Kane County Nuggets

In re T.J.D., 2017 IL App (5th) 170133 (November). Episode 449 (Duration 11:39)

Petitioner has to prove he poses "no risk" to reoffend even though evaluators never go beyond a "low risk" assessment.

The court entered an adjudication and disposition order on April 14, 2011, which required respondent to register as a juvenile sex offender under the Act. 730 ILCS 150/3-5.

Respondent was also placed on probation for five years and home electronic monitoring for 12 months. Respondent registered as a juvenile sex offender. Respondent was discharged from probation and subsequently filed filed a petition to terminate his sexual offender registration pursuant to section 3-5(d) of the Act. 730 ILCS 150/3-5(d).

Under this section of the Act, a court may terminate the registration of an adjudicated juvenile delinquent if he or she shows, by a preponderance of the evidence, that he or she “poses no risk to the community.” 730 ILCS 150/3-5(d).

In support of respondent’s contention that he posed no risk to the community, respondent asserted that he had completed a current risk assessment, which

• recommends he be removed from registration
• he successfully completed individual sex offender treatment
• his sexual offender history and recommendations from counselors indicate he is a low risk and
• requires no supervision or restrictions
• he has resided and attended school in the community without any incidents; and
• the continued requirement of registration presents an undue burden.

The relevant section of SORA provides:

“(d) The court may upon a hearing on the petition for termination of registration, terminate registration if the court finds that the registrant poses no risk to the community by a preponderance of the evidence based upon the factors set forth in subsection (e). ***

(e) To determine whether a registrant poses a risk to the community as required by subsection (d), the court shall consider the following factors:

(1) a risk assessment performed by an evaluator licensed under the Sex Offender Evaluation and Treatment Provider Act [(225 ILCS 109/1 et seq. (West 2014))];
(2) the sex offender history of the adjudicated juvenile delinquent;
(3) evidence of the adjudicated juvenile delinquent’s rehabilitation;
(4) the age of the adjudicated juvenile delinquent at the time of the offense;
(5) information related to the adjudicated juvenile delinquent’s mental, physical, educational, and social history;
(6) victim impact statements; and
(7) any other factors deemed relevant by the court.

(f) At the hearing set forth in subsections (c) and (d), a registrant shall be represented by counsel and may present a risk assessment conducted by an evaluator who is licensed under the Sex Offender Evaluation and Treatment Provider Act.”

730 ILCS 150/3-5(d), (e), (f) (West 2014).

Attached to respondent’s petition was a psychosexual risk assessment and evaluation prepared by Linda Stover, a licensed sex offender evaluator.

Based on her review of records, clinical interviews, written assessments, and stable and acute risk factors, Stover concluded that respondent should be considered a low risk to the community.

Stover opined that respondent had demonstrated he can live an offense-free life and should be given the opportunity to continue his life without having to register as a sex offender. Stover further stated that respondent had completed everything the court asked of him, he assumes full responsibility for his actions, and he “is very remorseful for all of it.” Stover strongly recommended that respondent be removed from the registration law.

The State’s own evaluator stated that respondent had participated in both residential and outpatient sex offense specific treatment and that he successfully completed the treatment with highly positive reports from his treatment providers. Adkerson opined that respondent had demonstrated a number of strengths in dynamic risk areas and had shown patterns of behavior associated with decreased risk for sexual offense recidivism. Adkerson found the risk of respondent’s recidivism to be very low.

Regarding registry removal requirements in Illinois, Adkerson opined:

“Illinois requires a finding that the individual pose no risk to the community to be appropriate for registry removal, which presumably would be a risk level equivalent to community members at large. A finding of no risk is not possible, as some risk for sexual offense exists even among the general population for whom no prior sexual offenses have been identified.”

In sum, Adkerson recommended that respondent be released from his sex offender registry requirements because there “is every reason to believe” respondent would not reoffend, and because remaining on the sex offender registry creates risk of destabilization in housing and employment which in turn undermines best functioning.

The court called the factual basis underlying the adjudication both “disturbing and disgusting” and observed that both of respondent’s victims were between two and four years old at the time the offenses were committed.

The court found the evidence clearly demonstrated respondent gained the trust of the victims and the victims’ parents, and after doing so, respondent repeatedly molested the children over a period of months until he “grew bored.” The court noted that respondent chose L.B., one of the victims, because “he could get away with it and she would be easy.”

The court further concluded that respondent’s testimony lacked credibility.

The court found there were inconsistencies regarding respondent’s testimony, which were not explained to the court’s satisfaction, and observed respondent’s manner and tone to be “well-rehearsed” and “less than forthright.

In its conclusion, the court stated, in relevant part:

“[T]he Court finds [respondent] has failed to prove by a preponderance of the evidence that he poses ‘no risk’ to the community. Both experts found him to be low risk. The Court is unwilling to give that statutory direction a lesser meaning. The Legislature chose to make the standard ‘no risk.’ Low risk is not the same as no risk. The Court finds by a preponderance of the evidence that [respondent] is a low risk to the community; however, that does not meet the standard set out in 730 ILCS 150 3/5. Based on the evidence presented, the Court cannot find the burden to prove he is no risk to the community has been met.”

Turning to the merits, respondent argues the “no risk” requirement under section 3-5(d) of the Act—which, if proven by a preponderance of the evidence, permits a court to terminate an individual’s sexual offender registration—creates an impossible burden to obtain and renders this statutory provision meaningless.

Respondent requests that this court reverse and remand this cause with directions regarding the reasonableness of “no risk” under section 3-5(d).

In support of his argument, respondent asserts that experts in the field of sex offender treatment will never make a formal finding lower than “low risk.

Respondent contends it is irrational that a court must make a finding of “no risk” in order to terminate sexual offender registration, but must consider a risk assessment performed by a licensed evaluator pursuant to section 3-5(e) of the Act which will not label a petition lower than “low risk.” Respondent further argues the legislative history indicates the court was intended to have discretion in determining whether to grant a petition to terminate sexual offender registration, and the plain language of the statute has stripped the court of that discretion.

After careful consideration, we do not find the statutory language at issue to be ambiguous. Section 3-5(d) clearly requires the court to make a finding, by a preponderance of the evidence, that the applicant poses “no risk” to the community. 730 ILCS 150/3-5(d). Here, we find nothing which suggests “no risk” within the meaning of section 3-5(d) is ambiguous or absurd.

Further, contrary to respondent’s assertion, we do not find this provision creates an impossible burden for respondent to obtain. To obtain relief, the legislature adopted a preponderance of the evidence as the burden of proof. Our supreme court has defined a preponderance of the evidence as that evidence which renders a fact more likely than not. After careful consideration, we find this burden is not unreasonable or impossible to satisfy. If the statute employed an “impossible burden” as respondent suggests, it would be a much heavier burden of proof such as beyond a reasonable doubt or clear and convincing evidence.

By adopting a preponderance of the evidence as the burden of proof, the legislature afforded petitioners the opportunity to prove they pose “no risk” to the community.

