Kane County Nuggets

People v. Sykes, 2017 IL App (1st) 150023 (December). Episode 439 (Duration 9:13)

Cops help hold her down while they force catheterize her, was this an illegal seizure after they captured and tested her urine?

Gist

Ladina Sykes and her two children were leaving a beach in Evanston when their car struck a wall in the parking lot. At the hospital they hold her down to take her urine. She was found guilty and placed on supervision after cannabis was detected in her urine.

Sykes was deemed mentally unable to provide consent, so when she refused to provide a doctor-ordered urine sample, a nurse catheterized her while several people, including two Evanston police officers, held her down because she was being physically uncooperative.

Facts

Paramedics took Sykes to Evanston Hospital. 

The paramedics took Sykes to Evanston Hospital, where a triage nurse assessed her condition. She was stable and had no complaints but was deemed to have an altered mental state because even though she was alert and oriented as to person and place, she did not know the date or time of day.

Officer Pratt told hospital staff he suspected Sykes was under the influence of something. Pratt was standing outside Sykes’s room when he heard her tell the nurse she had one alcoholic drink that evening. He went in her room and asked her if she had been drinking. She told Pratt she had not been drinking or taking any drugs.

Pratt arrested her for driving under the influence, based on the odor of alcohol, slurred speech, bloodshot eyes, and overall demeanor.

Pratt asked Sykes to provide blood and urine samples, and she declined. He did not ask hospital staff to obtain samples for him.

The Hold Down

Dr. Patel examined Sykes and ordered a CT scan and blood and urine tests to determine why Sykes was in an altered mental state and to decide on a proper course of treatment. The urine test, in particular, would determine if she had drugs in her system. Colleen Costello, the supervising nurse, asked Sykes for a urine sample. Sykes refused. Costello then decided to catheterize her. Costello said patients can refuse treatment unless, like Sykes, they have an altered mental state. When Costello began the catheter procedure, Sykes was combative, swinging her arms, kicking her legs, and moving her hips to resist catheterization. She also tried to get out of the bed. Costello called for assistance, and about nine people responded, including Evanston police officers Pratt and Magnas, who had been standing outside the room.

Pratt and Magnas stood at the head of the bed and held Sykes down by her shoulders. Once Sykes was restrained, Costello extracted the urine with a catheter.

The blood and urine tests were sent to the hospital lab. Sykes’s blood test showed she was well within the legal limit for alcohol, and her urine test was presumptively positive for cannabis and PCP.

After Sykes’s CT scan showed no evidence of injury and her mental state improved, Evanston Hospital discharged her into police custody.

Issue

Sykes contends her conviction should be vacated because the police violated her fourth amendment rights by holding her down while a nurse forcibly catheterized her. 

 Sykes argued the Evanston police officers’ participation in the forcible extraction of her blood and urine to test for drugs or alcohol, without a warrant, was an illegal search and the results of the search should be suppressed.

Sykes first contends the police violated her fourth amendment rights by actively participating in her forced catheterization. While Sykes concedes the police did not order the catheterization, she asserts they participated in an unconstitutional search by helping to hold her down while a nurse catheterized her. She contends that because the police did not have a warrant and no exceptions to the warrant requirement exist, the results of the urine test should have been suppressed.

Fourth Amendment

The fourth amendment applies only to government action.

A search performed by a private person does not violate the fourth amendment. Additionally, the fourth amendment does not prohibit the government from using information discovered by a private search. The State argues the catheterization was ordered and conducted by private actors, namely Dr. Patel and nurse Costello, respectively.

This Was Purely A Medical Procedure

The State asserts that because Sykes was found in her car unconscious and arrived in the emergency room in an altered mental state, hospital staff determined the tests were medically necessary.

The State acknowledges Sykes could have withheld consent to either test had she been oriented as to time, place, and person. Nurse Costello testified that the treatment plan for Sykes, which included a CT scan and a blood test, in addition to the urine test, was ordered by Dr. Patel.

Nurse Never Talked To Cops

The evidence did not show that the police asked hospital staff to perform a urine test. Indeed, Costello testified that she never spoke to the police that night. Evanston Hospital staff did not perform the catheterization as the agents of the police. The test was ordered for medical purposes unrelated to any possible charges filed by the police.

Cops Just There

The fact that the officers were present, had placed Sykes under arrest, and were called on to assist did not turn the medical procedure into state action. They were in the room only because nurse Costello asked for their assistance restraining Sykes so that she not injure herself or others.

The officers did not insist or even request they be permitted in the room during the procedure.

Cops Could Have...

A more compelling case for state action would involve the officers offering to hold Sykes down or insisting on being in the room in anticipation of obtaining test results that could be used to prosecute her. It was not unreasonable for the officers to come to the aid of a nurse seeking help with a patient who might harm herself and others.

Procedure Not Dependent On Cops

Moreover, the catheterization was not dependent on the officers’ participation. The officers responded to Costello’s request for help; there is no evidence in the record that but for the officers’ presence, the catheterization procedure would have been abandoned.

While the officers could have declined the nurse’s request, their slight involvement did not turn the medical procedure ordered by private individuals into State action.

Holding

Thus, the trial court did not err in denying her motion to suppress the results of her urine test. 

See Also

Episode 423 - People v. Brooks, 2017 IL 121413 (November), (our supreme court recently held that mere police participation, absent the private actors acting as an agent or instrumentality of the State, is not state action)

Episode 319 How Can Police Enforce A Blood Warrant | A Discussion With Anthony Cameron 

Episode 438 - People v. Eubanks, 2017 IL App (1st) 142837 (December)

Episode 186 – Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016)

People v. Eubanks, 2017 IL App (1st) 142837 (December). Episode 438 (Duration 12:56)

On December 21, 2009 defendant ran over a mom and child killing the mom when he refused to give blood or urine they held him done so they could draw it.

Gist

In this case, Eubanks was arrested in connection with a hit-and-run accident that killed Maria and injured Jeremiah. The police had probable cause to arrest Eubanks for driving under the influence. At the police station, Eubanks refused to take a breathalyzer test or to submit to blood and urine tests.

Facts

Shortly before 9 p.m. on December 21, 2009, in the Rogers Park neighborhood of Chicago, Felix Worthon was walking home with his wife Maria and their son Jeremiah near the intersection of Greenview and Greenleaf Avenues. Maria and Jeremiah stopped to talk to Maurice Glover, a man from their church.

Felix crossed the street ahead of them. As he was crossing, he heard a sound behind him; he turned around and was nearly hit by a car. The car struck Maria and Jeremiah and kept going without stopping. The force of the impact knocked Maria’s body a block away. Maria died immediately, and Jeremiah suffered permanent injuries.

Defendant Arrested & Restrained

A passenger in the car came back to the scene to tell police Defendant was the hit and run driver. He was quickly arrested.

At 2:53 a.m., an officer took Eubanks to the hospital, telling him that he was required by law to submit to blood and urine tests.

Eubanks was physically restrained by hospital security and a blood sample was taken at 4 a.m. The nurse then asked for urine, but Eubanks refused to urinate. The nurse threatened to catheterize him. As she approached him with a catheter, he urinated, and a sample was collected at 5:20 a.m.

The samples were sent to the crime lab for analysis. Eubanks’s blood produced negative results for alcohol or any illegal substance, but his urine tested positive for cannabis, ecstasy, and cocaine metabolite.

The body converts drugs to metabolites over time as part of the metabolic process.

He Doesn't Get The Reckless Instruction

Eubanks requested that the jury be instructed on reckless homicide as a lesser included offense of first degree murder. The court denied his request, stating that if the State’s evidence was believed, Eubanks’s actions “could only create a strong probability of death or great bodily harm to some individual.” The jury found Eubanks guilty of first degree murder, failure to report a motor vehicle accident involving death or injury, and aggravated driving under the influence.

