Robert Callahan & Associates in 2017.

How To Contact Paul Meyers

• Robert J Callahan & Associates
  2500 South Drake Avenue
  Chicago, IL 60623
• (312) 322-9000
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Links & Resources

• 20 ILCS 2630 et seq. Illinois Criminal Identification Act
• 20 ILCS 2630/5.2 et seq. Expungement and Sealing
• Illinois Supreme Court Sample Forms
• Illinois State Appellate Defender Resources
• Combined Standardized Forms
• List of Crimes You Can't Seal - 20 ILCS 2630/5.2(a)(3) Exclusions
• Factors Court Should Consider - 20 ILCS 2630/5.2(d)(7)
• Disclaimer
• The "You Can Only File Once" Rule - 20 ILCS 2630/5.2(c)(4)
• Other Stuff

"Can't Miss" Moments:

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✓ Bullet 1 (Go to 1:18)

✓ Bullet 1 (Go to 1:18)

See Also

You may also want to check out...

Episode 026 People v. Laguna, 2014 IL APP (2d) 131145 (August) (No Right to Expungement in Illinois After a Pardon)

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People v. Allard, 2018 IL App (2d) 160927 (February). Episode 486 (Duration 9:35)

Lake County SA didn't sign the applications for the recorded phone calls so they are invalid.

Gist

Defendants were indicted for racketeering conspiracy, racketeering, criminal drug conspiracy, street gang criminal drug conspiracy, controlled substances trafficking, and unlawful possession of a controlled substance with the intent to deliver.

It was investigation involving the Four Corner Hustlers.

Wire Tap Evidence

As part of an investigation into gang activity, the Lake County State’s Attorney’s Office obtained authorization to intercept private communications involving certain telephone numbers.

Issue

The circuit court of Lake County authorized the nonconsensual electronic surveillance, pursuant to article 108B of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure) (725 ILCS 5/108B), based on applications signed and presented by two assistant state’s attorneys (ASAs), not by the elected state’s attorney (SA). 

Defendants joined in a motion to suppress the evidence, arguing that the SA’s failure to personally apply for the wiretap orders violated Article 108B as well as the federal wiretap statute set forth in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510-2522 (2012)), better known as “Title III.”

They argued that, pursuant to Illinois and federal law, an application for a wiretap order must be personally authorized, in writing, by the elected SA, in this case SA Nerheim, or a person designated by the SA in writing or authorized by law to act for him in his absence. Defendants asserted that neither ASA Mathews nor ASA Fisz was so authorized and that, therefore, the orders entered pursuant to the applications were invalid.

Turns Out

The chief of the gang and narcotics prosecution division of the Lake County State’s Attorney’s Office the chief of the felony trial division were signing these warrants. Consistent with the applications, each order noted that the application was made, under oath, by either ASA Mathews or, in one instance, ASA Fisz, “on behalf of Michael G. Nerheim, State’s Attorney of Lake County.

The applications included orders and extension orders for nonconsensual telephone interceptions of the gang.

The investigation was being conducted by the Federal Bureau of Investigation (FBI); the Lake County Metropolitan Enforcement Group; and the police departments of Waukegan, North Chicago, and Zion.

Turns out SA Nerheim did not personally sign or present the wiretap applications.

The Illinois Overhear Statute

Section 108B-2(a) governs “request[s] for application for interception.” 725 ILCS 5/108B-2(a).

The statute provides that “[a] State’s Attorney may apply for an order authorizing interception of private communications in accordance with the provisions of this Article.”  725 ILCS 5/108B-2(a).

In turn, section 108B-3(b) provides that

“[t]he State’s Attorney or a person designated in writing or by law to act for the State’s Attorney and to perform his or her duties during his or her absence or disability, may authorize, in writing, an ex parte application to the chief judge of a circuit court for an order authorizing the interception of a private communication when no party has consented to the interception and the interception may provide evidence of, or may assist in the apprehension of a person who has committed, is committing or is about to commit, a violation of an offense under Article 29D of the Criminal Code of 1961 or the Criminal Code of 2012.”

725 ILCS 5/108B-3(b).

Additionally, the application shall include “[t]he authority of the applicant to make the application.” 725 ILCS 5/108B-4(1).

The Federal Overhear Statute

Title III prohibits the interception and disclosure of wire, oral, and electronic communications, as well as the manufacture, distribution, and possession of such interception devices. However, it expressly authorizes federal and state government authorities in certain criminal investigations to intercept, disclose, and use such communications, which include emails, facsimile transmissions, pager numbers, and telephone calls.

As noted, by enacting Title III to delineate how states may authorize applications for wiretap orders (18 U.S.C. § 2516), Congress preempted the regulatory field of electronic surveillance, and therefore Illinois may not enact standards that are less stringent than the requirements set by the federal statute.

