Kane County Nuggets

People v. Holmes, 2019 IL App (1st) 160987 (March). Episode 601 (Duration 9:33)

An essentially anonymous tip was treated as wholly unreliable resulting in an outright reversal of this gun conviction.

Gist

Police approach a man with a gun and pat him down.

Facts

A Chicago police officer received information from a sergeant, who received information from an unidentified Chicago Park District security guard, whose source of information was unknown, that a man in Brainerd Park had a gun in his pocket.

The man was described as black, about five-and-a-half feet tall, wearing a purple shirt and black jeans.

Two or three minutes after talking to the sergeant, the officer and his partner saw defendant, who matched the description. There was nothing inappropriate about defendant’ conduct. Nonetheless, the officers approached defendant, and one of the officers immediately touched the pocket of his jeans.

The officer felt what he recognized as the trigger and trigger guard of a gun. The officers ordered defendant to the ground, put him in handcuffs, and placed him under arrest.

Issue

Defendant now challenges the initial seizure, before his arrest, as an unconstitutional Terry stop. He argues that the officers did not have reasonable suspicion to stop him.

In particular, both the security guard’s identity and the source of information remain unknown, “effectively” an anonymous tip, which, without more, cannot provide a reasonable suspicion of criminal activity.

Defendant asserts that the officer’s frisk of his person constituted a Terry stop sufficient to trigger the protections of the fourth amendment and that the tip lacked the requisite legal corroboration to establish reasonable suspicion for a Terry stop and frisk.

Guard Not Anonymous

The State responds that the tip was reliable and not anonymous and contained sufficient information to support the Terry stop. The State argues the tip that led to defendant’s detention came from an identifiable security guard.

The State assures us that we can rely on the security guard’s tip because it was given in person and security guards are presumptively more trustworthy reporters of crime than ordinary eyewitnesses.

Terry Stops

Broadly speaking, Terry, 392 U.S. 1, governs.

Terry gives officers a “narrowly drawn authority” to detain people and search for weapons where they reasonably believe that “criminal activity may be afoot” and that the person seized “may be armed and presently dangerous.” Id. at 27, 30.

A seizure, short of an arrest, is justified only where an officer “reasonably suspects that the person apprehended is committing or has committed a criminal offense.” Arizona v. Johnson, 555 U.S. 323, 326 (2009).

Once seized, he or she may only be frisked if an officer “reasonably suspect[s] that the person stopped is armed and dangerous.” Id.

Informant Tips

In short, the validity of the initial stop constitutes a necessary precondition to the validity of any later search. Informant tips “may vary greatly in their value and reliability.” Adams v. Williams, 407 U.S. 143, 147 (1972).

Cases involving known informants are “stronger cases” than those involving anonymous tipsters. In all cases involving tips, anonymous or otherwise, paramount concerns involve the informant’s “veracity, reliability, and basis of knowledge.” Alabama v. White, 496 U.S. 325, 328 (1990).

Anonymous Tip

An anonymous tip, without more, generally provides “virtually nothing” by which one could conclude that the tipster is honest, that his or her information is reliable, or that he or she has a basis by which to predict a suspect’s criminal activity. 

See People v. Lopez

Episode 549 – People v. Lopez, 2018 IL App (1st) 153331 (October) (Anonymous Tip On A DUI Has Got To Be Specific)

In every legally relevant respect, the tip on which the officers relied is strikingly similar to the tip in Lopez. Just as the officer in Lopez, the officer received his tip from another officer. While the sergeant told the officer that he received information about a man with a gun from a park security guard, just as in Lopez, no testimony identified the ultimate source of the information that the first officer received.

Finally, just as the officer in Lopez, the officer confirmed that defendant matched the general description but did not notice defendant doing anything illegal when he saw him.

Analysis

The State’s argument depends on multiple assumptions that the record does not support.

The State assumes that the security guard provided the tip in person; the record reveals that the officer did not know how the security guard reported the sergeant. The State argues that security guards by nature are more reliable eyewitnesses, but we do not know whether the security guard was actually an eyewitness or learned his or her information elsewhere or, for that matter, whether he or she was an experienced or inexperienced security guard.

There is nothing in the record to indicate whether the guard personally observed the gun possession or if the guard received the information from somebody else. Just as the officer in Lopez, the officer was told a general description of defendant’s appearance and that he was somewhere in the park. Nothing in the record explains the source of the security guard’s information. As a result, we cannot say that the security guard was an “eyewitness.”

 For that reason, the institutional pressures that bear on security guards to avoid falsely implicating someone do not apply. For example, a guard who hears of some criminal activity from another source does not bear personal responsibility for the error if the source turns out to be wrong. He or she can simply pass on the blame for the incorrect information to the unknown source.

Given all of these unknowns, we agree with defendant that the tip was “effectively anonymous” and did not support a finding of reasonable suspicion. 

We see no reason for the State not to have called the park security guard, if he or she is as identifiable as the State purports, to give a firsthand account.

But They Description Of The Man Was Spot-On

As a final argument, the State asks us to find the tip reliable because the sergeant’s description—a black man, 5 feet, 6 inches to 5 feet, 8 inches tall, wearing a purple shirt and black jeans—was more specific than the description in J.L. See 529 U.S. at 268 (“a young black male standing at a particular bus stop and wearing a plaid shirt”).

So what.

We fail to see any indication in J.L. that the outcome would have differed had the tipster been able to describe J.L.’s height. J.L. expressly rejected location and physical appearance as sufficient indicators of the most important fact necessary for a Terry stop: suspicion of criminal activity.

The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.

So Much We Don’t Know

We do not know how the security guard came across the information in the first place, whether he or she personally observed the gun possession or whether it was reported by another source.

Similarly, while we know that it was only two to three minutes from the time the sergeant told the officer and Montes about the man with a gun to the time that defendant was stopped, we have no idea how long it took from the time of the original observation of the man with the gun to the time the sergeant was told.

We may know where the sergeant got his information, but the identity of the ultimate source of the tip—which was undisputedly the State’s burden to provide—remains a mystery.

Holding

We find the security guard’s tip insufficiently reliable. We reverse the trial court’s denial of defendant’s motion to suppress and reverse his conviction outright.

We cannot confirm the reliability of the tip the officers received because there is too much that we do not know about it. We do not reverse defendant’s conviction as a criticism of the officers. We reverse because the State failed to meet its burden to identify the source of the tip—despite its repeated claims that the security guard, who could confirm the source, would be easy to find—rendering the tip’s reliability irrecoverably suspect.

We find that defendant’s seizure was unlawful, having been based on a factually insufficient and unreliable tip. We reverse the trial court’s denial of defendant’s motion to suppress evidence. Because the State will be unable to proceed without evidence of the gun on remand, we reverse defendant’s conviction outright.

See Also

Episode 101 – Navarette v. California, 134 S.Ct 1683 (2014) (April) (police received reliable tip that a driver ran the caller off the rode)

 Episode 468 – People v. Meo, 2018 IL App (2d) 170135 (March) (Gas station attendant calls the police on defendant to report he almost hit the building, so DUI stop justified.)

Scott's Law in Illinois is the requirement that drivers slow down and move over when police cars or other emergency vehicles are stopped on the roadway.

Scott's Law Basically Says…

Scott's law requires that a driver proceed cautiously when an emergency vehicle is stopped and

1. Move over and change lanes and/or
2. Slow down if changing lanes is impossible.

The law imposes enhanced penalties, a possible driver license suspension, and even jail time for severe violations.

625 ILCS 5/11-907(c)

The exact language of the section provides that:

"(c) Upon approaching a stationary authorized emergency vehicle, when the authorized emergency vehicle is giving a signal by displaying alternately flashing red, red and white, blue, or red and blue lights or amber or yellow warning lights, a person who drives an approaching vehicle shall: (1) proceeding with due caution, yield the right-of-way by making a lane change into a lane not adjacent to that of the authorized emergency vehicle, if possible with due regard to safety and traffic conditions, if on a highway having at least 4 lanes with not less than 2 lanes proceeding in the same direction as the approaching vehicle; or (2) if changing lanes would be impossible or unsafe, proceeding with due caution, reduce the speed of the vehicle, maintaining a safe speed for road conditions and leaving a safe distance until safely past the stationary vehicles."

625 ILCS 5/11-907(c).

Scott's Law Fines

Maximum fines for a violation of Scott's Law can be up to $10,000. The chart below outlines the minimum fine that is applicable:

Minimum $250 up to $10,000 For 1st offense Minimum $750 up to $10,000 For 2nd or more offense

625 ILCS 5/11-907(d).

Suspension Of Drivers License Under Scott's Law

A violation of Scott's Law is considered a moving violation in Illinois. That means the secretary of state will assign points against your driving record and a discretionary suspension under 625 ILCS 5/6-206 may be incurred.

However, the chart below describes certain mandatory suspensions under Scott's Law if there are aggravated circumstances:

90 days to 1 year If there is property damage 180 days to 2 year If there is personal injury 2 year suspension If there is a death to a person

625 ILCS 5/11-907(e), (f), (g).

Jail Time For A Scott's Law Violation

An ordinary violation of Scott's Law in Illinois is considered a business offense. That means it is punishable by fine only.

However, Scott's Law may classified as a crime and a person may face jail time under the conditions listed below:

Class A Misdemeanor If there is damage to anther vehicle Class 4 Felony If there is injury or death to another person

625 ILCS 5/11-907(d) Class A MisdemeanorClass 4 Felony.

Links & Resources

• Illinois Vehicle Code on Right-Of Ways
• Scott's Law In Illinois
• Illinois Vehicle Code On Approaching Disabled Vehicles
• Illinois Vehicle Code On Construction Zones

Attorney Peter Wachowski Discusses Defending Against A Scott's Law Ticket

Episode 751 (Duration 13:45) Illinois attorney Peter Wachowski explains some of the intricacies of defending against a charge under Scott's Law.

In This Episode…

"That's the speed limit! You're suppose to slow down." — Peter Wachowski

Going to trial against a charge of violating Scott's Law can get kind of tricky. In this episode an experienced trial attorney describes the process.

Attorney Peter Wachowski

Attorney Peter Wachowski has an active civil law practice focussing on Personal Injury, Worker's Compensation and Civil Litigation.

However, Peter also is highly experienced in DUI litigation and defense and represents clients in other criminal law matters.

