Kane County Nuggets

Episode 724 (Duration 33:57). Chicago defense attorney Peter Lewis explains what a litigant can do when their criminal discovery is missing the police body cam video.

In This Case...

The State's Attorney's position is if they didn't get it from the police then it doesn't exist.

Attorney Peter Lewis

Am I Entitled To Have The Police Body Cam In My Case?

Yes. Generally, speaking a criminal defendant is going to be entitled to possess a copy of the police body cam or cams involved in his or her case. The interesting question is what to do when you don't get it.

Attorney Peter Lewis

Peter Lewis has been an Illinois attorney since 2004. He currently has an extensive criminal law practice. He handles cases throughout Cook County and the collar counties.

Contact Information

5508 West Lawrence Ave Chicago, IL 60630 773-853-0223

http://pwlewislaw.com/

Main Areas Of Law

In Chicago what are the three main areas of law that govern the police use of body cameras?

• United States Department of Justice & Chicago Police Department Consent Decree
• Illinois Law Enforcement Officer-Worn Body Camera Act
• Chicago Police Department Special Order S03-14 on Body Worn Cameras

What Does The Consent Decree Say About Body Cam?

What does the Justice Department's Chicago Police Department Consent Decree say about the use of police body cams?

On page 6 of the report it says,

...that the Justice Department supports the City's decision to accelerate its plan to ensure that all CPD officers have body cameras.

In the "Recommendations" section of the report, it says that CPD should "adopt use of force practices that minimize the use of fore." Subsection (i) states,

Equip all patrol officers and supervisors, and officers who regularly interact with the public, including tactical officers, with body cameras, and develop a body camera policy delineating officers' responsibilities regarding the consistent and appropriate use of body cameras and the retention and review of body camera footage.

Consent Decree

Important Details From The Illinois Body Cam Act

✓ The Illinois Law Enforcement Officer-Worn Body Camera Act does not require that police departments employ body cams. The act merely provides guideline for departments that wish to use them. The act also includes minimal feature and procedures that must be followed if a department chooses to use body cams. (Go to 4:04)

✓ "No officer may hinder or prohibit any person, not a law enforcement officer, from recording a law enforcement officer in the performance of his or her duties in a pubic place or when the officer has no reasonable expectation of privacy." 50 ILCS 706/10-20(11)

✓ Generally, body cam videos ARE NOT subject to FOIA requests unless you have been arrested, are a victim, or a witness. See 50 ILCS 706/10-20(b)

Did You Know?

✓ As of right now every single Chicago Police Department patrol officer is suppose to be using a fully functioning and operable body cam device. (Go to 2:59)

What You Need To Know About The Chicago Police Department Body Cam Special Order

The policy says in clear unmistakable terms that,

All sworn members and their immediate supervisors assigned to a Bureau of Patrol district normally assigned to field duties and any other member at the discretion of the district commander will be assigned and utilize a BWC.

CPD Special Order S03-14

This is one of the most important things listed in Special Order S03-14, it's under the "Operational Procedures" section. (Go to 6:20)

An attorney trying to hunt down body cam footage may want to know the following to help facilitate the search (Go to 10:08):

• Name of person arrested
• Date of arrest
• RD number
• Incident number
• Name of officers involved
• Badge number of officers involved
• Beat Number

✓ CPD currently has 8,200 video cams issued to officers. This should be enough to cover the entire patrol division. (Go to 14:50)

"Can't Miss" Moments:

✓ In video recordings you often see an officer stop and do this with his equipment right before he engages with a subject. (Go to 7:01)

✓ Body cam equipment involves more than a camera. The devices includes a camera and hard drive that can hold at least 10 hour of video. At the end of a shift all the recordings go into one master super data base. (Go to 8:04)

✓ Peter says CPD should not be allowed to do this one critical thing in regards to this body cam issue. A third independent body should involved and do this when there is an arrest. (Go to 9:16)

✓ You ever hear of a beat number and RD number? You may want to know what these are if you're hunting down body cam recordings. Peter Lewis explains this, just (Go to 9:16).

✓ This one fact provides the state with zero motivation to hunt and search for something that might exist but is buried somewhere. (Go to 12:25)

✓ The question then is what do we do when you know a video exists but for some reason it was not tendered to you during discovery? (Go to 14:16)

✓ These particular police units come into a lot of contact with the public. You could say they're in the thick of it. Oddly, these units don't wear body cams. What's that all about? (Go to 14:50)

What Do You Do When You Don't Get Police Body Cam In Your Discovery?

✓ The question then is what do we do when you know a video exists but for some reason it was not tendered to you during discovery? (Go to 14:16)

✓ A Kladis motion is often filed when there has been a violation of discovery. This remedy is rare, but it can lead to the suppression of evidence. (Go to 18:30)

✓ Peter's discovery violation motion is titled, "Motion To Exclude Testimony of State's Witnesses And For Other Relief Or Sanction The Court Deems Appropriate". It incorporates parts of the state statute and the CPD special order. (Go to 19:00)

If a court or other finder of fact finds by a preponderance of the evidence that a recording was intentionally not captured, destroyed, altered, or intermittently captured in violation of this Act, then the court or other finder of fact shall consider or be instructed to consider that violation in weighing the evidence, unless the State provides a reasonable justification.

50 ILCS 706/10-30

✓ The State statute is kind of soft. It doesn't exactly say that evidence can be barred or excluded. (Go to 22:36)

✓ This is a last ditch effort thing to do when you see that a judge is not going to give you sanctions for missing body cam video. Do this when you got no other cards to play. (Go to 25:50)

Links & Resources

• United States Department of Justice & Chicago Police Department Consent Decree
• More About The CPD Consent Decree
• 50 ILCS 706/10-1 et seq. - Illinois Law Enforcement Officer-Worn Body Camera Act
• Chicago Police Department Special Order S03-14 on Body Worn Cameras
• People v. Kladis, 2011 IL 110920
• How Often Do Chicago Police Officers Fail To Activate Their Body Cameras? It's Hard To Know - CBS Chicago
• Key Body Camera Footage Missing After Chicago Police Officers Raid Wrong Homes, Point Guns At Children - CBS Chicago

See Also

You may also want to check out...

• People v. Montgomery, 2018 IL App (2d) 160541 (October). Episode 555 (Duration 14:02) (What To Do, What To Do About Lost, Destroyed, or Missing Video?)
• People v. Cunningham, 2018 IL App (1st) 153367 (June). Episode 517 (Duration 12:37) (Significance Of The Evidence And Bad Faith Drive Discovery Violation And Destruction Of Evidence Issues)
• People v. Moravec, 2015 IL App (1st) 133869 (November 2015). Episode 105 (Duration 8:00) (Defendant wins sanctions to exclude all evidence after CPD ignores repeated requests for the POD video.)
• Episode 320 (Duration 52:38) (Behind The Scenes Of The Curtis Lovelace Trial | Attorney Evan Parke Discloses How The Defense Team Made Use Of FOIA)

Residential Burglary In Illinois

In Illinois residential burglary is class 1 felony. The crime is defined by statute this way:

A person commits residential burglary when he or she knowingly and without authority enters or knowingly and without authority remains within the dwelling place of another, or any part thereof, with the intent to commit therein a felony or theft. 720 ILCS 5/19-3(a).

See also the Illinois Crimes Index. 

Illinois Residential Burglary Sentence

Since the Illinois residential burglary statutes defines it as a class 1 felony that means the sentencing range is between 4 to 15 years. However see the below chart for more sentencing information.

Charge Statute Felony Range Extended Term Max  Fine Residential Burglary 720 ILCS 5/19-3(a)   Class 1  4-15 yrs 15-30 yrs $25,000

The most important sentencing aspect to know about Illinois residential burglary is that it is considered a non-probationable offense. That means an individual who is convicted of residential burglary is by law required to be sentenced to prison time even if the individual has absolutely no criminal history or prior convictions in their record.

See the Illinois Sentencing checklist for more sentencing details.

General Burglary Statute In Illinois 

However, the Illinois burglary statute is a little more broad than just residential burglary. The more general form of the burglary statute provides the following:

Section 19-1(a) of the Illinois Criminal Code provides, in part, that…

“A person commits burglary when without authority he or she knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any part thereof, with intent to commit therein a felony or theft.” 720 ILCS 5/19-1(a).

General Burglary Sentence In Illinois

“Burglary committed in, and without causing damage to, a watercraft, aircraft, motor vehicle, railroad car, or any part thereof is a Class 3 felony.

Burglary committed in a building, housetrailer, or any part thereof or while causing damage to a watercraft, aircraft, motor vehicle, railroad car, or any part thereof is a Class 2 felony.” 720 ILCS 5/19-1(b)

Charge Statute Felony Range Extended Term Max  Fine Burglary to watercraft, aircraft, motor vehicle, railraod (no damage) 720 ILCS 5/19-1(a)   Class 3 2-5 yrs 5-10 yrs $25,000 Burglary to building, housetrailer, or damage to watercraft, aircraft, motor vehicle, railraod 720 ILCS 5/19-1(a)   class 2 3-7 yrs 7-14 yrs $25,000 There Are 2 Ways To Commit Burglary

Thus, under the statute, there are two ways to commit the crime of burglary:

(1) By entering without authority and with the intent to commit a felony or theft, or 
(2) By remaining without authority and with the intent to commit a felony or theft. 