Eubanks was sentenced to 40 years’ imprisonment.

Was It Error To Deny Reckless Instruction?

Eubanks first argues that he was entitled to a jury instruction on reckless homicide since there was some evidence that he acted recklessly in causing Maria’s death.

He’s not saying the evidence is insufficient to convict him of first degree murder, nor could he reasonably do so. There are pleanty of high speed cases where courts have said first degree murder was proved becasue death or serious injury was a certainty.

Rather, Eubanks argues that there was sufficient evidence of his recklessness that the jury should have been instructed on both reckless homicide and first degree murder.

Standard On Lesser Included

A defendant is entitled to an instruction on a lesser-included offense if there is some evidence in the record that, if believed by the jury, would reduce the crime charged to a lesser offense. People v. McDonald, 2016 IL 118882, ¶ 25. That is, the evidence must permit a rational jury to acquit the defendant of the greater offense but still find him guilty of the lesser offense.

Murder v. Reckless Homicide

The primary distinction between first degree murder and reckless homicide is the mental state of the defendant. People v. Pollard, 2015 IL App (3d) 130467, ¶ 27.

Murder

Under section 9-1(a)(2) of the Criminal Code of 1961, a defendant commits first degree murder when he kills an individual without lawful justification and “knows that such acts create a strong probability of death or great bodily harm to that individual or another.” 720 ILCS 5/9-1(a)(2).

It is not necessary that defendant intended to kill or that he was certain that someone would die as a result of his actions.

As this court has explained: “A person who knows, i.e., is consciously aware, that his acts create a strong probability of death to another may not have such death as his conscious objective or purpose. He may simply not care whether the victim lives or dies. Under these circumstances, the person would be guilty of murder although the death was caused unintentionally.

Reckless Homicide

A person acts recklessly when “he consciously disregards a substantial and unjustifiable risk *** and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” 720 ILCS 5/4-6.

It’s up to a jury to determine if the defendant’s acts create a “strong probability” of death or great bodily harm or whether they are merely “likely” to cause such a result.

Error To Deny Reckless Homicide Instruction

We find that there was sufficient evidence of Eubanks’s recklessness to instruct the jury on reckless homicide.

See People v. Belk, 203 Ill. 2d 187 (2003). Belk stole a van and, while being pursued by police at a high rate of speed, crashed into another vehicle, killing both occupants. At the time of the crash, Belk was under the influence of alcohol and driving at over 100 miles per hour in an area with “numerous restaurants and other establishments that were still open for business.

The court reduced Belk’s felony murder conviction to reckless homicide.

Eubanks’s actions are sufficiently comparable to Belk’s actions that a rational jury could find that Eubanks acted recklessly. In fact, Belk’s flight from police was arguably more dangerous than Eubanks’s since Belk was in an area with numerous establishments open for business and other vehicular and pedestrian traffic was present, while Eubanks was in a “quiet neighborhood.”

Both defendants fled from police at a high rate of speed (60 to 90 miles per hour for Eubanks, 100 miles per hour for Belk). At no point did either defendant apply the brakes or attempt to slow down before the fatal collision.

The trial court erred in denying Eubanks’s request for an instruction on reckless homicide. Accordingly, we reverse Eubanks’s conviction for first degree murder and remand for a new trial on that charge.

This Section Is Probably Unconstitutional

625 ILCS 5/11-501.2(c)(2) says:

“[I]f a law enforcement officer has probable cause to believe that a motor vehicle driven by or in actual physical control of a person under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof has caused the death or personal injury to another, that person shall submit, upon the request of a law enforcement officer, to a chemical test or tests of his or her blood, breath or urine for the purpose of determining the alcohol content thereof or the presence of any other drug or combination of both.”

But see Episode 186 - Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016) which has thrown the constitutionality of this section into question. See Also Episode 319 How Can Police Enforce A Blood Warrant | A Discussion With Anthony Cameron 

The Constitutions

The fourth amendment of the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const., amend. IV; see Schmerber v. California, 384 U.S. 757, 770 (1966) (warrant requirement generally applies to searches within the human body, such as blood tests).

Similarly, under article I, section 6, of the Illinois Constitution, “[t]he people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches [and] seizures.” Ill. Const. 1970, art. I, § 6.

Under both of these constitutional provisions, a warrantless search is per se unreasonable unless it is a search conducted pursuant to consent, a search incident to arrest, or a search predicated upon probable cause where there are exigent circumstances which make it impractical to obtain a warrant.

No Exigent Circumstances

The State bears the burden of showing the existence of exigent circumstances.

Eubanks does not dispute that the police had probable cause to believe that he was driving under the influence. Rather, he argues that there were no exigent circumstances that made it impractical to obtain a warrant. More specifically, he argues that

(i) causing death or personal injury to another individual does not constitute a per se exigency and
(ii) the State did not sustain its burden of showing exigent circumstances in his particular case.

Don't Forget McNeely

The United States Supreme Court has considered whether exigent circumstances existed to justify a warrantless blood draw in both Schmerber, 384 U.S. 757, and Missouri v. McNeely, 569 U.S. 141 (2013). In McNeely, the Court’s answer was no.

McNeely said courts cannot consider the natural dissapation of alcohol in the bread stream to be a per se exigent circumstance.

McNeely is clear that courts should undertake a “careful case-by-case assessment of exigency” instead of “accept[ing] the considerable overgeneralization that a per se rule would reflect.”

Therefore, we hold that, under McNeely, section 11-501.2(c)(2) is unconstitutional on its face, insofar as it permits compelled chemical testing without a warrant in all cases where an officer has probable cause to believe that a driver under the influence has caused death or personal injury to another.

The State proposes replacing the per se rule rejected in McNeely with another per se rule: exigent circumstances necessarily exist whenever there is probable cause to believe an individual has been driving under the influence of alcohol or other intoxicants and, in doing so, has injured or killed another individual.

 No doubt some such cases will involve exigencies, but when such cases arise, the State can and should prove the existence of an exigency on a case-by-case basis rather than relying upon the “considerable overgeneralization”.

Analysis

The facts of this case are illustrative since they do not reflect any exigency that would have prevented officers from obtaining a warrant.

Eubanks was taken into custody at 9:05 p.m. Tanner gave a statement to police at around 10 p.m. in which he informed them that Eubanks was the driver in the fatal collision.

At 12 a.m., Officer Ventrella spoke with Eubanks and informed him that he was under arrest for driving under the influence.

Eubanks refused to take a breathalyzer test or submit blood and urine samples. Nearly three hours passed before Ventrella brought Eubanks to the hospital at 2:57 a.m.

Nothing in the record indicates that Ventrella or another officer could not have obtained a warrant in that three-hour period. Eubanks was taken into custody minutes after the accident and placed in an interview room at 10:30 p.m., where he remained for the next 4½ hours.

The good-faith exception does not apply, and the results of Eubanks’s blood and urine samples must be suppressed.

Holding

On remand, Eubanks’s new trial on the first-degree murder charge should exclude this evidence.

His conviction for aggravated driving under the influence must be reversed outright, since there is insufficient evidence to prove the offense without the suppressed evidence.

Thus, we reverse Eubanks’s conviction for aggravated driving under the influence. We hold that section 11-501.2(c)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501.2(c)(2) (West 2008)) is unconstitutional on its face, insofar as it sets forth a categorical exception to the fourth amendment’s warrant requirement of the kind rejected by the Supreme Court in McNeely, 569 U.S. 141.

This is the December 2017 Illinois criminal case law audio round-up (the fast case law summary). Episode 437 (Duration 38:29)

Click here to download the written summary of these cases:  December 2017 Round-Up 

The December 2017 Top Illinois Criminal Law Cases (The Monthly Round-Up)

Here's a quick snapshot of the top cases:

1. People v. Casas

Defendant was arrested 18 years after his trial in abstenia, but can he now be charged with a violation of bond?