In this case, the court, after considering the factors outlined in section 3-5(e) of the Act (which included the evaluations concluding respondent was a low risk to the community), simply determined respondent failed to meet that burden. It is clear that the burden of proof adopted by the legislature is not unreasonable or unattainable.

In sum, we do not find that the “no risk” requirement under section 3-5(d) creates an impossible burden. Although we agree the statute creates a very high burden on respondent, a showing of “no risk,” while under limited circumstances, is not unreasonable or impossible to obtain. It was possible for respondent to prove he posed no risk to the community by a preponderance of the evidence.

We further note that the offenses committed by respondent are a far cry from the “less serious sex offenses” section 3-5 is intended to protect. For these reasons, we reject respondent’s argument.

In light of the foregoing, we cannot say that the trial court’s decision denying respondent’s petition was against the manifest weight of the evidence. As a reviewing court, we will not reverse a trial court’s decision simply because we might have reached a different conclusion based on conflicting evidence. Here, although we may have weighed the evidence differently, we cannot say the court’s judgment was unreasonable, arbitrary, or not based on the evidence.

Accordingly, we reject respondent’s argument. In sum, we conclude that section 3-5(d) of the Act clearly requires an individual to prove he poses “no risk” to the community by a preponderance of the evidence in order to permit a court to terminate his or her sexual offender registration. This is not an impossible burden to obtain. However, considering that medical experts refuse to label an offender as “no risk” (the lowest recognized category by the treatment providers in this case was “low risk” or “lowest possible risk”), we encourage the legislature to reconsider that standard. We further conclude that the court’s decision denying respondent’s petition was not against the manifest weight of the evidence. For these reasons, we affirm the order of the circuit court of Williamson County, denying respondent’s petition to terminate his sexual offender registration.

• Episode 321 - People v. Pearse - SORA is One Big Bloody Mess Says Illinois Supreme Court
• Episode 322 - People v. Gomez - State Failed To Prove Defendant Was Living In The City – Failure To Register Reversed
• Episode 386 - Packingham v. North Carolina - North Carolina Law Forbidden Sex Offenders From Going Online Stricken Down
• Episode 406 - People v. Jones - In A SORA Prosecution The Duty To Register Must Be Proven By The State
• Episode 407 - In re B.G. - Right To Petition To Terminate Obligation To Register As A Sex Offender Survives After A Subsequent Conviction
• Episode 408 - People v. McClenton - Judge Can’t Order State Police To Remove Person From Sex Offender Registry
• Episode 411 - People v. Jackson - SORA SORA No Time Is A Good Time For Goodbyes

People v. Horine, 2017 IL App (4th) 170128 (December). Episode 448 (Duration 16:18)

Judge and prosecutor get into it on whether or not the state could admit this hearsay evidence during this SSS hearing.

Defendant received a traffic citation from the City of Bloomington for driving under the influence (625 ILCS 5/11-501(a)(2) (West 2016)). A law enforcement sworn report (report) completed by Officer Brandon Finke the same day indicated at 9:48 p.m., defendant refused to submit to or failed to complete testing.

Joseph Medical Center and his driving privileges would be suspended for a minimum of 12 months (625 ILCS 5/11-501.1). The report also stated Officer Finke had reasonable grounds to believe defendant was driving under the influence and stated:

“[Defendant] was involved in a single car collision. [Defendant] had an extreme odor of an alcoholic beverage on his breath. [Defendant’s] eyes were bloodshot and his clothes were disorderly. [Defendant’s] pupils were dilated, face was flushed, and displayed poor coordination when walking.”

On December 22, 2016, the trial court held a hearing on defendant’s petition.

Defendant called Officer Jeremy Cunningham to testify, who testified to the following. On October 23, 2016, Officer Cunningham worked for the City of Bloomington police department and was dispatched to a local bar, the Windjammer Lounge (Windjammer). When he arrived at Windjammer, he saw defendant sitting outside on the sidewalk and the bouncer standing over him.

Officer Cunningham placed defendant under arrest to detain him in his squad car until he could complete his investigation.

On cross-examination, the State asked Officer Cunningham if he talked to anyone else at the scene. Officer Cunningham stated he spoke with a witness, Kaylie Bakalar, who was in the vehicle at the time defendant was allegedly driving.

The following questioning occurred:

Q. And what did Kaylie tell you?

MR. DAVIS [(Defense attorney)]: I’m going to object, Your Honor. This is the clear definition of hearsay.

MS. LIN [(Prosecutor)]: Your Honor, it’s not for the truth of the matter asserted. The question is based on—the question here today is whether or not the officer had reasonable grounds. Whatever came from the interview goes to his knowledge at the time.

THE COURT: If he made in arrest based on allegedly what she has told him, how is that not hearsay? Because that would be—he’s saying that that’s the truth so that’s why I arrested someone. The objection is sustained.

The State proceeded to ask Officer Cunningham about a surveillance video from Windjammer and defendant objected to its foundation. The trial court agreed with defendant and found the State did not lay a proper foundation and it did not present any evidence of chain of custody.

Defendant requested the court to grant his petition because the State did not provide a witness that saw him drive. The State presented no argument.

The court granted defendant’s petition.

On December 29, 2016, the State filed a motion to reconsider. The State argued the trial court erred when it sustained defendant’s hearsay objection because

(1) the out-of-court statement was offered to explain the investigatory procedure followed in the case and was proper to show the police officer had probable cause and
(2) the statements Kaylie made to Officer Cunningham were offered to show its effect on Officer Cunningham and to show why Officer Cunningham was reasonable in believing the defendant was the driver of the vehicle.

The State presented its arguments contained in its motion and the following conversation occurred:

THE COURT: Let me ask you this. If it is not for the truth of the matter asserted, why could you not have just asked the officer did you interview witnesses; yes. Based on your interview of the witnesses and your state of mind at the time, did you feel you had probable cause to arrest? Because if you don’t want me to believe that this is for the truth of the matter asserted, why does it matter what she said? If it’s only for the officer’s state of mind, then why can’t the fact that he interviewed witnesses and based on that interview he arrested [defendant] be enough? Because you want me to believe what she said to him.

MS. LIN: The question is whether or not, is it reasonable for the officer to believe what was said to him. So what she said and the circumstances surrounding what she said is relevant to whether or not it is reasonable for him to believe.

THE COURT: Then why do you need her statement?

MS. LIN: To show the totality of the investigation and how reasonable it is.

THE COURT: No, you want me to believe what she said to the officer. You’re asking me to say that what she said to the officer was truthful and reasonable and that gave him probable cause to arrest. But otherwise why isn’t just saying you interviewed the witnesses. Based on those interviews of the witnesses you believe you had enough evidence to arrest [defendant] for driving under the influence. *

MS. LIN: Whether or not he drove is not—I’m not using that statement to prove that he drove. I’m using that statement to show that the officer was reasonable in believing that he drove. So the statements itself [sic] is relevant to show that the officer was reasonable in believing those circumstances.