Contact Information

15 N. Northwest Hwy Park Ridge, IL 60068

[email protected]

www.bellas-wachowski.com

"Can't Miss" Moments:

✓ The "move over" law says you must do one of two things or both when you see an emergency vehicle stopped on the roadway. Not doing these things can lead to pretty serious consequences. (Go to 2:15)

✓ Scott Gillen was a Chicago Fire Department Lieutenant who died in the line of duty two days before Christmas in 2000 when a drunk driver collided with vehicles assisting at a crash scene on the Dan Ryan Expressway. (Go to 3:29)

✓ "The official day of remembrance of him is December 23rd." — Peter Wachowski (Go to 3:50)

✓ Peter learned some valuable lessons in defending against an allegation of violating Scott's Law. You don't want miss what Peter has learned from court trials on this charge. (Go to 6:07)

✓A great example of when going the speed limit can get you in big trouble. (Go to 7:53)

✓ Judge's don't like these things. You should expect the judge to do you no favors if you're accused of violating Scott's Law. (Go to 10:02)

In re K.M., 2019 IL App (1st) 172322 (February). Episode 595 (Duration 13:05)

Police entered onto private property without a warrant to retrieve stolen property, the fallout is widespread.

Anonymous Call

Sauk Village Police Department received an anonymous call on, around 12:18 p.m. from an individual who reported seeing people enter the residence at 22438 Yates Avenue, with items, particularly a television.

The caller called multiple times during the investigation directing the police to 22438 Yates Avenue.

The police department opened a burglary investigation.

The Search But No Seizure

Police arrive and conduct a search of the area surrounding the residence including the garbage cans located on the driveway and the detached garage.

The garbage can was not covered with a lid.

Home Owner Finally Called

That same afternoon, Sauk Village police received another call reporting a burglary.

The caller stated that he had returned home and discovered computer accessories, personal documents, and a large flat-screen television were missing. The items taken were documents including a passport, bank statements, a black television, a black laptop, and a black external hard drive. 

Back To The Garbage Cans

According to police, the garbage was full, but they could identify documents in the garbage that belonged to the victim. The officer did not have to manipulate the garbage in any way to see the victim’s name on the documents.

Police immediately could see a garbage can with a black box on top of the garbage can. They opened the black box and found the victim’s passport and documents with the victim’s address inside the black box. 

Into The Detached Garage

The officers then returned to the garage and found items matching the description of the stolen items. They entered through an open side door.

 Once inside, they spotted a black laptop with an external hard drive in the rafters of the garage. An officer retrieved the laptop and the hard drive before attempting to make contact with the people inside the residence.

Now To The House Itself

They removed these items from the garage and knocked on the door of the residence. No one answered the door; however, the detective noticed people peeking out of the window. A short time later another person arrived at the residence and then alerted the owner of the home, who arrived at the residence shortly after.

This lady was the mother.

Officers explained their presence at her house. Mom then entered the home. She returned to the outside carrying a large flat-screen television. She also brought outside K.M. and two other individuals from inside the house.

Immediately Arrested

The detective testified that they then arrested K.M. based on the totality of the circumstances, the residential burglary report that they had, the description provided by the anonymous caller, and the items recovered.

What description?

At no point did the officers obtain a search warrant or an arrest warrant.

The detective and the officers stayed outside and never went into the home.

Mom’s Testimony

She is K.M.’s mother, she lived at 22438 Yates.

She lived with her brother, six children, and her niece. Her yard was fully enclosed by a fence, including the garage and the area next to the driveway where her garbage cans are located.

When the police first arrived at her home, she was in South Holland that morning with her friend. A detective called her over the phone, and he stated that there were burglary suspects inside of her home and told her to come home in 10 to 15 minutes or else he would kick in her door.

When she arrived, she spoke with the officers outside of her home but she denied giving the officers consent to search her property.

Issue

On appeal, K.M. argues that the trial court erred when it denied his motion to suppress both physical evidence and his custodial statement because they were obtained as a direct result of an illegal search. K.M. contends that his arrest was due to law enforcement’s exploitation of illegally obtained evidence.

Specifically, he asserts that Mom’s delivery of the television, his arrest, and his confession were fruits of an illegal search.

State Concedes Some Illegality

The State does not dispute that the search of the property was an illegal search of the curtilage of the home.

The State argues, however, that the arrest was proper because the officers had independent probable cause to believe that a crime had been committed by someone in the house prior to any illegal search. Alternatively, the State argues that Mom was not induced to produce the television because of the illegally seized evidence obtained by the police.

The Fourth Amendment

The fourth amendment of the United States Constitution ensures the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV; see also Elkins v. United States, 364 U.S. 206, 213 (1960) (noting that the fourth amendment applies to state officials through the fourteenth amendment).

The amendment protects individuals and not specific locations.

Search & Seizure Resource Page To see more Illinois Search And Seizure Resources and case law go here. See Also These Property Based Cases

Episode 501 – Collins v. Virginia, SCOTUS (May 2018) (police need a warrant to search a vehicle on private property)

Episode 552 – People v. Bonilla, 2018 IL 122484 (October) (constitutional violation did not depend on whether the common door to the apartment was locked)

Episodes 464 – Florida v. Jardines, 133 S. Ct. at 1409 (2013) (police can’t bring a police dog to your front stoop for a sniff without a warrant)

Was There Independent Probable Cause?

The State posits there was enough information to satisfy the probable cause requirement because the victim’s phone call corroborated the anonymous call that a burglary had occurred and K.M. matched the anonymous caller’s description.

Probable cause exists when the facts known to the officer at the time of the arrest are sufficient for a reasonably cautious person to believe that the arrestee has committed a crime. People v. Wear, 229 Ill. 2d 545, 563-64 (2008). The existence of probable cause depends upon the totality of the circumstances at the time of the arrest.

The court deals with probability when assessing probable cause.

Probable Cause From An Anonymous Tip

In the context of tips forming the basis for probable cause, a reviewing court considers the informant’s “veracity, reliability, and basis of knowledge.” People v. Sparks, 315 Ill. App. 3d 786, 792 (2000). The anonymous tip must provide some indicia of reliability; otherwise the police officers are forced to conduct additional investigation to verify the information or may not respond to the tip.

Ordinarily, information from a “concerned citizen” is considered more credible than information from a paid informant or a person who provided information for personal gain. People v. Linley, 388 Ill. App. 3d 747, 750 (2009).

The State asks us to assume that the tipster called the 911 dispatch system and thus the caller had some indicia of reliability. However, there is no evidence in the record indicating that the tipster contacted the police through an emergency number. Furthermore, the tipster did not provide a name and therefore must be treated as anonymous.

Was There Sufficient Corroboration?

Thus, the tipster’s “reliability hinges on the existence of corroborative details observed by the police.”

Here, the anonymous caller only relayed to the police that they saw people entering the residence of 22438 Yates Avenue carrying items such as a television. Nothing in the record suggested that the caller observed these people participate in any unlawful conduct. In fact, it could appear that the people entering into the house were engaging in innocuous behavior.

There was no indication what-so-ever that the television was stolen.

Furthermore, there is no evidence that any effort was made to verify the anonymous tip before the officers attempted to contact the residents of 22438 Yates Avenue. The officers never observed anyone engaged in criminal activity to corroborate the phone call. In fact, the officers did not even see K.M. until they arrested him.

Therefore, we find that the tip was uncorroborated and unreliable.

See Also Recent Anonymous Tip Cases

Episode 549 – People v. Lopez, 2018 IL App (1st) 153331 (October) (caller only said the driver was “DUI” – what the heck is that?)

Episode 101 – Navarette v. California, 134 S.Ct 1683 (2014) (April) (almost driving the caller off the rode justified a traffic stop)

468 – People v. Meo, 2018 IL App (2d) 170135 (March) (Citizen’s Tip That Driver Almost Hit The Building Justifies Investigatory Stop For DUI)

But The Caller Said His TV Was Gone

Other than the unverified call that did not report a crime, the only information provided was the victim’s call, and this evidence is insufficient to establish probable cause to arrest K.M.

We find the detective’s testimony, that the officers arrested K.M. “based on the totality of the circumstances, the residential burglary report that they had, the description provided by the anonymous caller, and the items recovered,” telling as to whether the officers had independent probable cause.

His testimony is contrary to the State’s position and indicates that the items recovered from the garage and the garbage were indeed a factor in this case.

Accordingly, we find that the State did not have independent probable cause to arrest K.M. on his porch.

Was There Sufficient Attenuation?

Having found that no independent probable cause existed to arrest K.M., we now determine whether Mom’s delivery of the television, K.M.’s arrest, and K.M.’s subsequent confession were attenuated from the initial illegal search.

“The fruit-of-the-poisonous tree doctrine is an outgrowth of the exclusionary rule providing that ‘the fourth amendment violation is deemed the “poisonous tree,” and any evidence obtained by exploiting that violation is subject to suppression as the “fruit” of that poisonous tree.’ ” People v. Burns, 2016 IL 118973, ¶ 47 (quoting People v. Henderson, 2013 IL 114040, ¶ 33).

Courts have recognized several exceptions to the exclusionary rule. See In re Jarrell C., 2017 IL App (1st) 170932, ¶ 24.

The Exceptions To The Exclusionary Rule

Those exceptions are

• the independent source doctrine
• the inevitable discovery doctrine and
• the attenuation doctrine.

The exception at issue here is the attenuation doctrine, under which evidence challenged for a fourth amendment violation is admissible if the connection between the unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstances. Utah v. Strieff, 579 U.S. ___, ___, 136 S. Ct. 2056, 2061 (2016).

“The attenuation doctrine evaluates the causal link between the government’s unlawful act and the discovery of evidence, which often has nothing to do with a defendant’s actions.” Id. at ___, 136 S. Ct. at 2061.

Brown v. Illinois

Our inquiry is guided by the three factors articulated in Brown v. Illinois, 422 U.S. 590 (1975).

First, we consider the “temporal proximity” between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. 
Second, we examine “the presence of intervening circumstances.”
Third, we consider “the purpose and flagrancy of the official misconduct.”
Fourth, if a confession is being challenged, whether Miranda warnings were given.

The State argues that Mom’s conduct in producing the television was a voluntary act, free from any taint of the illegal search, and constituted an intervening circumstance that provided independent probable cause to seize the television. However, the record belies the State’s contention.

