Kane County Nuggets

People v. Gullens, 2017 IL App (3d) 160668 (October). Episode 429 (Duration 11:50)

Fundamental fairness demands that this defendant be allowed to finish his conditional discharge rather than go to prison for possessing a gun for only 10 minutes.

Gist

Defendant was on conditional discharge for theft. As terms of his conditional discharge, the court ordered defendant not to violate any criminal statutes and to refrain from possessing a firearm or dangerous weapon.

Approximately one month later, the State filed a petition to revoke conditional discharge.

The petition alleged that defendant violated his conditional discharge by committing the offense of possession of a weapon by a felon (720 ILCS 5/24-1.1).

Facts

Defendant came to the South Post Guns, a store that sold firearms and related items with his brother.

The clerk could not remember if defendant had purchased anything, but said defendant might have purchased some ammunition.

Later that day, defendant returned to the store with a Glock 42 and gave it to the clerk. Defendant told him that his younger brother had stolen the gun. The store’s surveillance footage revealed that a man who entered the store with defendant stole the Glock 42 while the clerk was in a different area of the store talking to defendant about magazines or cleaning brushes.

Defendant's Story

Defendant said he went to the store to price guns for his girlfriend’s dad. He bought a cleaning kit but no ammunition. When his brother’s friend produced the gun he immediately took it from him and returned it. Defendant explained that he returned the gun because he did not want to get into trouble. Defendant returned the gun himself because he did not believe his brother's friend would return it, and everyone he knew with a valid FOID card was at work.

Defendant said the gun could have been sold in Chicago and used for crime. Defendant explained that his only goal in possessing the gun was to return it to the store. Defendant said he did not take the gun to the police because he was a felon and he did not want to get in trouble. 

The court said necessity did not apply and sentenced defendant to 3 years.

Necessity Defense

Defendant argued that by possessing the gun for a few minutes, he avoided a public harm significantly greater than him possessing a firearm.

In section 7-13 of the Criminal Code of 2012, the affirmative defense of necessity is defined as follows:

“Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.”

720 ILCS 5/7- 13 (West 2016).

The defense of necessity “is viewed as involving the choice between two admitted evils where other optional courses of action are unavailable, and the conduct chosen must promote some higher value than the value of literal compliance with the law.” People v. Janik, 127 Ill. 2d 390, 399 (1989).

Analysis

The reviewing court agreed with defendant.

Defendant reasonably believed that returning the gun was necessary to avoid a greater public or private injury than committing the offense of being a felon in possession of a weapon.

Returning a stolen firearm to its rightful owner undoubtedly promoted a higher value than refraining from being a felon in possession of a weapon for the 10 minutes it took to return the gun to the store.

We also find that defendant established that there were no other courses of action available to him.

Defendant testified that he did not believe Anchondo would return the gun on his own because he had helped steal it. This belief was reasonable. Defendant also said that he did not know anyone available with a valid FOID card to return the gun. Had defendant called the police and reported the stolen gun without taking possession of the gun, it is uncertain that the police would have recovered the gun.

We acknowledge that both the circuit court and the State have taken the position that there were other alternatives available to defendant.

The State gave no explanation as to what other options were available to defendant.

Specific And Immediate Threat

We note that our supreme court has held that a defendant must show that he faced a “specific and immediate threat” for the necessity defense to apply. People v. Kite, 153 Ill. 2d 40, 46 (1992).

We are inclined to believe that a specific and immediate threat to public safety occurs any time a stolen firearm is out on the street, as a stolen firearm may never be transferred legally.

Fundamental Fairness

Defendant alternatively argues that fundamental fairness demanded that the court deny the State’s petition to revoke conditional discharge because the purposes of defendant’s conditional discharge were served by his continued liberty.

“The issue in a probation revocation proceeding is two-fold: first, whether a probation violation actually occurred, and second, whether the purposes of defendant’s probation are being served by his continued liberty.” People v. Butler, 137 Ill. App. 3d 704, 712 (1985).

Defendant violated his conditional discharge.

However, as in Clark, given the unique circumstances of the violation, revoking defendant’s conditional discharged “thwarts the fundamental objective of restoring him to useful citizenship” and “results in an unsatisfactory application of the law to the facts of this case.”

Here, defendant possessed the stolen firearm for approximately 10 minutes.

Defendant testified that his only intent in possessing the gun was to return it to its rightful owner, and the State has presented no evidence to the contrary.

Though defendant technically committed the offense of being a felon in possession of a weapon for the approximately 10 minutes he possessed the gun, defendant acted to avoid the greater harm of the stolen firearm being out on the street where it most likely would have been sold and used for criminal purposes.

In this way, defendant’s possession of the gun actually served to protect the public.

We deem this a good thing.

The facts of this case suggest that but for defendant’s presence and actions, another illegal gun would have been in the hands of criminals. We deem that a bad thing.

Due to the unique extenuating circumstances of this offense, we believe that the purposes of defendant’s conditional discharge—i.e., defendant’s rehabilitation and protection of the public—are served by his continued liberty.

Holding

As such, we find that the circuit court’s revocation of defendant’s conditional discharge was against the manifest weight of the evidence. Reversed and remanded.

People v. Lee, 2017 IL App (1st) 151652 (October). Episode 428 (Duration 13:52)

Schizophrenic and suicidal patient loses his shit with a nurse and strikes her, but was it accidental?

Gist

Following a bench trial in Cook County, defendant Jimmy Lee was convicted of aggravated battery of a nurse (720 ILCS 5/12-3.05(d)(11) (West 2014)) and sentenced to 27 months’ imprisonment.

Facts

Defendant was arrested because of a physical altercation with Emily Reich, a nurse who was treating defendant for an intentional drug overdose at Advocate Illinois Masonic Medical Center (Illinois Masonic).

When admitted Defendant was yelling abusively.

Emergency personnel informed Reich that defendant had suicidal thoughts and had intentionally overdosed on prescription medication. Reich was familiar with defendant and had treated him at the hospital on approximately five previous occasions. When Reich entered defendant’s hospital room, she was wearing her scrubs with embroidering that indicated she was a nurse.

She noticed that he had changed into a hospital gown but was still wearing a chain necklace with a four-by-three-inch metal cross at the bottom of it. Reich testified that hospital protocol dictates that, once it is known that a patient has had suicidal thoughts, all personal items are removed because they could be used as potential weapons against the patient or the staff.

Remove The Chain

Reich told defendant that “[w]e’re going to need to remove” the necklace.

Defendant refused and called her vulgar names. He also threatened to kill her. Defendant told Reich the necklace was a gift and that she could not have it.

Reich explained to defendant that the necklace needed to be removed for safety purposes and reached toward defendant to remove it.

Another nurse in the room, standing on the opposite side of defendant, attempted to calm him down while Reich removed the necklace. As Reich was leaning over defendant trying to unclasp the necklace, he pulled away, cross clutched in his hand, and the chain broke.

At this time, Reich noticed defendant’s “elbow come down and his hand go back up,” which made her “flinch.” She then felt something very sharp on her forehead and realized that defendant had hit her with the cross he was holding.

After doing so, defendant threw the cross onto the floor.

Reich walked over to where defendant had thrown the cross and bent down to retrieve it. As Reich rose, she found defendant standing over her and threatening to kill her.

Reich exited the room when additional staff entered the room. After Reich left the room, she noticed a red mark about three-quarters of an inch long right along her hairline. Reich stated that she felt a stinging pain throughout the night.

Caught On Video

The State introduced into evidence a surveillance video depicting Reich’s interaction with defendant. The video was played in open court. Reich testified that the video shows her entering defendant’s room and telling him that his necklace needed to be removed. The video also shows a brief struggle between Reich and defendant. According to Reich, the video depicts her leaning over defendant to unclasp the necklace, defendant’s hand reaching up to prevent her from removing the necklace, and defendant’s hand briefly “flutter[ing],” which was when Reich said defendant hit her with the cross.

Defendant is also depicted leaving his bed to stand over Reich as she is bent down in the corner of the hospital room picking up the necklace.

He's Schizophrenic

Defendant is a diagnosed schizophrenic.

Defendant testified that he had learned that both his partner and his son were in a car accident and that his son had not survived the accident.

Defendant attempted to commit suicide by overdosing on prescription medication.

He stated that he respects the staff at Illinois Masonic and credits them with saving his life “so many times.” During his testimony, defendant referred to several of the hospital’s nursing staff and doctors by their first names. He said as Reich reached around his neck, defendant grabbed her hand. Reich then pulled on the necklace, which broke the clasp of the chain holding the cross, causing it to fall and slide across the floor.

Defendant stated that the next thing he remembers is Reich leaving the room and later coming back with the cross in a bag, returning it to him.

Defendant denied ever striking Reich.

He could not recall leaving his bed and approaching Reich.

Convicted By Trial Court

Based on this evidence, the trial court found defendant guilty of aggravated battery of a nurse.

Battery

To establish that defendant committed battery against Reich, the State had to prove that defendant knowingly, without legal justification, by any means

(1) caused bodily harm to her or
(2) made physical contact of an insulting or provoking nature with her.

720 ILCS 5/12-3(a) (West 2014).

A person acts “knowingly” when he or she is

“consciously aware that that result is practically certain to be caused by his conduct.”