2. People v. Lomeli

Defendant gets stopped for having a rosary hanging from his rearview mirror.

3. In re D.L.

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

4. In re Jarrell C.

Illinois applies the exclusionary rule even after police discover a warrant notwithstanding Utah v. Strieff.

5. People v. Heritsch

NEverything 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.

6. People v. Ross

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

7. People v. Eubanks

On December 21, 2009 defendant ran over a mom and child killing the mom when he refused to give blood or urine they held him done so they could draw it.

8. People v. Sykes

Cops help hold her down while they force catheterize her, was this an illegal seizure after they captured and tested her urine?

9. People v. Horine

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

10. In re R.H.

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

11. People v. Allen

10 and a half years for burglary to a car are reduced to six years because the second division in the first district says so.

12. People v. Drake

Reversal error to admit the child's statement to the nurse in this agg bat to a child conviction.

13. In re T.Z.

7 year old victim is allowed to whisper the damaging testimony to the judge who then repeated the statement for the record.

14. People v. James

Four men agree to commit a robbery and a home invasion, one of them also commits a sexual assault now everyone is guilty of the sexual assault.

15. People v. Gaciarz

Here's a charge that's not too common, involuntary sexual servitude of a minor (class X felony).

16. People v. Witherspoon

Defendant had a bond condition preventing him from being at his girlfriend's place, can he commit a home invasion there?

17. People v. Axtell

It was one punch that killed his girlfriend, but this can't be compared to other single blow killings.

18. People v. Albea

Defendant wanted to go pro se because he didn't trust he'd get a fair trial with an attorney, sounds stupid but it's his case.

19. People v. Brown

Crazy lady saying the state forced a mistrial on purpose.

People v. Brown, 2017 IL 121681 (November). Episode 436 (Duration 5:41)

Defendant plead guilty because he was told his sentence was a 50% case when in fact it was an 85% case.

Gist

Defendant took a plea because his attorney told him he would serve 50% of the time. It was an 85% case which added 6 years to his “in” time.

There is a split in the circuits as to whether this is a constitutional error that can be brought by a postconviction petition. The Illinois supreme court resolved the split in favor of the state.

Issue

Defendant alleges that he was prejudiced by his counsel’s failure to advise him correctly that he was required to serve 85% of his sentence. His allegation involves his understanding of the consequence of his guilty plea. 

Clearly An Error

We agree with defendant that there is no objectively reasonable justification for counsel’s erroneous advice on this straightforward and readily verifiable sentencing information.

The Law

But a conclusory allegation that a defendant would not have pleaded guilty and would have demanded a trial is insufficient to establish prejudice” for purposes of the Strickland analysis. A court must consider the relevant surrounding circumstances to assess prejudice.

But to establish prejudice in the guilty-plea context, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

Not all errors, however, are related to a defendant’s prospects of acquittal.

Some error touches on the defendant’s ability to understand the consequences of pleading guilty. Rather than asking how a hypothetical trial would have played out absent the error,

... a court should consider whether there was an adequate showing that the defendant, properly advised, would have opted to go to trial.

See Episode 272 - People v. Valdez, 2016 IL 119860 (petitioner must convince the court that a decision to reject the plea bargain would have been rational had counsel advised him accurately on the deportation consequences of pleading guilty).

Analysis

When a defendant does not have a viable defense strategy or chance of acquittal, the decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea.

 Here, defendant’s allegation in his petition, standing alone, is insufficient to establish prejudice. In this case, because of the plea the state dropped a class X with a gun add an which put him in the 21 to 45 range. Because of his history he would have been on the upper end of that. By pleading guilty, however, defendant received only a single Class X felony conviction for armed habitual criminal with a mid-range sentence of 18 years’ imprisonment.

Based on these circumstances, we conclude that defendant has failed to establish the requisite showing of prejudice because he has not shown that a decision to reject his plea bargain would have been rational under the circumstances of his case. 

Holding

Without the requisite substantial showing of a constitutional violation, defendant’s postconviction petition is not entitled to an evidentiary hearing.

His petition was properly dismissed without an evidentiary hearing.

See Also

People v. Hoare, 2018 IL App (2d) 160727 (January). Episode 474 (Duration 12:36) (Immigration Admonishments Can Still Get You In Trouble)

People v. Reese, 2017 IL 120011 (October). Episode 435 (Duration 7:59)

Vehicular hijacking doesn't require that defendant take actual control of the vehicle.

Charges

Defendant Willis Reese was charged with several offenses, including aggravated vehicular hijacking (720 ILCS 5/18-4(a)(3) (West 2006)), vehicular invasion (720 ILCS 5/12-11.1 (West 2006)), attempted armed robbery (720 ILCS 5/8-4, 18-2 (West 2006)), and escape (720 ILCS 5/31-6 (West 2006)).

The jury found defendant guilty of aggravated vehicular hijacking, unlawful vehicular invasion, attempted armed robbery, and escape. Defendant was sentenced to concurrent extended-term sentences of 50 years for aggravated vehicular hijacking, 30 years for vehicular invasion, 30 years for attempted armed robbery, and 14 years for escape.

 The trial court ordered those sentences to run consecutively to defendant’s sentence for murder.

Facts

The State called Cook County sheriff’s Deputy Vito Zaccaro, who testified that he was working in the external operations unit at John H. Stroger, Jr., Hospital of Cook County (Stroger Hospital) when he met defendant at the front of the hospital to accompany him to an appointment.

Defendant was wearing a Department of Corrections inmate uniform and was restrained with handcuffs and leg shackles.

Zaccaro transported defendant to the dermatology clinic on the second floor. Defendant repeatedly asked to use the restroom during the appointment. After the appointment, Zaccaro took defendant to a single-occupancy restroom and allowed him to enter with his hands uncuffed but his legs still shackled.

Zaccaro waited in the hallway outside with the restroom door “open about a crack.”

When defendant came out after about 10 minutes, Officer Zaccaro asked him to put his hands out, but defendant instead “jumped toward the one side with a silver metal weapon, placed it to [Zaccaro’s] neck and said ‘move or I’ll cut you.’ ”

Zaccaro felt defendant’s hand going toward his handgun, and he threw up his arms to prevent defendant from taking the gun. Defendant responded by stabbing Zaccaro in the neck.

Zaccaro struggled to detain defendant, but he tripped over defendant’s shackles, and they both fell to the floor. When defendant got up and began running, Zaccaro hit the “panic button” on his radio and chased defendant through the hallways and down an emergency stairwell, exiting at the front of Stroger Hospital.

Zaccaro followed defendant out of the hospital and saw him run onto a shuttle bus nearby.

In The Bus...

Zaccaro tried to enter the bus, but the door slammed on him and the bus began to travel around the circular driveway before it “just kind of stopped and went into a wall.” Defendant ran out of the bus, and hospital police officers tackled him.

James Rimmer testified that he was the driver of the shuttle bus and was making runs between the Cook County juvenile court parking lot and Stroger Hospital. The shuttle bus was parked near one of the main entrances to the hospital with the doors open when defendant, wearing a jail inmate uniform, ran through the front door. Rimmer testified that defendant “stood over me, left hand, I guess, behind my seat, and right hand in front of my face. I seen an object in his hand, and he ordered me to drive." He told me to "Drive. If you stop, I’m gonna stab you in the neck.”

Rimmer closed the door to the bus and began driving.

After driving a short distance, Rimmer opened the door, causing the bus to stop suddenly. When defendant stumbled forward, Rimmer grabbed his arm and tried to hold him until police arrived. As they wrestled, defendant stabbed Rimmer twice in the face and once in the chest with a downward motion.

Defendant then broke free, ran through the front door of the bus, and was tackled by police officers.

On cross-examination, Rimmer testified that defendant never got behind the wheel of the bus or gave directions on where to drive.

Rimmer nonetheless thought he was a hostage during the incident.