The record demonstrates that after the illegal search and the recovery of the victim’s documents and computer accessories, the detective’s discussion with Mom on the phone prompted her return home. Upon her return, he then explained to her in person the “situation and case status.” The police never broke the causal connection between their illegal search and obtaining the television.

The officers never left K.M.’s property, which demonstrates that the taint of the unconstitutional conduct was ongoing at the time that the police made contact with Mom. Any contact with Campbell during that timeframe was sufficiently a part of the taint including her delivery of the television.

Holding

We conclude that there was no independent intervening event that broke the causal chain between the illegal search and the discovery of the television. Here, the police officers illegally searched the curtilage of K.M.’s home twice in a short time span. There was no warrant authorization to search nor was there any indication of circumstances justifying an exception to the search warrant requirement.

The police only attempted to contact Mom once they had recovered the items from the garage and garbage reported missing by the victim.

The police had no warrant or exigency to be on the property; thus any action the officers had on the property after the second call was akin to embarking “upon a course of illegal conduct in hope that some incriminating evidence *** might be found.” Jennings, 296 Ill. App. 3d at 765.

We determine that this factor weighs in favor of K.M.’s argument for suppression. Taken together, all the factors weigh in favor of suppressing the evidence.

We find that there was no attenuation between the illegal search of property, the officers obtaining the television, and K.M.’s arrest. As such, we hold that the trial court erred in denying the motion for suppression as to the television and to quash K.M.’s subsequent arrest.

The record is silent as to, inter alia, K.M.’s testimony and circumstances around his confession. We cannot make an independent determination of the admissibility of respondent’s confession. Therefore, we find it appropriate to remand the case for an attenuation hearing on this issue.

For the foregoing reasons, we reverse the judgment of the trial court and remand for further proceedings.

After Illinois passed the Cannabis Regulation and Tax Act which became effective in 2020, can police still search a car when they smell cannabis?

The Old "Smell Of Weed Rule" In Illinois Before Decriminalization Of 2020 The warrantless search of a car is authorized "where a trained and experienced police officer detects the odor of cannabis emanating from a defendant's vehicle." People v. Stout, 106 Ill.2d 77, 88 (1985)

The question today, is if this rule survived the cannabis law change in 2020.

In This Episode…

"The officer would probably be better suited to try and find more information, more probable cause, to layer that probable cause." — John "Jack" Duggan

Attorney John Duggan

Jack's father is a retired Chicago Police Officer. Jack followed in his father's footsteps and became a Police Officer for the Village of Oak Park. While working as a Police Officer, Jack decided to continue his studies and attended The John Marshall Law School.

Jack focuses his practice in the areas of Real Estate, Family Law, Estate Planning, and selected criminal matters.

Jack Duggan's Contact Information

782 Busse Highway Park Ridge, IL 60068 [email protected]

http://www.johnmdugganlaw.com/

Attorney Jeff Hall

"I basically call it the 'sniff and search' statute." — Jeff Hall

"I basically call it the 'sniff and search' statute." – Jeff Hall

Jeffrey R. Hall has practiced law since 2004, concentrating in the area of Criminal Law, DUI, Traffic Law, Driver's License & FOID Card Reinstatement's.

He began his legal career as an Assistant State's Attorney in Tazewell County, IL.

Jeff Hall helped draft SB228 (passed on July 29, 2016), the popular Cannabis Decriminalization Bill and was an integral part of the legislative process, changing Illinois law from a "Zero Tolerance" state for cannabis related DUIs, to a more reasonable law that focused more on impaired driving.

Jeff Hall's Contact Information

316 SW Washington Street, Suite 1A Peoria, IL 61602

[email protected]

http://www.centralillinoislawyers.com/

Links & Resources

• Cannabis Regulation and Tax Act
• Cannabis Control Act
• Illinois Vehicle Code
• The Sniff & Search Law – 625 ILCS 5/11-502.15

What The Illinois Cannabis Regulation And Tax Act Says About Lawful Limits?

410 ILCS 705/10-10. Possession Limit.

"(a) Except if otherwise authorized by this Act, for a person who is 21 years of age or older and a resident of this State, the possession limit is as follows:

(1) 30 grams of cannabis flower; (2) no more than 500 milligrams of THC contained in cannabis-infused product; (3) 5 grams of cannabis concentrate; and (4) for registered qualifying patients…"

Strict Prohibition of Cannabis Possession For Those Under 21

410 ILCS 705/10-15. Persons under 21 years of age.

"(b) Notwithstanding any other provisions of law authorizing the possession of medical cannabis, nothing in this Act authorizes a person who is under 21 years of age to possess cannabis. A person under 21 years of age with cannabis in his or her possession is guilty of a civil law violation as outlined in paragraph (a) of Section 4 of the Cannabis Control Act. (c) If the person under the age of 21 was in a motor vehicle at the time of the offense, the Secretary of State may suspend or revoke the driving privileges of any person for a violation of this Section under Section 6-206 of the Illinois Vehicle Code and the rules adopted under it." Further Limitations And Prohibition Of Cannabis In Certain Places

410 ILCS 705/1-35. Limitations and penalties.

"a) This Act does not permit any person to engage in, and does not prevent the imposition of any civil, criminal, or other penalties for engaging in, any of the following conduct… (2) possessing cannabis: (D) in a vehicle not open to the public unless the cannabis is in a reasonably secured sealed, container and reasonably inaccessible while the vehicle is moving; or… (3) using cannabis: (D) in any motor vehicle; (F)…in any public place; or (G) knowingly in close physical proximity to anyone under 21 years of age who is not a registered medical cannabis patient under the Compassionate Use of Medical Cannabis Program Act… 4) smoking cannabis in any place where smoking is prohibited under the Smoke Free Illinois Act;" The Cannabis Control Act Still Criminalizes Possession Of The Following Amounts Of Cannabis…

720 ILCS 550/4. Cannabis Control Act.

"Except as otherwise provided in the Cannabis Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person knowingly to possess cannabis. Any person who violates this Section with respect to: (c) more than 30 grams but not more than 100 grams of any substance containing cannabis is guilty of a Class A misdemeanor; provided, that if any offense under this subsection (c) is a subsequent offense, the offender shall be guilty of a Class 4 felony; (d) more than 100 grams but not more than 500 grams of any substance containing cannabis is guilty of a Class 4 felony; provided that if any offense under this subsection (d) is a subsequent offense, the offender shall be guilty of a Class 3 felony; (e) more than 500 grams but not more than 2,000 grams of any substance containing cannabis is guilty of a Class 3 felony; (f) more than 2,000 grams but not more than 5,000 grams of any substance containing cannabis is guilty of a Class 2 felony; (g) more than 5,000 grams of any substance containing cannabis is guilty of a Class 1 felony." Delivery And Possession With Intent To Deliver Cannabis Remains Illegal

720 ILCS 550/5. Cannabis Control Act.

"Except as otherwise provided in the Cannabis Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis. Any person who violates this Section with respect to: (a) not more than 2.5 grams of any substance containing cannabis is guilty of a Class B misdemeanor; (b) more than 2.5 grams but not more than 10 grams of any substance containing cannabis is guilty of a Class A misdemeanor; (c) more than 10 grams but not more than 30 grams of any substance containing cannabis is guilty of a Class 4 felony; (d) more than 30 grams but not more than 500 grams of any substance containing cannabis is guilty of a Class 3 felony for which a fine not to exceed $50,000 may be imposed; (e) more than 500 grams but not more than 2,000 grams of any substance containing cannabis is guilty of a Class 2 felony for which a fine not to exceed $100,000 may be imposed; (f) more than 2,000 grams but not more than 5,000 grams of any substance containing cannabis is guilty of a Class 1 felony for which a fine not to exceed $150,000 may be imposed; The Illinois Vehicle Code Still Criminalizes Cannabis Related DUI's

625 ILCS 11-501. Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof.

"(a) A person shall not drive or be in actual physical control of any vehicle within this State while: (4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving; (7) the person has, within 2 hours of driving or being in actual physical control of a vehicle, a tetrahydrocannabinol concentration in the person's whole blood or other bodily substance as defined in paragraph 6 of subsection (a) of Section 11-501.2 of this Code. Subject to all other requirements and provisions under this Section, this paragraph (7) does not apply to the lawful consumption of cannabis by a qualifying patient licensed under the Compassionate Use of Medical Cannabis Program Act who is in possession of a valid registry card issued under that Act, unless that person is impaired by the use of cannabis." The "Sniff & Search" Law – 625 ILCS 5/11-501.15

625 ILCS 5/11-502.15. Possession of adult use cannabis in a motor vehicle.

"(a) No driver may use cannabis within the passenger area of any motor vehicle upon a highway in this State. (b) No driver may possess cannabis within any area of any motor vehicle upon a highway in this State except in a sealed, odor-proof, child-resistant cannabis container. (c) No passenger may possess cannabis within any passenger area of any motor vehicle upon a highway in this State except in a sealed, odor-proof, child-resistant cannabis container. (d) Any person who knowingly violates subsection (a), (b), or (c) of this Section commits a Class A misdemeanor. "Can't Miss" Moments From Episode 745

✓ An officer who encounters the odor of cannabis in a car might have to start running through a mental checklist. What are the things they should be checking-off? (Go to 4:46)

✓ Legitimate law enforcement objectives are implicated by the smell of weed. After Illinois has decriminalized marijuana what legitimate law enforcement concerns remain on the table? (Go to 5:42)

✓ There is at least one situation where a car reeking of cannabis is going to get searched by the police. Jump to this spot to find out what that situation is. (Go to 7:50)

✓ What does a positive drug dog sniff mean now that some cannabis can be possessed legally? (Go to 11:50)

✓ How does the plain view doctrine affect this question? What have other legalized states done with this question of allowing officers to search car based on the smell of cannabis? (Go to 22:01)

✓ How a "sealed, odor-proof, child-resistant cannabis container" can be the difference between wide spread car searches in Illinois and/or very limited ones. (Go to 24:50)

✓ Urban Dictionary defines "hotboxing" as, "n. The practice of smoking marijuana in an enclosed space (e.g. a car or a small room) in order to maximize the narcotic effect." (Go to 34:20)