720 ILCS 5/4-5(b) (West 2014).

Issue

Our question on review, then, is whether, viewing the evidence in the light most favorable to the State, there was sufficient evidence to prove that defendant intended to cause bodily harm to Reich or to make physical contact of an insulting or provoking nature with her.

Analysis

Here, the evidence, even when viewed in the light most favorable to the State, does not show that defendant intended to hit Reich, and thus, he did not commit aggravated battery of a nurse.

The circumstantial evidence in this case and defendant’s conduct on the evening in question do not support the inference that defendant intended to strike Reich. The record shows that defendant, a diagnosed schizophrenic, had been a patient at Illinois Masonic since 2006.

On the evening in question, defendant was in distress. This caused defendant to attempt suicide by overdosing on prescription medication, which ultimately led to him being treated at Illinois Masonic that evening. Not surprisingly, when defendant was admitted to the emergency room, he was behaving turbulently and yelling indiscriminately.

When Reich attempted to remove the cross, he refused and explained that it had been a gift from his partner. Reich nevertheless attempted to remove the necklace, and he inadvertently struck her with it. He testified that he could not recall certain parts of his encounter with Reich. Again, this is not surprising given that defendant had attempted to commit suicide by ingesting prescription medication.

When all of this evidence is considered as a whole, it does not show that defendant had the requisite intent to cause bodily harm to Reich or to make physical contact of an insulting or provoking nature with her.

Let's Blame The Victim

Reich, according to all of the testimony, is the one who initiated the struggle with defendant, a diagnosed schizophrenic whose mental health history she was familiar with, by forcibly removing his necklace over his clear objection.

As a patient, defendant had a commonlaw right to refuse medical treatment.

At some point during that brief altercation, the cross came into contact with Reich. It was the State’s burden to prove, as an essential element, that defendant’s conduct was knowing or intentional and not accidental. Defendant tried to explain to Reich that the necklace was a gift with sentimental value.

When she persisted in trying to remove it, he reached his hand up to prevent her from taking it.

But defendant does not dispute that the cross made contract with Reich; rather, he contends he never intended that outcome.

Nothing in the State’s evidence suggests otherwise.

Holding

It was the State’s burden to prove that he was “consciously aware” of what he was doing and the results of his actions. Given the defendant’s mental state at the time, we find that the State’s evidence establishing defendant’s intent was so unsatisfactory as to create reasonable doubt of his guilt.

Accordingly, the evidence was insufficient to support his conviction.

Concurring Opinion Takes The Cake

They said what occurred was not only preventable but predictable considering that the nurses were dealing with a mentally ill patient.

I would contend, however, that this prosecution should not have been brought and that similar cases might be avoided by more critical consideration of a person’s mental condition and intent before charges are filed.

Individuals with psychiatric or mental health conditions are regularly mistreated and undertreated in the criminal justice system.

Jamie Fellner, A Corrections Quandary: Mental Illness and Prison Rules, 41 Harv. Civ. Rts.-Civ. Liberties L. Rev. 391 (2006) (describing the sources and effects of this tension between prisons and mental illness). Indeed, due to a number of factors, including deinstitutionalization and the inadequacy of community-based psychiatric services, people with mental illnesses are arrested for minor offenses that would formerly have been seen as requiring medical attention but are now seen as behaviors that require punishment through the criminal system.

The nation’s jails and prisons have become, de facto, the nation’s largest psychiatric hospitals.

But prosecutors must continue to look more deeply and sensibly at cases involving the mentally ill to determine whether charges should be brought.

Lee, who was distraught and suicidal, voluntarily sought help at a hospital. 

Despite having Lee’s best interests in mind, Reich, by physically trying to remove Lee’s necklace against his wishes, instigated as well as exacerbated the confrontation. To be sure, of paramount importance is the safety of medical personnel who work with patients exhibiting erratic and dangerous behavior. But rarely should unwanted physical contact between mentally ill patients and hospital staff amount to conduct worthy of a criminal charge.

By carefully considering the intent of the patient before bringing charges, prosecutors may avoid unnecessary prosecutions and curtail the incarceration of those with mental illnesses.

See Also

Episode 362 - DOJ’s Report On The Chicago Police Department Cited For The First Time In This Reversal

People v. Cole, 2017 IL 120997 (November). Episode 427 (Duration 10:00)

Cook County Public Defender wants to control who they get appointed to represent.

The Gist

Campanelli, The Cook County Public Defender, asked the court to hold her in friendly contempt and to impose a nominal sanction so that she could seek appellate review of the court’s decision.

The PD did not want to accept the appointment because they were already representing many of the other codefendants and this defendant was also charged with threats against some of the other clients.

Campanelli then filed a notice of intent to refuse appointment and to request appointment of counsel other than the public defender of Cook County. In her notice, Campanelli argued that every client has a right to be represented by conflict-free counsel and that concurrent conflicts of interest are prohibited by Rule 1.7 of the Illinois Rules of Professional Conduct of 2010 (eff. Jan. 1, 2010).

Eventually, the trial court also appointed private counsel to represent Cole in light of Campanelli’s refusal.

Rule 1.7 On Conflict of Interest

Rule 1.7(a) provides:

“Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

Ill. R. Prof’l Conduct (2010) R. 1.7 (eff. Jan. 1, 2010).

Campanelli also points to comment 23 to Rule 1.7, which explains that:

“[S]imultaneous representation of parties whose interests in litigation may conflict, such as coplaintiffs or codefendants, is governed by paragraph (a)(2). A conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant.”

Ill. R. Prof’l Conduct (2010) R. 1.7 cmt. 23 (eff. Jan. 1, 2010).

Campanelli noted that Rule 1.7 provided that conflicts arise whenever the interests of one client are directly adverse to the interests of another client or whenever the representation of a client is materially limited. Based upon Rule 1.7, Campanelli stated that she could not accept appointment to represent Cole when she was already representing five other codefendants.

Campanelli indicated that she also had moved to withdraw from representing codefendants Whitehead, Reed Jr., Morgan, and Sago, due to concurrent conflicts with one another and with codefendant Washington.

Because she was bringing the conflict of interest to the court’s attention at an early stage, Campanelli claimed that it was incumbent on the court to take action and alleviate the conflict by appointing private counsel.

Rule 1.10 On Firms: Is The Public Defender Office A Law Firm?

Campanelli contended that the office of the Cook County public defender had a conflict of interest in representing Cole because the office of the Cook County public defender is a law firm as set forth in Rule 1.10(a) of the Illinois Rules of Professional Conduct of 2010 (eff. Jan. 1, 2010).

In making this argument, Campanelli contends that representation by the office of the Cook County public defender is tantamount to representation by a single attorney for purposes of conflict of interest analysis. In support of this argument, Campanelli points to Rule 1.10 of the Illinois Rules of Professional Conduct of 2010. Rule 1.10(a) provides:

“While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.”

Comment 1 to Rule 1.10 explains:

“For purposes of the Rules of Professional Conduct, the term ‘firm’ denotes lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. See Rule 1.0(c). Whether two or more lawyers constitute a firm within this definition can depend on the specific facts.”

Campanelli argues that the office of the public defender is a “firm,” which means that its associated members—the assistant public defenders—may not represent clients with conflicting interests.

The Counties Code Act

Campanelli then argues that appointing the office of the public defender to represent codefendants always presents a conflict of interest under Rule 1.7 because Campanelli, as the Cook County public defender, is counsel to all the defendants her office represents.

Campanelli points out that the Counties Code provides:

“The Public Defender, as directed by the court, shall act as attorney, without fee...for all persons who are held in custody or who are charged with the commission of any criminal offense...”

Counties Code 55 ILCS 5/3-4006 (West 2016).

Campanelli stated that she represents every client in the public defender’s office and had a right to know every fact, every strategy, and every defense of every case. If not allowed to know the confidences between lawyers, she would not be acting as the public defender of Cook County.

Multiple Defender Division

Campanelli conceded that she has a multiple defender division for multiple offender cases but contended that she was in conflict even in those cases.

Campanelli conceded that she had separate attorneys assigned to those defendants but contended that, under the Counties Code (55 ILCS 5/3-4006 (West 2016)), she was the attorney for every client assigned to her office. 

The office of the Cook County public defender describes the multiple defendant division as follows:

“Attorneys assigned to the Multiple Defendant Division (MDD) of the Law Office of the Cook County Public Defender represent clients in felony and first degree murder cases where more than one person is accused. These attorneys are very experienced and represent indigent accused throughout the county. They act independently of other divisions in the office to prevent any effects from a conflict between Public Defender clients.”

Divisions of the Public Defender’s Office, Cook County Gov’t, http://cookcountyil.gov/service/ divisions-public-defenders-office (last visited Nov. 8, 2017).

Campanelli also acknowledged that there were approximately 518 attorneys employed by the office of the Cook County public defender and those 518 attorneys did not all share the same supervisors. Further, the attorneys assigned to represent Cole’s codefendants were from different divisions of the public defender’s office, and each had a different supervisor.

Contempt Of Court

The trial court therefore found that Campanelli had willfully and contemptuously refused to accept the trial court’s appointment to represent Cole after being ordered to do so. The trial court found Campanelli’s refusal to be without basis, as there was no prejudice to Cole if Campanelli accepted the appointment.