Correct Way To Interpret The Burglary Statute

In regards to a retail store, like Walmart, a person can only be guilt of burglary “remaining without authority with intent…” if the person lawfully enters a public building and then commits theft AND exceeds the physical scope of his authority.

In other words, burglary by remaining requires evidence that a defendant, with the intent to commit a felony or theft, is found in a place where the public is not authorized to be.

This section is not intended to apply to ordinary shoplifting scenarios.

Rather, it refers to situations in which a person lawfully enters a place of business, but, in order to commit a theft or felony:

(1) hides and waits for the building to close
(2) enters an unauthorized area within the building; or
(3) continues to remain on the premises after being asked to leave.

However, if the state can prove that a person enters with the intent to steal then a burglary under the first section can still be sustained because it is presumed that that a shopkeeper did not grant permission for someone to enter just to steal.

See Also

• People v. Bradford, 2016 IL 118674 (March) Episode 155 (Duration 7:52) ( burglary by remaining requires evidence that a defendant, with the intent to commit a felony or theft, is found in a place where the public is not authorized to be)
• People v. Burlington, 2018 IL App (4th) 150642 (March) Episode 472 (Duration 7:42) (if the state can prove you entered a store with intent to steal they can charge you with a burglary)
• People v. Johnson, 2018 IL App (3d) 150352 (January) Episode 456 (Duration 11:30) (3rd District was not allowing the state to charge a burglary of a store)
• People v. Moore, 2018 IL App (2d) 160277 (June) Episode 505 (Duration 4:40) (2nd District joins the 4th District and comes out against the 3rd District interpretation of the Illinois burglary statute)
• People v. Allen, 2017 IL App (1st) 151540 (December) Episode 430 (Duration 9:24) (see how this defendant avoided mandatory class X sentencing on his burglary conviction)
• Related Charge of Criminal Trespass To Property

Episode 698 (Duration 29:54). Attorney Michael Wepsiec of Murphosboro, Illinois deconstructs the custodial sexual misconduct criminal law statute.

 

In This Episode...

"'Hey I'm on parole, date me.' No body says that." -- Michael Wepsiec

Attorney Michael Wepsiec

Attorney Michael Wepsiec has over 34 years of legal experience.

He is the former elected States's Attorney of Jackson County Illinois. Before that he has the Carbondale city attorney, and before that he was an assistant state's attorney in Jackson County.

Contact Information

The Wepsiec Law Office
1502 Walnut St
Murphysboro, IL 62966
(618) 565-5206

The Illinois Custodial Sexual Misconduct Statute

In Illinois custodial sexual misconduct is found under 720 ILCS 5/11-9.2. The section provides that...

(a) A person commits custodial sexual misconduct when:
          (1) he or she is an employee of a penal system and engages in sexual conduct or sexual penetration with a person who is in the custody of that penal system;
         (2) he or she is an employee of a treatment and detention facility and engages in sexual conduct or sexual penetration with a person who is in the custody of that treatment and detention facility; or
         (3) he or she is an employee of a law enforcement agency and engages in sexual conduct or sexual penetration with a person who is in the custody of a law enforcement agency or employee.

(b) A probation or supervising officer, surveillance agent, or aftercare specialist commits custodial sexual misconduct when the probation or supervising officer, surveillance agent, or aftercare specialist engages in sexual conduct or sexual penetration with a probationer, parolee, or releasee or person serving a term of conditional release who is under the supervisory, disciplinary, or custodial authority of the officer or agent or employee so engaging in the sexual conduct or sexual penetration.

"Can't Miss" Moments:

✓ The Illinois statute on custodial sexual misconduct came into effect in 1997. Before that the regular sexual assault and official misconduct charges weren't doing the job. Here's why...(Go to 5:14)

✓ Prisons and correctional facilities are big business down in southern Illinois. Where there are prisons there will be custodial sexual misconduct. (Go to 6:35)

✓ Really hard to imagine how this law could be stretched into unintended conduct, I mean the law is really clear on what it is trying to prevent. Nonetheless, Wepsiec found a set up facts that leave you wondering if the law was meant to go there. (Go to 7:20)

✓ The one thing a guy is going to keep off his online dating profile. For some people it leads to disappointment and a dud date. For others it can lead to a criminal charge. (Go to 8:20) & (Go to 11:07)

✓ How a workman's comp claim can lead to criminal charges, and I don't mean fraud charges. In this case, a workman's comp claim lead to a charge of custodial sexual misconduct. (Go to 9:05)

✓ A parolee parked outside your residence on a Saturday morning just might get you charged with a crime. Push play to find out how. (Go to 9:55)

✓ The secret to getting a parolee to say anything you want to hear. (Hint: this only works if you're a parole agent.) (Go to 10:03)

✓ Did you know legally speaking that a person who is on parole also called mandatory supervised release is in the custody of the Illinois Department of Corrections? (Go to 11:43)

✓ "A person commits custodial sexual misconduct when he or she is an employee of a penal system and engages in sexual conduct or sexual penetration with a person who is in the custody of THAT penal system". Clearly, the law is written to prevent guards who are directly in authority over inmates in the guard's facility. (Go to 12:08)

✓ Heaven forbid you ever have to dig into the legislative history of a bill. When Wepsiec did it Barack Obama's name turned up. (Go to 13:26)

✓ The one key distinction between the Illinois Department of Juvenile Justice and the Illinois Department of Corrections made all the difference in the world to one downstate resident. Everything turned on the phrase "that penal system." (Go to 15:05)

✓ Here's a clear example of when we wouldn't want to charge a Jackson County Jail guard with custodial sexual misconduct, this ain't exactly "Orange is the New Black". (Go to 18:19)

✓ Does anyone object to charging politicians under this provision in the code? (Go to 19:35)

✓ "You know, I see some stuff now, and I'm going 'why in the heck did they file that?'." (Go to 20:47)

✓ The four rules to following a case. This was the standard Michael tried to live by when he was on the other side. When he was brining charges as a prosecutor he always tried to honor these principles. It's the last prong were prosecutors really distinguish themselves. (Go to 21:03)

✓ Here's a clear example of conduct the statute was intended to prevent. (CAUTION: these words are harsh, but they're not Michaels.) (Go to 23:35)

Links & Resources

• 720 ILCS 5/11-9.2. Custodial sexual misconduct
• Jackson County Illinois
• Murphysboro, Illinois
• Southern Illinois University
• Salukis
• Pinckneyville Correctional Center
• Menard Correctional Center
• Logan Correctional Center
• Chester Mental Health Center
• Alton Mental Health Center 
• Illinois Youth Center Harrisburg
• Illinois Department of Corrections
• Illinois Department of Juvenile Justice
• Bill of Particulars - 720 ILCS 5/111-6

See Also

You may also want to check out...

• The Illinois Crimes Index 
• People v. Rowell, 229 Ill. 2nd 82 (May 2008) Episode 686 (Duration 31:58) (What To Do About Fatally Flawed Criminal Charges: Alan Downen Interview)
• Marisa Tomei From My Cousin Vinny Great Example Of How An Expert Witness Works & Origin Of The Term "Yoots" In Law

Illinois v. Caballes, 543 U.S. 405 (2005). SCOTIS Notice (Duration 1:43)

This is the SCOTUS case that set the framework for the use of drug dogs in the United States.

[insert mp3 player]

This opinion normalized the use of drug dogs by police departments during traffic stops. The case concluded that police don't need a warrant when they walk a drug dog around a car during a traffic stop.

Issue Do police need a warrant to use a drug dog to sniff a car during a traffic stop? Facts Driver was stopped and ticketed for speeding. During the traffic stop, a canine unit appeared and a dog handler walked the dog around the car. The police dog alerted on the trunk. Police searched the trunk. Driver was arrested for trafficking cannabis. Everything happened in under 10 minutes. He was sentenced to 12 years. Analysis A privacy interest (that society recognizes as reasonable) cannot exist from aromas that come from completely illegal contraband. There is no right to privacy that protects illegal smells. Holding Conviction was affirmed because there was no 4th amendment violation. Related Cases

• Florida v. Jardines, 133 S.Ct. 1409 (2013) (drug dog brought to front stoop of a house)
• Florida v. Harris, 133 S.Ct. 1050 (2013) (drug dog reliability is determined by a totality of the circumstances)
• Rodriquez v. United States, 135 S. Ct. 1609 (2015) (any delay during a traffic stop to give the dog time to arrive is unreasonable)

[insert video]

Key Facts In Illinois v. Caballes

Key facts in the case include ...

• Defendant's car stopped
• He's ticketed for speeding
• During stop canine unit appeared
• Sniff dog handler walks the dog around car
• Drug dog alerts on the trunk
• Car searched
• Cannabis discovered
• Convicted for trafficking cannabis
• Everything happened in under 10 minutes

The case began as a traffic stop for speeding. The car was stopped and driver ticketed for speeding. During the traffic stop, a canine unit appeared and a dog handler walked the dog around the car. The police dog alerted on the trunk. Police searched the trunk. Driver was arrested for trafficking cannabis.

Everything happened in under 10 minutes.

Key Finding

Key findings from the court:

• Police Dog Drug Sniffs are Not Searches
• Practical Limits Remain
• Not That Many K-9 Units
• Police Can Not Cause an Undue Delay

The case worked its way up to the United States Supreme Court, where the Court's central finding was that:

"That any interest in possessing contraband cannot be deemed legitimate, 'and thus, governmental conduct that only reveals the possession of contraband' compromises no legitimate privacy interest." Quoting United States v. Place, 462 U. S. 696 (1983).