THE COURT: I’m sorry, Ms. Lin. I don’t buy that as a reasonable argument and your motion to reconsider is denied.

On appeal, the State argues the trial court abused its discretion when it sustained defendant’s hearsay objection because Kaylie’s out-of-court statement was admissible to show its effect on Officer Cunningham’s state of mind and to explain his investigatory actions.

We note if defendant made his hearsay objection during his trial on the driving under the influence charge, he would be correct because the elicited testimony constituted inadmissible hearsay. A police officer may testify as to the steps taken in the investigation of a crime when the testimony is necessary and important to fully explain the State’s case to the trier of fact—such testimony cannot include the substance of a conversation with a nontestifying witness.

See People v. Boling, 2014 IL App (4th) 120634, ¶ 107, 8 N.E.3d 65; see also People v. Cameron, 189 Ill. App. 3d 998, 1004, 546 N.E.2d 259, 263 (1989).

• Prosecutorial Error - They All Do This - People v. Boling - Episode 057
• Murder Conviction Reversed Twice Because Of The Same Hearsay Mistake - People v. Ochoa - Episode 315
• Hearsay Involves Implied Information And Watch Out For “Course of Conduct” Exceptions - People v. French - Episode 339

However, defendant’s hearsay objection was not made at defendant’s trial—but at the hearing on his petition to rescind his statutory summary suspension. The setting of Officer Cunningham’s testimony is important.

When a defendant asserts the arresting officer did not have reasonable grounds to believe he was driving under the influence as one of the bases for his petition to rescind (625 ILCS 5/2-118.1(b)(2) (West 2016)), the hearing on the petition is analogous to a hearing on a motion to suppress evidence in a criminal case. See People v. Wear, 229 Ill. 2d 545, 560, 893 N.E.2d 631, 640 (2008).

Hearsay evidence is admissible during a hearing on a defendant’s petition to rescind statutory summary suspension (or motion to suppress), though hearsay is not admissible at trial. People v. Patterson, 192 Ill. 2d 93, 111-12, 735 N.E.2d 616, 628 (2000).

This distinction is important.

The hearing on a petition to rescind focuses on the issue of whether the arresting officer had reasonable grounds to believe the defendant was driving under the influence. In contrast, a defendant’s trial on a driving under the influence charge focuses on whether the defendant was, in fact, driving under the influence.

Therefore, at the hearing on the defendant’s petition to rescind, the testimony sought from the arresting officer, even if it includes hearsay, is permissible as it explains the information the officer possessed at the time and what he reasonably believed based upon that information.

This information is essential in determining whether the officer had reasonable grounds to arrest the defendant, and the trial court could not make a sufficient ruling without it.

The trial court erred when it sustained defendant’s hearsay objection. The testimony the State attempted to elicit from Officer Cunningham attempted to explain what he learned during his investigation and why he believed he had probable cause to arrest defendant for driving under the influence. When a defendant challenges whether the arresting officer had reasonable grounds in his petition to rescind statutory summary suspension, the officer’s testimony, even if it includes hearsay, is permissible as it provides the court with the necessary information to rule on the petition.

Although such testimony may constitute impermissible hearsay at trial, such testimony is permissible in this setting.

We find the trial court erred when it sustained defendant’s hearsay objection, but we affirm its ruling because the State forfeited this argument. It did not make this argument to the trial court or to this court on appeal.

We affirm in this case because of forfeiture and to clarify what evidence may be presented by the State when the defendant asserts the arresting officer did not have reasonable grounds or probable cause to believe he was driving under the influence in this context.

In this setting and circumstances, the State can present testimony to the trial court demonstrating what information the officer possessed and what he reasonably believed based upon that information before he took action. The officer’s testimony is not subject to hearsay objections. For the reasons stated, we affirm the trial court’s judgment. Affirmed.

In re Jarrell C., 2017 IL App (1st) 170932 (December). Episode 447 (Duration 14:47)

Holding your crotch is not indicative of carrying a gun; Illinois fails to apply the exclusionary rule after police discover a warrant notwithstanding Utah v. Strieff.

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

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

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

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

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

Defendant was waiting in line to purchase a bus card.

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

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

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

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

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

Respondent lifted up his shirt while turning around.

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

Respondent was then taken outside to a police car.

The police recovered some drugs from his person.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unlike Strieff, the instant case presents a different situation.

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

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

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

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

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

We reverse the court’s holding on this issue.

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

Reversed outright.

People v. Heritsch, 2017 IL App (2d) 151157 (December). Episode 446 (Duration 7:36)

Everything could be tracked and timed with the video, if there is more than one officer at the scene then state has the best chance of winning a motion to suppress evidence.

Following a stipulated bench trial in the circuit court of Boone County, defendant, Ken Heritsch, was convicted of possession of more than 10 grams but not more than 30 grams of a substance containing cannabis (720 ILCS 550/4(c) (West 2014)). Because defendant had a prior conviction of possession of cannabis, the offense was a Class 4 felony.

Defendant was sentenced to a three-year term of probation and 90 days in the Boone County jail.

Defendant’s conviction was based on the discovery of cannabis in his vehicle following a traffic stop and a dog sniff. The time stamp on the video recording establishes a timeline of events.

(7:05:34 p.m.) Zapf testified that he observed the Mercury cross the fog line, after which he pulled the vehicle over.

(7:07:29 p.m.) Zapf approached the driver’s side of the Mercury (7:06:11 p.m.). Zapf asked defendant for his driver’s license and proof of insurance. Zapf then started to walk back to his squad car.

(7:08:12 p.m. to 7:08:20 p.m.) Before reaching the squad car, Zapf spoke briefly with Bogdonas about his observations of defendant’s condition. At the end of the conversation, Zapf asked Bogdonas to try to get defendant’s consent for a search of the Mercury. Zapf then returned to his squad car and ascertained that defendant’s driver’s license was valid and that he had no outstanding warrants. Zapf decided to issue a warning to defendant for crossing the fog line.

(7:09:53 p.m.) Meanwhile, Bogdonas had defendant step out of his vehicle, and she searched his person. Defendant did not consent, however, to a search of his vehicle. Bogdonas approached Zapf and told Zapf that defendant was being an “asshole”. Zapf had been writing a warning to defendant, but after speaking with Bogdonas, Zapf decided to issue defendant a citation for improper lane usage.

(7:10:59 p.m.) At that point, Zapf had written only defendant’s name on the warning. Zapf told Gardner that he had decided to issue a citation to defendant because Bogdonas said that defendant was a “jerk”.

(7:11:02 p.m.) Gardner then told Zapf to summon Officer Grubar, who worked with a drug detection dog, to the scene.

(7:11:07 p.m) Zapf made a radio call to Grubar at.

(7:11:33 p.m to 7:11:55 p.m) Grubar responded and told Zapf that she was unavailable. Zapf ended the call at.