The trial court therefore ordered that Campanelli was in direct civil contempt for her willful failure to obey a direct order of the court. The trial court imposed a sanction consisting of a fine of $250 per day until such time as Campanelli purged herself of direct civil contempt by accepting appointment as counsel for defendant Cole or until she was otherwise discharged by due process of law.

Who Should Make The Call?

The trial court observed that it had not found Cole’s rights to be prejudiced, so that Campanelli’s refusal to represent Cole was contemptuous.

Issue

In reviewing the contempt order, we must examine the propriety of the trial court’s order directing Campanelli to accept appointment as counsel for Cole. If the order was invalid, the contempt order must be reversed.

Analysis On Rule 1.10(a):
Public Defender Is A Firm

In making her argument, Campanelli misunderstands this court’s case law concerning the interpretation of statutes and court rules.

In enacting the Illinois Code of Professional Responsibility, and later the Illinois Rules of Professional Conduct and the 2010 amendments to those rules, we presume that the court was well aware of its own case law holding that the office of the public defender is not a law firm for purposes of conflict of interest.

This court has never departed from its precedent to expressly include the office of the public defender within the definition of a law firm, “association authorized to practice law,” or “a legal services organization” in its Code of Professional Responsibility or Rules of Professional Conduct. We again point out that the plain meaning of “firm” in Rule 1.10 necessarily excludes public defender offices from its definition.

Analysis On Rule 1.7: Conflicts of Interest

While Rule 1.7 and comment 23 warn of the risk of joint representation of codefendants, the rule and comment address the representation of multiple defendants by one attorney. The issue here, in contrast, is whether representation of codefendants by different assistant public defenders presents a conflict of interest.

As discussed, with regard to the public defender’s office, this court has declined to adopt a per se rule finding a conflict of interest where different assistant public defenders represent codefendants in a case. Consequently, with regard to the public defender’s office, a case-by-case inquiry “is contemplated whereby it is determined whether any facts peculiar to the case preclude the representation of competing interests by separate members of the public defender’s office.”

The mere fact that codefendants in a case are represented by separate members of the public defender’s office does not violate Rule 1.7.

Analysis On The Counties Code Act

The fact that the trial court appoints the office of public defender to represent an indigent defendant, rather than appointing specific assistant public defenders, does not thereby transform the office of the public defender into a single entity for purposes of conflict of interest analysis.

Similarly, the fact that the appointed public defender has supervisory authority over his or her assistant public defenders does not override an assistant public defender’s undivided loyalty to his client.

The statute cited by Campanelli and the case law around it developed to stop judges from appointing specific assistant PD’s.

The case law is quite clear that an assistant public defender’s loyalty to his client supersedes his allegiance to the office of the public defender.

While Campanelli has oversight of the approximately 518 assistant public defenders in her office, it is the assistant public defender appointed to represent a defendant who provides the legal services to that defendant. The assistant public defender’s loyalty to his office has not been deemed great enough to impute to him the conflicts of other assistant public defenders.

The fact that Campanelli has supervisory authority over all the assistant public defenders in the office of the Cook County public defender is not sufficient grounds, in and of itself, to disqualify the entire office from representing codefendants.

Holding

Here, the trial court found that Campanelli failed to provide any substantive basis that a conflict of interest prohibited her from providing legal representation to Cole. Upon review, we find no abuse of discretion in the trial court’s finding.

Although a defendant need only present the gist of a conflict, we find that Campanelli proffered only the bare allegations of a conflict, based on mere speculation. Despite Campanelli’s attempt to assert a conflict in the public defender’s representation of Cole, it is clear that basis for Campanelli’s conflict or potential conflict in representing of Cole arises solely from the fact that the office of public defender was appointed to represent more than one defendant in this multiple defendant case.

Nonetheless, the United States Supreme Court and this court have declined to find a per se conflict of interest simply because multiple representation may involve a conflict of interest.

At best, Campanelli’s claims of conflict are based upon mere speculation that joint representation of codefendants by assistant public defenders will, at some point, result in conflict. These claims fail to provide an evidentiary record of conflict, and a conflict cannot be created on mere speculation. As noted, under Holloway and Spreitzer, when a potential conflict is brought to the attention of the trial court at an early stage, a duty devolves upon the trial court to either appoint separate counsel or to take adequate steps to ascertain whether the risk of conflict was too remote to warrant separate counsel.

Here, the trial court took adequate steps to ascertain that the risk of conflict was too remote to warrant separate counsel. Under the circumstances, then, the trial court did not abuse its discretion in finding that there would be no prejudice to Cole in appointing the office of the Cook County public defender to represent her. 

Accordingly, we affirm the trial court’s judgment finding Campanelli to be in direct civil contempt and imposing sanctions for that contempt. We note, however, that the record is clear that the trial court understood Campanelli’s contempt was purely a formal one and that the motivation for the contempt was solely to permit an appeal of the issue of multiple representation of defendants in light of the 2010 revisions to the Illinois Rules of Professional Conduct. Given these circumstances, we vacate the order of the trial court holding Campanelli in contempt and vacate the award of sanctions, despite our finding that the contempt order and award of sanctions were valid.

Moreover, because the underlying case against Cole has continued to proceed with appointed counsel since May 19, 2016, we find, for purposes of judicial economy, that appointed counsel shall continue to represent Cole in the underlying case.

We decline to order Campanelli to now accept representation of Cole.

People v. Wood, 2017 IL App (1st) 143135 (November). Episode 426 (Duration 12:38)

Defendant thought his rant against the judge to the Public Defender was being made in confidence...not.

Facts

Defendant was on probation for telephone harassment for threatening to kill a coworker that got him fired.

Then the judge denied Defendant a chance to transfer his probation to Virginia where his girlfriend lived. Defendant was fired from multiple jobs and had difficulty meeting his probationary financial requirements, and he blamed the terms of his probation for his hardship.

Even though his probation was set to be terminated in April 2013, defendant figured he would not be released from his probation because he could not afford the fees.

He Makes The Call

Frustrated one night in March 2013, defendant looked up the public defender’s phone number and left a voicemail.

“There is not a day that goes by since I was sentenced at that courthouse that I have not dreamed about revenge and the utter hate I feel for the judge, and the utter hate I feel for the prosecuting attorney, and the utter hate I feel for the corporation that bound me in chains. There’s not a day that goes by that I don’t pray for the death and destruction upon the judge and upon every single person who sentenced me, and in front of witnesses, in front of everyone, and my utter hatred of you and of every other attorney there. You make me sick to my motherfucking stomach. And I hate you. And I hate the prosecuting attorney. And I hate Judge Calabrese. And I hate you all so very, very much. For the evil you did is un-freaking speakable and the lack of remorse I feel is because of the injustice done to me. You all can suck it because I hate you all with the bottomless, deepest hate of my heart.”

The Disclosure

Five days later, Assistant Public Defender Barry Horewitch went to Judge Calabrese’s courtroom, and while the judge was on the bench, told the judge that he needed to speak to him about something important.

Horewitch told Judge Calabrese about the voicemail and then played the voicemail for the judge in the presence of an assistant State’s Attorney.

At that time, no one knew the identity of the person that left the voicemail.

The Investigation

The judge alerted the sheriff in charge of security and his supervising judge.

A police officer was assigned to investigate.

About three weeks after the call was made and two weeks after the judge heard the message, defendant was identified as the caller.

Defendant was arrested and charged with threatening a public official. He admitted making the call, but claimed it was not a threat.

Was It A Threat?

Judge Calabrese testified at trial that he took the voicemail as a threat. He changed his routine, would not stay at the courthouse after hours, and was otherwise vigilant. He was scared for his own safety and that of his family. 

Defendant claimed he was overwhelmed by his legal troubles and wanted to tell the public defender exactly how he felt. He claimed that he never intended the message for the judge nor did he think the judge would ever hear it.

Following a jury trial, the jury found defendant guilty of threatening a public official. The trial judge sentenced defendant to two years in prison.

Threatening A Public Official

To sustain a conviction for threatening a public official, the State must prove three elements beyond a reasonable doubt:

(1) that defendant knowingly and willfully communicated, directly or indirectly, a threat to a public official;
(2) that the threat would place the public official in reasonable apprehension of immediate or future bodily harm; and
(3) that the threat was related to the official’s public status.

720 ILCS 5/12-9(a)(1)(i).

Issue

Defendant argues that his conviction should be reversed because he did not convey any communication to Judge Calabrese at all, either directly or indirectly, and because the content of the communication was not a true threat.

Analysis

We begin by analyzing whether defendant even made a threat to Judge Calabrese.

A true threat is...

a communication in which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.

The Case Law

Under recent Supreme Court precedent, statutes criminalizing speech for being threatening require proof that the speaker intends the communication to be a threat and that a reasonable listener would understand the communication to be threatening.

Again, the part of the defendant’s communication that the State principally relies upon to argue in favor of upholding the conviction is defendant’s statement that

“there is not a day that goes by since I was sentenced at that courthouse that I have not dreamed about revenge and the utter hate I feel for the judge” and

“there’s not a day that goes by that I don’t pray for the death and destruction upon the judge.”

It Was Just A Dream

Neither of those statements individually nor the communication in its entirety threatens “immediate or future bodily harm, sexual assault, confinement, or restraint.” See 720 ILCS 5/12-9(a)(1)(i) (West 2012).