Issue

On appeal, defendant maintained, among other things, that his aggravated vehicular hijacking conviction must be reversed because he did not “take” the bus within the meaning of the aggravated vehicular hijacking statute.

Defendant argued the statute requires proof that he actually dispossessed the shuttle bus from the driver. Defendant contended that merely forcing the driver to drive the bus was insufficient.

The appellate court agreed with defendant, holding that the taking element of aggravated vehicular hijacking is established only when a defendant causes the victim to part with possession or custody of the vehicle against his will.

State Says

On appeal to this court, the State contends that the appellate court construed the aggravated vehicular hijacking statute far too narrowly.

The State maintains that the statutory language does not require an offender to remove a vehicle from the driver’s possession but may also be satisfied when, as here, the defendant exercises control over the vehicle by use of force. 

Vehicular Hijacking

The offense of vehicular hijacking is committed when a person “takes a motor vehicle from the person or the immediate presence of another by the use of force or by threatening the imminent use of force.”

720 ILCS 5/18-3(a) (West 2006).

Vehicular hijacking is a Class 1 felony (720 ILCS 5/18-3(c) (West 2006)). The offense is enhanced to aggravated vehicular hijacking, a Class X felony with a minimum sentence of seven years’ imprisonment, if committed while the offender is armed with a dangerous weapon other than a firearm (720 ILCS 5/18-4(a)(3), (b).

Armed Robbery

The vehicular hijacking statute became effective in 1993 (Pub. Act 88-351, § 5 (eff. Aug. 13, 1993)), less than one year after this court issued its decision in Strickland, a case where the court held that an armed robbery of a car did not occur because the defendant never took physical control of the car. See People v. Strickland, 154 Ill. 2d 489, 526 (1992).

Subsequently, in People v. McCarter, 2011 IL App (1st) 092864, the appellate court relied on Strickland in construing the vehicular hijacking statute. The appellate court observed that, under Strickland, taking a large measure of control over a vehicle is insufficient to establish the offense of armed robbery. McCarter, 2011 IL App (1st) 092864, ¶ 77.

The appellate court held that, as with armed robbery, the vehicular hijacking statute also requires a defendant to dispossess the vehicle from the victim. McCarter, 2011 IL App (1st) 092864, ¶¶ 77-78. Although the defendant forced the victim to drive his vehicle at gunpoint, the evidence did not establish that the victim was ever dispossessed of his car. McCarter, 2011 IL App (1st) 092864, ¶ 78.

Accordingly, the appellate court concluded that the State failed to prove the offense of vehicular hijacking. McCarter, 2011 IL App (1st) 092864, ¶ 79. ¶ 36 The McCarter court viewed Strickland as controlling the construction of the vehicular hijacking statute.

Analysis

We believe Strickland is distinguishable, however, for the simple reason that in Strickland we construed the armed robbery statute, not the vehicular hijacking statute. The vehicular hijacking statute was not even enacted until approximately one year after Strickland. Our construction of the armed robbery statute in Strickland was based largely on the common-law understanding of that offense.

This court has previously stated that “[t]he gist of the offense of robbery, both at common law and under the statute of this State” is the force or intimidation used in taking property against a person’s will. The common-law understanding of the offense of robbery as requiring the defendant to remove property from the victim’s possession through the use of force or the threat of force is specific to that offense.

The vehicular hijacking offense is not derived from the common law but was newly enacted in 1993.

Accordingly, we find the analysis in Strickland is inapposite to the proper construction of the vehicular hijacking statute.

Legislative Intent

he legislature removed motor vehicles from the robbery statute and created an entirely new offense entitled “vehicular hijacking.”

Because the legislature created a new offense, we necessarily reject defendant’s argument that it only intended to punish robbery of a motor vehicle more harshly. Rather, in creating the new offense of vehicular hijacking, the legislature plainly intended to address criminal conduct distinct from robbery of a motor vehicle. We believe the legislature not only intended to encompass situations when a victim is actually dispossessed of a vehicle but also intended more broadly to include circumstances when the defendant takes a vehicle by exercising control.

In the context of vehicular hijacking, exercising control over a vehicle by directing the driver through the use of force or the threat of force falls within the plain statutory language requiring the offender to “take[ ] a motor vehicle from the person or the immediate presence of another.” 720 ILCS 5/18-3(a) (West 2006).

Undoubtedly, a victim may be subject to greater risk of violence if he or she remains in the vehicle with the offender.

Given the greater risk of harm, we do not believe the legislature intended to exclude from the scope of the vehicular hijacking statute the forceful taking of a vehicle while the driver remains inside.

Holding

In sum, we conclude that the legislature did not intend merely to enact a separate statute for robbery of a motor vehicle.

The legislature also intended to criminalize taking control of a vehicle by force or threat of force, including when the victim remains inside the vehicle. Accordingly, the appellate court’s decision to the contrary in McCarter must be overruled.

Defendant’s actions of threatening the shuttle bus driver with a knife and ordering him to drive fall squarely within the conduct prohibited by the vehicular hijacking statute. Defendant took control of the bus from the driver by the threat of force.

We conclude that the evidence was sufficient to establish the offense of aggravated vehicular hijacking. Accordingly, the appellate court’s judgment is reversed on that point.

People v. Lomeli, 2017 IL App (3d) 150815 (December). Episode 434 (Duration 9:18)

Defendant gets stopped for having a rosary hanging from his rearview mirror.

Gist

Defendant gets pulled over for having a rosary dangling from his front mirror.

Facts

Officer actually said he saw something hanging that might have been obstructing the driver's view. The officer did not recall what the object was.

He initiated a traffic stop based off the object suspended in the rearview mirror. Defendants gets arrested for DWLS.

It was a rosary.

Ordinary Rosary

The defendant said the rosary was a circle of beads with a single strand necklace at the bottom. He stated that the rosary hung down about halfway between the rearview mirror and the dashboard and was “[a] few centimeters” wide.

The Traffic Code

Section 12-503(c) of the Illinois Vehicle Code (Code) states, in pertinent part,

“No person shall drive a motor vehicle with any objects placed or suspended between the driver and the front windshield *** which materially obstructs the driver’s view.”

625 ILCS 5/12-503(c).

Issue

On appeal, the defendant argues that “[t]he trial court erred in denying the defendant’s motion to suppress evidence because no reasonably objective officer could have believed the object hanging from the rear view mirror of the car the defendant was driving materially obstructed the driver’s view.”

Some Case Law

“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.” People v. Hackett, 2012 IL 111781, ¶ 20 (car stopped for multiple lane deviations was proper).

The officer’s belief that the intrusion is warranted must amount to more than a hunch, but need not rise to the level of suspicion required for probable cause. See People v. Close, 238 Ill. 2d 497, 505 (2010)). But a traffic stop may be justified on something less than probable cause.

A police officer can effect a lawful Terry stop without first considering whether the circumstances he or she observed would satisfy each element of a particular offense.

This Is Not Probable Cause

For probable cause and conviction, there must be something more. But an investigatory stop in this situation allows the officer to inquire further into the reason for the stop, either by inquiry of the driver or verification of the condition of the possible obstruction.

The elements of windshield obstruction include a reasonable belief that the defendant had violated each of the following elements of the offense:

(1) that the defendant was driving a vehicle with an object placed or suspended between him and the windshield,
(2) that the object obstructed the driver’s view, and
(3) such obstruction was material.

However, an officer may conduct an investigatory stop with reasonable, articulable suspicion, which is less than probable cause, and “without first determining whether the circumstances he observed would satisfy each element of a particular offense.” People v. Little, 2016 IL App (3d) 130683. The stop then allows the officer to further investigate “to either confirm or dispel [his] suspicion” that the offense occurred.

Analysis

Here, the officer observed an object hanging from the defendant’s rearview mirror that he stated he reasonably believed to be an obstruction.