(7:12:29 p.m. through 7:12:47 p.m.) Shortly thereafter, Zapf received a radio communication from Boone County deputy sheriff Kevin Smyth, who indicated that he would bring his drug detection dog, Bosco, to the scene. When Smyth arrived, he had Bosco conducted a free air sniff of the Mercury.

Zapf then searched the vehicle, found cannabis, and placed defendant under arrest. Zapf testified that, while waiting for Smyth to arrive, he was in his vehicle and was working on defendant’s citation. Bosco completed the free air sniff while Zapf was still working on the citation. When Zapf finished writing the citation, he stepped out of his vehicle.

Smyth was questioning defendant.

Zapf testified that he walked to defendant, who was standing in front of Zapf’s vehicle. Smyth was walking back to his own vehicle. We note that the video recording shows that, when Zapf exited his squad car, he walked directly to defendant’s vehicle.

Smyth testified that identifying drugs by odor was among the things Bosco was trained to do. When Smyth arrived at the scene, he retrieved Bosco and started walking him toward defendant’s vehicle. Defendant was not in the vehicle. Zapf was sitting in his squad car. Smyth walked Bosco to the driver’s side of defendant’s vehicle. Smyth saw Bosco respond to the odor of drugs. Smyth opened the driver’s-side door, and Bosco jumped in the car and indicated on an ashtray in the center console and on a lunchbox. Smyth then pulled Bosco out of the vehicle and approached defendant.

The video recording shows that Bosco climbed into defendant’s vehicle at 7:18:09 p.m.

Smyth then walked over to defendant and spoke with him from 7:18:39 p.m. to 7:19:15 p.m.

Zapf is then seen outside his vehicle, walking toward defendant’s vehicle a few seconds later. As noted, Zapf testified that he stepped out of his squad car when he finished writing the citation and that Smyth was questioning defendant. Zapf testified that, when he stepped out of his squad car, Smyth was returning to his own vehicle. This appears to have taken place at about 7:19:15 p.m., a little over a minute after Bosco detected drugs in defendant’s vehicle.

Zapf described the steps involved in writing a citation or a warning.

He testified that the steps for a citation and a warning are the same up to the point where the officer must look up and write the statutory citation for the traffic violation on a citation and assign a court date. For either a citation or a warning, the officer first uses his or her computer to determine whether the motorist’s license is valid. This takes about two to three minutes.

Next, the officer uses his or her computer to check the motorist’s criminal history. It takes 2½ to 3 minutes to enter the information needed for a criminal history search and another 2 minutes or so for the computer to return the results. The officer then begins to write up the warning or citation.

First the officer fills in a case number, which is generated by dispatch when the officer calls in a traffic stop. Next, the officer fills in the motorist’s name, address, eye color, hair color, and date of birth. The officer also fills in the driver’s license number and expiration date. It takes 1½ to 2 minutes to fill in that information. The officer then fills in the date and time of the traffic stop. Next, the officer fills in information about the vehicle, i.e. the make, model, and year, the license plate number, and the expiration date of the license plates. Zapf testified that he retrieved defendant’s vehicle information from his computer. Because, in this case, the dispatch involved an identified vehicle, this information was available to Zapf before he pulled the vehicle over. Transferring the information onto the ticket generally takes about a minute.

When writing a citation, the officer looks up the statutory citation for the motorist’s traffic violation. That takes about two minutes.

Finally the officer assigns a court date (which takes about a minute) and then signs and dates the ticket.

The United States Supreme Court has observed that “the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop.” Rodriguez v. United States, 575 U.S. ___, ___, 135 S. Ct. 1609, 1614 (2015). According to the Court, “[a]uthority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” A dog sniff during a traffic stop does not inherently violate the fourth amendment. Id. at ___, 135 S. Ct. at 1612 (citing Illinois v. Caballes, 543 U.S. 405 (2005)).

However, because a dog sniff is not an ordinary incident of a traffic stop, it must be conducted in a manner that does not prolong the stop. The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff prolongs—i.e., adds time to—the stop.

According to defendant, “[h]ad Zapf focused on writing the warning notice rather than repeatedly stopping to discuss searching the defendant’s vehicle or attempting to locate a canine unit, despite no suspicion of unlawful activity, he necessarily would have completed the warning notice prior to the arrival of the canine unit.”

Thus, defendant maintains that Zapf improperly prolonged the traffic stop by asking Bogdonas to attempt to get defendant’s consent to a vehicle search and by “abandoning his preparation of the warning ticket, beginning to write a citation, and arranging for the arrival of a canine unit.”

Zapf chose to issue a citation rather than a warning after defendant refused to consent to a search. Although the choice is questionable, defendant cites no authority that it represents a departure from the mission of the traffic stop. We accept, for purposes of our analysis, that seeking defendant’s consent to a search and arranging to bring a drug detection dog to the scene were unrelated to mission of the stop.

If these tasks interrupted Zapf’s work on the mission of the stop, then Zapf necessarily completed the mission later than he otherwise would have. There must be evidence that, but for the activities unrelated to the mission of the stop, Zapf would have finished writing defendant’s citation and delivered it to defendant before Bosco detected drugs in defendant’s vehicle.

Review of the video from Zapf’s squad car shows that Zapf spent 8 seconds talking to Bogdonas about getting defendant’s consent to search and a total of about 40 seconds actually speaking with Grubar and Smyth on the radio about bringing a drug detection dog to the scene. We note that, based on Zapf’s description of the tasks involved in writing a citation and the time required to complete those tasks, the time spent writing the citation here does not appear to be unreasonable.

The trial court found that Zapf was working at a “normal pace” and was not “dragging his feet just to wait for [the] dog.” This finding is not against the manifest weight of the evidence.

Tasks unrelated to the mission of the stop added very little time—perhaps a minute—to the process, but roughly the same amount of time appears to have passed from the point when Bosco detected drugs in defendant’s vehicle until Zapf completed writing the citation. And Zapf had yet to deliver the ticket to defendant, which would have taken some additional time. Thus, as in Reedy, the evidence does not show that, but for activities unrelated to the mission of the stop, Zapf would have finished writing the ticket and would have delivered it to defendant before Bosco detected drugs in defendant’s vehicle.

Accordingly, we conclude that the activities unrelated to the mission of the stop did not prolong the stop; they did not cause the stop to extend beyond the point at which Bosco’s detection of drugs provided probable cause to believe that the vehicle contained drugs. For the foregoing reasons, the judgment of the circuit court of Boone County is affirmed. For the foregoing reasons, the judgment of the circuit court of Boone County is affirmed.