You don't have a privacy interest in illegal smells.

The Aftermath of Illinois v. Caballes

This case threatened to blow this issue wide open in favor of the police and the use of drug dogs. The central finding that a police dog sniff was not a search meant the use of drug dogs could perhaps be expanded to other areas besides a traffic stop.

The gist of the ruling is that a privacy interest (that society recognizes as reasonable) cannot exist from aromas that come from completely illegal contraband.

"A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment." Caballes, 543 U.S. 405 (2005).

So if a sniff is not a search police can probably do more of them without running afoul of the 4th amendment.

There Are Still Limitations

Yet, even Caballes recognized limits on the use of police dogs during a traffic stop. Beginning with Caballes itself, we can see that fundamental limits on the use of sniffer dogs during traffic stops were built right into the system.

The Court approvingly noted that the police officers detaining Caballes did not delay the traffic stop just so that the drug dog could finish the sniffing.

This is important.

Had the Court found undue delay, the clear inference is that the case would have come out differently. This is what the court is talking about when it mentions a "prolonged" traffic stop.

The Court wrote that:

"A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission." Caballes, 543 U.S. 405 (2005).

If the police try to slow down the interaction with the driver so that the police dog has time to make it to the scene of a traffic stop, that would be illegal.

Similarly, delaying the writing of the ticket or returning a driver's license so slowly that the dog has time to finish the sniff is unconstitutional. This may also be referred to as going "outside the scope" of the traffic stop.

This "no delay" or "scope" rule serves as a real and practical limitation on the use of police dogs.

Any Undue Delay is Unconstitutional

The simple fact is that K-9 units are far less numerous than normal patrol vehicles. This specialized team is typically only called out on special assignments. The practicality of having a drug dog at every traffic stop is impossible.

The criminal defense bar, however, has to be vigilant about recognizing stone walling by the police. Any proof of an unconstitutional delay must be brought to the trial court's attention in a motion to suppress evidence illegally seized.

People v. Rowell, 229 Ill. 2nd 82 (May 2008). Episode 686 (Duration 31:58)

What's the best way to handle legally insufficient criminal charges? In this episode you get a feel for what it's like working in the criminal law.

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Illinois attorney Alan Downen walks us through the detailed intricacies of just one issue in criminal litigation:

In This Episode...

"There's an old saying about losing your 'tall'. 'Tall' is your favorite marble." -- Alan Downen.

Illinois Attorney Alan Downen

Alan Downen has been a member of the Illinois bar since 1974. He's a solo practitioner concentrating his practice in the areas of criminal, DUI, traffic law.

His office is in McLeansboro, Illinois.

"Can't Miss" Moments:

✓ Here's an example of the kind of fatally flawed or legally insufficient charging document we are talking about: A defendant charged with aggravated domestic battery is charged by information. However, the information is missing the mental state. It doesn't state if defendant acted "knowingly" or "intentionally". It also omits the type of battery the defendant is alleged to have done. It doesn't say if he caused bodily harm or committed insulting or provoking contact. (Go to 3:35)

✓ What's the law now? What does a court do when it's confronted with a legally insufficient complaint? Well it depends. There are two legal standards. If a motion to dismiss is filed pretrial the court will adopt a "strict construction" policy and automatically dismiss the charges without prejudice. That means the state is free to refile. If the motion to dismiss if filed on appeal or after the trial is over then a defendant must show prejudice to get the charges dismissed. (Go to 5:07)

✓ Some defense attorneys say they don't the prosecution a darn thing. There's nothing wrong with lying in the weeds and springing the issue on the state when the time is right. (Go to 6:40)

✓ Why some judges really hate a motion to dismiss, and why they'll accuse you of "sandbagging" and other dastardly legal things. (Go to 7:16) & (Go to 15:40)

✓ "Like any attorney, if the judge asks you a question and you answer like this, 'Yea - I'm ready to go' when you know that there's a problem. That's kinda troublesome to me as an attorney...But that's kinda the scenario." (Go to 8:42)

✓ The problem with informing the state they have a bad charge. (Go to 9:20)

✓ Why it better to save your motion to dismiss until after the trial has started. Sure, you have to show prejudice but a few cases demonstrate that can be done. (Go to 9:51)

✓ The thing about the Rowell case is that it really highlights how a defense attorney can go about demonstrating the prejudice that results to an accused with a fatally flawed charging document is filed against them. This is the "bible" on insufficient charging instruments. (Go to 11:49)

✓ Talk about getting caught in court with your pants down. This might be every prosecutor's worst nightmare. (Go to 11:20)

✓ The number one lesson for prosecutors about this discussion is this. Some of them will do it. Many more won't and that's exactly why criminal defense can be so fun sometimes. (Go to 13:55)

✓ Why defense attorneys sometimes win by filing "the wrong" motion against all precedent and contrary to clearly applicable laws, and why judges are quick to grant you these "meritless" motions. (Go to 17:49)

✓ "You have a duty to the court as a lawyer to be honest and forthright. But you also have a duty to your client. Sometimes, as you say, the lines are just real clear." (Go to 22:29)

✓ What an older attorney told Alan about the practice of law. Why sometimes it's best to do nothing even when you know something can be done. (Go to 24:25)

Links & Resources

• 725 ILCS 5/11-3(a)(3) states that In Illinois "a charge shall be in writing and allege the commission of an offense by: Setting forth the nature and elements of the offense charged;"
• People v. Rowell, 229 Ill. 2nd 82 (May 2008) (Illinois Supreme Court finds prejudice to the defense from a fatally flawed charging document.)
• People v. Pendleton, 2017 IL App (3d) 140814-U (March) (trial court erred in denying defendant's midtrial motion to dismiss because defendant was prejudiced by the insufficient charges)

See Also

You may also want to check out...

• Episode 419 - People v. Sheley, 2017 IL App (3d) 140659 (October) (concurring opinions discussing "sandbagging" and why it's a disfavored practice)
• Episode 399 - People v. Frazier, 2107 IL App(5th) 140493 (July) (defense attorney accused of being ineffective for filing the motion to dismiss after the trial had started)
• Episode 249 - People v. Swift, 2016 IL App (3d) 140604 (October) (because defendant waited until the trial to begin he had to show prejudice to win a dismissal)

People v. Khan, 2018 IL App (2d) 160724 (October). Episode 561 (Duration 18:46)

Dude posted a message on facebook that he carries a gun on the college campus and people gonna end up in a body bag if they don't stop messing with him.

Gist

Defendant, Aden D. Khan, was convicted of committing disorderly conduct by making a threat of violence against persons at a school (720 ILCS 5/26-1(a)(3.5)) and sentenced to 30 months’ probation.

Facts

At the time, defendant was 17 years old.

He was suspended for five days for that post. Then he posted the thing about brining a gun to the North Central College campus every day.

Defendant admitted he did the posting and said it was a joke. He got arrested this time.

Disorderly Conduct

As pertinent here, a person commits disorderly conduct when he or she

“knowingly *** [t]ransmits or causes to be transmitted a threat of destruction of a school building or school property, or a threat of violence, death, or bodily harm directed against persons at a school, school function, or school event, whether or not school is in session.”

A Threat

“[a] threat is knowingly transmitted if the defendant transmitted a communication for the purpose of issuing a threat of violence directed at persons at a school and with knowledge that the transmitted communication will be viewed as a threat of violence directed at persons at a school.”

The Indictment

The indictment against defendant charged that, he

“knowingly transmitted a threat of violence directed against persons at a school, being North Central College, in that on www.facebook.com/NCCConfessions.1, defendant posted, ‘I bring a gun to school every day. Someday someone is going to p*** me off and end up in a bag.’ ”

Issue

Defendant argues in part that under Elonis and People v. Relerford, 2017 IL 121094, the statute violates constitutional guarantees of free speech (see U.S. Const., amend. I; Ill. Const. 1970, art. I, § 4) because the State need prove only that a defendant knew that he was transmitting a threat, without having to prove that he actually intended to make the recipient feel threatened.

He contends first that the school-threat law is unconstitutional on its face because it does not require a sufficient mental state. 

Elonis v. United States

In Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001 (2015), the Supreme Court read a heightened scienter requirement into a federal statute that criminalizes transmitting a threatening statement that a person knows or should know would intimidate a reasonable recipient.

The Facebook post was, titled “The people who i want to kill most.” The list included

“1. my stepmother who has f*** up my life[,] 2. my father for the same reason[,] 3. my brother for tormenting me since birth[,] 4. f*** brandon for talking hella s*** and for being a f***[,] 5. ruben bautista for talking too much s*** and cuz i already promised to kill him[,] 6. whatever a*** told casper that i was planning to shoot up the school[,] 7. whatever a*** told casper that i carried a knife[,] 8. the pope, just for laughs[,] 9. ms. limacher: worst teacher ever. gave me a referral for spitting on the sidewalk[, and] 10. god, if he/she/it exists.”

In Elonis, the defendant was convicted of violating a federal statute that makes it a crime to transmit “any communication containing any threat…to injure the person of another.” Elonis, 575 U.S. at ___, 135 S. Ct. at 2004 (quoting 18 U.S.C. § 875(c) (2006)).