Based on the evidence, we cannot say that such a decision was against the manifest weight of the evidence. In coming to this conclusion, we note that it is not necessary for us to determine whether the officer reasonably believed the obstruction was material at the time he initiated his investigatory stop.

The answer to that particular question would only be implicated when determining whether the officer had probable cause to cite defendant for a violation of section 12-503(c) of the Code, which is not a question before us on appeal.

Holding

The stop in this situation simply allowed the officer to investigate further into the obstruction hanging from the defendant’s rearview mirror.

Affirmed.

See Also 

Episode 232 - Crossing The Line One Time Justifies A Traffic Stop - People v. Lubienski

People v. Jackson, 335 Ill. App. 3d 313 (December 2002).

Episode 402 - Kid On A Bike Stopped For Questioning In A Murder (Think Roadblock For One) - In re Tyreke H.

People v. Dabney, 2017 IL App (3d) 140915 (October). Episode 433 (Duration 8:44)

Kid didn't testify about some of the acts.

Gist

Defendant’s sole contention on appeal is that his constitutional rights under the confrontation clause were violated when the trial court admitted K.J.’s videotaped statement into evidence at defendant’s trial.

 

Issue

Defendant asserts that K.J. did not appear for cross-examination as required by the confrontation clause as to two of the charges because she made no mention whatsoever during her trial testimony that defendant had allegedly touched her vagina with his hands and had touched her buttocks with his penis.

Facts

K.J. took the witness stand and testified that, on the date in question, defendant had touched her breasts and bottom (buttocks) with his hands. While it is true that K.J. did not testify in court that defendant had also touched her vagina with his hands and her buttocks with his penis, that testimony was not required under the confrontation clause for K.J.’s video recorded statement to be admissible.

Defense counsel was given the opportunity to cross-examine K.J., and K.J. answered all of the questions that were asked of her by defense counsel.

Confrontation Clause

The confrontation clause guarantees an opportunity for effective cross-examination; it does not guarantee crossexamination that is effective in whatever way the examining party may want.

In general, a witness is considered to be present, available for, or subject to cross examination when the witness takes the stand, is placed under oath, willingly answers questions, and the opposing party has an opportunity to cross-examine the witness.

More specifically, as to an out-of-court statement, the key inquiry in determining whether the declarant is available for cross-examination is whether the declarant was present for cross-examination and answered all of the questions asked of him or her by defense counsel. 

Thus, there are no confrontation clause problems merely because a witness’s lack of memory precludes the defendant from cross-examining the witness to the extent the defendant would have liked.

Analysis

In this case defense counsel chose to let the witness’s direct testimony stand and not ask additional or specific questions about a matter does not make a witness unavailable for cross-examination for the purpose of the confrontation clause.

In the present case, after having reviewed the record, we find that K.J. was available for cross-examination at defendant’s jury trial as necessary to satisfy the confrontation clause.

Therefore, under the established law on this issue, K.J. was present for cross examination as to her out of court statements (only the videotaped statement was challenged in this appeal).

What About People v. Learn?

To the extent that our decision in this case can be read as being inconsistent with the appellate court’s ruling in People v. Learn, 396 Ill. App. 3d 891, 898-902 (2009) (a child witness was unavailable for cross-examination when she gave preliminary testimony that she knew the defendant did not like him, but then began to cry and did not answer further questions), the main case relied upon by defendant in support of his argument on this issue, we respectfully disagree with the conclusion reached by the appellate court in that case and do not believe that it reflects the current state of the law on this issue.

See also Rolandis

In re Rolandis G., 232 Ill.2d 13, 327 Ill.Dec. 479, 902 N.E.2d 600 (2008).

Rolandis G. involved a child witness who, after answering a few preliminary questions, refused to answer questions about the alleged offense. The defendant's attorney then declined an opportunity to cross-examine the witness. Our supreme court held that out-of-court statements by the child were inadmissible under Crawford, because the child did not testify at trial and there was no previous opportunity for cross-examination. Thus, under Rolandis G., where a child answers some preliminary questions but refuses to answer substantive questions regarding the allegations, the child is unavailable for cross-examination.

We also believe that the facts of Learn are distinguishable from the facts of the present case because in Learn the child victim only provided background testimony in court and did not testify at all about any events that gave rise to the criminal charge against the defendant (the victim did not accuse defendant).

Holding

Therefore, for the reasons stated, we find that the admission of K.J.’s videotaped statement did not violate defendant’s constitutional rights under the confrontation clause.

Because no error occurred at defendant’s trial, defendant’s forfeiture of this issue must be honored.

People v. Jackson, 2017 IL App (1st) 151779 (November). Episode 432 (Duration 10:24)

During an in camera inspection on the surveillance privilege the trial judge must not allow the state attorney to participate, must elicit the exact location from the officer, and conclude with giving the defense a chance to rebut.

Gist

The police arrested defendant after an officer conducting undercover surveillance observed him engage in three suspected drug transactions. He was sentenced to 4 years in pri

None of the alleged buyers were stopped. Defendant subsequently filed a motion to compel disclosure of the police officer’s surveillance location, arguing that disclosure was necessary because the State’s case against him hinged on the ability of the officer to observe his alleged drug transactions.

Defendant contended that disclosure was the only means to ensure that he could investigate the officer’s ability to observe his alleged actions and effectively exercise his constitutional right to confrontation.

In Camera Inspection

After defendant’s case was called, the trial court immediately held an in camera hearing with Chicago police officer John Frano and an assistant State’s Attorney, outside the presence of defendant and defense counsel.

In the hearing, the assistant State’s Attorney examined Frano, asking him several questions about the day in question, including some unrelated to his surveillance location. Frano generally discussed his surveillance location, including his approximate distance from defendant, whether his location was on an occupied or unoccupied property, and his ability to observe defendant from his location.

Frano, however, did not reveal his exact surveillance point.

The court also examined Frano, asking him several questions, but similarly did not ascertain his precise surveillance location.

Trial Court's Holding

At the conclusion of the hearing, still in the presence of only Frano and the assistant State’s Attorney, the trial court indicated that it would deny defendant’s motion “based on the officer’s testimony” and would have the hearing transcribed and sealed.

Specifically, the court said:

“based on the testimony of the officer that there are public safety concerns involved here, and also that given the details of the number of officers present and the facts that were relayed, I do not feel that the defendant is required to know this information in order to fully be able to represent [his] interests at trial. I certainly will allow full cross-examination for distance, elevation, lighting, weather conditions, and any obstruction. So I don’t feel the disclosure is necessary.”

Facts

Frano was the lone surveillance officer while Ramos, Bonnstetter, and Garcia were enforcement officers.

Frano dressed in plainclothes and conducted surveillance on the 700 block of North Trumbull Avenue. Frano testified that, at around 6:40 p.m., while it was getting dark outside, he observed a man, identified in court as defendant, standing on the sidewalk in front of a residence at 734 North Trumbull Avenue. Another man approached defendant, engaged him in a conversation and handed him an unknown amount of money. Defendant walked into a narrow gangway adjacent to the residence, proceeded toward the rear of the residence, reached down, and removed an item from the ground. He returned to the sidewalk in front of the residence and handed the man the item, who then left the area. Based on these transactions, which Frano testified he had an unobstructed view of from approximately 50 to 100 feet away, he believed that defendant was selling drugs.

Frano observed two more individuals engage in identical transactions with defendant.

Although Frano had binoculars, he did not “know exactly when [he] was using [them] for that particular situation.”

During Frano’s cross-examination, defense counsel asked him if he was conducting surveillance from an “elevated” position, but the trial court sustained the State’s objection on the basis of “the point of surveillance.”