See Also

You may also want to check out…

• People v. Rice, 2019 IL App (3d) 170134 (April). Episode 623 (Duration 7:36) (odor of cannabis indicative of criminal activity)
• Episode 556 – Interview With Charles Schierer | The Best Reason To Change The "Smell Of Cannabis" Rule
• Episode 509 – In re O.S., 2018 IL App (1st) 171765 (June) (1st District also says smell of weed rule is still valid)
• Episode 584 – People v. Hill, 2019 IL App (4th) 180041 (January) (4th District says the same thing adding burnt or raw cannabis doesn't matter that car is getting searched)
• Episode 621 – People v. Brandt, 2019 IL App (4th) 180219 (April) (officer smelled cannabis and that justified the warrant)
• Episode 340 – Kim Bilbrey on The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant
• Episode 558 – People v. Williams, 2018 IL App (2d) 160683 (October)(odor of alcohol alone means nothing)
• Episode 015 – People v. Abdur-Rhamim, 2014 IL App (3d) 130558 (August) (Police Can Search A Car In Illinois If The Smell Marijuana, So What Went Wrong Here For The Police?)
• Episode 276 – You Just Can't Ignore The Stench Of Weed In An Auto Accident
• Episode 207 – With Ken Wang – Give Us 24 Minutes And You'll Get a Comprehensive Debriefing on The New Illinois Marijuana Law
• Episode 251 – With Jeffrey Hall – On The Latest Developments And Problems With The Illinois Cannabis Decriminalization Law
• Episode 196 – Dog Sniff Alert To Drugs Will Lead To Car Search

This is the February 2019 Illinois criminal case law audio round-up (the fast case law summary). Episode 598 (Duration 14:12)

The February 2019 Top Illinois Criminal Law Cases (The Monthly Round-Up)

Here’s a quick snapshot of the top cases:

1. People v. Gawlak

Motions for DNA testing in old cases are distinct and separate civil hearings where counsel can come onboard for a limited purpose.

2. Timbs v. Indiana

Eight Amendment ban on excessive fines and forfeitures extends to the states.

3. People v. Baker

Inadmissibility of prior consistent statement trumps hearsay exceptions.

4. People v. Davison

Another example of evidence that was admitted to demonstrate the course of the police investigation.

5. People v. Bradford

Looks like trial counsel did what they could with this ballistics expert.

6. In re K.M.

Police entered onto private property without a warrant to retrieve stolen property, the fallout is widespread.

7. People v. Bowden

Mistake of law case; Theus is under attack.

8. People v. Swenson

How not to ask about a school’s security.

9. People v. Wise

Drugs are found upstairs when defendant was downstairs, is this still armed violence?

10. People v. Lee

Exactly what does the state have to prove in regards to possessing a gun with defaced serial number?

11. People v. Johnson

Defendant is allowed to explain why he missed his sentencing hearing even though the trial court technically has no jurisdiction.

12. People v. Contursi

Court must take into account the future ability to pay when assessing an appropriate felony fine.

People v. Monroy-Jaimes, 2019 IL App (2d) 160426 (January). Episode 586 (Duration 9:38)

Interesting use of an informant, how much of it was legal?

Confidential Informant

Police had an individual who was in custody for having possessed drugs with the intent to deliver.

This confidential informant identified a person named “Chilango,” who was later identified as the defendant, as someone who could provide cocaine.

The First Phone Call

At an officer’s direction, the informant placed a phone call to Chilango.

The officer was able to hear both sides of the conversation. Although the conversation was in Spanish, This officer spoke fluent Spanish. The informant asked Chilango for five ounces of cocaine. Chilango stated that he could provide only two ounces right away or five ounces later.

A short time later, the informant called Chilango again and stated that he could wait to get five ounces. They also discussed meeting at a BP gas station at 149 East Ogden Avenue in Hinsdale to conduct the drug sale.

Chilango stated that he would call when he had the cocaine.

The Second Phone Call

Later, the officer directed the informant to call Chilango again.

The officer heard both sides of the conversation. Chilango told the informant that he was waiting to get the cocaine but that they could meet at the gas station in about an hour. About a half-hour later, Chilango called the informant and to say that he was on the way to the gas station.

The Gas Station

At about 7 p.m., the informant received another call from Chilango, who asked for directions to the gas station.

Chilango called again for more directions a few minutes later.

Shortly after 7 p.m., the informant and the officer were parked with a view of the gas station. The informant told the officer that he saw Chilango arriving at the gas station in a Toyota Rav 4. Police observed the defendant pull into the gas station and park at a gas pump.

The officer identified the defendant in court as the person he saw in the vehicle at the gas station. The defendant had not committed any traffic violations when he pulled into the gas station. After parking, the defendant exited his vehicle and went into the gas station.

The Third Phone Call

The informant received another call from Chilango at about 7:10 p.m.

Chilango stated that he was at the gas station. At that point, the officer with the informant alerted surveillance officers, who went into the station and placed the defendant in custody. The officer then had the informant call Chilango’s phone number, and one of the surveillance officers answered the defendant’s phone.

At the police station, the officer overheard the defendant talking and recognized the defendant’s voice as the voice of Chilango.

Issue

The defendant argues that the police did not have probable cause to arrest him.

Probable Cause

A warrantless arrest is valid only if supported by probable cause.

Probable cause to arrest exists when the facts known to the police when they make the arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime. The existence of probable cause depends upon the totality of the circumstances at the time of the arrest. In addressing probable cause, we deal with probabilities.

They are the factual and practical considerations of everyday life on which reasonable and prudent people, not legal technicians, act.

Accordingly, whether probable cause exists depends upon commonsense considerations, and such a determination concerns the probability of criminal activity, rather than proof beyond a reasonable doubt. Indeed, probable cause does not require even a showing that the belief that the suspect had committed a crime was more likely true than false.

An Informant’s Tip

If the facts supplied in an informant’s tip are essential to a finding of probable cause, the tip must be reliable. People v. Johnson, 368 Ill. App. 3d 1073, 1081 (2006). An indication of the reliability of the tip is when the facts learned through police investigation independently verify a substantial part of the tip. People v. James, 118 Ill. 2d 214, 225 (1987).

The reliability of the informant is another fact to be considered. The reliability of the informant is enhanced if he is known to the police. However, if an informant is offered leniency in exchange for information that incriminates others, such information is clearly suspect.

Whether an informant has provided reliable information depends on the totality of the circumstances. 

Not A Confidential Informant

In the present case, the informant’s reliability was established under the totality of the circumstances.

The informant provided the tip in person while in police custody. This enhanced the reliability of the tip. A confidential informant is deemed more reliable than an anonymous informant. People v. Bryant, 389 Ill. App. 3d 500, 518-19 (2009); see also People v. Sanders, 2013 IL App (1st) 102696, ¶ 19 (recognizing the “difference between an anonymous tip and one from a known informant whose reputation can be ascertained and who can be held accountable if a tip turns out to be fabricated”).

Further, there was no evidence that the informant was given any specific inducement or promise in exchange for providing the information about the defendant and cooperating with the police.

Information Corroborated By The Officer

In addition, the informant’s reliability was enhanced by the fact that much of the information relied upon to establish probable cause was based on the officer’s personal observations during the phone calls between the informant and the defendant. People v. Blake, 266 Ill. App. 3d 232, 242 (1994) (noting that an informant’s reliability was enhanced because “much of the information relied on to establish probable cause was based on the police officer’s personal observations rather than mere anecdotal information supplied by the informant”).

Here, the officer listened in on all of the phone calls between the informant and the defendant. Much of the information provided by the informant was verified before the defendant’s arrest.

No Proven Track Record

The defendant argues that the informant was unreliable because there was no evidence that he had provided reliable information in the past. However, the lack of any such evidence does not change our conclusion. Prior reliable tips are simply one consideration in the totality of the circumstances as to whether the informant was reliable.

Analysis

This case involved an arranged purchase of narcotics of which the police had first-hand knowledge. This nullified much of the need for an informant with a proven track record.

In this case, unlike in the cases cited by the defense, the officer listened as the informant and the defendant set up a specific drug transaction, and, the informant was not anonymous and much of the information was corroborated prior to the defendant’s arrest. As there were other factors supporting the informant’s reliability, a track record of supplying reliable information was not critical.

The informant and the defendant reached a very specific agreement for the delivery of five ounces of cocaine, and the defendant arrived at the prearranged location. Further, there was no evidence that the informant was receiving any lessened punishment.

Holding

Under the totality of the circumstances, the police were aware of facts sufficient to lead a reasonably cautious person to believe that the defendant had committed a crime. 

Based on all the circumstances, there was a fair probability that the defendant had brought cocaine to the gas station.

The judgment of the circuit court of Du Page County is affirmed.

Informant’s Identity Was Not An Issue

As far as I can tell this informant was never identified in court and he did not testify. He clearly started making phone calls to prevent charges on himself. So there was a clear benefit to him. The only thing different here is that the police were there for all the phone calls, the negotiating and the plans for the transaction.

Interesting question is if this informant was a “transactional” witness? At one point, the informant tells the officer that he saw Chilango arriving at the gas station in a Toyota Rav 4. Was that admissible? This guy eventually confesses in the interrogation but I think these are interesting questions.

Transactional Informant

 The circumstances whereby disclosure of an unidentified informant is required are noted in Supreme Court Rule 412(j)(ii), which provides:

“Informants. Disclosure of an informant’s identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall not be denied hereunder of the identity of witnesses to be produced at a hearing or trial.” 

The standard is that disclosure required when an informant acted in the dual role of an informant-participant. A transactional informant has to be disclosed. See People v. Herron, 578 N.E.2d 1310, 218 Ill.App.3d 561 (September 1991). Where an informant’s knowledge is potentially significant on the issue of the defendant’s guilt or innocence, the defendant is prejudiced by the State’s denial of production.

On the other hand, where the unnamed informant was neither a participant nor a material witness to the essential elements of the offense, the informant is not a crucial witness and his identity can be withheld. In Illinois, the factors considered by courts under this balancing test are whether the requests for disclosure related to the fundamental question of guilt or innocence rather than to the preliminary issue of probable cause; whether the informant played an active role in the criminal occurrence as opposed to being a mere tipster; and whether it has been shown that the informant’s life or safety would likely be jeopardized by disclosure of his identity.