• Unreasonably Prolonged Traffic Stop Masks Other Problems With The Dog - People v. Paddy - Episode 417
• Fourth District Doing Something Different With Dog Sniff Cases - People v. Pettis - Episode 196
• Is a Police Dog Sniff During Traffic Stop Legal? - Rodriguez v. United States - Episode 069
• Dog Got There Almost Immediately After The Stop  - People v. Reedy - Episode 087
• People v. Pulling, 2015 IL App (3d) 140516 (June 2015) (stop was unreasonably prolonged when drug dog is walked around the car)
• People v. Litwin, 2015 IL App (3d) 140429 (September 2015) (drug trafficking conviction must be reversed because this drug dog sniff exceeded the applicable scope of the traffic stop and oh yea, reviewing court doesn’t believe the officer)

In re D.L., 2017 IL App (1st) 171764 (December). Episode 445 (Duration 9:29)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We agree.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

People v. Timmsen, 2016 IL 118181 (March). Episode 153 (Avoiding A Traffic Roadblock May Create Reasonable Suspicion Justifying a Traffic Stop)

People v. Ross, 2017 IL App (4th) 170121 (December). Episode 444 (Duration 9:50)

Police put the wrong address on the search warrant...oops.

The State charged defendants, James A. Ross and Ryan A. Schriefer, with unlawful possession with intent to deliver cannabis while within 1000 feet of a school (720 ILCS 550/5.2, 5(e) (West 2014)) and the unauthorized production or possession of cannabis sativa plants (720 ILCS 550/8(d) (West 2014)).

Law enforcement officers searched a structure on property located at the northeastern corner of Greely and Chestnut Streets in Monticello, Illinois, pursuant to a search warrant issued earlier the same day.

Both defendants filed motions seeking to suppress evidence they argued was improperly obtained as the result of a defective search warrant. The trial court granted defendants’ motions.

On appeal, the State argues the trial court erred in granting defendants’ motions to suppress based on “a discrepancy in the address” contained in the search warrant.

It contends that despite the error as to the target residence’s street address, the search warrant’s description of that residence was otherwise sufficient to allow law enforcement officers to know where to conduct the search.

The record reflects the property at issue was a single lot with two buildings—a tan, two-story house and a blue, barn-shaped building that, at some point, had been used as a residence.

The search at issue was of the tan house, which had a front door that faced Chestnut Street and the numbers 1002 displayed on the front of the home. The barn was associated with a street address of 817 North Greely Street in Monticello and was located north of the tan house.

The search warrant set forth the street address of the property to be searched as 817 North Greely Street and further described it as follows:

“A single family, tan, two[-]story dwelling located on the east side of North Greely Street with the number 817 displayed on the front, a detached barn to the north of the residence[.]”

During the search, law enforcement officers discovered cannabis and cannabis production materials.

Turns out the structure searched—the tan house—was a residence located at 1002 East Chestnut Street, but the search warrant referenced only a residence at the location of 817 North Greely Street in Monticello, Illinois.

The residence at issue was located northeast of the intersection, and police agreed it was a tan building.

Reports from the neighbors were that the tan residence was the problem. Police could also smell burnt cannabis coming from the home. They did not “actually go check the numbers” that were affixed to the front of the target residence.

The officer who drafted the search warrant did not go to the location.

He was told to do it because he was good with search warrants. Russell testified he researched the address and stated his “research indicated that the residence was underneath one address, 817 N. Greely.” Russell testified he drafted a search warrant based on the officers’ observations of the location. He did not personally visit the address in question prior to preparing the complaint for a search warrant.

Russell testified, later, he looked up records associated with 1002 East Chestnut Street. He stated he went to the clerk’s office “to determine why it showed 817 on the computer, and they explained it was two different properties consolidated into one.”

Russell also learned that separate Monticello city water and Ameren Illinois Power accounts existed for 1002 East Chestnut. Russell testified that to determine the address for the target residence, he went to the “Piatt County tax assessment web site” that another deputy was familiar with. He “clicked on” property that he knew the target residence sat upon and the address that was given was “817 N. Greely.”

Russell testified that there was a building to the north of the target residence, which he described as “a barn that at one point in time used to be a residence.” He stated that building “generally was shaped like a barn” and was associated with the 817 N. Greely Street address.

Further, he stated that the previously identified information in his complaint for a search warrant, which did not apply to the target residence, actually applied to the barn. Russell asserted that the target residence and the barn were “basically two buildings on the same tract of property.” He stated it was his understanding that title to the “whole property[,] both 1002 and 817,” was transferred by a corporate warranty deed. At the hearing, Russell identified a copy of a corporation warranty deed showing that property with a “Common Address” of “817 N. Greely and 1002 E. Chestnut-Monticello, IL 61856” was transferred to Ryan Spomer by Central Financial Loan Corporation in 2011.

Russell also identified a document entitled “PTAX203 Illinois Real Estate Transfer Declaration” that contained property and sale information and which listed the street address of the property at issue as “817 N. Greely (and 1002 E. Chestnut)” in Monticello.

Additionally, Russell testified that his descriptions of the target residence in the complaint for a search warrant and the search warrant were accurate except for the assertions that the residence had “the number 817 displayed on the front.”

A valid search warrant must particularly describe the place or person to be searched and the things to be seized. 725 ILCS 5/108-3(a) (West 2014). “The purpose of this requirement is to prevent the use of general warrants that would give police broad discretion to search and seize.” People v. Burmeister, 313 Ill. App. 3d 152, 158, 728 N.E.2d 1260, 1266 (2000).

“Generally, an otherwise valid warrant will not be quashed due to technical errors not affecting the substantial rights of a defendant.” 725 ILCS 5/108-14 (West 2014) (“No warrant shall be quashed nor evidence suppressed because of technical irregularities not affecting the substantial rights of the accused.”).

“[E]rrors or omissions in addresses are not per se fatal to the validity of a search warrant” and “[a] warrant must simply identify the place to be searched to the exclusion of all others.” Burmeister, 313 Ill. App. 3d at 158, 728 N.E.2d at 1267. “A warrant is sufficiently descriptive if it enables the officer, with reasonable effort, to identify the place [to be searched].” People v. Watson, 26 Ill. 2d 203, 206, 186 N.E.2d 326, 327 (1962).

However, “where a search warrant raises a question in an officer’s mind as to which premises to search, the warrant should not be executed, because officers are prohibited from using their own discretion to determine which premises to search.” People v. Urbina, 393 Ill. App. 3d 1074, 1078, 916 N.E.2d 1, 6 (2009).

As described in the search warrant, the barn was located to the north of the residence, and the entire property was located on the east side of North Greely Street. Nothing in the record indicates law enforcement officers executing the search warrant were confused or doubtful about which building to search or that they exercised any discretion in determining where to search.

Similarly, no evidence showed that another similar property was located in the area, i.e., one with a “single family, tan, two[-]story dwelling” with “a detached barn to the north of the residence.” Further, the same officers who were involved in the investigation of the target residence were involved in the execution of the search warrant.

Additionally, the record shows the complaint and affidavit for a search warrant described the target residence as sitting “on the northeast corner of N. Greely and E. Chestnut Streets,” thereby more precisely describing the street location of the place to be searched. Technical descriptions are unnecessary and “[c]onstitutional requirements relating to searches are satisfied *** if the warrant describes the premises to be searched with reasonable certainty. If the property is sufficiently recognizable from the description to enable the officer to locate the premises with definiteness and certainty, it is adequate.