Neither of the statements nor the communication in its entirety contains a “serious expression of an intent to commit an act of unlawful violence to a particular individual.”

A person expressing a dream for revenge is not the same as an expression that the person intends to undertake physical retaliation or commit violence. Dreaming about revenge in no way proves that defendant was communicating an intent to seek violent retribution.

Defendant made no actual threat of undertaking any act related to his dream for revenge. In the same way, praying for the death and destruction of the judge does not amount to a threat that defendant is going to do anything so that his prayers are realized.

The statements are not “serious expression[s] of an intent to commit an act of unlawful violence to a particular individual,” as the Supreme Court requires for criminalizing such speech.

Defendant never said he was going to do anything—just that he hoped and prayed bad things would befall those that he felt had wronged him.

On the flip side, defendant testified that he did not intend for the judge to hear the communication and specifically chose the public defender because he thought he could air his grievances confidentially.

Yes But...

The State points out that defendant was admittedly upset with Judge Calabrese’s ruling and that he called after-hours, from a blocked number, and did not leave his name.

The State emphasizes that defendant mentioned Judge Calabrese by name in the message.

Defendant also had a previous conviction for threatening a former coworker on the phone.

Holding

When reviewing the record, there is no evidence justifying a reasonable inference that defendant intended to convey the idea of violent retribution. Hypothetical and aspirational statements are not true threats as a matter of law.

Even back to the basic dictionary definition, defendant did not communicate an “intent to inflict harm.” He did not communicate an intent to do anything.

While distasteful, inept, and crude, defendant’s statement is not criminal. It is a vague, hyperbolic statement expressing defendant’s feelings, not making a true threat.

The State cannot criminalize a defendant’s hope that a judge dies, even if the defendant articulates those hopes. The State cannot criminalize a defendant’s dream for revenge unless, along with that expressed dream, the defendant seriously expresses an intention to commit an act of unlawful violence to fulfill his dream.

There was no such expression in this case.

Was It Reasonable For The PD To Believe It Was A Threat?

The referenced statements do not warn of any future harm. They are vague and ambiguous; they do not indicate defendant has the means to carry out a threat; they do not indicate any actual intent to carry out a threat or any intent to affirmatively do anything.

The lack of specificity and the lack of an expression that defendant had any intention to do anything makes it impossible to find defendant’s rant to be “a serious expression of an intent to commit a violent act.”

The State offered no evidence that defendant intended for the judge to hear this communication.

He's In The Clear

There is a difference between the public defender feeling obligated to alert the judge about the message and defendant knowingly transmitting a threat to the judge.

The evidence at trial proved the former, but not the latter. Reversed.

See Also

Episode 089 This Threatening a Public Official Charge Involved a Bad-Ass Public Defender 

People v. Relerford, 2017 IL 121094 (November). Episode 425 (Duration 7:38)

Just a small part of the Illinois stalking statute was declared unconstitutional.

See Our Discussion Of The Lower Opinion

See Episode 197 - Illinois Stalking and Cyberstalking Declared Unconstitutional 

The appellate court vacated all of defendant’s convictions based on its determination that the terms of subsection (a) of the stalking and cyberstalking statutes violate due process. In the appellate court’s view, the United States Supreme Court’s decision in Elonis v. United States, 135 S. Ct. 2001 (2015), compelled invalidation of both statutes on due process grounds because the relevant provisions lack a mental state requirement.

The Elonis Decision

In Elonis, the Supreme Court addressed the question of which mental state would be inferred to apply in a federal criminal statute that does not specify a mens rea requirement. 

The Court recognized that, because criminal offenses generally require proof of a “guilty mind,” courts typically interpret a criminal statute to require a criminal mens rea, even if the statute fails to include an applicable scienter requirement. The Court recognized that, because criminal offenses generally require proof of a “guilty mind,” courts typically interpret a criminal statute to require a criminal mens rea, even if the statute fails to include an applicable scienter requirement.

But Elonis was not a due process case, and the Supreme Court did not engage in any due process analysis. Rather, Elonis merely decided a question of statutory interpretation and determined that, where the subject criminal statute was silent as to mens rea, a mental state of intent or knowledge would suffice.

On several occasions, this court has similarly inferred a requisite mental state where the statute is silent as to mens rea.

The Stalking Statute

The current version of subsection (a) of the stalking statute provides as follows:

“A person commits stalking when he or she knowingly engages in a course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to: (1) fear for his or her safety or the safety of a third person; or (2) suffer other emotional distress.”

720 ILCS 5/12-7.3(a)(1), (a)(2) (West 2012).

The phrase “course of conduct” is defined in subsection (c) as:

“2 or more acts, including but not limited to acts in which a defendant directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other non-consensual contact, or interferes with or damages a person’s property or pet. A course of conduct may include contact via electronic communications.”

720 ILCS 5/12-7.3(c)(1) (West 2012).

In addition, subsection (c) defines “emotional distress” as:

“significant mental suffering, anxiety or alarm.” 720 ILCS 5/12-7.3(c)(3) (West 2012).

The phrase “reasonable person” is defined as:

“a person in the victim’s situation.”

720 ILCS 5/12-7.3(c)(8) (West 2012).

Subsection (c) defines “non-consensual contact” as:

“any contact with the victim that is initiated or continued without the victim’s consent.”

720 ILCS 5/12-7.3(c)(6) (West 2012).

Under that provision, “non-consensual contact” includes:

“being in the physical presence of the victim; appearing within the sight of the victim; approaching or confronting the victim in a public place or on private property; appearing at the workplace or residence of the victim.”

Defendant's Issue

Defendant contends that the new provisions, criminalizing communications to or about a person that negligently would cause a reasonable person to suffer emotional distress, violate the first amendment. U.S. Const., amend.

The first amendment, which applies to the states through the fourteenth amendment, precludes the enactment of laws “abridging the freedom of speech.” U.S. Const., amends. I, XIV. Under this amendment, a government “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

Emotional Distress

Of relevance here, the proscription against “communicat[ions] to or about” a person that negligently would cause a reasonable person to suffer emotional distress criminalizes certain types of speech based on the impact that the communication has on the recipient.

Under the relevant statutory language, communications that are pleasing to the recipient due to their nature or substance are not prohibited, but communications that the speaker “knows or should know” are distressing due to their nature or substance are prohibited. Therefore, it is clear that the challenged statutory provision must be considered a content-based restriction because it cannot be justified without reference to the content of the prohibited communications.

State's Position

The State argues, however, that the communications prohibited in subsection (a) do not unconstitutionally encroach on the right to speech because they are categorically unprotected by the first amendment.

In particular, the State claims that “communicat[ions] to or about” a person are exempt from first amendment protection because they fall within either the exception for true threats or the exception applicable to speech that is integral to criminal conduct. 

What's A True Threat?

With regard to the exception for true threats, the Supreme Court has held that a communication qualifies as a true threat if it contains a “serious expression of an intent to commit an act of unlawful violence.”

The State offers no cogent argument as to how a communication to or about a person that negligently would cause a reasonable person to suffer emotional distress fits into the established jurisprudence on true threats.

Moreover, it is unclear whether the true threat exemption from the first amendment would apply to a statement made with innocent intent but which negligently conveys a message that a reasonable person would perceive to be threatening.

Analysis

Here, subsection (a) does not require that the prohibited communications be in furtherance of an unlawful purpose.

As such, there is no “proximate link” between the restricted communications and some other criminal act. In light of the fact that a course of conduct can be premised exclusively on two communications to or about a person, this aspect of subsection (a) is a direct limitation on speech that does not require any relationship—integral or otherwise—to unlawful conduct.

Under subsection (a), the speech is the criminal act.

A statute is overbroad on its face if it prohibits constitutionally protected activity as well as activity that may be prohibited without offending constitutional rights. Consequently, the overbreadth doctrine permits a party to challenge a statute as a facial violation of the first amendment, even if that party’s conduct would not fall within the amendment’s protection.

Given its limited application, the Supreme Court has observed that the overbreadth doctrine should be applied “only as a last resort” and only if the degree of overbreadth is substantial and the statute is not subject to a limiting construction.

Indeed, even core political speech could be prosecuted under subsection (a) if the speaker knows or should know that the substance of his or her comments would cause a reasonable person to suffer emotional distress. Nothing in the language of subsection (a) explicitly differentiates between distressing communications that are subject to prosecution and those that are not—and the State has not offered any guidance as to how Illinois citizens should tease out that difference.

A case-by-case discretionary decision by law enforcement officers and prosecutors does not solve the problem of the chilling effect on innocent speakers who fear prosecution based on negligently made distressing communications to or about a person.

Holding

We conclude that subsection (d)(2) (which says: "This Section does not apply to an exercise of the(2) This Section does not apply to an exercise of the    right to free speech or assembly that is otherwise lawful.") is insufficient to remediate the extreme overbreadth of subsection (a) and cannot by itself make the terms of that provision constitutional.

Accordingly, the degree of overbreadth is substantial, rendering subsection (a) overbroad on its face. 

We hold that the portion of subsection (a) of the stalking statute that makes it criminal to negligently “communicate[ ] to or about” a person, where the speaker knows or should know the communication would cause a reasonable person to suffer emotional distress, is facially unconstitutional.