Defendant Arrested

 After witnessing the third suspected drug transaction, Frano called for Ramos to pick him up, left his surveillance post, and instructed Garcia and Bonnstetter to detain defendant. Frano lost sight of defendant for 30 to 40 seconds but eventually observed him being detained by Garcia and Bonnstetter approximately 150 feet north of 734 North Trumbull Avenue. Frano was certain that defendant was the same individual he had observed during his surveillance. Bonnstetter subsequently arrested defendant and found $175 on him.

Meanwhile, Frano and Ramos went to the rear of the gangway adjacent to the residence at 734 North Trumbull Avenue. There, they both observed a white strip of tape with four tinfoil packets attached, each containing suspect heroin (.1 grams).

Defendant's Closing Arguement

During closing arguments, defense counsel argued that, because Frano observed the individual conducting the suspected drug transactions from 50 to 100 feet away at a time when it was getting dark outside, his ability to observe was “diminished.” Counsel further highlighted that, after Frano left his surveillance post, he lost sight of the individual he saw engage in the transactions. Altogether, counsel contended there was reasonable doubt that defendant was the individual Frano observed during his surveillance.

Surveillance Privilege

The purpose of the surveillance location privilege is to protect surveillance sites, which are valuable resources to the police, and to protect the safety of police officers and cooperative private citizens.

In determining whether the privilege applies, the trial court must balance the defendant’s interest in preparing a defense against the public interest in keeping the location of surveillance secret.

Two fundamental considerations must be kept in mind:

First, the more important a State’s witness is to the State’s case, the more important the defendant’s right to cross examination concerning the surveillance location becomes. Thus, if the State’s case is built almost exclusively on the testimony of one surveillance officer, disclosure of the surveillance location must almost always be required.

Second, if there is no question about a surveillance officer’s ability to observe or there is contemporaneous video evidence, disclosure is not required.

Some Basic Procedure

In determining whether the privilege applies, the trial court may conduct an in camera hearing, outside the presence of the State and the defense. At this hearing, the surveillance officer “must” disclose his surveillance location. The State has the initial burden of proof to demonstrate that the privilege applies, which it may carry with testimony from the officer that his surveillance point was located on private property with the owner’s permission or in a useful location whose value would be compromised by disclosure.

If the State meets its burden, the burden of persuasion shifts to the defendant to demonstrate that the privilege should not apply.

In order for the defendant to compel disclosure when the issue is raised before trial, “the defendant must make a strong showing that the disclosure of the location is material or necessary to his defense and that his need for the information outweighs the public’s interest in keeping the location secret.”

Among the relevant factors the trial court should consider are the offense charged, the potential defenses, and the importance of the privileged information.

The in camera hearing is intended to be a limited inquiry of the surveillance officer, not expanded into the functional equivalent of that officer’s trial testimony.

Here, when the trial court allowed the scope of the in camera hearing to expand into matters unrelated to Frano’s surveillance location outside the presence of defendant and his attorney, defendant’s constitutional right to confrontation was violated. While the in camera hearing should be limited to potentially privileged matters, that is not to say that testimony on matters unrelated to the surveillance location is never proper when determining whether the privilege should apply. In fact, such testimony, especially when the motion to disclose is raised pretrial, may be helpful for the court’s ultimate balancing of the public interest in nondisclosure against the defendant’s interest in preparing a defense. So any such testimony must be elicited with defendant and his attorney present in open court. 

Who Goes Back There?

This court has been less than clear about whether it is permissible for the State to appear and participate in the in camera hearing. The case law is unclear on whether the prosecuting attorney should be allowed to be present at the in camera inspection.

These decisions demonstrate that either both parties or neither party should be present during an in camera proceeding to determine whether certain evidence is privileged.

Thus, at the point in the burden-shifting approach when the in camera hearing occurs, the defense has no right yet to know of the surveillance location. Our case law has universally found that the defense may not appear at the in camera hearing. It follows that, because the defense may not appear at the hearing, the State may not as well.

Instead, the court must conduct the in camera examination with just the surveillance officer, limiting its inquiry into only matters related to the surveillance location.

Analysis

Two errors occurred here.

Location Not Disclosed

During the hearing, Frano revealed his surveillance location generally but did not identify his specific surveillance point, contrary to the directive of our case law.

We require this disclosure because the precise surveillance location is one of the critical facts necessary for the court to properly apply the burden-shifting approach and ultimate balancing of the public interest in keeping the surveillance location secret against the defendant’s interest in preparing a defense for trial.

Without knowing exactly from where the officer conducted his surveillance, the court cannot satisfactorily determine whether limiting the defendant’s cross-examination to only such matters as distance, lighting, weather conditions, and the existence of any obstructions will allow the defendant to adequately present his defense.

Moreover, the entire purpose of having the hearing in camera outside the presence of the defense with the transcript of the proceeding sealed is so the officer can reveal his exact surveillance location. Consequently, without determining the exact surveillance location, the primary rationale for proceeding in camera is defeated, and the court cannot sufficiently balance the competing interests, thus resulting in the court being unable to effectively exercise its discretion.

The trial court therefore erred when it failed to ascertain Frano’s exact surveillance location.

Defense Attorney Excluded

Therefore, in this case, the trial court also erred when it allowed the State to not only appear during, but also participate in, the in camera hearing.

Burden Shifting Approach

Lastly, we observe that the trial court did not properly apply the requisite burden-shifting approach.

Once Frano completed his testimony, while in the presence of only the State, the court indicated that it would deny defendant’s motion based on his testimony. Subsequently, in the presence of both parties in open court, the court denied defendant’s motion without allowing him an opportunity to argue why the privilege should not apply. Under the required burden-shifting approach, once the State satisfies its initial burden of proof, the burden of persuasion shifts to the defendant to overcome the State’s application of the privilege.

Here, the trial court denied defendant’s motion without providing him the opportunity to meet his burden of persuasion to show that the privilege should not apply.

Holding

In light of these fundamental deficiencies in the trial court’s application of the surveillance location privilege, it was not in a position in which it could properly exercise its discretion.

Thus, we find the court abused its discretion to the manifest prejudice of defendant. Accordingly, we must reverse defendant’s conviction and remand the matter for a new trial. We also must vacate the trial court’s order allowing the State to invoke the surveillance location privilege.

If upon remand, the State seeks to invoke the privilege once again, that determination must be made by the court after a proper limited in camera hearing outside the presence of both the State and the defense where it ascertains Frano’s exact surveillance location.

See Also

• Episode 259 - People v. Flournoy - Defendant Had A Right To Know The Surveillance Location
• Episode 292 - In re Manuel - Surveillance Privilege Unjustified When Cop Is The Only Witness
• Episode 431 - The Correct Surveillance Privilege Protocol May Depend On When The Issue Comes Up

People v. Palmer, 2017 IL App (1st) 151253 (November). Episode 431 (Duration 14:46)

This officer was hiding on his knees in some bushes; he thought his exact location needed to stay secret.

Gist

The trial court found Palmer guilty of possession of a controlled substance with intent to deliver. He got 6 years.

At trial, Chicago police officer Paul Zogg, a 15-year veteran of the police force, testified that he and his partner, Officer J. Rojas, were working as surveillance officers with a narcotics team in the area of 4037 West Jackson Boulevard.

Zogg, who was familiar with the neighborhood from having conducted “dozens and dozens of surveillances” in the area over the past 11 years, explained that the building at the given address was an abandoned two-flat.

Facts

About 11 p.m., Zogg saw Palmer on the porch and steps area of the two-flat.

Zogg was approximately 40 yards from defendant, using 10 power binoculars. Although it was dark outside, a streetlight immediately in front of the two-flat provided light. Palmer was wearing a gray jacket, gray hoodie, blue jeans, and light green shoes.

Zogg testified that during his surveillance, three different men approached Palmer on separate occasions. On each occasion, the customer gave United States currency to Palmer. Palmer would then place the money in his right jacket pocket, pull out a yellow strip of tape from his left jacket pocket, and tear off and tender to the customer items that had been attached to the strip.