The description may be one used in the locality and known to the people; and by inquiry the officer may be as clearly guided to the place intended as if the legal record description were used. The constitutional safeguard is designed to require a description which particularly points to a definitely ascertainable place so as to exclude all others. See In Watson, 26 Ill. 2d at 205, 186 N.E.2d at 327 and People v. Powless, 199 Ill. App. 3d 952, 953, 557 N.E.2d 946, 947 (1990).

Like in Watson and Powless, the search warrant in this case was sufficiently descriptive so as to identify the correct place to be searched to the exclusion of all others. Additionally, the law enforcement officers involved in the search exhibited no doubt or confusion as to the house to be searched, nor did they exercise any discretion in determining where to search.

The officers knew what house was the subject of the search and searched only that residence. Here, although the warrant contained incorrect information as to the address of the house, it otherwise described the house to be searched in detail, providing information as to color, location, and other surrounding buildings. Thus, the house was described with particularity to the exclusion of all others, including the barn to which the 817 North Greely address actually applied.

Under the circumstances presented, although the technical address set forth in the warrant was incorrect, the warrant otherwise described the residence to be searched with particularity. Thus, it was sufficiently descriptive to permit law enforcement officers, with reasonable effort, to identify the residence to be searched.

In this instance we agree with the State’s contentions on appeal and find that, excluding the error as to street address, the search warrant was otherwise sufficiently descriptive.

In our de novo review, we find the trial court erred in granting defendants’ motions to suppress evidence obtained in the search. For the reasons stated, we reverse the trial court’s judgment and remand for further proceedings.

In re R.H., 2017 IL App (1st) 171332 (December). Episode 443 (Duration 0:00)

Minor prevented from having contact with gang members and can't post gang and drug stuff on social media.

R.H. was arrested for possession with intent to deliver cannabis, possession of cannabis, and unlawful use of a weapon. R.H. has a history of criminal behavior, dropped out of school fearing gang retaliation, and had been shot.

R.H. admitted gang membership.

His social media accounts included photographs of R.H. with a gun, making “gang signs” with fellow gang members, and smoking cannabis.

The gang information report indicated that R.H. was affiliated with the Unknown Vice Lords, a criminal street gang operating on Chicago’s southwest side. Particularly relevant, R.H. used his social media accounts to taunt rival gang members and posted a number of pictures of himself displaying gang signs, posing with guns, and smoking what appears to be cannabis.

Among the conditions of probation, the trial court ordered that R.H. have no contact with “any gangs, guns, or drugs which means it looks to me, [R.H.], you need to get some new friends.” The trial court also ordered that R.H. delete from his social media accounts “all references to gangs, guns, or drugs.”

R.H. contends that the probation condition restricting him from posting about gangs, guns, or drugs on social media is an unconstitutional content-based restriction that fails for lack of sufficiently narrow tailoring. (R.H. does not challenge the separate condition prohibiting him from “contact” with gang members, guns, or drugs.).

Parens patriae represents the “general power and obligation of the government as a whole to protect minors and the infirm.”  In re D.S., 198 Ill. 2d 309, 328 (2001). Parens patriae power is codified in the Juvenile Court Act of 1987 (Juvenile Court Act or Act) (705 ILCS 405/1-1 et seq. (West 1998)), which explicitly “charges the circuit court with the duty to act in the best interests of the minor and for the minor’s own protection.”

The Juvenile Court Act contains a nonexhaustive list of conditions juvenile courts may impose. One of these is that the minor “refrain from having any contact, directly or indirectly, with certain specified persons or particular types of persons, including but not limited to members of street gangs and drug users or dealers.” 705 ILCS 405/5-715(2)(s) (West 2016).

The trial courts have considerable deference in fashioning probation conditions intended to rehabilitate. People v. Kimbrell, 291 Ill. App. 3d 605, 607 (1997). Courts may impose restrictions outside those the statute lists so long as the condition

(i) is reasonable and
(ii) has some connection between it and either
(a) the underlying crime or
(b) the behavior or attitude of the defendant that the trial court thinks needs adjusting.

Different constitutional standards apply to minors because of “the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.”

We find further support in case law restricting the behavior of adult probationers, who cede some of their constitutional rights on conviction. A probation condition that implicates fundamental constitutional rights has to reasonably relate to the “compelling state interest in reformation and rehabilitation.” In re J.W., 204 Ill. 2d 50, 78 (2003).

To be reasonable, a probation condition must narrowly focus on its rehabilitative goal. In re J.G., 295 Ill. App. 3d 840, 843 (1998).

In assessing a probation condition’s reasonableness, courts also consider if

(i) the probation condition reasonably relates to rehabilitation,
(ii) the value of the probation condition to society plainly outweighs the loss of the probationer’s constitutional rights, and
(iii) less restrictive means are available.

People v. Rizzo, 362 Ill. App. 3d 444, 456 (2005).

Courts also may look to the individual characteristics of the defendant. Stocke, 212 Ill. App. 3d at 554. Even if R.H. were an adult probationer, the social media restriction would meet these goals. he condition focuses on the goal of reforming R.H.’s behavior and steering him away from involvement with gangs, guns, and drugs.

The order limits its reach to the matters specifically related to the exact behavior for which R.H. was adjudicated delinquent. R.H. is not restricted from all social media activity. Instead, he is prohibited from posting about gangs, guns, and drugs, which is consistent with the statutory condition, also imposed but not challenged, prohibiting direct or indirect contact with “members of street gangs and drug users or dealers.” 705 ILCS 405/5-715(2)(s) (West 2016).

 R.H.’s past actions demonstrate the reasonableness of the probation condition. R.H.’s past postings of pictures of himself displaying gang signs, holding guns, and smoking cannabis foment and glorify criminal behavior. The postings also communicate to members of his gang and other gangs an endorsement of and a willingness to engage in criminal activities.

Indeed, the implications of R.H.’s posts do not simply affect his chances of future employment; they put R.H., his family, and anyone else in his vicinity, in danger of bodily harm. We conclude from all this that the State has a compelling interest in restricting R.H.’s social media activity on these three related and insidious topics, closely related to his crimes, as a means of preventing him from further criminal acts.

Minors are entitled to some, but not all, of the constitutional protections traditionally afforded to adults. Bellotti v. Baird, 443 U.S. 622, 633 (1979) (plurality op.). The constitutional rights of minors are neither equal to nor coextensive with those of adults.

If the juvenile court has any hope of steering R.H. toward a new direction and productive life, it would be absurd to target only real world behavior and ignore online activity. And if the trial court tried to restrict only postings that glorified guns, gangs, or drugs, R.H.’s probation officer would be in the impossible position of parsing each of his social media posts to determine a violation. For the restriction to be effective, it must be practical, it must be feasible, and it must be enforceable.

The legislature has instructed us that an important purpose of the statute is for the trial court to rehabilitate the juvenile so that the minor can “mature into a productive member of society.” 705 ILCS 405/5-101(1)(c) (West 2016).