The statute in Elonis containted no mental state so the court read a scienter requirement into it. Given its construction of the statute, the Court saw no need to reach any first-amendment issues.

Jury Instructions

Among the instructions that the court gave the jury were the following.

First, “[a] person commits the offense of disorderly conduct when he knowingly transmits a threat of violence directed against persons at his school whether or not school is in session and he intends that the threat would place those persons in reasonable apprehension of violence.”

Second, “[a] threat is knowingly transmitted if the defendant transmitted a communication for the purpose of issuing a threat of violence directed at persons at a school and with knowledge that the transmitted communication will be viewed as a threat of violence directed at persons at a school.”

Mini-Holding

We recognize that the trial court instructed the jury that the State had to prove beyond a reasonable doubt that defendant did intend to make recipients of his message feel threatened. As we shall explain, the statute under which defendant was charged does not actually impose such a requirement on the State and need not do so in order to pass constitutional scrutiny.

There is a reasonable construction of the statute here that obviates any constitutional infirmity.

But See Also People v. Diomedes

In People v. Diomedes, 2014 IL App (2d) 121080, ¶ 3, the defendant was charged with disorderly conduct for e-mailing a threat of violence against the dean of his former school, Geneva High. The e-mail was sent to an anti-bullying activist who had spoken there some time earlier.

Diomedes implicitly held that the school-threat provision of the disorderly conduct statute is not facially unconstitutional. The provision can and may be applied to the knowing communication of a message if the defendant knows that a reasonable speaker would foresee the message as communicating, to a reasonable recipient, a serious intent to commit harm.

Thus, under Diomedes, the provision includes a mental-state requirement that is consistent with the first amendment.

A True Threat Is Required

The knowledge that the communication is a “true threat” is sufficient.

In Diomedes they defined a true threat this way, as to:

“encompass those statements where 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 speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.”

But See People v. Wood

In People v. Wood, 2017 IL App (1st) 143135 the defendant was convicted of threatening the judge who had presided over his criminal case.

As pertinent here, the statute required the State to prove that

(1) he had knowingly and willfully communicated a threat to a public official and
(2) the threat would place the official in reasonable apprehension of immediate or future bodily harm.

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

The appellate court held that he had not been proved guilty beyond a reasonable doubt. The court observed that a conviction required “intentionality on the defendant’s part,” i.e., the making of a true threat.

The statute at issue in Wood differs from the one here in that it explicitly requires that the offending communication be of such a character as to place the recipient in reasonable apprehension of harm.

Nonetheless, in its construction of “threat,” Wood is consistent with our opinion in Diomedes. Both opinions follow the command of our supreme court to construe a statute to uphold its constitutionality if reasonably possible.

What Disorderly Conduct and Threatening A Public Official Have In Common

Thus, as used in each statute, the combination of the terms “knowingly” and “threat” requires the State to prove that

(1) the defendant knowingly made the statement and
(2) the statement was a true threat

We return to the interpretation of the school-threat provision as a whole.

The existence of a true threat is one element. As we held in Diomedes, there is also the requirement that the defendant knowingly transmit a true threat and not merely that he should know that he is doing so.

Thus, if the defendant does not know that he is transmitting a true threat, which is unprotected by the first amendment, he is not guilty. Insofar as this case is governed by Diomedes and Wood, the school-threat provision of the disorderly conduct statute is constitutional.

The provision does not punish protected conduct, because it applies only to communications that are true threats, which are unprotected. It also requires the State to prove that the defendant knew that he was transmitting a true threat.

Elonis Is Not A Problem

Insofar as Elonis applies here, it does not help defendant.

Without directly considering first-amendment issues, the Court implicitly held that, by requiring

(1) the mental state of either intent or knowledge and
(2) the communication of a threat to injure another person, both firstamendment problems and the danger of criminalizing innocent conduct were obviated.

Nothing in Elonis is inconsistent with Diomedes and Wood; indeed, they essentially said the same thing.

The primary difference is that in Elonis the Court read a mental state of intent or knowledge into a statute that prohibited communicating threats, whereas in Diomedes and Wood the courts recognized that the statutes already contained the mental state of knowledge.

Jury Instructions Favored Defendant

Defendant’s case was tried on the theory that the State had to prove intent, a higher standard.

The statute required the State to prove that defendant knowingly communicated a true threat—that he knew that his words were a serious expression of an intent to cause harm. The instructions told the jury that the State also had to prove that he intended that his words cause such apprehension. In other words, the jury instructions rewrote the statute in defendant’s favor.

State Wins Either Way

Fortunately, however, we need not decide whether the issue on appeal is the sufficiency of the proof of the offense as defined by the statute or the sufficiency of the offense as redefined by the jury instructions.

The evidence was sufficient either way.

The jury did not exceed its prerogative in finding that defendant knew that his promise to kill someone would cause a reasonable recipient to fear violence to the community.

Further, the jury reasonably inferred that defendant intended his message to cause at least some people to fear violence, as that was a natural and foreseeable reaction to a person telling them that he went to campus every day armed with a firearm and was bound to use it on slight provocation.

Holding

A jury may infer that a defendant intended the natural and probable consequences of his act. For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

See Also

• Episode 425 - People v. Relerford, 2017 IL 121094 (November) (anti-stalking statute remains unconstitutional)
• Episode 543 - People v. Goodwin, 2018 IL App (1st) 152045 (September) (threatening a public official requires intentionality from defendant - this defendant yelled at a prosecutor)
• Episode 426 - People v. Wood, 2017 IL App (1st) 143135 (November) (defendant left a crazy, ranting voicemail and really let the judge have it but it didn't constitute threatening a public official) 
• Episode 089 - People v. Dye, 2015 IL App (4th) 130799 (August) (defendant snaps at his public defender and she lashed back but he didn't threaten a public official)

People v. Gocmen, 2018 IL 122388 (September). Episode 540 (Duration 14:15)

In obvious cases an officer need not be a drug detection expert to conclude a driver is under the influence of drugs.

Lower Case Opinion

People v. Gocmen, 2017 IL App (3d) 160025 (March). Episode 331 (Duration 7:57)

Officer untrained in the use of narcotics doesn't know enough to make this DUI drug arrest.

The trial court found that the officer lacked probable cause to arrest defendant for DUI/drugs because he was not qualified as an expert on the effects of drug use. Similarly, the appellate court concluded that a person with no specialized training could not properly opine on the “detection of controlled substances,” unlike the detection of alcohol use, the effects of which are “commonly known."  2017 IL App (3d) 160025, ¶ 16.

In reaching this conclusion, the appellate court relied, in part, on People v. Shelton, 303 Ill. App. 3d 915 (1999), and People v. Stout, 106 Ill. 2d 77 (1985). 

Facts

The officer had no specific DUI/drug detection training.

He responded to a motorist’s call reporting an unconscious person in a vehicle, possibly having a seizure. When he arrived, paramedics were already on the scene. Defendant’s Ford Explorer was in the eastbound lane of Route 52, with the passenger side tires on the grass and the driver’s side tires on the road. The vehicle’s transmission was in park, and the motor was running.

The officer observed defendant behind the wheel, with his foot on the brake and his left hand on the steering wheel.

Initially, defendant did not respond to the paramedics’ commands to exit the vehicle. He insisted that he was able to drive and said, incorrectly, that he was northbound on Route 59. Eventually, the paramedics convinced him to leave the vehicle; they placed him in the ambulance and transported him to the hospital.

Officer's Observations

The officer saw a Red Bull can “on the passenger’s side in plain view.”

The can had been cut or torn in half and had burn marks on its interior. On the outside bottom surface of the can, he saw a brown residue. He performed a “NARK swipe” test of the residue, which, he said, showed the presence of “opiates.” He also saw an uncapped one-milliliter syringe on the passenger seat. He described the syringe as having been “used.” He also found a small plastic bag containing a brown granular substance in defendant’s wallet in the center console.

Results of testing of this substance were not available at the time of the hearing.

He did not conduct any field sobriety tests. At the hospital, the officer observed that defendant was “tired and lethargic.”

He also testified that prior to the arrest defendant told him that he was diabetic.

Fresh Track Marks

On cross-examination, the officer testified that he spoke to the paramedics at the scene to ask if they had seen any signs of intoxication. They reported that defendant did not smell of alcohol, but they did observe a “fresh track mark” on his arm where a needle had been used.

Paramedics also reported that defendant was sweating, had pinpoint pupils, had a rapid heart rate of 144 beats per minute, and was drifting in and out of consciousness.

Suspension Recession Hearing

A motorist may request a judicial hearing for rescission of a statutory summary suspension in a civil proceeding, subject to civil procedure rules. 625 ILCS 5/2-118.1(a).

The scope of the hearing is limited to four specific statutory grounds for rescission. One of the issues that may be raised is “whether the officer had reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle upon a highway while under the influence of alcohol, other drug, or combination of both[.]” Id. § 2-118.1(b)(2).

The motorist has the initial burden of establishing a prima facie case for rescission. If he does so, the burden shifts to the State to come forward with evidence justifying the suspension. Id. at 559-60; see also People v. Orth, 124 Ill. 2d 326, 338, 340 (1988) (motorist has initial burden of making prima facie case for rescission; to make prima facie case, defendant must present evidence to support at least one of the statutory grounds for rescission).