Additionally, because subsection (a) of the cyberstalking statute imposes criminal liability based on similar language, it is unconstitutionally overbroad as well.

See 720 ILCS 5/12-7.5(a) (West 2012).

Accordingly, all four of defendant’s convictions must be vacated. In sum, the terms of subsection (a) of the stalking and cyberstalking statutes violate the first amendment because they are overbroad in that they impermissibly infringe on the right to free speech.

Accordingly, the phrase “communicates to or about” is stricken from those provisions.

Because defendant’s convictions under those provisions cannot be sustained based on other conduct, his convictions must be vacated, and we affirm the judgment of the appellate court.

In light of our resolution of the first amendment issue, we need not address the remaining arguments of the parties. Although the lower court's ruling was correct their reasoning was flawed. Cases dealing with no mens rea , like Elonis, have no bearing on the case before us because the statutory provisions at issue here are not silent as to mental state. Contrary to the views expressed by the appellate court, substantive due process does not categorically rule out negligence as a permissible mental state for imposition of criminal liability, and Elonis does not suggest such a categorical rule.

Therefore, we reject the appellate court’s reasoning and its determination that Elonis mandates invalidation of the statutory provisions at issue here.

People v. Paddy, 20172017 IL App (2d) 160395 (October). Episode 417 (Duration 14:30)

Drug interdiction patrol officer unreasonably prolonged this traffic stop for a drug dog sniff.

The Stop

After stopping the Impala for following too closely, Sergeant Hain approached the open front passenger-side window.

Johnson was in the driver's seat, Cook was in the front passenger seat, and Paddy was seated in the rear behind Johnson.

According to Sergeant Hain, Cook’s face was pale, he was trembling, and he would look only at Johnson.

Paddy was very rigid, he was pressed against the backseat, and he stared out the driver’s-side rear window.

Sergeant Hain considered Cook and Paddy to be nervous.

The female driver is asked to exit and sit in the officer’s front seat in the squad car.

The Warning

After entering his squad car, Sergeant Hain began preparing a written warning for following too closely.

He also conducted a computer-records check, from which he learned that the Impala was registered in Minnesota.

As Sergeant Hain was talking with Johnson, he requested that Detective Ryan Monaghan, a K-9 handler, back him up. Although Sergeant Hain had completed the written warning, he left it on the clipboard. He then told Johnson to wait in the squad car while he spoke to Cook about an insurance card. He exited the squad car and walked back to the front passenger window.

The Insurance Card + Weed

Sergeant Hain asked Cook to look for an insurance card.

According to Sergeant Hain, as he stood at the passenger window the second time, he saw green flakes on Cook’s face, chest, and pants. Based on Sergeant Hain’s police training and experience, he decided that the flakes appeared to be cannabis.

The Drug Dog Sniff

During the K-9 sniff, the dog, which was trained to passively alert to the odor of drugs by sitting down, never did so.

Instead, the dog was very excited and attempted to jump through the window of the Impala.

Detective Monaghan had to repeatedly command the dog to smell for drugs, as the dog was distracted by Paddy’s return. According to Detective Monaghan, the dog was trained to protect and previously there had been issues with the dog being distracted by people in the vicinity of a searched vehicle. Detective Monaghan explained that, even though the dog did not passively alert to the odor of drugs, its behavior indicated that it smelled drugs in the Impala.

He added that the dog would indicate the presence of a drug odor by showing behavioral changes such as attention, drive, focus, changing its breathing pattern, perking its ears, and jumping at an object to get to the source of the odor.

Factors that affect a dog’s sense of smell include wind and whether the drugs are hidden in a deep compartment.

It is not uncommon for a dog to try to go through a window to get at the source of an odor.

Although Detective Monaghan shook his head at the conclusion of the K-9 sniff, he explained that he did so because he was frustrated by the dog being distracted by Paddy.

He told Sergeant Hain that the dog reacted to the odor of drugs in the Impala.

The Car Search

Sergeant Hain searched the Impala.

He found cannabis flakes near the handle of the front passenger door as well as a bullet in the map pocket of the door. He found a loaded handgun between the front passenger seat and the center console. He then handcuffed Cook and Paddy. He then found a second loaded handgun under the driver’s seat, $8,000 in Johnson’s purse, and a large amount of heroin in a backpack in the trunk.

Drug Dog Law

The United States Supreme Court has held that a dog sniff conducted during a lawful traffic stop does not violate the fourth amendment. Rodriguez v. United States, 575 U.S. ____, ____, 135 S. Ct. 1609, 1612 (2015) (citing Illinois v. Caballes, 543 U.S. 405 (2005)).

However, a traffic stop that exceeds the time needed to handle the matter for which the stop was made violates the fourth amendment’s prohibition against unreasonable seizures. Put another way, a seizure justified by a police-observed traffic violation becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation.

In Rodriguez, the Supreme Court addressed the issue of whether a dog sniff during a traffic stop, absent reasonable suspicion, unreasonably prolonged the time to complete the purpose of the stop. Rodriguez, 575 U.S. at ____, 135 S. Ct. at 1614. In answering that question, the Court noted that the tolerable duration of a police inquiry in the traffic-stop context depends on the dual needs of addressing the traffic violation that justified the stop and attending to related safety concerns. Rodriguez, 575 U.S. at ____, 135 S. Ct. at 1614.

Because addressing the traffic violation is the overall purpose of the stop, authority for the stop ends when tasks tied to the traffic violation are, or reasonably should be, complete.

Business of A Traffic Stop

Beyond determining whether to issue a traffic ticket, an officer’s mission includes ordinary inquiries incident to a traffic stop.

Typically, such inquiries involve checking the driver’s license, determining whether there are any outstanding warrants, and inspecting the vehicle’s registration and proof of insurance. See People v. Cummings, 2016 IL 115769 (January 2016). Episode 131 (Duration 4:38).

Such checks serve the same objective of the traffic code: the safe and responsible operation of a vehicle.

A dog sniff, however, is a measure aimed at detecting evidence of crime. Accordingly, it is not an ordinary incident of a traffic stop. Thus, a dog sniff is not fairly characterized as part of the officer’s traffic mission. In rejecting the government’s contention that an officer may incrementally prolong a traffic stop to conduct a dog sniff so long as the overall duration of the stop remains comparatively reasonable, the Court reiterated that a traffic stop that is prolonged beyond the time reasonably required to complete the mission of the stop is unlawful.

Issue

Sergeant Hain had Cook and Paddy exit the Impala In this appeal, the dispositive issue is whether the mission of the traffic stop had been completed such that the dog sniff unduly prolonged the stop, in violation of the fourth amendment.

It did.

Thus, the critical question is not whether the dog sniff occurs before or after the officer issues the ticket, but whether conducting the dog sniff prolonged the stop.

The mission of the traffic stop was completed when Sergeant Hain finished the written warning.

Proof of Insurance

As the State concedes, because Illinois law did not require Johnson to provide proof of insurance, as her vehicle was properly registered in Minnesota (see 625 ILCS 5/3-402(B)(2)(a), & 3-707), Sergeant Hain mistakenly believed that he was authorized to return to the vehicle to ask Cook for proof of insurance.

That unjustified return to the vehicle unduly prolonged the traffic stop.

The State maintains, however, relying on Heien v. North Carolina, 574 U.S. ____, 135 S. Ct. 530 (2014), that, because the mistake of law was objectively reasonable, it did not unreasonably prolong the traffic stop.

We disagree.

Mistake Of Law

In so holding, the Court emphasized that only objectively reasonable mistakes of law will be tolerated. Heien, 574 U.S. at ____, 135 S. Ct. at 539.

Thus, an officer can gain no fourth amendment advantage through a sloppy study of the law that he is duty-bound to enforce.

Applying Heien here, we conclude that Sergeant Hain’s mistaken belief that Illinois’s liability-insurance requirements applied to a vehicle registered in Minnesota was not objectively reasonable.

That is so for the following reasons.

First, section 3-707(a) of the Illinois Vehicle Code (Vehicle Code) provides, in pertinent part, that no person shall operate a motor vehicle unless it is covered by a liability insurance policy. 625 ILCS 5/3-707(a). However, section 3-707 adds that only an operator of a motor vehicle subject to registration under the Vehicle Code is subject to a penalty under section 3-707.

Second, section 3-402(B)(2)(a) of the Vehicle Code provides, in relevant part, that vehicles subject to registration under the Vehicle Code do not include any vehicle operated interstate and properly registered in another state. 625 ILCS 5/3-402(B)(2)(a).

When read together, those provisions unambiguously provide that a vehicle properly registered in Minnesota need not comply with the liability-insurance requirements of the Vehicle Code.

Thus, Sergeant Hain, who had ascertained that the vehicle was properly registered in Minnesota, was not reasonable in his mistaken belief that Johnson needed to provide proof of insurance.

Holding

Because the law unambiguously did not require Johnson to provide proof of insurance, Sergeant Hain’s return to the vehicle to ask Cook for an insurance card did not promote any proper purpose for the stop.

Thus, it did not justify the continued detention of the vehicle.

Because Sergeant Hain unduly prolonged the traffic stop when he returned to the vehicle to ask Cook for proof of insurance, the evidence gathered thereafter—including Cook’s version of the travel itinerary, the cannabis flakes seen on Cook, the additional indicia of Cook’s and Paddy’s nervousness, and the positive dog alert—was obtained in violation of the fourth amendment.