Section 2516(2) provides in relevant part as follows:

“The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire, oral, or electronic communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire, oral, or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made ***.”

18 U.S.C. § 2516(2) .

But They Had A Letter

State says the complied with the law because they had a letter, on the SA’s office letterhead, signed by the SA.

The letter stated that SA Nerheim granted ASA Mathews

“my authorization for the interception of private communication pursuant to the requirements as set forth in [section 108B-3].”

Letter Didn't Cut It

To begin with, section 2516 sets the outer limit within which Illinois may permit authorization of requests for wiretap orders, which raises the issue of whether Article 108B of the Code of Criminal Procedure is impermissibly broader than section 2516(2) of Title III.

Still, the wiretap orders in these cases were invalid based simply on the prosecution’s noncompliance with article 108B.

The letter purported to designate ASA Mathews as an authorized applicant, and it incorporated section 108B-3 by reference, which purportedly limited ASA Mathews’s application authority to situations where SA Nerheim was absent or disabled...but the letter did not mention the gang, the investigation, any of the defendants, or the circumstances of SA Nerheim’s absence or disability, which certainly would have bolstered the designation.

Real problems here was that the applications themselves did not comply with article 108B.

All The Applications Were Wrong

Regardless of whether ASA Mathews was properly designated as an authorized applicant, the applications were facially deficient.

Each application for a wiretap order must include the applicant’s authority to make the application. See 725 ILCS 5/108B-4(a)(1).

In the applications ASA Mathews stated only that he was

“authorized by law to investigate, prosecute, and participate in the prosecution of the particular offenses which are the subject of this application.”

ASA Mathews neither identified the source of his authority to make the applications nor attached documentation of SA Nerheim’s purported delegation of such authority. Further, the applications failed to affirmatively state that SA Nerheim was absent or disabled. SA Nerheim averred that he was involved in the decision-making process throughout the investigation.

No Mention Of The Absence or Disability

The plain language of section 108B-3 contemplates the designation of an applicant to perform the SA’s duties during his absence or disability.

Here, SA Nerheim and ASA Mathews averred in their affidavits that SA Nerheim was involved in decision-making during the entire investigation, including when the applications were made. The implication is that the applications were effectively authorized by SA Nerheim, even if his subordinates drafted, signed, and presented them.

On the one hand, the State implies a patina of legitimacy by claiming that SA Nerheim was overseeing the application process, but at the same time it claims that he was “absent” for purposes of section 108B-3. Even if article 108B did not require ASA Mathews to be designated as the acting SA to obtain application authority, SA Nerheim’s ongoing involvement in the investigation meant that he was not absent for purposes of section 108B-3.

Because there was no showing that SA Nerheim was absent or disabled, ASA Mathews was not designated to act in his place.

The purported authority of ASA Fisz to submit an application on behalf of SA Nerheim is even more attenuated. Fisz signed one when Mathews was out of town. Bothing in section 108B-2 gave him the power to further delegate that authority.

No Good Faith Exception

Section 114-12(b)(4) specifically provides, however, that the good-faith exception “does not apply to unlawful electronic eavesdropping or wiretapping.” 725 ILCS 5/114-12(b)(4).

The plain and ordinary meaning of the statute prohibits the State from relying on law enforcement’s purported good-faith conduct to excuse unlawful wiretapping. The good-faith doctrine does not apply where the law enforcement officials are responsible for the error.

See Also

Episode 409 Recorded Over Hear Authorization May Not Require Judicial Approval - People v. Brindley, 2017 IL App (5th) 160189 (August). 

This is the April 2018 Illinois criminal case law audio round-up (the fast case law summary). Episode 485 (Duration 21:22)

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

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

Here's a quick snapshot of the top cases:

1. People v. Sanchez

Involuntary confession and improper closing arguments lead to a murder conviction that is now reversed outright.

2. People v. Gill

Police had a nurse confiscate defendant's clothes for them.

3. People v. Gomez 

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

4. People v. Smock 

Defendant is getting arrested for disorderly conduct when recedes further into his house to prevent arrest, police follow him in and arrest him.

5. People v. Pepitone

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

6. People v. Haberkorn 

Sex offense has to be reversed because state didn't even come close to proving it's burden.

7. People v. Burchell

State's SORA complaint was insufficient.

8. People v. Boyd

Defendant should have been allowed to withdraw his guilty plea after he was misinformed on the amount of credit he could earn.

9. People v. Gore

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

10. People v. Young 

Judge can't give an extended term of the state doesn't establish that he is eligable for extended term sentencing.

11. People v. Bell 

Court must address bare naked allegations of ineffective assistance.

12. People v. Lewis 

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