Probable Cause Standard

This court has equated the “reasonable grounds” standard with the probable cause standard applied in the context of search and seizure under the fourth amendment. People v. Wear, 229 Ill. 2d 545, 560, 563 (2008). Under this standard, probable cause exists when the facts known to the officer at the time are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime, based on the totality of the circumstances. The standard is the probability of criminal activity, not proof beyond a reasonable doubt or even that it be more likely than not.

Issue In This Case

A more precise formulation of the issue is whether defendant made a prima facie case that the officer lacked reasonable grounds to arrest him for DUI/drugs.

This requires us to answer two questions.

First, must an officer be qualified as an expert to testify regarding his inference from the totality of circumstances that a motorist was driving under the influence of drugs?

And, if not, did the totality of the circumstances in the present case provide reasonable grounds for the arrest of defendant for DUI/drugs?

Opinion Testimony

Under our rules, a witness who is not an expert may testify to his opinions or inferences unless they are “based on scientific, technical, or other specialized knowledge.” Ill. R. Evid. 701 (eff. Jan. 1, 2011). If such knowledge is relied upon, the witness must be qualified as an expert. Ill. R. Evid. 702 (eff. Jan. 1, 2011). ¶ 26

People v. Shelton Overruled

We have reservations about the court’s analysis in Shelton.

In Shelton, an officer testified at a criminal jury trial that the defendant was under the influence of drugs, basing his conclusion on the manner in which he was driving, his conduct during the traffic stop, his failing all of the field sobriety tests given, and his statement to the officer that he was “ ‘on Tylenol 3 with codeine.’ ” Shelton, 303 Ill. App. 3d at 917-18.

Although it found the evidence presented sufficient to support the jury’s verdict beyond a reasonable doubt, the appellate court in that case nevertheless commented that the trial court found “ ‘no evidence *** in the record’ ” of the effects of any drugs (id.), apparently discounting the defendant’s speeding, his odd and agitated behavior during the traffic stop, and his failure of field sobriety tests (id. at 917-18).

While such conduct is not always indicative of drug intoxication, it was consistent with the defendant’s being under the influence in light of his admission that he was “on” a prescription pain killer. We, thus, disagree with the Shelton court that expert testimony was necessary to present to the jury the officer’s assessment that the defendant was under the influence.

To the extent that Shelton requires expert testimony in every case in which an officer’s finding of probable cause is based on his or her inference from the totality of circumstances that the defendant was under the influence of drugs, it is hereby overruled.

Defendant Was Acting Wacky In This Case

During the traffic stop, the defendant’s behavior included telling the officer that he did not have a driver’s license before giving him the license, his suggestion that the officer should go for a ride with him, ­ his statement that he was “ ‘getting ready to run’ ” followed by a statement that he was just kidding, his constant talking, his inability to stand still, his lack of balance, and his threats against the officer and his family.

An officer with many years of experience or with specialized training relevant to the issue may be more credible than a rookie. That said, nothing in our precedent requires expert testimony in every case involving the question of whether a defendant was under the influence of drugs.

Sometimes You Do Need An Expert

In some circumstances, expert testimony regarding the basis for an officer’s finding of probable cause is required.

In People v. McKown, 236 Ill. 2d 278 (2010), the defendant was convicted of DUI/alcohol, based in part on the results of the horizontal gaze nystagmus (HGN) test performed by the arresting officer. The defendant argued on appeal that the HGN test did not meet the Frye standard for admissibility of scientific evidence.

We held that “evidence of HGN field-sobriety testing, when performed according to *** protocol by a properly trained officer, is admissible under the Frye test for the purpose of showing whether the subject has likely consumed alcohol and may be impaired.” Id. at 306.

“A properly trained police officer who performed the HGN field test in accordance with proper procedures may give expert testimony regarding the results of the test.” Id.

Defendant Was Obviously Impaired

In the present case, there is no question that the defendant was impaired.

The probable cause question is whether the relatively inexperienced officer could have reasonably concluded that the defendant’s obvious impairment was due to his use of drugs. Had the officer conducted field sobriety tests, his experience and expertise in conducting such tests and interpreting the results would be at issue. However, no such tests were conducted, and the results of such tests were not the basis for the arrest.

The officer’s conclusion that defendant was under the influence of drugs was not based on scientific, technical, or specialized knowledge that required specialized training or experience. The trial court and the appellate court held categorically that a police officer could not opine as to whether a motorist was under the influence of drugs without being qualified as an expert witness. We reject this conclusion, which is not supported by our precedent.

Totality of the Circumstances

Having rejected the lower court’s insistence on expert testimony in this case, we turn to the question of whether defendant made a prima facie case that the officer lacked probable cause to arrest him for DUI/drugs. This question requires assessment of the totality of the circumstances.

The offense of DUI/drugs requires that the individual “drive or be in actual physical control” of a vehicle while “under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving.” 625 ILCS 5/11-501(a)(4).

He Was Driving

Defendant was behind the wheel of the vehicle, with the motor running, on Route 52, so he was in actual physical control of a motor vehicle on a state highway. Clearly, he was incapable of driving safely, having driven his sport utility vehicle off the road while semiconscious.

But Why Was He Impaired?

The only question is whether he was impaired as the result of a medical emergency, the ingestion of drugs or alcohol, or some combination thereof. First, defendant’s physical condition was consistent with drug use.

Trial Court Ignored The Obvious

The trial court, however, overlooked defendant’s semiconscious state and his disorientation, which a reasonably cautious person might suspect was due to drug or alcohol ingestion. The appellate court also discounted defendant’s physical symptoms because the officer “never observed defendant and only knew these symptoms by speaking to the paramedics.” 2017 IL App (3d) 160025, ¶ 14. However, the officer did observe the defendant at the scene and at the hospital, where they spoke.

Hearsay Is Permissible

Further, hearsay is a permissible basis for a finding of probable cause. People v. Macias, 39 Ill. 2d 208, 213 (1968) (probable cause “may be founded on hearsay evidence” and “is based upon the factual and practical considerations of everyday life upon which reasonable and prudent men, not legal technicians, act”); see also People v. Horine, 2017 IL App (4th) 170128, ¶ 16 (in hearing on defendant’s petition to rescind statutory summary suspension, “the officer’s testimony, even if it includes hearsay, is permissible as it provides the court with the necessary information to rule on the petition. Although such testimony may constitute impermissible hearsay at trial, such testimony is permissible in this setting.”).

Thus, the officer properly relied on his own observations, information provided by the paramedics, and his observations of their interaction with defendant.

While defendant’s physical condition, standing alone, did not demonstrate that his impairment was drug-induced, it was consistent with drug use and supports the officer’s conclusion.

Valid Evidence Of Drug Use

Second, the officer performed a swipe test on the burned Red Bull can and detected the presence of opiates.

The officer performed a swipe test for opiates, which revealed the presence of opiates. Further, defendant did not offer an innocent explanation for the presence of the burn-marked metal can, and none is readily apparent. Even a rookie police officer would be aware of this commonly known device for “cooking” drugs prior to injection, as would any person who watches crime dramas on film or television.

Combined with defendant’s physical and mental state, the positive swipe test for opiates supports probable cause for arrest for DUI/drugs.

And He Had Drugs On Him

Third, other evidence showed the likely, or at least possible, presence of illicit drugs.

Although it was reasonable under the circumstances for the officer to suspect that the substance was an illicit drug, the mere presence of the unidentified substance does not—standing alone—provide reasonable suspicion that the individual in possession of the substance was under the influence.

However, the packaging, the location of the small plastic bag, and the appearance of its contents support the officer’s inference that the driver was drug-impaired, especially considering other circumstances. Indeed, given the presence of this suspicious substance and the absence of insulin and a blood glucose meter in the vehicle, it was a reasonable inference that the defendant had recently injected a substance other than insulin.

He Had Track Marks

Fourth, there was evidence of intravenous drug use by the defendant.

The officer’s testimony, which alluded to a “fresh” track mark, does not clearly distinguish between the sort of “track marks” that are caused by repeated intravenous drug use and a single mark on his arm consistent with a recent intravenous injection, as by using the syringe found in the vehicle.

Both the trial court and the appellate court accepted as fact that the defendant’s arms showed track marks indicative of repeated intravenous injections. Because this evidence was elicited by the defendant, any failure to clarify is his responsibility.

Thus, on the record before us, based on testimony elicited by the defendant, we conclude that he had not only a mark showing a recent intravenous injection but also track marks indicative of repeated intravenous drug use. That such track marks are frequently seen in users of illegal drugs is a matter of common knowledge. Courts frequently accept such testimony without the need for explanation by an expert. See, e.g., People v. House, 232 Ill. App. 3d 309, 314 (1992); People v. $1,002 United States Currency, 213 Ill. App. 3d 899, 901 (1991).

Lower Court Off Base With This (Track Marks)

Both the trial court and the appellate court concluded that these track marks could have been caused by regular injections of insulin for diabetes.

If they were basing their conclusions on what they believed was common knowledge, they were incorrect. Absent common knowledge, they lacked any evidentiary basis for this conclusion. Indeed, the trial court and the appellate court demanded a level of expertise from a police officer that they lacked, yet they opined, inaccurately, on the technique for insulin injection.

Insulin is not injected intravenously and, thus, cannot cause the kind of track marks associated with illegal drug use.