No Probable Cause For The Search

Finally, there was no probable cause, independent of the dog sniff, to search the vehicle.

Thus, the only facts relevant to the issue of whether there was probable cause to search the vehicle were those about the travel route and Cook’s and Paddy’s apparent nervousness during Sergeant Hain’s initial presence at the vehicle.

The trial court found, however, that Sergeant Hain’s testimony that Minnesota is a destination for, and Chicago a source of, illegal drugs was alone insufficient to establish that assertion.

We agree.

There needed to be some additional evidence to establish that Minnesota and Chicago are endpoints of drug trafficking. Moreover, even if they are, merely driving to and from those locations would not alone support probable cause to search for evidence of drug trafficking. Nor was the abbreviated stay in Chicago particularly suspicious in light of Johnson’s explanation that they had driven to Chicago to drop off a friend whose family member had died.

As for Cook’s and Paddy’s apparent nervousness, that alone was insufficient to provide probable cause to search the vehicle. In sum, the evidence was insufficient to provide probable cause to believe that the trio was involved in drug trafficking.

Thus, there was no probable cause independent of the dog sniff to justify the search of the vehicle.

See Also

• People v. Theus, 2016 IL App (4th) 160139 (September). Episode 238 (Duration 8:47)
• People v. Cummings, 2016 IL 115769 (January 2016). Episode 131 (Duration 4:38)
• People v. West, 2017 IL App (3d) 130802 (March). Episode 329 (Duration 10:59)

People v. Beck, 2017 IL App (4th) 160654 (November). Episode 424 (Duration 11:51)

Defendant crosses the centerline and collides head on with another car resulting in serious brain damage to the other driver, this 54 page opinion results.

Bad Accident

This was a head on collision that resulted in brain damage with long-term and lasting effects to the other driver. Defendant was found guilty of Aggravated DUI after a stipulated bench trial and put on 30 months probation with 180 days in jail but stayed.

Defendant’s car crossed into oncoming traffic.

A firefighter made first contact with defendant at the accident scene. Defendant reported to the firefighter that he “had maybe five beers” and Gubbins relayed that information to Carle’s emergency room. Defendant reported he had been drinking for the homecoming festivities at Eastern Illinois University since 10 a.m. on the day of the accident.

A photograph of the interior of defendant’s vehicle showed a single Bud Light beer can on the floorboard.

Taken To Hospital 

Defendant is taken to the hospital at 9:43 pm.

Hospital personnel informed the Sheriff’s office that defendant had a blood alcohol result of 0.211.

Deputy Clough stated he first saw defendant in a bed in his hospital room. Defendant’s parents were present and Clough believed a nurse was also in and out of the room. ” Clough next asked defendant if he was willing to submit to testing of his blood and urine. Defendant consented to the testing, and Clough asked a nurse to “do a DUI kit.”

Defendant is ticketed with DUI at 1:45 pm.

Conversation With Police

Because the emergency room was busy, blood was not collected from defendant until approximately 3:25 or 3:26 a.m. (7 hours after the crash) While waiting on the nurse to obtain specimens from defendant, Clough and defendant had a further discussion about defendant’s consumption of alcohol.

During that conversation, defendant reported that he had been drinking at a party prior to the accident.

Defendant admitted that he drank eight to nine beers at a party before the accident and crossed the centerline of the highway and struck Camp’s vehicle.

The officer did read the warning to motorist but did not give defendant the Miranda warnings.

Interesting 911 Recording

Recordings indicated the 9-1-1 center was contacted by law enforcement and asked to contact Carle’s emergency department with a request to draw defendant’s blood.

A dispatcher with the 9-1-1 center then contacted Carle and relayed the request to its emergency department, stating as follows:

“The deputies on scene are requesting that the male subject who’s being transported, you guys get a blood draw from him.”

An unidentified individual from Carle’s emergency department then responded,

“Yeah, we usually always do.”

But a nurse testified she was not ordered by any law enforcement agency to perform the blood draw. Rather, she did so at the direction of the emergency room doctor. At the time she drew defendant’s blood, there were not any police officers in defendant’s room, and she had not spoken to any police officers about defendant’s case. To her knowledge police were not requesting a blood draw.

She acknowledged that defendant’s medical records reflected that she drew defendant’s blood at 10:29 p.m.

Retrograde Extrapolation

The state presented a forensic toxicologist who described retrograde extrapolation as “a mathematical process” and “a method of estimating an individual’s [BAC] at an earlier point in time when it’s known at a later point in time.”

He testified retrograde extrapolation was an accepted method within the field of toxicology for determining an individual’s BAC and “was first described in the 1930s.” Wetstein asserted the mathematics of a retrograde extrapolation calculation were pretty simple and at the level of “high school algebra.”

Elimination Rate

Following that conversion, he was able to calculate defendant’s alcohol elimination rate—the rate at which defendant’s BAC dropped during the approximately 5 1/2 hours between his two blood draws.

Wetstein calculated defendant’s alcohol elimination rate as 0.019.

He testified the average elimination rate falls between 0.01 to 0.02 grams per deciliter per hour.

He then calculated defendant’s BAC at the time of the accident, which he ­testified occurred at approximately 8 p.m.

Other Factors

He took defendant’s height, weight, and gender.

He also relied on statements in the report that defendant consumed eight to nine beers between 5 and 7 p.m. on the day of the accident. He agreed that it was fair to say that “[t]he most significant effect on alcohol absorption [was] the quantity of food substances ingested with or immediately prior to consumption of an alcoholic beverage.”

Wetstein also agreed that a large amount of food present in the stomach would delay the absorption of alcohol. If no food is present in the stomach the absorption rate is faster.

Using that information, Wetstein concluded defendant’s last drink was consumed by 7 p.m.

In The Elimination Phase

Further, he opined within a reasonable degree of scientific certainty that defendant was in the “elimination phase” at the time of the accident rather than the “absorption phase.”

Wetstein testified that a retrograde extrapolation calculation required that an individual be in the elimination phase.

If he reasonably believed defendant had been in the absorption phase at the time of the accident, he would not have offered an opinion on retrograde extrapolation. Wetstein agreed that, as a matter of fact, he could not say when full absorption of alcohol occurred in defendant’s case.

BAC At Time Of The Accident

Ultimately, Wetstein calculated, within a reasonable degree of scientific certainty, that defendant’s whole BAC at the time of the accident was 0.211 grams per deciliter.

The Bedside Confession

On appeal, defendant first argues the trial court erred by denying his motion to suppress statements he made to Clough at Carle regarding his driving and consumption of alcohol on day of the accident. He contends his statements were made during a custodial interrogation and without the benefit of Miranda warnings.

We disagree with defendant’s assertions on appeal.

Although the circumstances he notes weigh in favor of finding that he was in custody for Miranda purposes, they are not dispositive nor do they preclude or prohibit the consideration of other relevant circumstances.

Here, defendant was transported to Carle by ambulance, and Clough’s questioning occurred in defendant’s hospital room, a neutral setting. Also present in the room were defendant’s parents and, at times, hospital personnel. Clough testified he asked permission to see defendant in his hospital room and that “everyone consented.” No other law enforcement personnel were present.

Although Clough informed defendant that he intended to charge him with DUI, read to him the Warning to Motorist that contained warnings pertaining to a DUI arrest, and issued defendant a DUI citation, the record reflects there was no show of weapons or force and defendant was not fingerprinted, booked, handcuffed, or restrained in any way.

The citations issued to defendant were uniform traffic citations. Notably, the DUI citation reflects defendant was provided with a “Notice to Appear” rather than required to post a cash bond, indicating he was not taken into custody by Clough and not being deprived of his freedom of action. The citations were also provided to defendant’s parents rather than defendant.

In fact, the interaction between *** Clough and [defendant] seemed to have been relatively minimal that day, primarily because of the treatment [defendant] was receiving.” The court also found nothing about defendant’s age or mental makeup that would have rendered him any more susceptible to construe his interaction with Clough as a custodial circumstance than any other person.

These factual findings were not against the manifest weight of the evidence. Under the facts presented, we find the majority of relevant factors weigh in favor of finding defendant was not in custody for purposes of Miranda. See People v. Vasquez, 393 Ill. App. 3d 185, 190-91, 913 N.E.2d 60, 66 (2009) (holding a hospital room was a neutral setting and that a suspect questioned in familiar or neutral surroundings “does not face the same pressures as one questioned in a police-dominated atmosphere”).

The Hospital Blood Draw Arguement

On appeal, defendant next argues the trial court erred in denying his motion in limine to bar evidence of his hospital blood draw.

He maintains the State failed to meet the foundational requirements for the admissibility of such evidence as set forth in section 11-501.4 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11-501.4 (West 2012)). Section 11-501.4(a) of the Vehicle Code provides that, in DUI prosecutions, blood tests performed for the purpose of determining alcohol content, which are “conducted upon persons receiving medical treatment in a hospital emergency room are admissible in evidence as a business record exception to the hearsay rule” when “the chemical tests performed upon an individual’s blood *** were ordered in the regular course of providing emergency.

Medical treatment and not at the request of law enforcement authorities.” 625 ILCS 5/11­ 501.4(a)(1) (West 2012).