See also People v. Rose, 342 Ill.App.3d 203, 276 Ill.Dec. 754 (July 2003). Defendant has the burden to show that disclosure of the informant’s identity is necessary to prepare his defense. Deciding whether to require disclosure of this information involves balancing the public interest in protecting informants against a defendant’s right to prepare a defense. When informant is alleged to have participated in, witnessed, or helped to arrange the crime and disclosure will not jeopardize the informant’s safety, the privilege will generally give way to a defendant’s right to prepare his defense.

On the other hand, where the informant neither participated in nor witnessed the offense, the informant is not a crucial witness and his identity may be withheld.

In Episode 738 (Duration 35:06) Illinois attorney Daniel Epstein sat down with the Criminal Nuggets Podcast and told us about his vision for the Illinois Supreme Court.

In This Episode…

“These rules people don’t think about very much actually have a real impact on our substantive rights and whether we find truth in our courts.” — Daniel A. Epstein

How can the Illinois Supreme Court use its supervisory power to improve our criminal justice system?

Daniel has some big ideas that could make a big difference. For starters we can:

• Rewrite some of the rules of evidence
• Create broader criminal discovery (Go to 24:54)
• Allow some form of a criminal deposition (Go to 13:51)
• Listen to the entire episode to hear all of Daniel Epstein’s ideas.

Who Is Daniel Epstein?

Daniel Epstein is a candidate for justice of the Illinois Supreme Court. He’s running to be elected to the state’s highest court.

Before entering the race he was an attorney with Jenner & Block in Chicago and he worked on the following types of cases:

• Appeals
• Civil Rights
• Post Conviction Litigation
• Immigration
• Domestic Violence Orders of Protection
• Criminal Defense
• Complex Commercial Civil Litigation
• Intellectual Property
• Government Contracts
• Internal Investigations

Campaign Information

Evanston, IL
[email protected]

https://www.epsteinforsupremecourt.com/

“Can’t Miss” Moments:

✓ “The most important way that I’m different is that I’m talking about reform, and in particular, use of the court’s non adjudicative power.” – Daniel A. Epstein

✓ Did you know more than one third of the justices on the Supreme Court of the United States and the Illinois Supreme Court went from being attorneys straight to the supreme court without any prior judicial experience? (Go to 2:11)

✓ The Illinois Supreme Court is unique because it is not just a case decider it is also a policy maker. It writes the rules.  (Go to 2:58)

✓ “No one on the Supreme Court is a biometrician. They don’t do biometrics they review biometrics.” (Go to 4:15)

✓ The thing that got Daniel Epstein into the race was a case. It was an attempt murder case and it illuminated one glaring problem in our criminal justice system. (Go to 5:25)

✓ In this episode you’ll discover an answer to one of biggest puzzles affecting Illinois criminal justice reform: How does a guy like Jon Burge get away with doing what he did for 20 year? In other words, why didn’t the system uproot and reveal his malfeasance much sooner? (Go to 7:26)

✓ Are you comfortable with the fact that our forensic labs and our court system “earns” more money for every conviction it produces? See the Criminal And Traffic Assessment Act and the Statute on Fines, Fees,& Assessments. (Go to 8:34)

✓ “In order to keep the system alive there needs to be a flow of money. In some cases our courts have really contorted themselves in order to carry water for a legislature that has been unwilling to fund or system at a level that justice requires.” (Go to 12:15)

✓ Bond is about public safety and ensuring people come back to court. Bond is not about this one thing that Daniel finds outrageous. (Go to 12:30)

✓ It’s a well known secret that some Cook County prosecutors do this as a form of trial prep? It might be “legal” but also not what the rules intended. (Go to 18:14)

✓ We actually use to believe trial by ambush was the best system. We don’t believe that anymore. There is a better way. There’s nothing wrong from learning from our mistakes and reforming. (Go to 21:04)

✓ Why prosecutors may support and benefit from some of Daniel Epstein’s criminal justice reform ideas. (Go to 22:21)

✓ “An ounce of prevention is worth a pound of cure.” How true this is when applied to our criminal justice system. (Go to 23:49)

✓ What you need to know about the “Open File Rule.” Other states do it, it reduces the work load for prosecutors and it could make a big difference for us in Illinois. (Go to 24:54)

✓ Listen to what Daniel Epstein has to say about wrongful convictions. I asked if if it’s a large problem, a small problem or no problem at at? (Go to 28:26)

Links & Resources

• The Six Flags Biometrics Case
• Illinois Supreme Court Rule 402
• Jon Burge Notorious Chicago Detective Who Tortured Suspects
• Public Act 100-0987 The Criminal And Traffic Assessment Act
• Understanding Illinois’ New Court Fines And Fees Law
• Illinois Rule Of Evidence 414 On Criminal Depositions
• Illinois Rule Of Evidence 702 On Expert Witnesses

People v. Hill, 2019 IL App (4th) 180041 (January). Episode 584 (Duration 16:08)

Officer sees passenger riding low in the seat and he thinks it may be a guy wanted on warrant, turns out it wasn’t him.

Gist

Defendant was the driver of the car. The State charged him with unlawful possession of a substance containing less than 15 grams of cocaine.

Riding Low

In May 2017, around 10 a.m., Officer Robert Baker was parked in his squad car on west Route 36 near the 2200 block in Decatur when defendant’s Chevrolet Monte Carlo quickly decelerated to well below the speed limit, causing traffic to back up.

As the car drove by the officer, he noticed the passenger was reclined in the car with his head mostly obstructed by the side panel, where the seatbelt is attached, referred to by the officer as the “B panel.”

The officer then drove from his parked location in order to get a better look at the passenger. It was his experience that people wanted on warrants or concerned about rival gang members frequently ride in the same manner he was observing in order to remain concealed.

“Ain’t He Wanted On A Warrant?”

When he pulled up next to the vehicle, he was able to see the hair, face, skin tone, and apparent build of the passenger and believed him to be Duane Lee, a person he knew to be wanted on a traffic warrant.

He was able to see the entire left side of the passenger’s head and neck when he pulled up alongside defendant’s car on the driver’s side. He believed the person to be Lee based on the hair, face, skin tone, and apparent build of the person he observed in defendant’s vehicle.

Officer Baker was familiar with Lee from previous observations of him on the street throughout his time as a police officer, as well as his practice of keeping current on persons wanted on warrants. He explained he did this by regularly reviewing the department’s records of wanted people in Decatur and then viewing the most recent photos the Decatur Police Department had on those individuals.

Gonna Stop This Car

While waiting for a backup vehicle to arrive on the scene, the officer followed the vehicle.

He traveled approximately 30 blocks from when he first saw the car until it was ultimately stopped. It took some time to catch up to the car from his parked position, and believing the passenger to be wanted on a warrant he wanted another police vehicle in the vicinity before confronting the man.

In addition, he noted that once he activated his lights to effectuate the stop, it took several blocks for the car to actually come to a stop. In his experience, when this occurs during a traffic stop, the occupants of the vehicle may be concealing or attempting to conceal or destroy contraband. In such instances, he said, one of the most serious concerns is whether an occupant is seeking to retrieve a weapon.

Car Is Stopped

Once a backup squad car was near, Officer Baker initiated a stop of defendant’s vehicle. Approaching from the passenger side, he asked the passenger to identify himself and step out of the vehicle.

Immediately upon making contact with the passenger, smelled the odor of “raw” cannabis.

“What I Do Wrong?”

Upon being asked by defendant, the driver, what defendant did wrong, on the in-car video stipulated into evidence, Officer Baker said, “I thought [the passenger] was wanted, is why I stopped you, that’s why I stopped you.”

Directing his attention­ to the passenger, Officer Baker stated, “[A]ctually, to tell you the truth, I thought you were somebody else.” Within a matter of approximately 15 seconds, Officer Baker told the occupants he could smell raw cannabis in the car and said he observed a “bud” in the back seat.

Defendant Out The Car

After another police car arrived, defendant was asked to exit the vehicle and, after being patted down, to sit on the curb next to the car.

A search of the vehicle produced an unspecified amount of cannabis, described as being “much less than a pound or an ounce.” In addition, the officers found “a small rock that tested positive for crack cocaine” under the driver’s seat. Again, the specific amount was not identified.

Defendant was arrested while the passenger, once identified as someone other than the individual wanted on a warrant, was permitted to walk away.

Issue

Defendant filed a motion to suppress evidence of the cocaine found in the car, arguing the officer did not have reasonable suspicion for the stop and, alternatively, probable cause to search defendant’s car.

Trial judge grants the motion, in part, because the officer had no other corroborating evidence of identification.

Fourth Amendment

“The Fourth Amendment provides that ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ***.’ ” Terry v. Ohio, 392 U.S. 1, 8 (1968). The fourth amendment of the United States Constitution focuses on “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.”

“The law is well settled that stopping a vehicle and detaining its occupants constitute a ‘seizure’ within the meaning of the fourth amendment.” People v. Timmsen, 2016 IL 118181, ¶ 9, 50 N.E.3d 1092.

Investigative Stop

“[A] police officer may conduct a brief, investigatory stop of a person where the officer reasonably believes that the person has committed, or is about to commit, a crime.” Timmsen, 2016 IL 118181, ¶ 9. The standard for a stop is “reasonable, articulable suspicion.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). “Although ‘reasonable, articulable suspicion’ is a less demanding standard than probable cause, an officer’s suspicion must amount to more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity.” Timmsen, 2016 IL 118181, ¶ 9 (quoting Terry, 392 U.S. at 27).

Although clearly “seizures,” traffic stops are more like Terry investigative detentions than formal arrests and therefore may be reasonable if initially justified and reasonably related in scope to the circumstances that justified the interference in the first place.

Reasonableness Is The Standard

“[R]easonable suspicion determinations must be made on commonsense judgments and inferences about human behavior.” Timmsen, 2016 IL 118181, ¶ 14. “A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct.” United States v. Arvizu, 534 U.S. 266, 277 (2002).

In determining if there was reasonable suspicion for the stop, there is no bright-line rule, but instead the court is to consider the “totality of the circumstances of each case.” Timmsen, 2016 IL 118181, ¶ 18.

No Unlawful Behavior Required

The most significant distinction in this case is, however, that there is no need for the officer under these circumstances to be required to analyze and justify the stop based on any suspicion of unlawful behavior.

We do not have to surmise whether the actions of the vehicle or occupants were objectively suspicious. In fact, the defendant was apparently doing nothing illegal, other than perhaps rapidly decelerating once the marked police car was observed. This is because the basis for the stop was the result of an objective fact completely removed from the activity; i.e., the outstanding arrest warrant for a person whose appearance was found by the trial court to be “actually quite similar” to the passenger.