Lower Court Messed This Up As Well (Believed Wacked Out Driver)

Finally, the lower courts gave substantial weight to defendant’s uncorroborated statement to the officer that he was diabetic, presumably to explain the presence of the used syringe.

Defendant’s statement to the officer that he is diabetic was not corroborated by any physical evidence or circumstance known to the officer at the time of the arrest. The officer found evidence of opiates in the vehicle but no insulin or blood glucose meter.

In sum, there was no evidence available to the officer at the time of the arrest that defendant’s impairment may have been due, even in part, to diabetes. We do not expect police officers in the field to make differential diagnoses—only to determine based on the totality of the circumstances whether an impaired driver is under the influence of alcohol or drugs, even if he or she may also have a medical condition.

While We Are At It Lower Court Messed This Up Too (Test For Opiates)

The lower court inferred the officer did not even know what kind of test he was performing. Was it a test for opiates or cocaine?

But the officer was quite clear in his testimony that he performed a test for opiates. That's what he trained on, and he said "opiates" more than once. 

The only person to refer to a test for "cocaine" was the prosecutor on cross examination of the officer. Yet, the officer always answered with the word "opiates."

Holding

In this case, the totality of the circumstances supports the officer’s conclusion that defendant had been driving under the influence of drugs. The semiconscious defendant showed signs of recent intravenous injection, he possessed a used syringe, and the only injectable substance present was an opiate, apparently prepared for injection in the depression on the bottom of the aluminum beverage can.

We find no evidence of any circumstance that tends to cast doubt on the reasonableness of the officer’s inference.

Thus, we conclude that the trial court erred in finding that the burden shifted to the State. The defendant failed to present a prima facie case. Thus, the trial court erred by not granting the State’s motion for a directed finding.

Expert testimony is not required in every case for an officer to testify to his opinion that a motorist was under the influence of drugs based on his inference from the totality of the circumstances. When, as here, the totality of circumstances at the time of the arrest is sufficient to lead a reasonably cautious person to believe that an individual was driving under the influence of drugs, probable cause exists.

Thus, defendant failed to make a prima facie case that the rescission of his license was improper and the burden did not shift to the State. For the foregoing reasons, we reverse the judgment of the appellate court, vacate the rescission order entered by the trial court, and remand to the trial court for further proceedings consistent with this judgment. 

People v. Middleton, 2018 IL App (1st) 152040 (June). Episode 503 (Duration 17:07)

Here's the photo...

Reversible error for the state to spring a doctored image before the jury on rebuttal argument.

Gist

Defendant was arrested and then charged with murder after allegedly shooting to death his girlfriend’s brother on the sidewalk outside the victim's home.

A jury found defendant guilty of the first degree murder while personally discharging a firearm and sentenced to 53 years in prison.

The Eye Witness

At trial, the victim’s neighbor testified that he was standing on his front porch around when he saw defendant near the sidewalk across the street and several houses east from where he stood.

The witness was 13 years old.

The Shooter

He testified that there was nothing blocking his view and he described defendant as an African-American male, with long dreads half pinned back, who was wearing black jogging pants, and a gray hoodie bearing black writing and the hood was hanging down.

Defendant wore a ski mask that covered only the lower half of his face, which the witness described as going up “right here to the nose.” The witness saw defendant look in his direction as he drew a silver revolver from his hoodie. The witness said he saw defendant as he “rammed up on” the victim, who was standing on the sidewalk.

The Shooting

The 13 year old heard the victim plead with defendant not to shoot but defendant fired at his chest, causing the victim to fall to the ground. Defendant returned to his car but “came back like he wasn’t *** finished with him,” and shot the victim again in his upper body.

The Get-A-Way

The witness then saw defendant get into a white car and drive off.

At this point, the witness moved from his porch to the hallway and looked out the window, noting he could see the whole block from that vantage point. He saw defendant, still wearing the half-ski mask as he drove west past his house. The 13 year old could see defendant’s whole upper body and from his nose “all the way up.”

The State did not present the ski mask at trial or ask the witness to identify any image of defendant wearing a ski mask.

Later ID

Less than three months later, the witness identified defendant as the shooter from a photo array.

One month later, the witness identified defendant from a lineup. 

State's Closing

During closing argument, defense counsel honed in on the key question of whether the 13 year old was actually capable of identifying defendant as the shooter.

During its rebuttal argument, the State asserted that the identification was sound notwithstanding the half-ski mask. The State argued the witness “could see the defendant’s hair, the defendant’s eyes, the defendant’s forehead, defendant’s legs, his chest, his shoulders.”

To emphasize this point, the State presented the jury with two, side-by-each photographs. One was defendant’s mug shot taken the day of his arrest. The other photo showed the same mug shot, but in the nature of a crude “photoshop” edit, it blacked out the bottom portion of his face, in an obvious effort to show what defendant might look like if wearing a “half-ski mask.”

The court did not strike the exhibit or the related argument, and it denied the motion for mistrial.

The Picture

The exhibit showed a black half-circle superimposed over the lower portion of defendant’s face in his arrest mug shot and cannot be described as a graphic representation of a mask. 

Issue

Defendant contends the trial court’s denial of defense counsel’s motion for a mistrial on the basis of introducing this exhibit during rebuttal closing argument without having introduced this exhibit at trial constitutes reversible error.

Defendant's Argument

Defendant specifically argues the altered mug shot was inadmissible in the first place as a demonstrative exhibit because it did not depict the “physical facts as they actually existed at the time of the crime” and the display was at the heart of this identification case.

Defendant argues that even assuming the altered mug shot was admissible, the State failed to properly tender it to the defense prior to trial or lay a foundation for its introduction during trial, instead springing the surprise exhibit on the jury during rebuttal argument.

He argues he was deprived of the opportunity to object to the exhibit, move for its exclusion prior to trial, or prepare a counter demonstrative exhibit depicting defendant wearing full ski mask.

Defendant thus asserts the introduction of the exhibit was prejudicial error which could not be cured with any remedial instruction.

States Argument

The State responds that the State’s conduct was not improper because the altered mug shot accurately reflected the victim’s testimony that defendant wore a half-ski mask during the shooting and, moreover, was used as invited comment, in response to defense counsel’s closing argument.

Demonstrative Evidence

We note that demonstrative evidence has no probative value in itself but rather serves as a visual aid to the jury in comprehending the verbal testimony of a witness. See Cisarik v. Palos Community Hospital, 144 Ill. 2d 339, 341-42 (1991).

The overriding considerations in admitting demonstrative evidence are relevancy and fairness. People v. Burrows, 148 Ill. 2d 196, 252 (1992). Thus, before a demonstrative exhibit like the present one can be introduced, a foundation must be laid, by a knowledgeable witness, that it accurately depicts and portrays what it purports to show.

In addition, the exhibit is only admissible if its probative value is not substantially outweighed by the danger of unfair prejudice.

Court Finding

The court agreed with defendant that it was error for the State to introduce a demonstrative exhibit during its rebuttal argument without having produced the exhibit to the defense and without laying any sort of foundation for its use during the trial.

Analysis

While the State and the court found the exhibit to be consistent with Conner’s testimony as to the half-ski mask, we question the wisdom of that conclusion, as it strains credulity that any ski mask could possibly look like a blacked-out half-circle over an individual’s face.

As set forth above, there is no indication that this witness reviewed any photographic or graphic images of defendant wearing a ski mask, when he identified defendant as the shooter to police. At trial, the State did not introduce any mask into evidence or ask the witness to testify about the altered mug shot, let alone defendant’s unaltered mug shot.

Moreover, we cannot say that the witness would not have testified that the altered mug shot, apparently created some two years after the shooting, reflected how the half-ski mask looked or how defendant looked while wearing the half-ski mask when the crime occurred.

The witness testified that defendant had his hair half pulled back and a hoodie on at the time of the shooting. In the arrest photo, by contrast, defendant’s dreadlocks are down, and he’s wearing a white v-neck T-shirt.

The State thus deprived the defense of questioning the accuracy of the image, moving to exclude it or forcing the State to create the image to the defense’s satisfaction, cross-examining the witness regarding the image, and likewise presenting a counterimage of a full ski mask.

Prejudice

The image was central to this prosecution, which revolved almost entirely around the accuracy of Conner’s identification of defendant as the shooter.

Here, the evidence was closely balanced, as there was no physical evidence linking defendant to the crime, and the 13­ year-old witness was the only eyewitness to the shooting. The testimony, while competent, was impeached by the State’s own police reports indicating the shooter wore a full ski mask with velcro and the defense’s two witnesses.

The closely-balanced nature of the evidence made the error especially harmful.

In addition, the side-by-side presentation to the jury of the altered mug shot, introduced absent any evidentiary foundation, with the exact same properly admitted mug shot immeasurably enhanced the prejudice. The jury was then forced to compare how defendant appeared wearing the supposed ski mask to how he looked without it, not on the day of the crime but the day of his arrest, thus boosting the credibility of the State’s main witness.

No Instruction Could Fix This

Furthermore, the judge did not instruct the jury to disregard the altered photo but rather emphasized it was demonstrative, making this case arguably more prejudicial. Putting the trial court’s instruction aside, it is difficult to conceive of any instruction that would be curative of this rebuttal sucker punch.

Holding

Based on the totality of the circumstances, the State failed to maintain its burden of proving the error was harmless beyond a reasonable doubt, and the court abused its discretion in both allowing the State to utilize the undisclosed demonstrative exhibit in rebuttal and also in denying defense counsel’s motion for a mistrial. 