The testing must also be “performed by the laboratory routinely used by the hospital.” 625 ILCS 5/11-501.4(a)(2) (West 2012).

“The purpose of section 11-501.4 is to insure the reliability and integrity of the test results conducted on a person charged with [DUI].”

Defendant maintains the evidence in his case showed the chemical testing at issue was inconsistent with Carle’s hospital protocol, given the severity of his injuries, and thus, evidence of the testing was inadmissible at his trial. Defendant also implied the blood draw was not medically necessary and was ordered by the police.

We disagree.

Ruling

Here, evidence presented to the trial court established defendant was taken to Carle’s emergency department following the motor vehicle accident and provided treatment by Carle’s emergency department personnel.

Nurse Kocher testified she performed a blood draw on defendant shortly following his arrival at Carle at the direction of Dr. Hans, the emergency room doctor, rather than any law enforcement agency. According to the stipulated evidence at defendant’s bench trial, Dr. Hans ordered the blood draw while treating defendant and “due to the nature of the incident that preceded his hospital visit,” rather than at the request of law enforcement. Further, chemical testing on defendant’s blood was performed in Carle’s laboratory.

We find such evidence was sufficient to meet the statutory requirements.

Further, we reject defendant’s contention that the statute also required the State to present evidence of an established hospital protocol to support the chemical testing. Rather, evidence that chemical testing was ordered by an emergency department doctor while providing treatment to an individual in a hospital emergency room is sufficient to meet statutory requirements.

While evidence of a hospital’s standard protocols or general practices may also support the admission of chemical tests under section 11-501.4, the lack of such evidence does not warrant the exclusion of the chemical test.

First, the language of the statute contains no such explicit requirement.

Second, defendant’s argument fails to take into account the exercise of independent judgment by an individual’s treating physician. We find section 11-501.4 contemplates both situations when chemical testing is ordered pursuant to an established protocol or general practice and when the testing is ordered outside of such standard procedures but based on the independent judgment of the defendant’s doctor while providing emergency medical treatment.

Moreover such an interpretation is consistent with the purpose of section 11-501.4 to insure the reliability and integrity of testing results.

While the evidence defendant presented indicated law enforcement desired a blood draw, the request was communicated to an unknown individual within Carle’s emergency department. The evidence did not show that the request was then communicated to the individuals providing defendant’s treatment or that the test was ordered pursuant to that request. Here, evidence of defendant’s hospital blood draw was admissible under section 11-501.4 of the Vehicle Code.

Further, the trial court committed no error in denying defendant’s motion in limine to exclude that evidence.

People v. Floyd

DUI is reversed because a retrograde extrapolation calculation based on a single breath test with unknown factors necessary to determine whether the defendant was in the elimination phase, is insufficient to provide a reliable calculation and invites the jury to determine guilt on an improper basis.

The expert presumed that the defendant was in the elimination phase. Even if a particular type of scientific evidence has been generally accepted in the scientific community, its admissibility “in an individual case will depend on the State’s ability to lay a proper foundation and to demonstrate the qualifications of its witness, subject to the balancing of probative value with the risk of unfair prejudice.” The expert himself acknowledged many important details were missing from his calculation.

“Wetstein acknowledged that he did not know what [the] defendant had eaten that night, how long she had been drinking, or what type of alcohol she consumed.”

See People v. Floyd, 2014 IL App (2d) 120507, ¶ 20, 11 N.E.3d 335.

The expert in that case was the same expert who testified in this case.

 On review, the defendant challenged Wetstein’s testimony on the basis “that, because Wetstein did not have information necessary to perform a retrograde extrapolation calculation with any degree of certainty, the prejudicial effect of his testimony outweighed its probative value.” The Second District agreed with the defendant’s argument, finding “[a] retrograde extrapolation calculation based on a single breath test, and when many of the factors necessary to determine whether the defendant was in the elimination phase are unknown, is insufficient to provide a reliable calculation and invites the jury to determine guilt on an improper basis.”

It found Wetstein’s testimony was relevant but unreliable because too many of the factors relevant to a retrograde extrapolation calculation were unknown. The court noted Wetstein’s calculation was “premised on the assumption that the defendant was in the elimination phase, without consideration of other relevant factors and without additional breath tests.”

Retrograde Extrapolation Argument

On appeal, defendant argues Wetstein lacked an adequate foundation for his retrograde extrapolation calculations, as he made too many assumptions when forming his opinions.

To lay an adequate foundation for expert testimony, it must be shown that the facts, data, or opinions relied upon by the expert are of a type reasonably relied upon by experts in that particular field in forming opinions or inferences.

Calculations based on retrograde extrapolation principles require information on the rates at which a human body absorbs and excretes alcohol. Rates can vary depending on a number of factors, including the elapsed time between a person’s last drink and the blood test; the amount and type of alcohol consumed; the time period during which the alcohol was consumed; and personal characteristics such as age, weight, alcohol tolerance, and food intake.

Further, a reliable retrograde extrapolation calculation requires consideration of several factors, including the following:

“(1) gender; (2) weight; (3) age; (4) height; and (5) mental state; (6) the type and amount of food in the stomach; (7) the type and amount of alcohol consumed; (8) the time the last alcoholic drink was consumed; (9) the subject’s drinking pattern at the relevant time; (10) the elapsed time between the first drink and the last drink consumed; (11) the elapsed time between the last drink and the blood draws; (12) the number of samples taken; (13) the elapsed time between the offense and the blood draws; (14) the average alcohol absorption rate; and (15) the average elimination rate.”

Additionally, “not every factor must be known to construct a reliable extrapolation; rather, the various factors must be balanced.”

“Whether the State produces a reliable extrapolation will depend on the specific circumstances of each case.

Ruling On Retrograde Extrapolation

In this case, Wetstein’s calculations were based on two blood draws rather than the single breath test at issue in Floyd.

From those tests, taken approximately five and a half hours apart, Wetstein was able to determine defendant’s actual elimination rate. Wetstein also had information in the materials provided to him regarding defendant’s personal characteristics, including his height, weight, and gender. Further, he had information as to when the motor vehicle accident occurred and that defendant reported drinking eight to nine beers between 5 and 7 p.m. prior to the accident.

Although Wetstein acknowledged that he made the assumption that defendant was drinking on an empty stomach, his conclusion that defendant was in the elimination phase at the time of the accident was otherwise based on relevant facts presented to him, including what defendant had been drinking and the time of his last drink.

Further, we agree with the trial court that Wetstein’s opinions were not so flawed as to be inadmissible simply because he made certain assumptions or because defendant could cast doubt on the accuracy of information he relied upon.

As determined by the trial court, such matters are subject to cross-examination and go to the weight of Wetstein’s testimony.

The court did not err in denying defendant’s motion to bar retrograde extrapolation evidence.

People v. Brooks, 2017 IL 121413 (November). Episode 423 (Duration 13:50)

Defendant is taken to the hospital kicking and screaming literally against his will and his blood is drawn.

Motorcycle Accident

Police arrive to the scene of motorcycle accident.

No other cars were involved.

Witnesses told the police that defendant was riding the bike and he wiped out. Webb spoke to defendant and, while doing so, noticed defendant’s speech was slurred, his eyes were red, and he had an odor of alcohol emitting from his mouth when he spoke or yelled at the police.

According to Webb, defendant appeared agitated by the presence of law enforcement.

Webb believed defendant’s leg was broken because his foot was “almost upside down.”

No Hospital Please

When Webb asked defendant if he wanted to go to the hospital, defendant refused.

Webb was concerned about defendant’s safety, as he appeared to not be thinking rationally because he was screaming and swearing at the police. Emergency medical services (EMS) personnel who were present at the scene told Webb defendant needed to go to the hospital and requested Webb’s assistance in getting him there.

Although defendant continued to decline medical services, Webb ordered defendant out of the Jeep.

Defendant refused.

Was He Arrested?

Thereafter, Webb and another officer physically removed defendant from the Jeep, placed him on a gurney, and assisted EMS personnel in putting the gurney into the ambulance.

Webb reiterated that it was EMS personnel who wanted defendant to get medical treatment and that he did not direct anyone to treat defendant.

When asked. Webb testified that the ambulance stopped after traveling one or two blocks because defendant was trying to get out. EMS personnel again asked the police to help in transporting defendant. Webb stated that he was concerned at this time for the safety of EMS personnel, defendant, and himself.

Webb placed defendant on the gurney, handcuffed him, and rode in the ambulance the rest of the way to the hospital. Webb then assisted EMS personnel in taking defendant into the emergency room.

Warnings Read

At the hospital, Webb read the statutory “Warning to Motorists” to defendant and asked him to consent to blood or breath testing.

Defendant refused.

At that point, Webb issued defendant a citation for DUI.

No Police Blood

Webb stated he did not take a sample of defendant’s blood nor did he direct anyone at the hospital to do so. While Webb observed nurses working on defendant, he never spoke to them or any doctor. Webb stated he had no further contact with the hospital after he left and did not know whether defendant ever gave consent for a blood draw.

Defendant Treated

Defendant then testified. Defendant briefly stated that, at the hospital, he never consented to have his blood drawn.

Every time he was asked to have his blood drawn, he refused.