The Case Law: Safunwa

In People v. Safunwa, 299 Ill. App. 3d 707, 710, 701 N.E.2d 1202, 1204 (1998), the Second District found the trial court made a specific finding, upon close inspection, that the defendant did not resemble the photograph of the fugitive police thought was in the vehicle they stopped. As a result, they held, absent a finding the conclusion was erroneous, they were bound by it.

We have the identical situation in reverse.

This Case

Here it must be noted the trial court had determined the appearance of the passenger and suspect wanted on a warrant were “quite similar.” We should likewise defer to the trial court.

The behavior observed by Officer Baker both before and after activating his lights serves only to buttress the reasonableness of his suspicion. Had the passenger been Duane Lee, that fact alone would have justified the stop.

Therefore, the officer reasonably believed the passenger to be Duane Lee.

How Certain Does He Have To Be?

How certain does he have to be to execute a brief traffic stop?

In Safunwa, in spite of the trial court’s finding that upon close inspection the defendant did not look like the person wanted on the warrant, the appellate court found the officers reasonably believed defendant was the person wanted on a warrant based upon the similarity in height, weight, age, and similarity of mustache and hair style. 

The court found the officers were justified in making the stop and requesting identification. “Sufficient probability, rather than certainty, is the touchstone of reasonableness under the fourth amendment.” Safunwa, 299 Ill. App. 3d at 711).

The Case Law: Cummings

In Cummings, 2016 IL 115769, a traffic stop based on an outstanding warrant for the female owner of the vehicle, although initially valid, was rendered in violation of the fourth amendment once the officer approached the van and observed the driver to be a man. See Episode 131.

In explaining the rationale for its ruling, the Supreme Court noted that although before the stop the officer had determined the registration he initially believed to be expired was, in fact, valid, since he learned of the outstanding arrest warrant for the female owner and could not determine whether the driver was a female, the officer had a “reasonable suspicion” that the driver was subject to seizure.

In that case, the only factor making the initial stop valid was the unknown sex of the driver. No other traffic violation had been committed. After remand, the court still­ permitted the ordinary inquiries of checking for license and registration in spite of the fact that his reasonable suspicions disappeared as soon as he saw the driver was a male.

This Case

Even if this officer eventually, determined the passenger was not the man wanted on a warrant. The officer was still justified in continuing to engage with the car passengerss to determing basic information.

The Case Law: Hill

Hill, 401 U.S. 797, was a clear case of mistaken identity.

Police had probable cause to arrest person A, they reasonably mistook person B for person A, and they arrested person B. The Supreme Court concluded that, so long as the police had a “reasonable, good-faith belief” the person arrested was the one wanted on the warrant, the arrest was justified. Hill, 401 U.S. at 802.

This Case

Here, we are not talking about a full-blown arrest but merely the “brief detention” inherent in an investigatory traffic stop to check the identification of someone in the vehicle. “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials.” Heien v. North Carolina, 574 U.S. ___, 135 S. Ct. 530, 536 (2014).

“The limit,” they said, “is that ‘the mistakes must be those of reasonable men.’” Heien, 574 U.S. at ___, 135 S. Ct. at 536. (recall that Heien expanded the doctrine of mistake of fact into what it called reasonable mistakes of law).

The mistaken fact in this case was the actual identity of the passenger. Even the trial court agreed the passenger looked very similar to the person wanted on a warrant and concluded the officer was acting in good faith at the time of the stop.

Here the court is not called upon to assess the basis for the officer’s suspicions regarding a person’s behavior. It was simply a matter of “this looks like the guy I know to be wanted on a warrant.”

More Analysis

The trial court found the officer’s belief to be in good faith. When coupled with the court’s own recognition that the two­ individuals did in fact look very similar, we cannot conclude the stop was unreasonable. When viewing the photographs included in the record, the general physical description and the appearance of the two are similar. Looking closely at them, with sufficient time to analyze each photo, is it possible to say they look different? Of course.

But those were not the circumstances facing Officer Baker, and the trial court recognized that. Do we find the trial court’s conclusion the two looked very similar was unreasonable under the circumstances? No.

Where the trial court erred was in finding the officer either needed to be certain in his identification or be able to point to other corroborating evidence. This is not a situation involving the need for probable cause.

Activity Not In Question

Unlike those situations where the court is called upon to evaluate the reasonableness of an officer’s suspicion of behavior or actions upon which he relied to justify the stop, i.e., the reasonable, articulable suspicion of criminal activity, here the existence or nonexistence of suspicious criminal activity is irrelevant.

It is the status of the suspect at issue, not his or her actions.

The only question before the court in such a case is whether the officer was reasonable in his belief that the person he saw was the one wanted on the warrant. The Supreme Court has said “certainty” is not required, thereby addressing the first basis upon which the trial court granted the suppression motion.

As to the second basis, the need for some form of independent corroborative evidence, we also find no case requiring some sort of independent corroboration in order to effectuate a brief traffic stop in order to ascertain the identity of an occupant whom officers reasonably suspect to be wanted on a warrant.

This Was Not An Arrest

It is true that where courts are reviewing whether officers had probable cause to arrest someone suspected as wanted on a warrant, more may be required since we are moving from a brief investigative detention to a full-blown arrest. In People v. Gordon, 311 Ill. App. 3d 240, 246-48, 723 N.E.2d 1249, 1253-55 (2000), the Second District discussed Hill, 401 U.S. 797, within the context of mistaken arrests. It noted how the Supreme Court in Hill found that, as long as police had probable cause to arrest one party, a reasonable mistake as to the identity of a second party actually arrested would still constitute a valid arrest.

 “‘[T]he seizure of an individual other than the one against whom the warrant is outstanding is valid if the arresting officer (1) acts in good faith, and (2) has reasonable, articulable grounds to believe that the suspect is the intended arrestee. Should doubt as to the correct identity of the subject of [the] warrant arise, the arresting officer obviously should make immediate reasonable efforts to confirm or deny the applicability of the warrant to the detained individual.’”

Gordon, 311 Ill. App. 3d at 249 (quoting Sanders, 339 A.2d at 379).

Remember All Those ILU Cases

See Episode 572 – People v. Mueller, 2018 IL App (2d) 170863 (December) (Jeep touches he traffic lines 3 times and gets stopped, reasonable?)

In these cases may or may not have committed improper lane use (ILU).

• People v. Hackett, 2012 IL 111781,  ¶ 9
• People v. Smith, 172 Ill. 2d 289, 297 (1996)
• People v. Flint, 2012 IL App (3d) 110165, ¶¶ 8, 17 and
• People v. Leyendecker, 337 Ill. App. 3d 678, 680, 682 (2003)

See Also

• Episode 232 – People v. Lubienski, 2016 IL App (3d) 150813 (September) (Crossing The Line One Time Justifies A Traffic Stop)
• Episode 434 – People v. Lomeli, 2017 IL App (3d) 150815 (December)(Traffic Stop Based On Dangling Rosary Is Legal)
• Episode 142 – People v. Little, 2016 IL App (3d) 130683 (February)(Reasonable Suspicion Does Not Require Ruling Out All Innocent Behavior)

Although stops may frequently be supported by the classic “probable cause” necessary for arrest, the less exacting standard of “reasonable, articulable suspicion” is also sufficient. A police officer may conduct a brief, investigatory stop of a person where the officer can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.

Must Be Reasonable Mistakes

“Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.”

Almost 50 years later, the Court was still seeking to define the difference between “reasonable suspicion” and “probable cause.” In Ornelas, 517 U.S. 690, it noted the impossibility of articulating it precisely. “They are commonsense, nontechnical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Ornelas, 517 U.S. at 695 (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)).

The Court said it has described “reasonable suspicion simply as ‘a particularized and objective basis’ for suspecting the person stopped of criminal activity.” Ornelas, 517 U.S. at 696. It considered reasonable suspicion a fluid concept to be decided on its own facts and circumstances and found the primary components to be the events leading up to the stop and then the decision whether these historical facts viewed from the standpoint of an objectively reasonable police officer amounted to reasonable suspicion. Ornelas, 517 U.S. at 696.

Nonetheless Corroboration Not Needed

We do not believe there is a specific legal requirement articulated by any published Illinois case requiring an officer under these circumstances to be able to point to some “corroborative facts” other than his reasonable suspicion.

He Was Certain Enough

(1) In the case before us, the trial court had the additional facts of the unusual driving behavior upon seeing the marked squad car, along with the seating of the passenger to consider. These were relevant to the officer and buttressed his suspicion the passenger was, in fact, the wanted person he quite similarly resembled.

(2) In addition, the trial court had available to it the subsequent actions of the officer before effectuating the stop. Officer Baker was sufficiently certain the passenger was Lee that he wanted another police officer present for backup and followed the vehicle for a full 30 blocks until one arrived. Being familiar with Lee, Officer Baker knew the need for more than one officer necessitated that he call to have someone leave their normal patrol area to assist him. Had he been less certain, it is unlikely he would have bothered.

(3) Further, when viewing the photographs, the trial court concluded they were very similar.

Plus There Was That Odor…

Defendant argues that smelling cannabis cannot create probable cause because Illinois decriminalized marijuana possession under 10 grams.

We disagree.

Marijuana possession remains unlawful.

As the First District stated in In re O.S., 2018 IL App (1st) 171765, ¶ 29, 112 N.E.3d 621, “decriminalization is not synonymous with legalization.” In People v. Stout, 106 Ill. 2d 77, 477 N.E.2d 498 (1985), our supreme court said an officer has probable cause to conduct a search of a vehicle if he smells the odor of a controlled substance coming from the vehicle and it is shown he has the necessary training and experience to detect controlled substances.

This law remains unchanged.

Fresh v. Burnt

In People v. Smith, 2012 IL App (2d) 120307, 982 N.E.2d 234, the Second District addressed the issue of “fresh” versus “burnt” cannabis and found no basis for distinguishing the two when determining whether the smell may form the basis for probable cause for a police officer’s subsequent search. In Smith, the officer testified, as he approached the driver’s side of the vehicle, he smelled “a slight odor of cannabis” coming from inside the vehicle, which he said smelled “fresh.”