The gravity of the error resulted in a denial of fundamental fairness.

While we reverse and remand for a new trial on the basis of the improper admission of the altered arrest photo, remand for a new trial.

Offensive Rebuttal

In reaching this conclusion, we find the State’s argument that the use of the exhibit was “invited” comment on rebuttal is palpably offensive, as this specific argument was surely expected given the defense theory of the case, announced in opening statement, as being all “about identification” and that “no one could have actually seen the face of the person who shot [the victim].”

Almost all of the evidence related to the identification issue.

The State Had This Ready

If such an argument was unanticipated, the State would have had no opportunity to spring this doctored exhibit on the court because they would not have been on notice.

Instead, it is clear that the prosecution knew the defense would focus on the eyewitness identification, so they prepared this exhibit ahead of time and displayed it without disclosing it and without ever laying a foundation for it. This patently improper tactic would surely be highly prejudicial to defendant’s right to a fair trial.

There’s a picture!

People v. Hayes, 2018 IL App (5th) 140223 (February). Episode 461 (Duration 17:53)

Defendant runs over and kills a 7 year old boy, however, the resulting blood draw is out because defendant was never under arrest.

Hits & Kills A Little Boy

Defendant was driving home from the store with two of his children.

One of the children attempted to hand the defendant a piece of candy to unwrap for him. The defendant looked back to talk to the child. As he did, his vehicle struck seven-year-old David Kirby.

According to witnesses, the boy rode his bicycle between two parked cars onto the roadway and into the path of the defendant’s van. Defendant could have done anything to avoid the accident.

The accident took place near city hall in Sumner, Illinois. The defendant ran into city hall asking for help. Brent Parrott, a volunteer firefighter who was there that day, administered CPR to David. Several police officers responded to the accident, including Lawrence County Deputy Danny Ash, Illinois State Police Trooper Brooks Thomann, and Bridgeport Police Chief Scott Murray.

No Signs of Intoxication
No Tickets Issued

Trooper Thomann testified that he had both training and experience in recognizing the signs of intoxication or influence of drugs in motorists. He did not notice anything about the defendant’s demeanor or appearance that would lead him to believe that the defendant was intoxicated or under the influence. He did not detect the odor of alcohol or drugs, and he noted that the defendant did not slur his speech.

Asked what his conclusion was as to the cause of the accident, Trooper Thomann replied,

“as far as I could see, the child had just ridden out into the street. And when he came around that vehicle, shot out in the middle of the street, and then Mr. Hayes struck him.”

Trooper Thomann testified that he did not issue any traffic citation to the defendant, explaining,

“There was no violation, as far as Mr. Hayes.”

To The Hospital

Deputy Ash asked Chief Murray to transport the defendant to Lawrence County Memorial Hospital to provide blood and urine samples for drug screening.

Chief Murray did so.

He testified that he did not know whether Deputy Ash had placed the defendant under arrest prior to this time. He testified that he did not personally place the defendant under arrest at any time, and he did not issue the defendant any traffic citations. Chief Murray drove the defendant to the hospital. He further testified that during the 10-minute ride to the hospital, the defendant was not handcuffed. At the hospital, Chief Murray accompanied the defendant to the restroom while he provided a urine sample and remained with him while his blood was drawn.

Eventually Charged

Chief Murray testified that he waited with the defendant until Deputy Ash arrived to transport him from the hospital. Chief Murray handed Deputy Ash the DUI kit completed by hospital staff and then left.

He assumed that Deputy Ash transported the defendant back to the police station, but he left the hospital before they did. The test indicated the presence of drugs, and the defendant was charged with aggravated driving under the influence (DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2010)).

Deputy Ash arrived after the samples were taken and drove the defendant back to the police station.

Implied Consent

Deputy Ash was then asked about his decision to have the defendant transported to the hospital for drug testing. Defense counsel asked him on what basis he made that decision. Deputy Ash responded, “He was involved in a personal injury accident. He was the driver of a vehicle involved in a personal injury accident.” Deputy Ash then testified that “consent is implied whenever you receive a driver’s license to obey all the rules in the [Illinois Vehicle Code].”

Blood & Urine Results

The results of initial tests performed by the hospital’s lab were faxed to Deputy Ash later that afternoon. The blood tests revealed the presence of amphetamine. The urine sample collected on that date, however, indicated the presence of methamphetamine, amphetamine, THC, and naproxen.

After receiving these results, Deputy Ash placed the defendant under arrest for DUI. Deputy Ash also issued two traffic citations to the defendant for failing to exercise due care (id. § 11-1003.1) and failing to reduce speed to avoid an accident (id. § 11-601(a)). The next day defendant was charged with aggravated DUI (id. § 11-501(d)(1)(F)).

Second Blood & Urine Tests

Deputy Ash asked the defendant to submit to a second drug testing again a few days later.

This testing of both the blood and urine samples tested negative for the presence of any drugs.

Deputy Ash testified about the timing of the defendant’s arrest for DUI and the issuance of the two traffic citations. He noted that he believed the statute governing implied consent to drug testing required only the issuance of a traffic citation, rather than an arrest.

He conceded that the defendant was not under arrest at the time he was transported to the hospital for testing, testifying that he arrested the defendant on the charge only after receiving the initial test results from the hospital’s lab.

Defense counsel asked Deputy Ash whether he had issued traffic citations to the defendant prior to directing him to be taken to the hospital for drug testing. In response, Deputy Ash stated that the defendant had not been handed a citation prior to this point. He acknowledged that he did not give the citations to the defendant until two days after the initial tests, but he testified that the citations were written earlier.

Asked to explain why he took the unusual step of ordering a second drug test, Deputy Ash explained that someone from the state’s attorney’s office informed him that the initial test might not be valid because the defendant was not given the warning to motorists and because he was not given any traffic citations prior to the tests.

He testified that the second test was intended to remedy this flaw.

Trial Court Says There Was Probable Cause

The court found that the tests were supported by probable cause.

It reasoned that Deputy Ash’s knowledge that the defendant had a history of drug charges and a prior DUI coupled with the defendant’s admitted lack of attention to the road gave Deputy Ash probable cause to believe the defendant may have been under the influence of drugs.

In explaining its ruling, the court noted that Deputy Ash might reasonably have decided that he did not believe the defendant’s version of events and that Deputy Ash might reasonably have concluded that the presence of drugs may have been a contributing factor to the defendant’s inattentiveness.

54 Months Prison!

The matter proceeded to a stipulated bench trial, at which the court found the defendant guilty.

The defendant subsequently filed a motion for a new trial, which the court denied. The court sentenced the defendant to 54 months in prison.

Issue

The question before us is whether the results of the drug tests should have been excluded because they were obtained in violation of the fourth amendment to the United States Constitution.

The Law

The compulsory testing of a defendant’s blood or other bodily fluids is a search within the meaning of the fourth amendment.

To be reasonable under the fourth amendment, a search must ordinarily be conducted pursuant to a warrant supported by probable cause. There are, however, “a few specifically established and well-delineated exceptions” to the requirement of a warrant. Katz v. United States, 389 U.S. 347, 357 (1967).

Consent Is An Exception

Under one exception, a warrantless search is reasonable—and therefore permissible— if there is voluntary consent to the search. People v. Anthony, 198 Ill. 2d 194, 202 (2001); Kratovil, 351 Ill. App. 3d at 1030. Consent to a search is the waiver of a constitutional right. Kratovil, 351 Ill. App. 3d at 1030. The validity of a warrantless search based on consent thus “depends on the voluntariness of the consent.” Anthony, 198 Ill. 2d at 202.

Whether consent is voluntary is a question of fact that must be determined by evaluating the totality of the circumstances. The State has the burden of proving that the defendant’s consent to the search “was truly voluntary.” Id.

No Probable Cause Here

We also agree that the July 25 test was not supported by probable cause.

Here, the court’s finding of probable cause was based on the court’s belief that it would be reasonable for Deputy Ash to disbelieve the version of events given by the defendant, but Deputy Ash never testified that this was the case.

In addition, the court found that it would be reasonable for Deputy Ash to conclude that the presence of drugs might have contributed to inattention on the part of the defendant. However, this reasoning is bootstrapping, and Deputy Ash never testified that he in fact reached that conclusion. We note that because Deputy Ash did not have probable cause to test the defendant for drugs, we need not consider whether exigent circumstances were present under McNeely.

We conclude that the court erred in finding the tests to be justified on the basis of the exigent circumstances-plus-probable-cause exception.

No Consent Either

We turn our attention to the question of consent.

We first consider whether the testing was supported by the defendant’s actual consent.

Must Be Clearly Given

Acquiescence to apparent authority is not the same thing as consent. Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968); Anthony, 198 Ill. 2d at 202. Consent to a search “must be received, not extracted.” Anthony, 198 Ill. 2d at 202 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973)). A defendant can consent to a search without making an express verbal statement of consent; he can instead convey his consent to officers through nonverbal conduct.

As the Illinois Supreme Court observed in Anthony, dueling inferences can easily arise from a single ambiguous gesture. As we explained earlier, consent to a search is the waiver of a constitutional right. Kratovil, 351 Ill. App. 3d at 1030. As such, a “defendant’s intention to surrender this valuable constitutional right should be unmistakably clear.” Anthony, 198 Ill. 2d at 203.