Medical staff set his leg, which was broken. Altogether, defendant stated he spent approximately 12 hours at the hospital.

Issue

The sole allegation raised in defendant’s motion to suppress is that his fourth amendment right to be free from an unreasonable search was violated by a blood draw conducted at the hospital.

No Prima Facia Case

To make a prima facie case for suppression, defendant had to establish two things:

first, that a search occurred in the form of a blood draw and,
second, that the draw violated the fourth amendment.

Defendant failed to establish either of these propositions.

Defendant presented no evidence that his blood was actually drawn at the hospital.

Although this was a matter within his personal knowledge, defendant never testified that he was subjected to a blood draw. Instead, he stated only that he refused to consent to having his blood drawn. Nor did he call any witnesses from the hospital to testify that a blood draw was performed. 

The officer testified he had no knowledge of whether a blood draw took place.

What About The Bloody Envelope?

Although, it appears the state did subpoena the blood results from the hospital, it was never opened at the suppression hearing.

Thus, no evidence was presented at the suppression hearing that a blood draw was actually performed at the hospital.

We cannot agree with the appellate court that, because defendant filed a motion to suppress evidence and the parties proceeded to argue the motion as if a blood draw was performed, defendant, in fact, established that a search took place. The mere filing of a motion is not proof that a search occurred. Defendant bore the burden at the suppression hearing of showing his blood was drawn but failed to offer any evidence to establish that fact.

Also No Search

Moreover, even assuming a blood draw took place, defendant failed to establish any fourth amendment violation. There is no dispute that a blood draw is a search within the meaning of the fourth amendment. However, the constitutional prohibition “against unreasonable searches and seizures does not apply to searches or seizures conducted by private individuals.”

Where a person performs a search independently of the police, the search is considered a private one and, because state action is not present, the fourth amendment is not implicated.

Where a search is conducted by a private individual, the search will be subject to constitutional guarantees when the individual conducting the search can be regarded as acting as an agent or instrument of the State in light of all the circumstances of the case. Participation by the police in and of itself, then, does not automatically invoke the application of the guarantees against unreasonable government intrusions safeguarded by the fourth and fourteenth amendments.

Thus, to establish a fourth amendment violation in this case, defendant had to demonstrate, “in light of all the circumstances,” that the private individual who conducted the alleged blood draw acted as an agent or instrumentality of the State when doing so.

Defendant did not meet this standard.

Thus, there was no evidence that Webb, or any other police officer, sought or encouraged a blood draw or was even aware that one had been done.

Didn't Challenge The Search

The appellate court below stressed the fact that defendant was physically forced to go the hospital and reasoned that, because defendant was compelled to go to the hospital, then any hospital employee who drew defendant’s blood necessarily did so under the guise of state action.

This analysis is misplaced.

There is no question police forcibly seized defendant and helped transport him to the hospital.

But defendant has never challenged the legality of the seizure. His challenge is only to the legality of a search, i.e., the blood draw that allegedly took place at St. Anthony’s. And, on this record, there is no evidence that a blood draw even took place, let alone that a hospital employee was acting as an instrumentality or agent of police when it was performed.

Holding

Based on the foregoing, we conclude that, even assuming blood was drawn from defendant at St. Anthony’s, it was a private search that did not implicate the fourth amendment.

Accordingly, we conclude defendant failed to establish the first element of his prima facie case. We reverse the judgments of the circuit and appellate courts.

The cause is remanded to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded. 

See Also

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

This is the November 2017 Illinois criminal case law audio round-up (the fast case law summary). Episode 422 (Duration 31:30)

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

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

Here's a quick snapshot of the top cases:

1. People v. Brooks

Defendant is taken to the hospital kicking and screaming literally against his will and his blood is drawn.

2. People v. Cole

Cook County Public Defender wants to control who they get appointed to represent.

3. People v. Hardman

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

4. People v. Brown

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

5. People v. Hunter

No relief from new juvenile statutes is warranted when the defendants cases were pending on appeal at the time that the changes went into effect.

6. In re Jarquan

New law does not prevent prison time for minor on misdemeanor probation.

7. People v. Staake

Second degree murder is not a lesser included offense of first degree murder; it is a lesser mitigated offense of first degree murder.

8. People v. Relerford

Just a small part of the Illinois stalking statute was declared unconstitutional.

9. People v. Durden

Can police ask for blood after you pass the breathalyzer?

10. People v. Jackson

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.

11. People v. Palmer

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

12. People v. Del Prete

Day care worker wins her postconviction petition after a Brady violation and after a federal habeas corpus petition ordered her release.

13. People v. Gawlak

In his postconviction petition defendant hired an attorney to argue for more DNA testing, trial judge refused the limited representation.

14. People v. Johnson

Defendant held in direct civil contempt after she refused to unlock her phone.

15. People v. Wood

Defendant thought his rant against the judge to the Public Defender was being made in confidence...not.

16. In re T.J.D.

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

17. People v. Smith

This bloody and gruesome murder trial is going back for a do-over after the state unncessarily injects emotion and prejudice.

18. People v. Escort

Defendant is one of 2 different male DNA profiles lifted off the dead prostituted who was strangled.

19. People v. Henderson

The judge brought the jury into the courtroom to let them see a video with neither the judge, the ASA, nor the defense attorney being there.

20. People v. Beck

Defendant crosses the centerline and collides head on with another car resulting in serious brain damage to the other driver, this 54 page opinion results.

People v. Manzo, 2017 IL App (3d) 150264 (October). Episode 421 (Duration 7:17)

Bare bones affidavit nonetheless establishes a nexus to defendant's house.

Gist

The jury found defendant guilty of unlawful possession of a weapon by a felon but acquitted him of unlawful possession of a controlled substance with intent to deliver.

The circuit court sentenced defendant to 36 months’ probation.

Search Warrant

This was a search warrant supporrted by three controlled buys with an informant.

The Buys

On one occasion, officers observed Casillas leave the residence to sell Harrison cocaine.

The officers’ constant surveillance established that Casillas left the residence and sold cocaine to Harrison without making any stops before the transaction. Further, Casillas was seen using a vehicle registered to the residence to conduct a separate drug transaction.

Each time defendant drove to a supermarket for the deal.

Nexus Issue

Prior to trial, defendant filed a motion to quash the search warrant and suppress the evidence.

The motion alleged that the complaint for the search warrant failed to establish probable cause to conduct a search of the residence, which led to defendant’s arrest and the seizure of evidence.

Specifically, defendant asserted that the warrant was unsupported by any evidence that one or more of the transactions took place at the residence, that the police observed illegal activity at the residence, or that Casillas sold contraband or conducted other illegal activity at the residence.

Defendant contends the complaint for the search warrant did not establish probable cause because it failed to show a nexus between Casillas’s illegal activities and defendant’s residence.

In other words, defendant asserts probable cause was lacking because the warrant did not include any information or observations connecting Casillas’s illegal activity to defendant’s residence.

In addition, the motion argued that the police failed to seek or find any corroborating information to verify that Casillas lived at the residence.

Illinois Search Warrant Law

At a probable cause hearing, the warrant must make a practical, commonsense assessment of whether, given all of the circumstances set forth in the affidavit, there is a fair probability that evidence of a particular crime will be found in a particular place.

A showing of probable cause means that the facts and circumstances within the knowledge of the affiant are sufficient to warrant a person of reasonable caution to believe that an offense has occurred and that evidence of it is at the place to be searched.

In determining whether probable cause for a search warrant exists, there must be a sufficient nexus between a criminal offense, the items to be seized, and the place to be searched.

If there is no direct information to establish such a nexus, the court may draw reasonable inferences to create the nexus.

Analysis

Here, Harrison’s affidavit showed that officers observed Casillas leave defendant’s residence while communicating with Harrison to set up an imminent drug transaction.

While under uninterrupted surveillance, Casillas walked from the residence to the location of the drug transaction.

While under uninterrupted surveillance, Casillas walked from the residence to the location of the drug transaction.

Holding

The information contained within the affidavit sufficiently connected Casillas’s drug activity to defendant’s residence. It was therefore reasonable for the warrant judge to conclude that a nexus existed between Casillas’s cocaine sales and defendant’s residence.

Therefore, the warrant judge had a substantial basis to find probable cause to issue the search warrant for defendant’s residence.

See The Dissent's "Bare Bones" Critique

The dissent said: Noticeably absent from the complaint are any allegations that Casillas lived in the residence, stored the narcotics in the residence, or conducted any drug transactions inside the residence.

The three alleged transactions occurred over a period of 19 days (May 5 to June 8, 2009).

At best, the complaint established that Casillas was an acquaintance of the owners of the residence.

It did not establish a nexus to believe evidence of Casillas’s illegal activities would be found in the residence. I would therefore find that the complaint for the search warrant failed to provide the warrant judge with a substantial basis to find probable cause to search defendant’s residence.

Critically absent from the complaint are any allegations as to how often Casillas drove the vehicle, how long (if at all) Casillas stayed at the residence, or whether Leticia Hernandez had any connection to Casillas’s illegal activity.

Like the court in Lenyoun, I would find that the “bare bones” affidavit in support of the search warrant failed to establish a nexus connecting Casillas’s illegal activity to the residence.

Therefore, I would hold that the circuit court erred in denying defendant’s motion to quash the search warrant and suppress evidence.