After the third transaction, Zogg radioed the enforcement officers on his team, broke surveillance, and approached Palmer and his third customer, who was later determined to be codefendant Hardiman. The two men fled into the two flat.

Just before Palmer entered the building, he dropped the yellow strip at the top of the steps. Zogg, who was about 10 yards behind Palmer at that point, picked up the yellow strip. He, Officer Rojas, and the enforcement officers then pursued Palmer inside the building.

Rojas detained Palmer in the vestibule area and Zogg detained Hardiman in the rear of the building. Once Palmer was in custody, Rojas conducted a custodial search of his person in Zogg’s presence. Rojas recovered $20 in multiple denominations from Palmer’s right jacket pocket. Zogg testified that the item he had recovered at the top of the steps consisted of two yellow strips holding 16 clear zip baggies, each with a “blue lady” design on them and each containing suspect heroin.

Questioning On Surveillance Location

On cross-examination, Zogg testified that his surveillance of Palmer lasted less than 10 minutes, that he periodically radioed enforcement officers during the surveillance, and that less than five minutes passed between the time he broke surveillance and Palmer was detained.

When asked how Palmer could have engaged in three narcotics transactions but only have $20 on him, Zogg explained that the recovered items were “nickel hit bags of heroin,” meaning they sold for $5 each.

He also explained that the cash recovered from Palmer was not inventoried because, pursuant to department policy, Palmer was allowed to retain the money.

Defense counsel then questioned Zogg about his surveillance location as follows:

Q. *** You stated that you had observed my client for, approximately, ten minutes; and that you were 20 to 40 feet away?

A. No, I was about 40 yards away, Counsel.

Q. I’m sorry, 40 yards away?

A. Correct.

Q. And you had to use binoculars?

A. I do, correct.

Q. And were you elevated or on foot?

A. Street level.

Q. Were you in a vehicle or outside of a vehicle?

A. Outside of a vehicle.

Q. Were you in plain clothes or uniform?

A. Uniform, with cover clothing over the top of it, that being a camouflage jacket.

Q. Were you working alone or with a partner?

A. Surveillance officer was Rojas.

Q. And you said you were on the street level, correct?

A. That’s correct.”

Zogg further testified on cross-examination that during his surveillance,

(i) he had a front view of Palmer,
(ii) Officer Rojas was “in the rough vicinity” of his own surveillance location and
(iii) they were observing Palmer from the same direction.

The Objection 

When defense counsel asked where exactly Zogg had been located, the prosecutor objected, arguing against disclosure due to officer safety.

Defense counsel responded that concerns for officer safety did not apply, as Zogg had stated he was on street level, in uniform, and using a radio, which indicated this was not an undercover situation.

The trial court had Zogg leave the room and then addressed the attorneys regarding officer safety.

The prosecutor answered that he believed the surveillance location “may be a spot that they still use,” and suggested that the court have an in camera conversation with the officer on that topic. Defense counsel responded that based on Zogg’s testimony that he was at street level and in uniform, the location could not be secret since “anybody in the neighborhood who walks by is going to see the cops.”

In Camera Inspection

The trial court decided to hold an “in camera review of the information” in the presence of the prosecutor and defense counsel.

In chambers, the prosecutor questioned Zogg as follows:

Q. Officer, were you outside your—were you outside of your vehicle?

A. That’s correct.

Q. And were you on the street?

A. No.

Q. Or were you in a building?

A. Neither.

Q. Where were you?

A. At—there’s a vacant property there, with ample vegetation.

Q. I’m sorry, I didn’t hear the—

A. Vacant lot with a lot of vegetation.

At this point, the trial court stopped the questioning and went off record. When the court came back on record, it stated,

“Based on the representation that it was a spot that they use continually, and revealing it will compromise officer safety—.”

Back In Court

The trial court ruled that the surveillance location would not be revealed, but defense counsel would be permitted to inquire as to other circumstances surrounding the location.

Defense counsel then elicited from Zogg that in his surveillance location, he was kneeling and surrounded by bushes, grass, and weeds; that his head was above the shrubs; and that he held binoculars to his face.

In closing, defense counsel questioned Officer Zogg’s credibility.

As relevant to this appeal, she argued that Zogg’s claim that he observed Palmer engage in narcotics transactions did not “make very much sense, because he is saying that he can see *** he can’t reveal his location, because he has to be hidden, but he can see everything perfectly, when it comes to my client.”

Counsel asserted that her cross-examination of Zogg was limited because the surveillance location was not revealed, but nevertheless maintained that Zogg’s ability to observe Palmer was questionable because “there was vegetation in the way.”

Started With Informant's Privilege

Criminal defendants have a constitutional right to confront witnesses against them, which includes the right to cross-examination. See U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Yet, the right to cross-examination is not absolute.

This court has developed a consistent and long-standing body of law regarding the privilege.

It was first recognized in Illinois in People v. Criss, 294 Ill. App. 3d 276 (1998), and evolved from the informant’s privilege, which is codified in the Illinois Compiled Statutes. See 735 ILCS 5/8­-802.3 (West 2012).

Whether disclosure is required is determined on a case-by-case basis, with the trial court balancing the public interest in keeping the location secret against the defendant’s interest in preparing a defense and right to test the credibility of a witness by cross-examination.

The more important a witness is to the State’s case, the more important the defendant’s right to cross-examination concerning the surveillance location becomes.

The Surveillance Privilege

The State carries this burden by presenting evidence that the surveillance location was either-

(1) on private property with the permission of the owner or
(2) in a useful location, the utility of which would be compromised by disclosure.

If there is no question about a surveillance officer’s ability to observe or evidence of the crime in question appears on a contemporaneous video recording, disclosure would not be required.

In contrast, if the prosecution’s case depends almost exclusively on one police officer’s testimony, disclosure must “almost always” be required.

How To Run The In Camera Inspection

To evaluate whether the privilege applies, the trial court should hold an in camera hearing, outside the presence of the defendant and defense counsel, during which the State’s witness must reveal the surveillance location and make a preliminary showing that disclosure of that location would harm the public interest.

Then, the trial court should weigh the defendant’s need for the surveillance location against the public’s interest in nondisclosure.

Relevant Factors

Factors to be considered in evaluating the public interest in nondisclosure include

• the crime charged
• the possible defenses and
• the potential significance of the privileged information.

If the State satisfies its burden of proof at the in camera hearing, then the burden shifts to the defendant to overcome the privilege.

How Defense Can Overcome The Privilege

The defendant’s burden at this point varies depending on the timing of the invocation of the privilege.

Pretrial Challenge

If the surveillance location privilege was invoked or challenged pretrial, the defendant may overcome it by making a strong showing that the disclosure of the surveillance location is material or necessary to the defense and that his need for the information outweighs the public’s interest in keeping the location secret.

During Trial Challenge

In contrast, if the State first invokes the privilege at trial then the defendant need only show that the surveillance location is relevant and helpful to his defense, or is essential to the fair determination of the cause.

Analysis

Here, the State’s invocation of the privilege at trial triggered an in camera hearing.

The court indicated that Zogg had represented that the location was a spot the police used continually and that revealing it would compromise officer safety.

Defense counsel argued that the exact surveillance location was necessary in order to cross-examine Zogg regarding his ability “to see what he says he saw” through the vegetation he was using to conceal himself.

Here, the trial court failed to take into account other factors such as

(i)  The lower burden Palmer was required to meet to obtain disclosure
(ii) Zogg’s status as the State’s only live witness, and
(iii) The fact that surveillance was conducted from a vacant lot, which does not implicate the safety of cooperating landowners.

First, as noted, when the surveillance location privilege is invoked at trial, the defendant, in order to overcome the privilege, is only required to show that the exact location is relevant and helpful to his defense.