Must Be Voluntary

Moreover, even unmistakably clear consent is not valid unless it is given voluntarily. People v. Green, 358 Ill. App. 3d 456, 462 (2005). Consent is voluntary when it is “given freely without duress or coercion.” Id. (citing People v. LaPoint, 353 Ill. App. 3d 328, 332 (2004)). In determining whether this standard is met, courts consider “whether, in light of all the circumstances surrounding the officer’s request for consent, a reasonable person in the defendant’s position would have felt free to leave” or to refuse to consent to the search. Id. at 463 (citing LaPoint, 353 Ill. App. 3d at 332).

No Consent

Here, the record contains no evidence at all concerning how the test was presented to the defendant or how the defendant responded. We do not know whether Deputy Ash asked the defendant to take the test or demanded that he do so. We do not know whether Deputy Ash told the defendant that he had no right to refuse the test. We do not know whether the defendant agreed to take the test, objected, or merely acquiesced.

The State asks us to presume based on this record that the defendant deliberately got into Chief Murray’s vehicle because he willingly agreed to submit to a test he felt free to refuse. We cannot find the waiver of an important constitutional right based on these circumstances.

Moreover, even assuming the defendant did anything to unambiguously convey consent, the surrounding circumstances indicate that any such consent was not voluntary. He was transported to the hospital for the test by a uniformed police officer. The officer remained with him at all times, even when he went to the restroom to provide a urine sample. Deputy Ash had the defendant’s vehicle towed from the scene of the accident to be stored until Deputy Ash completed his investigation.

We do not believe that a reasonable person confronted with these circumstances would feel free to leave the hospital or refuse to take the test.

Holding

Considering the totality of these circumstances, we find that the State failed to meet its burden of demonstrating that the defendant voluntarily consented to the tests. 

Doesn't Implied Consent Authorize This Testing?

Section 11- 501.6(a) of the Illinois Vehicle Code provides that any motorist “shall be deemed to have given consent” to drug testing if the motorist is

“arrested as evidenced by the issuance of a Uniform Traffic Ticket for any violation of the Illinois Vehicle Code *** with the exception of equipment violations.”

625 ILCS 5/11-501.6(a) (West 2010).

The statute, by its express terms, applies only if the defendant has been arrested for a violation of the Illinois Vehicle Code when asked to submit to testing. We agree with the defendant that this condition was not met in this case.

There is no dispute in this case that Deputy Ash did not issue any traffic citations to the defendant until two days after he directed the defendant to submit to the test.

Sure, the defendant was seized within the meaning of the fourth amendment when he submitted to the tests, but he was not under arrest for a violation of the Illinois Vehicle Code as required by the implied consent provision.

States' Argument

The state argued that if the defendant was arrested that was sufficient for implied consent to kick it.

In support of its position, the State cites People v. Gamblin, 251 Ill. App. 3d 769 (1993), People v. Brantley, 248 Ill. App. 3d 580 (1993), and People v. Wozniak, 199 Ill. App. 3d 1088 (1990).

Moreover, as we emphasized earlier, the court also held that the admission of test results in a criminal case is subject to fourth amendment constraints. We read these cases to say that if a test is otherwise proper under the fourth amendment, its results are admissible regardless of whether the requirements for application of the implied consent provision are satisfied. In a criminal proceeding the fourth amendment governs beyond implied consent law.

Ludicrous Results

Accepting the State’s arguments in this case would mean that almost any driver involved in an accident involving a fatality or serious injury would be deemed to have consented to drug screening. If an officer restricts the driver’s freedom in any meaningful way, the driver would be deemed to have consented to the test through the implied consent provision—even if his movement is only so restricted because of the officer’s decision to administer the test, as happened in this case.

If the officer does not restrict the driver’s freedom to the extent necessary to constitute a seizure or arrest within the meaning of the fourth amendment, the driver will, in many cases, be deemed to have voluntarily consented.

Given the particularly intrusive nature of the blood testing at issue in this case, such a result would be untenable.

Second Holding

We therefore hold that before a motorist may be found to have impliedly consented to this intrusive search, thereby waiving an important constitutional right, he must be under arrest for a violation of the Illinois Vehicle Code.

We note that our holding does not limit the admissibility of test results in cases where the defendant has actually given voluntary consent or in cases where some other recognized exception to the requirement of a warrant applies.

We merely hold that the State cannot rely on the implied consent provision unless the defendant has been arrested for a nonequipment violation of the Illinois Vehicle Code.

The fact that the defendant’s movement is restricted to the degree necessary to be seized within the meaning of the fourth amendment coupled with a decision to issue tickets one to two days after the fact, as occurred in this case, is not sufficient to meet this standard.

To find that standard met in this case would allow the State to do an end-run around the requirements of the fourth amendment. We conclude that the drug test at issue in this case did not fall within any recognized exception to the requirement of a warrant. As such, it was an unreasonable search within the meaning of the fourth amendment, and the results should have been excluded.

Reversed Outright

Because there is insufficient evidence to convict the defendant without evidence of the test results, we will reverse his conviction outright.

See Also

Episode 439 - People v. Sykes, 2017 IL App (1st) 150023 (December). (no police action when police hold a lady down in the hospital)

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

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

Episode 438 – People v. Eubanks, 2017 IL App (1st) 142837 (December) (really bad defendant held down in the hospital)

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

People v. Lee, 2018 IL App (3d) 170209 (February). Episode 458 (Duration 6:59)

25 minute wait for the sniff dog was too long.

Drug Charges

The State charged defendants, Wan Fung Lee and Jacky Yao Chuan Xiong, with unlawful cannabis trafficking (720 ILCS 550/5.1(a) (West 2014)), unlawful possession with intent to deliver cannabis (id. § 5(g)), and unlawful possession of cannabis (id. § 4(g)).

The Stop

Sergeant Clint Thulen testified that he pulled over defendants’ vehicle on March 9, 2015, for failure to signal a lane change.

A video recording of the traffic stop was introduced into evidence. Defendants’ exhibit No. 4 is a three-page timeline of the traffic stop. The first page chronicles the stop up until the point where Thulen returns Lee’s license. The second page details Thulen’s requests for consent and the period of waiting for the canine to arrive. The third page covers the period of the stop after the canine arrives.

Defendants agree that the traffic stop in the present case was lawful—based upon Thulen’s probable cause to believe a traffic violation had occurred—up until the point that Thulen issued Lee a warning ticket.

The State agrees that, at that point, Thulen had neither probable cause nor a reasonable, articulable suspicion upon which defendants could be detained.

The Video

The video begins as Thulen commences the traffic stop. Thulen approaches the passenger side of the vehicle and leans into the window. Approximately 1½ minutes later, the driver of the vehicle, later identified as defendant Lee, exits the vehicle and walks to the front of Thulen’s squad car. Thulen sits in the driver’s seat of the squad car and soon thereafter Lee sits in the passenger seat. The officers said they couldn’t smell the weed but they were sure the bags in the car contained weed.

They ask about it when defendant is in the squad car. He denies and the officer tells defendant to shut the door so he doesn’t run.

Thulen radios in defendants’ information. At the seven minute mark of the video recording, a second officer, Sergeant Brian Strouss arrives at the scene. Thulen asks Lee and Xiong, “You guys have got nothing to hide, right? Would you mind waiting for a dog to come and walk around the outside of the car?” Thulen tells them “it won’t take too long.” At the 14:45 minute mark of the video, Thulen radios in requesting a canine. He then tells defendants, “Hey, you’re free to go. You can do anything you want. You know, you’re free to go so I sure appreciate you waiting around for the dog though.” For approximately 25 minutes, defendants and the officers make small talk outside of the vehicle. In that period, Thulen requests that Xiong roll up the windows of the vehicle. The dog alerted. The trial judge granted the motion to suppress and the trial court sustained it.

Issue

Thus, the issue turns upon whether the encounter from that point forward was consensual.

Mendendhall Factors

We need not venture outside the four factors enumerated in Mendenhall to find the most compelling in the present case.

Thulen yelled, “Hey, no talking” at defendants, a plain example of “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” 

Not only was Thulen’s statement made in a loud and controlling voice, but the substance of that statement was in the nature of an order, dictating what defendants may or may not do.

Moreover, the order was accompanied by Thulen gesturing for Lee to come to him and, later, a direction that Lee look at Thulen. In a short span of time, toward the very beginning of the purportedly consensual portion of the stop, Thulen had thus made a number of demands of Lee. A reasonable person would not believe that he was allowed to leave the scene completely if he was not even allowed to speak to his friend.

Officer Safety

In its initial brief, the State ignores Thulen’s command that defendants not speak, only describing Thulen’s tone and language as “respectful, polite, and deferential to [defendants’] wishes as to whether they would remain on the scene.” In its reply brief, the State simply asserts that Thulen’s command “was merely for officer safety.”

To be sure, this court recognizes an officer’s need to protect himself or herself by preventing individuals from communicating in a language that the officer does not understand.

However, Thulen did not calmly ask defendants to speak in English. Instead, he loudly ordered them to stop speaking completely.

Thulen himself testified that he erred in delivering the command that he did, admitting that he should have asked defendants to speak in English. Again, a reasonable person who has been forcefully commanded by an officer to stop speaking would not feel free to enter his vehicle and drive off.