The court considered the language of Stout, quoted above, and found, as do we, there was no modifier preceding cannabis and there was no reasonable basis to limit its holding only to “burnt” cannabis. Smith, 2012 IL App (2d) 120307, ¶ 16. The Smith court pointed to a long list of cases outside Illinois involving raw versus burnt cannabis in which “the smell of marijuana [is] alone sufficient to furnish probable cause to search a vehicle without a warrant.” (Internal quotation marks omitted.) Smith, 2012 IL App (2d) 120307, ¶ 19. 

See Also

• Episode 556 – The Best Reason To Change The “Smell Of Cannabis” Rule
• Episode 509 – Analysis of In re O.S. The Stench Of Weed Still Supports Probable Cause For A Full Vehicle Search
• Episode 340 – Kim Bilbrey on The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant
• Episode 015 – Police Car Search Legal in Illinois if They Smell Marijuana…Police Officer Describes A Faint Odor Of Marijuana
• Episode 276 – You Just Can’t Ignore The Stench Of Weed In An Auto Accident
• Episode 196 – Dog Sniff Alert To Drugs Will Lead To Car Search
• Episode 207 – With Ken Wang – Give Us 24 Minutes And You’ll Get a Comprehensive Debriefing on The New Illinois Marijuana Law
• Episode 251 – With Jeffrey Hall –  On The Latest Developments And Problems With The Illinois Cannabis Decriminalization Law

Cannabis Consistent With Crime

The State noted the court in O.S. found that even in Colorado, where possession of an ounce of cannabis has been legalized, not merely decriminalized, the state supreme court still considers the odor of marijuana to be relevant to a probable cause determination and can support an inference that a crime is ongoing, even though possession of an ounce or less is legal.

We find their reasoning just as applicable here because a “substantial number of other marijuana-related activities remain unlawful.” People v. Zuniga, 2016 CO 52, ¶ 23, 372 P.3d 1052. It was for that reason they concluded “the odor of marijuana is still suggestive of criminal activity.” Zuniga, 2016 CO 52, ¶ 23.

True You Can’t Determine Quantity From The Smell

Defendant provides no rationale for requiring police officers to somehow ascertain the quantity of marijuana before the search in order to determine whether probable cause exists. In fact, such a requirement would be unworkable and contrary to the current body of law.

It would lead to an absurd result where police officers, after performing a traffic stop, smelled the odor of cannabis emanating from the vehicle but could not investigate it further unless they knew the amount involved. Here, as the trial court concluded, the search was clearly justified upon establishing probable cause for the search.

Little Bonus

Once Officer Baker smelled the odor of cannabis, probable cause for the search existed.

The fact that he almost immediately observed cannabis in plain view was merely an added bonus.

Holding

Having concluded the suspicions of the officer were reasonable under the circumstances, the trial court’s decision to grant the motion to suppress due to a lack of certainty as to the identity of the passenger or lack of other corroborative facts was erroneous in that it placed an additional burden on the officer seeking to effectuate such a stop for which we can find no support in the law.

We reverse and remand for further proceedings consistent with this opinion. 

People v. Shoevlin, 2019 IL App (3d) 170258 (January). Episode 583 (Duration 11:04)

Serious double jeopardy concerns are raised when the judge declares a mistrial in this domestic battery case.

Gist

In this trial for domestic battery the defendant is a women.

She is accused of choking, scratching, and hitting her husband in the face with her keys. They got into an argument on who was getting the kids over the weekend.

Closing Argument

During closing argument counsel for the defense stated that defendant

“had been scorned and he wanted to break [defendant’s] heart; he wanted to break her as a person and ruin her life. That’s why after January 21, 2016[,] he came to this courthouse and filed dissolution of marriage. He wants to take the house from her, he wants to take her kids from her, and he wants to ruin her life. He knows that if she gets a conviction in this case, her kids are going to be taken away.”

Counsel continued,

“That’s why he’s making all of this up and why the State can’t prove this case beyond a reasonable doubt. It didn’t happen.”

Judge Perturbed

For some reason this really annoyed the judge.

The Judge said he thought counsel’s statement prejudiced the jury. The court asked defense counsel:

“Why would you say that her kids are going to be taken away? Why would you say that? The jury now thinks that if she gets a conviction that as a function of law her kids will be taken away. I can’t think of anything more prejudicial.”

“Another thing that we tell [the jury] is that they cannot have sympathy for one side or the other in a jury trial. You can’t get up there and say look at this poor woman, look what’s going to happen to her if she gets convicted, which was the sum total of what it was that you said when you told the jurors remember, she gets convicted, she loses her children. You made an iron clad statement as if it was an ipso facto thing, conviction, loses the children. Now, I know what you meant, and that isn’t what you meant in a legal sense, but the jury couldn’t make that distinction. And another thing we tell them is don’t take the punishment into account, but you were telling them in advance take that into account. She gets convicted, she is losing her children.”

State Moves For A Mistrial

Immediately thereafter, the State moved for a mistrial.

Mistrial Granted

After recessing for five minutes, the court returned and announced:

“I’ve thought about this and there are only two other things I could do, potentially. First, I could give an instruction telling the jury to disregard that statement, but then they will think that [defense counsel] was correct when he made that statement. I could give an instruction telling the jury to completely disregard [defense counsel] because he doesn’t know what he’s talking about, but that would completely prejudice the jury against the defendant and if [she] were convicted in this case [defense counsel’s] ineffective assistance of counsel will be the first issue heard on appeal. I don’t think [defense counsel] intentionally said what he said or that he wanted to prejudice the jury. He was doing very well up until that statement. I’m granting the mistrial…the State’s entitled to a fair trial, okay? They couldn’t get up there and say whoa, whoa, whoa, wait a minute, she is not going to lose her kids, that’s not going to happen, don’t listen to that.”

Motion To Dismiss On Double Jeopardy

After the trial court set a date for a new trial, defendant filed a motion to dismiss alleging that a new trial would violate the double jeopardy clause of the fifth amendment. Defendant argues that the trial court erred in denying her motion to dismiss the subsequent criminal complaint on double jeopardy grounds because no manifest necessity existed to declare a mistrial.

Defendant Didn’t Object

While we agree that a defendant who consents to a mistrial, either explicitly or implicitly, generally may not assert that double jeopardy bars her subsequent retrial, that is not what happened here.

In this case, defendant never had an opportunity to object to the State’s request for a mistrial. Instead, as soon as the State requested the mistrial—immediately following the trial court’s “I can’t think of anything more prejudicial” remark—the court asked defense counsel, “what do you suggest I do to remedy this?” Defense counsel responded to the court’s question, essentially arguing against the request for a mistrial, by stating that the jury would understand he was referring to Edward’s state of mind rather than making a statement of law.

This argument shows defendant neither explicitly nor implicitly agreed to the mistrial.

The court then took a 5 minute recess, and when it came back without seeking further comment from either party declared the mistrial. Based on the speed in which the below proceedings occurred, we find that defendant did not have an opportunity to object to the State’s request for mistrial.

The Double Jeopardy Clause

The fifth amendment to the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. The Illinois Constitution likewise provides that “[n]o person shall be compelled in a criminal case to give evidence against himself nor be twice put in jeopardy for the same offense.” Ill. Const. 1970, art. I, § 10; see also 720 ILCS 5/3-4(a)(3). 

The double jeopardy clause protects against

(1) a second prosecution for the same offense following acquittal, 
(2) a second prosecution for the same offense following conviction, and 
(3) multiple punishments for the same offense.

The constitutional protection against double jeopardy attaches once the jury is impaneled and sworn. This is so because a defendant is entitled to have his or her trial completed before a particular tribunal. A second trial increases the financial and emotional burden on the accused, prolongs the period in which he or she is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted.

As such, the State is generally entitled to only one opportunity to prosecute a defendant.

How A Mistrial Effects Double Jeopardy

Where a trial court declares a mistrial without the defendant’s consent, it deprives the defendant of his “valued right” to have a particular tribunal decide her fate. Thus, when a trial court declares a mistrial without the defendant’s consent, a second trial is prohibited unless the State demonstrates a manifest necessity for the mistrial.

In determining whether manifest necessity exists for a mistrial, the trial court must balance the defendant’s interest in having the trial completed in a single proceeding, reserving the possibility of obtaining an acquittal before that particular tribunal, against the strength of the justification for declaring a mistrial rather than attempting to continue the trial to a verdict.

The circumstances must be very extraordinary and striking. The necessity for a mistrial must be imperious.

Mistrial Double Jeopardy Factors

A number of factors may be considered in determining whether a “manifest necessity” warranted a mistrial, including:

(1) whether the difficulty was the product of the actions of the prosecutor, defense counsel, or trial judge, or was events over which the participants lacked control
(2) whether the difficulty could have been intentionally created or manipulated by the prosecution to strengthen its case
(3) whether the difficulty, prejudice, or other legal complication might have been ‘cured’ by another alternative that would have preserved the trial’s fairness
(4) whether the trial judge actually considered the alternatives to a mistrial
(5) whether a subsequent conviction would be subject to reversal on appeal
(6) whether the trial judge acted in the heat of the trial confrontation
(7) whether the trial judge’s decision rested on an evaluation of the demeanor of the participants, the ‘atmosphere’ of the trial, or any other factors that similarly are not amenable to strict appellate review
(8) whether the trial judge granted the mistrial solely for the purpose of protecting the defendant against possible prejudice
9) whether the evidence the State presented, prior to the mistrial, suggested a weakness in its case (e.g., a witness failed to testify as anticipated)
(10) whether the jurors had heard enough of the case to formulate some tentative opinions
(11) whether the case had proceeded so far as to give the prosecution a substantial preview of the defense’s tactics and evidence and
(12) whether the composition of the jury was unusual.

It is of the utmost importance that a trial court carefully considers all reasonable alternatives prior to declaring a mistrial. Whether the trial judge gave counsel an opportunity to be heard regarding a mistrial is of major importance, as is the amount of time devoted to the mistrial decision. A hasty decision, reflected by a rapid sequence of events culminating in a declaration of a mistrial, tends to indicate insufficient concern for the defendant’s constitutional rights.

Defendant Was Not Driving This Bus

In this case the trial court sua sponte removed the jury from the room and questioned defense counsel regarding his closing argument—an argument to which the State did not object. While the State ultimately requested a mistrial, it did so only after the court announced that it could not “think of anything more prejudicial” than counsel’s statement.