Particularly since Zogg testified that his body was completely concealed by vegetation, but that he was still able to see Palmer’s actions, the disclosure of the area in the vacant lot where Zogg positioned himself would have enabled defense counsel to challenge that testimony more effectively.

Thus, this information was relevant and helpful to Palmer’s defense.

Second, it has long been the position of this court that when the State’s case depends almost exclusively on one police officer’s testimony, disclosure must “almost always” be ordered.

Here, the State’s case against Palmer rested almost entirely upon Zogg’s testimony, the State’s sole live witness.

Defense counsel’s trial strategy was to challenge Zogg’s credibility via cross-examination—the principal means to test a witness’s credibility. Because Zogg’s testimony provided the only evidence that Palmer had engaged in three hand-to-hand narcotics transactions in front of the two-flat, Zogg’s ability to see the porch and steps of that two-flat from his point of observation was highly relevant to the credibility of his testimony, and disclosure of the location would have been helpful to the defense.

We agree with Palmer that asking a witness if his sight line was clear is pointless if the witness’s answer cannot then be tested by specific questions based on his exact location.

By blocking disclosure of the surveillance location, the trial court seriously hampered Palmer’s ability to test the credibility of the only witness against him.

Third and finally, the circumstances here, involving an officer concealing himself behind vegetation in a vacant lot, do not implicate the safety concerns of property owners who allow police to conduct surveillance from private property. And while officer safety is also a concern underlying the surveillance location privilege, we perceive no greater threat to officer safety as a result of disclosure in this case given that anyone selling drugs in the vicinity of 4037 West Jackson Boulevard now knows that officers conceal themselves behind vegetation in vacant lots nearby.

Holding

The trial court abused its discretion when it applied the surveillance location privilege in this case.

The failure to disclose Zogg’s location—denied Palmer a fair trial.

Thus, we reverse Palmer’s conviction and remand for a new trial, during which the State must disclose Zogg’s surveillance location.

Reversed and remanded.

See Also

• Episode 259 - People v. Flournoy - Defendant Had A Right To Know The Surveillance Location
• Episode 292 - In re Manuel - Surveillance Privilege Unjustified When Cop Is The Only Witness

People v. Allen, 2017 IL App (1st) 151540 (December). Episode 430 (Duration 9:24)

10 and a half years for burglary to a car are reduced to six years because the second division in the first district says so.

You know there’s something juicy when an opinion begins like this:

Appellate courts generally defer to the sentencing judge’s decision. But “generally” does not mean “always,” and “defer” does not mean “acquiesce.” Our sentencing laws must be interpreted in accord with common sense and reason so as to avoid an absurd or unduly harsh sentence. Otherwise we are reduced to little more than a rubber stamp, and that is neither our purpose nor our function.

Facts

Frank Allen, who has a record of minor, nonviolent offenses, broke a window of a truck parked in front of a courthouse and then grabbed a hat and two packs of cigarettes.

The truck owner happened to see Allen in the act, and minutes later, Allen was arrested.

Because Allen qualified for Class X sentencing, this minor property offense and theft resulted in 10½ years behind bars.

His Criminal History

Allen, born in 1966, had amassed 11 convictions between 1983 and 2009, including 6 for burglary and 3 for theft.

At the sentencing hearing, the State argued that Allen was “a consistent thief and burglar” and qualified as a Class X offender. Defense counsel argued for a sentence “closer to the minimum” since Allen had mental health issues and the modest stolen property was recovered by the owner.

Abuse of Discretion

We review a sentence within statutory limits for abuse of discretion, and may alter the sentence when it varies greatly from the spirit and purpose of the law or is manifestly disproportionate to the nature of the offense. People v. Snyder, 2011 IL 111382, ¶ 36.

The trial court followed the law: it imposed a sentence within range and considered the appropriate sentencing factors. But, we conclude, the sentence still amounts to an abuse of discretion.

See Also

Episode 280 - People v. Busse was caught stealing $44 worth of quarters from a university vending machine.

The trial court sentenced him to 12 years, well above the Class X minimum because Busse had a long history of committing similar vending-machine heists, and his previous stints in jail had not deterred him. We reduced his sentence to 6 years, the minimum for a Class X sentence, as the 12-year sentence did not reflect the seriousness of the offense.

Busse had not harmed or threatened any person during his quest for loose change, and he was not armed with a weapon; this was consistent with his past crimes. 

Further, if his past stays in prison had not rehabilitated him, there was no point in imposing yet another lengthy sentence, at incredible expense to the State, simply to punish him for his petty crime. Most important is the offense’s trivial nature and that the 10½-year sentence does not reflect its low level of seriousness.

What We Are Not Doing

We are not substituting our judgment for that of the trial court, or reweighing the factors, when we say that a decade in prison is “greatly at variance with the spirit and purpose of the law” against burglary. While the trial court has discretion in sentencing, the exercise of that discretion has limits and is not “totally unbridled.”

We have not created a new legal rule or mandated that all Class X sentences should be reduced to the minimum; instead, we have applied the law to the circumstances and evidence presented.

If a trial court abuses its discretion in imposing sentence, it is not an option for an appellate court to modify that sentence—it’s our duty to modify it. But even if the legislature chose not to exclude petty thefts, the trial court’s exercise of its discretion to tailor the sentence within the Class X range must be tempered by the amount of harm the defendant inflicted, that is, the seriousness of the offense.

That was not done here.

In the face of a legislative judgment, we do not simply throw up our hands and say that we have no role to play in sentencing. The legislature has created sentencing ranges, and it is the trial court’s job, and then our job, to impose a sentence that is appropriate, just, and proportionate, depending on the nature, seriousness, and character of the offense.

He's Nonviolent

Allen’s criminal history is nonviolent, nonserious, and, over its course, has posed no risk of harm to any individuals.

Allen’s stays in prison have not deterred him from committing low level criminal acts or rehabilitated him, and according to the trial court, Allen cannot be rehabilitated (a conclusion supported by his background and the fact that he committed this crime while on mandatory supervised release).

We cannot see the point in sending Allen to prison (a place whose partial purpose is supposed to be rehabilitation) for a long time if it is unlikely that he will emerge from it better than he was when he entered it.

This makes Allen far less culpable, far less dangerous, and far less deserving of a harsh sentence than one who uses physical force against a person. The 10½-year sentence is not necessary to protect the public.

Damage To The Truck

There is one difference between Busse and Allen, and that is in the damage to the truck.

Busse’s vending-machine theft didn’t damage the machine, which belonged to a university. Allen broke the victim's truck window, which is a pecuniary inconvenience to Sweis. But Sweis’s window will not be fixed any faster, or less expensively, if Allen spends 10½ years in prison versus 6 years. What Sweis (and other victims of property crime) need from the criminal justice system isn’t an extra four years of punishment for offenders like Allen; Sweis needs restitution, which he is almost certain not to get the longer Allen spends in prison.

The State could have achieved better results by focusing on helping Allen to make Sweis whole, rather than punishing Allen even more severely.

Holding

Six years is enough to punish an offender for breaking a truck window and stealing two packs of cigarettes and a cap (which were promptly returned to the owner).

The sentence was “manifestly disproportionate to the nature of the offense” and thus an abuse of discretion. 10 1/2 years does not reflect the offense’s trivial nature. Accordingly, we impose the minimum sentence of six years.

Under Illinois Supreme Court Rule 615, we reduce Allen’s sentence to six years. Sentence reduced.

See The Dissent

We do a disservice to trial judges to find that they have abused their discretion when they apply a statute as written, which is exactly what the trial court did here.

This last point drives home that the majority’s real problem is the application of Class X sentencing provisions to what it considers to be petty criminals (who nonetheless commit felonies)...that the Class X sentencing statute operates as reflexive—an unthinking, mechanical application of laws that were never intended for a defendant such as this.

But that is a decision the legislature has made, and one that we are not at liberty to ignore.

I would affirm Allen’s sentence.