To ensure R.H.’s rehabilitation, the trial court needs flexibility to craft an effective probation condition.

Omar F. is factually distinguishable, as its analysis focused on the restriction from “contact” with gang members (as opposed to restrictions on particular social media topics). The Omar F. court was particularly concerned by the no-contact order because it could potentially prohibit Omar from seeing gang members in family or educational settings; worse, Omar could potentially violate the probation restriction without meaning to or even knowing he was violating it.

Those concerns are not present here. R.H. is not challenging the “no contact” order, only the restriction on his social media topics. R.H. controls his own social media accounts and can simply avoid posting about the prohibited topics; unlike Omar, he does not need to worry about inadvertent contact with guns, gangs, or drugs in his social media accounts.

Episode 442 (Duration 31:15). Judge Rene Cruz of the 16th Judicial Circuit provides practical advice for attorneys. 

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"...So I'm an army brat. My father was in the military. So we traveled. I happen to have been born in the country of Panama while my father was serving his second tour in Vietnam." -- Judge Rene Cruz.

Before taking the bench, Judge Cruz practiced law in Illinois for 17 years with Ed Gil, his former law partner at Gil & Cruz (Now The Gil Law Group). He's now assigned to family court in Kane County.

Judge Cruz did have an extensive criminal law practice before his judgeship, however, we talked about

• his experience in the legal community
• diversity
• the road to a judgeship and
• how he's currently serving the community.

✓ The Judge experienced diversity differently than the rest of us and now thinks of the diversity much differently than the rest of us do. (Go to 3:41) & (Go to 10:58)

✓ Why the judge walked away from a thriving business, a judgeship was the last thing on his radar, so what did he discover that finally motivated him to apply for judge. (Hint: It wasn't the money; he wasn't even sure how much judges get paid.)  (Go to 13:41)

✓ The  judge didn't know a few important things when he first applied for judge. Once, he figured things out the process went a lot smoother for him.  (Go to 15:44)

 ✓ "Some judges would say to me straight off from the beginning, 'I'm being told and I'm hearing that we need some Hispanics on the bench', and the first thing I would tell them is..." - Judge Rene Cruz speaking about when he was a judicial candidate (Go to 14:27)

✓ What do full circuit judges really look at and consider when they are voting for an associate judge?  (Go to 20:00)

✓ Judge Cruz is playing the long game when it comes to promoting diversity on the bench and in law. You'll never guess where he spends his time recruiting and encouraging judicial applicants.  (Go to 24:50)

You may also want to check out...

• Episode 412 How To Become An Illinois State Judge With Scott J. Frankel
• Episode 301 Retired Judge Allen Anderson: The View From The Bench
• Episode 256 Interview With Judge Steigman of the Fourth Appellate District

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In re Omar F., 2017 IL App (1st) 171073 (October). Episode 441 (Duration 6:38)

No gang contact was overly broad.

The State filed a petition for adjudication of wardship, charging the minor with armed robbery with a firearm (720 ILCS 5/18-2(a) (West 2014)), aggravated robbery (720 ILCS 5/18-1(b) (West 2014)), and robbery (720 ILCS 5/18-1(a) (West 2014)).

Victim, Soberu, got off the train to early and was in the wrong neighborhood.

He was looking for a bus with his backpack with his laptop over his shoulder, when two individuals, one light-skinned and the other dark-skinned, whom he later identified as the respondent and co-respondent approached him from the gangway between the apartments.

The individuals walked in front of him.

They pointed a gun at him and said to get on the ground.

Instead, he gave them his cell phone and began to struggle for the gun. The gun was on the ground at one point but they still fought. He hit one of them in the head with the gun. But he was also being punched in the head.

Eventually, he threw the gun as far as he could and he got away.

When police drove him back to the area he found his backpack and his shoe and immediately identified his attackers.

At sentencing, respondent stated that his “friends are gang involved” and belong to the Black Peace Stones but denied being a gang member himself. The court ordered:

“You’re to stay away from gangs, guns, and drugs. You need to clear those from you social media. If you have gang members as friends, you need to stop hanging out with them. I don’t want to see any pictures of you and your friends on Facebook or any other social media if those people are in gangs. I’m not sure if you’re a gang member or if you’re just an associate of gangs. I see and hear that there is some contradictory information. I don’t care. One way or the other—I mean it would be nice if you’re not a gang member—but if you are now, I can’t change that. But you’re going to need to change who you’re hanging out with, otherwise you can get in trouble on my probation.”

On appeal, the respondent contends that the trial court abused its discretion in imposing certain gang-related conditions on his probation, where his crime, armed robbery with a firearm, had nothing to do with gangs or gang membership, and therefore the probation conditions were not reasonably related to his offense.

In the alternative, the respondent contends that the gang-related conditions were unconstitutional as applied to him because they were overbroad and unreasonable.

The respondent specifically challenges the following conditions of his probation:

(1) that he “stay away” and have “no contact” with gangs and
(2) that he clear and not appear in any social media posts with gang members.

Trial courts have broad discretion to impose probation conditions, whether expressly enumerated by statute or not, to achieve the goals of fostering rehabilitation and protecting the public. However, this wide latitude in setting conditions of probation is not boundless. The court’s discretion is limited by constitutional safeguards and must be reasonable. Our supreme court has made clear that the overriding concern is reasonableness.

To be reasonable, a condition of probation must not be overly broad when viewed in the light of the desired goal or the means to that end. In other words,

“[w]here a condition of probation requires a waiver of precious constitutional rights, the condition must be narrowly drawn; to the extent it is overbroad it is not reasonably related to the compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights.”

In re J.W., 204 Ill. 2d at 78.

Our supreme court has explained that when assessing the reasonableness of a condition of probation, it is appropriate to consider whether the restriction is related to the nature of the offense or the rehabilitation of the probationer. Other considerations are

(1) whether the condition of probation reasonably relates to the rehabilitative purpose of the legislation,
(2) whether the value to the public in imposing this condition of probation manifestly outweighs the impairment to the probationer’s constitutional rights, and
(3) whether there are any alternative means that are less subversive to the probationer’s constitutional rights but still comport with the purposes of conferring the benefit of probation.

A probationary condition is overbroad and therefore unreasonable when there is no valid purpose for the restriction and there is no means by which the probationer may obtain exemption from the restriction for legitimate purposes.

Contrary to the respondent’s position, the no-gang contact provision was a valid condition of probation because it was reasonably related to the respondent’s rehabilitation.

The Juvenile Court Act of 1987 explicitly permits the trial court to limit a juvenile respondent’s gang contact. The Juvenile Court Act of 1987 provides in relevant part:

“(2) The court may as a condition of probation *** require that the minor: * * * (s) refrain from having any contact, directly or indirectly, with certain specified persons or particular types of persons, including but not limited to members of street gangs ***.”

705 ILCS 405/5-715(2)(s) (West 2016).

While the Act does not expressly permit limitations on social media, in the present world, where communication is routinely made through online social platforms, it is not a stretch of the imagination to understand “contact” as extending to an individual’s online presence.