The court proceeded to reject each remedy it thought of during its five minute recess and immediately declared a mistrial without seeking further input from defense counsel or the State. The trial court’s decision to grant the mistrial in this case after the jury heard all the evidence was clearly a hasty decision.

Sure The Statement Was Improper

We agree with the trial judge that defendant’s argument was improper.

However, based on the totality of the evidence presented in this case, the jury was well aware that the parties were divorcing, that the husband was seeking custody of the children, and that DCFS was involved in some manner. In fact, defense counsel’s theory of the case was that the husband fabricated the incident to give him an advantage in the dissolution and custody proceedings.

Holding

Thus, we find that defense counsel’s closing statement in this case did not justify the trial court’s declaration of a mistrial.

Because the State failed to demonstrate a manifest necessity for the mistrial, we reverse the trial court’s denial of defendant’s motion to dismiss the subsequent criminal complaint on double jeopardy grounds.

We reverse the judgment of the circuit court of Will County.

See Also

• Episode 398 – People v. Kimble, 2017 IL App (2d) 160087 (September) (judge declares a mistrial too early and now the state cannot recharge defendant).
• Episode 279 – People v. Staple, 2016 IL App (4th) 160061 (December) (defendant plead guilty to misdemeanor DUI, so the trial judge dismissed the felony DUI without implicating double jeopardy)
• Episode 389 – People v. Threatte, 2017 IL App (2d) 160161 (August) (prosecutor got sick in the middle of trial and mistrial was declared)
• Episode 040  – People v. Guillen, 2014 IL App (2d) 131216 (November) (defendant tried to plead guilty to a misdemeanor DUI, the the judge allowed them to dismiss the charges so they could indict on felony charges)
• Episode 041 – More on Double Jeopardy Definition

People v. Relwani, 2019 IL 123385 (January). Episode 582 (Duration 10:18)

Defendant needed to say something about the private nature of the Walgreen’s parking lot.

Here’s the lower court opinion.

People v. Relwani, 2018 IL App (3d) 170201 (February). Episode 471 (Duration 7:01)

Charges

Defendant was charged with driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2)).

Found In His Car

He was found alone in an altered or partially unconscious state behind the steering wheel of a running car in a Joliet Walgreens parking lot at about 3:30 a.m. Under the Illinois implied consent statute (625 ILCS 5/11-501.1), his driver’s license was summarily suspended by the Secretary of State.

Issue

Defendant claims that rescission is warranted because he was arrested in a privately owned Walgreens parking lot that did not meet the definition of a “public highway,” as required by the implied consent law.

The dispositive question in this appeal is narrow:

Was a defendant seeking rescission of the statutory summary suspension of his driver’s license required to offer affirmative evidence to satisfy his initial burden of making a prima facie showing that he was not on a “public highway” while in control of his car?

Defendant Testified

At the hearing on his petition to rescind, defendant was the only witness.

He said he was parked in a Walgreens parking lot located at 1801 Ingalls Avenue in Joliet and was sleeping behind the wheel of his car when he was woken up by police officers, who arrested him for DUI.

During the State’s cross-examination, defendant was often unable to provide clear or responsive answers.

He admitted, however, that the police found him in his car with the keys in the ignition and the engine running. When the State asked whether the reason he did not remember performing some field sobriety tests was “because he was intoxicated and had taken heroin and clozapine (a psychotropic drug used as an antipsychotic medication) that night,” defendant answered,

“I, I don’t know. I guess.”

While defendant was able to confirm he told the police that he “had been driving from the restaurant in Chicago with his family” earlier that evening, he did not recall if he also told them that he had “used heroin and clozapine for his birthday that night” and was “not sure” whether “there was an open bottle of Budweiser beer in his car.”

Directed Finding Granted

At the close of defendant’s case, the State successfully moved for a directed finding, arguing that he had not met his burden of proof in seeking rescission of his statutory summary suspension.

The judge said “here, we have not truly established the fact, by the petitioner’s case, that this truly was—they said he was in the Walgreens, that it was a privately-owned parking lot. If I don’t know that, I can’t assume that simply because it is the parking lot of Walgreens.”

The trial court denied defendant’s motion to reconsider.

Public Highway

A parking lot would be considered a “public highway” for summary suspension purposes if it is publicly maintained and open to the public for vehicular travel. See 625 ILCS 5/1-126 (defining “highway” for purposes of the Illinois Vehicle Code).

A “highway” is defined as “the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel or located on public school property.” 625 ILCS 5/1-126.

While on its face the idea that a parking lot can be a “public highway” may seem to be easily dismissed, “a parking lot that is publicly maintained and open to use by the public for vehicular travel will constitute a ‘highway,’ even if the parking lot is on privately owned property.” People v. Helt, 384 Ill. App. 3d 285, 288 (2008).

Implied Consent Requires Public Highway

Under the Illinois Vehicle Code, the implied consent statute in DUI cases states:

“Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent *** to a chemical test or tests of blood, breath, other bodily substance, or urine for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds or any combination thereof in the person’s blood if arrested *** [for a DUI offense] ***.”

625 ILCS 5/11-501.1(a).

Critically, for purposes of the Illinois Vehicle Code,  Based on that definition, a property is a “public highway” within the meaning of the implied consent statute if it is both “publicly maintained” and either open to use by the vehicular public or it constitutes public school property. 625 ILCS 5/1-126.

The Orth Standard

In People v. Orth, 124 Ill. 2d 326, 337-38 (1988), this court concluded that “the motorist, who is requesting judicial rescission of [a summary] suspension, should bear the burden of proof” and must present a prima facie case supporting that request.

While defendant agrees that he was required to establish a prima facie case to support his rescission request, he maintains that he met that burden by relying on the purported inference that any parking lot by a Walgreens store is private property.

If, and only if, defendant makes a sufficient prima facie showing, thereby avoiding a directed finding, “the burden will shift to the State to come forward with evidence in rebuttal justifying suspension.” Orth, 124 Ill. 2d at 338.

In Orth, the motorist argued that the statutory summary suspension of his driver’s license should be rescinded because the result of his breath test was unreliable.

Prima Facia Case

This court explained that to make a prima facie case, the motorist had to present evidence “of any circumstance which tends to cast doubt on the test’s accuracy, including, but not limited to, credible testimony by the motorist that he was not in fact under the influence of alcohol.

If the trial judge finds such testimony credible then the burden shifts to the State. Orth, 124 Ill. 2d at 341. In making a prima facie case, a defendant “has the primary responsibility for establishing the factual and legal bases” for the requested action.

A prima facie case is “a party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” Black’s Law Dictionary 1310 (9th ed. 2009).

He Said He Was In A Walgreen Parking Lot

Applying that standard to defendant’s contention in this case, he had to offer evidence that the trial court found to be credible. In addition, to ward off the State’s motion for directed verdict and shift the evidentiary burden to the State, defendant’s proffered evidence had to “tend to cast doubt on” whether the parking lot constituted a “public highway” as defined by the relevant statute.

Our examination of the record reveals that the only portion of his testimony that even tangentially related to whether the parking lot was a “public highway” was even more abbreviated. In its entirety, that testimony consisted of two short colloquies. Where defendant is asked if he was in a Walgreen’s parking lot and he answered “yes.”

Defendant asserts this purported inference: the parking lot by the Joliet Walgreens store where police found him is private property, not a “public highway” as defined in the Illinois Vehicle Code. The sole basis for defendant’s claimed inference is, necessarily, the above-quoted testimonial snippets.

Nonetheless, he contends that an inference based on those brief snippets is sufficient to overcome his burden of making a prima facie showing that the parking lot was outside the reach of the implied consent statute.

We disagree.

Analysis

As we have explained, to make his prima facie case, defendant had to offer evidence that “tend[ed] to cast doubt on” whether that parking lot was “publicly maintained” or open to use by the motoring public. See 625 ILCS 5/1-126.

The sum total of the substantive evidence defendant offered on the relevant question in this case consisted of (1) the lot’s association with a Walgreens store and (2) its street address. Defendant’s testimony did not even specify the proximity or physical connection of the parking lot to the storefront or the location of his car within the parking lot.

To make his prima facie case, defendant was obliged to produce “enough evidence to allow the fact-trier to infer the fact at issue and rule in his favor.” Black’s Law Dictionary 1310 (9th ed. 2009).

Here, defendant’s mere reference to “Walgreens,” without more, establishes nothing about either the identity of the entity that maintained the lot or the public’s use of the lot. Those are the essential substantive components for a prima facie showing that the parking lot was not a “public highway” within the meaning of the relevant statutes.

Defendant must provide some affirmative evidence and cannot rely on a passing reference and mere supposition to avoid a directed finding. Here, defendant’s prima facie showing fell well short of the required mark.

Holding

We conclude the trial court’s finding that defendant failed to present a prima facie case for rescission is not against the manifest weight of the evidence. It is certainly not clearly evident from the minimal evidence defendant presented that the trial court should have arrived at the opposite conclusion or that its conclusion was unreasonable, arbitrary, or not based on the evidence.

Affirmed.

Defendant was required to offer some affirmative evidence that the parking lot where he was arrested for DUI was not a public highway within the definition in the Illinois Vehicle Code to make his prima facie case and fend off the State’s motion for a directed finding. Because he failed to provide that quantum of evidence, we uphold the trial court’s directed finding for the State.

What He Could Have Done

After all, property constitutes a “public highway” only if it is both “publicly maintained” and either open to use by the vehicular public or is public school property. 625 ILCS 5/1-126 (West 2016) (defining “highway” for purposes of the Illinois Vehicle Code). To avoid a directed finding against him, defendant could have made a prima facie offering of evidence that tended to cast doubt on either one of those statutory requirements.

It was not truly burdensome for defendant to provide some affirmative evidence simply tending to cast doubt on the parking lot being publicly maintained. Subpoenas or extensive searches of property records would not have been required to support his initial claim.

By focusing on the alleged difficulty of determining whether a public entity maintains the parking lot, he ignores the equally viable option of making his prima facie case by offering affirmative evidence that tends to cast doubt on whether the parking lot is open to public use.

Something as simple as evidence of a posted “private property” sign may, in the proper circumstances, suffice to satisfy the prima facie burden of proof in a rescission action, shifting the burden to present evidence on the lot’s “public highway” status to the State.

Here, defendant did not attempt to make even that minimal showing.