Attempting to limit the minor respondent’s contact (real or virtual) with gang members was a valid condition of probation because it was related to his rehabilitation. Nonetheless, we are compelled to conclude that the probationary conditions as articulated by the trial court were overbroad and not narrowly tailored so as to be unreasonable.

There is no exclusion for people based on familial, employment, or educational relationships, and no explanation as to what type of contact (physical or online), no matter how innocuous, will result in a probation violation. This is particularly troubling where, according to the social investigation report, the respondent reported that the person he looks up to the most is his brother, who “has been in the system but has turned his life around.”

Accordingly, we find that in the present case, the trial court’s imposition of the aforementioned gang-related conditions of probation constituted error.

Given that certain areas of Chicago are gang-infested, a blanket prohibition against contact with gangs is simply too general and overbroad to provide a juvenile with clear parameters about how to comply with the conditions of his probation.

That is, if the parameters are so vague, overboard, or general that a juvenile could be inadvertently caught violating probation in a number of scenarios, including when conducting himself in a constitutionally protected manner, then the judicial process is not functioning as intended. This breakdown in the judicial process constitutes second-prong plain error.

We find that the conditions of probation ordering the respondent to “stay away” and have “no contact” with gangs and to remove all social media posts in which he appears with gang members were overbroad and not narrowly drawn so as to be unreasonable. The trial court’s blanket order requiring the respondent to “stay away” from and have “no contact” with gangs and to clear and not appear in any social media posts with gang members did not contain a means by which the respondent could obtain an exception from the restrictions for legitimate purposes.

We therefore vacate that portion of the trial court’s order requiring the respondent to “stay away” from and have “no contact” with gangs and to clear all his social media of postings with gang members.

We remand the cause so that the trial court may consider whether such restrictions are still warranted, and if so, what appropriate exceptions for familial, employment, and school contacts should be applied.

Episode 385 - In re Dystyn, 2017 IL App (4th) 170103 (June)

Episode 386 - Packingham v. North Carolina, 15-1194 (June 2017)

Conditions of Probation Challenged By This Convicted Police Officer - Episode 029

People v. Goossens, 2016 IL 118347 (September)

People v. Minnis, 2016 IL 119563 (October), (disclosure of internet use constitutional under SORA)

People v. Crabtree, 2015 IL App (5th) 130155 (July 2015) (sex probation sentencing terms prohibiting computer proper even though the crime did not involve a computer)

People v. Hardman, 2017 IL 121453 (November). Episode 440 (Duration 8:24).

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

The State charged Hardman with one count of possessing between 1 and 15 grams of heroin with intent to deliver within 1000 feet of “any school *** to wit: Ryerson Elementary School,” a Class X offense. See 720 ILCS 570/401(c)(1), 407(b)(1) (West 2012).

At trial, three officers testified about the location of the drug transactions.

Most of that testimony went like this:

“Q. Now, how long had you worked in the 11th District on the date of this incident?

A. Well, I’d been in the 11th District nine years.

Q. In your nine years in the 11th District were you familiar with this area where the arrest occurred?

A. Yes.

Q. Are you familiar with the schools near this address?

A. I am.

Q. What school is there?

A. Laura Ward School.

Q. Is that what it is currently called?

A. Yes. It changed.

Q. What was the name of the school back on July 22, 2013?

A. Ryerson.”

Hardman only challenges whether the evidence established that the building at issue was a school.

On appeal, Hardman argued that the State failed to prove beyond a reasonable doubt that the building at issue was operating as a school on the date of the offense because the evidence showed that the building was in flux or in transition around the time of the offense.

To establish that an offense occurred within 1000 feet of a school, Hardman asserts that the State must prove beyond a reasonable doubt that the building at issue was an active or operational “school” at the time of the offense. To do so, according to Hardman, requires that the State present particularized evidence, based on a witness’s personal knowledge of an enhancing location’s actual use at the time of the offense.

Inherit in the defendant's argument is the idea that is insufficient for the State to present testimony of a police officer who simply refers to a building as a “school.”

No section of the Illinois Controlled Substances Act defines the term “school.” 720 ILCS 570/101 et seq.

However, the term has acquired a settled meaning through judicial construction and legislative acquiescence. Courts look to the definition of “school” contained within the Criminal Code of 2012 (Criminal Code), which provides that a school

“means a public, private, or parochial elementary or secondary school, community college, college, or university and includes the grounds of a school.”

720 ILCS 5/2-19.5.

Subsections 407(b)(1)-(6) do not speak to any “use” requirement in the context of a school locality enhancement.

Additionally, section 407(c) makes clear that the State need not demonstrate that a building was active or operational on the day of the offense. It provides:

“[r]egarding penalties prescribed in subsection (b) for violations committed in a school or on or within 1,000 feet of school property, the time of day, time of year and whether classes were currently in session at the time of the offense is irrelevant.”

720 ILCS 570/407(c).

Requiring particularized evidence as to a purported school building’s active or operational status on the day of an offense would run counter to section 407(c)’s plain language.

As discussed, subsections 407(b)(1)-(6) require the State to demonstrate that the purported church was “used primarily for religious worship.” See 720 ILCS 570/407(b)(1)-(6) (West 2012).

Conversely, subsections 407(b)(1)-(6) and section 407(c) make clear that the State need not present particularized evidence as to a purported school’s use.

Requiring such evidence would necessarily and impermissibly read a use requirement into the statute and conflict with section 407(c).

We now address whether the testimony presented at Hardman’s trial was sufficient to prove that Hardman’s underlying offense occurred within 1000 feet of a school.

In the instant case, not only did the evidence show that 646 North Lawndale Avenue was named as a school, Officer Harmon’s and Officer Ruggiero’s testimony revealed their familiarity with the area where 646 North Lawndale Avenue was located. Both officers had worked in the area for years, and both knew enough about the area to know that the name of the school had changed.

As mentioned, a trier of fact is not required to disregard inferences which flow normally from the evidence. The logical inference, here, is that both officers knew the area well enough to know that 646 North Lawndale Avenue was still a school, despite the school’s change in name.

We agree with the appellate court that the status of 646 North Lawndale Avenue as a school could be inferred from the testimony of two officers with demonstrated familiarity with the area due to their having worked in the area for years.

Therefore, we affirm Hardman’s conviction for possession of a controlled substance with intent to deliver within 1000 feet of a school.

We reject Hardman’s argument that, for purposes of demonstrating that an offense took place within 1000 feet of a school under section 407(b), the State must present particularized evidence that a building is an “active” or “operational” school on the day of the offense.

Taking the evidence in the light most favorable to the State, we find that a rational trier of fact could have found that the testimony gave rise to a reasonable inference that 646 North Lawndale Avenue was a school.

The Illinois Supreme Court disagreed with Hardman’s contention that the State is required to present evidence as to whether a school is active or operational on the date of the offense. 

People v. Davis, 2016 IL App (1st) 142414 (June). Episode 200 (Duration 3:45)