Kane County Nuggets

People v. Thompson, 2017 IL App (5th) 120079-B (May). Episode 368 (Duration 6:27)

Failure to instruct the jury on an essential element of the case does not necessarily constitute plain error.

After a jury trial in the circuit court of Hamilton County, defendant, Jeremy R. Thompson, was convicted of attempt to procure anhydrous ammonia with the intent to manufacture methamphetamine (720 ILCS 646/25(a)(2) (West 2010)) and tampering with anhydrous ammonia equipment (720 ILCS 646/25(d)(2) (West 2010)).

Defendant was sentenced as a Class X offender pursuant to section 5-4.5-95(b) of the Unified Code of Corrections to 18 years in the Department of Corrections to be followed by 3 years of mandatory supervised release.

At trial, Deputy Jason Stewart of the Hamilton County sheriff’s department testified how methamphetamine is produced using anhydrous ammonia, which is often stolen from local farm supply stores.

Deputy Stewart was dispatched to Hamson Ag after the three tanks’ caps were removed.

Stewart reviewed copies of recordings made by the surveillance camera. He testified the surveillance video showed a white male with short, dark hair and a balding or thinning spot on the back of the head, a large forehead, and a receding hairline, wearing a gray cut-off T-shirt and baggy pants, carrying a five-gallon bucket and a green soda bottle with a clear hose attached.

Stewart explained that a soda bottle attached to a hose is a common way to steal anhydrous ammonia.

Stewart noted the video showed the subject walking in front of the tanks, then out of view, then back in view, and then in between the tanks. The subject emerged from between the tanks carrying the bucket with the soda bottle and then ran off.

While Stewart did not recognize the subject, he circulated the video to other members of his department and to Chief Deputy William Sandusky to distribute to other counties and agencies. Police from another agency were able to identify the defendant.

Defendant admitted to manufacturing methamphetamine for the previous four to five months and said he had stolen approximately two gallons of anhydrous ammonia from Hamson Ag on four or five occasions. Defendant explained he either used the anhydrous ammonia to manufacture methamphetamine or traded it to get cigarette money.

Defendant also said he purchased pseudoephedrine, a necessary ingredient in the manufacture of methamphetamine, over the last four or five months.

On appeal defendant contends the trial court failed to instruct the jury on “substantial step,” an essential element of attempt, thereby removing a fact question from the jury and depriving him of his right to a fair trial.

The reviewing court, however, agreed with the State.

Because defendant did not request an instruction on substantial step, he forfeited this issue.

The State further replies that while Illinois Supreme Court Rule 451(c) (eff. July 1, 2006) supplies limited relief from the forfeiture rule, defendant has failed to carry his burden of establishing either plain error or ineffective assistance of counsel.

Generally, failure to ask for an instruction at trial and raise the issue in a post trial motion results in the issue being forfeited. However, where instructional errors are so grave that they affect the requirements of a fair and impartial trial, the plain error doctrine set forth in Supreme Court Rule 451(c) provides an exception to the forfeiture rule.

That rule states that substantial defects in criminal jury instruction “are not waived by failure to make timely objections thereto if the interests of justice require.” Ill. S. Ct. R. 451(c) (eff. July 1, 2006). This rule is meant to correct grave or serious errors and errors in cases so factually close that fundamental fairness requires that the jury be properly instructed.

The rule is coextensive with the plain error clause of Supreme Court Rule 615(a), which states: “ ‘Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.’ ” Id. (quoting Ill. S. Ct. R. 615(a)).

The plain error doctrine allows us to consider an unpreserved error when

(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or
(2) a clear or obvious error occurred and that error is so serious it affected the fairness of defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.

Illinois Pattern Jury Instructions, Criminal, No. 6.05 (4th ed. 2000) defines attempt as follows:

“A person commits the offense of attempt when he, [without lawful justification and] with the intent to commit the offense of ___, does any act which constitutes a substantial step toward the commission of the offense of ___.”

In the instant case, defense counsel did not ask that this instruction be given.

The erroneous omission of a jury instruction only rises to the level of plain error when its omission creates a serious risk that the jury incorrectly convicted the defendant because the jurors did not understand the applicable law, so as to severely threaten the fairness of the trial.

This standard is a difficult one to meet.

This precise issue has been before the court before.

In People v. Bell, 2012 IL App (5th) 100276, 968 N.E.2d 1262, this court addressed the issue of whether, in a case of attempted possession of anhydrous ammonia, the trial court’s failure to give the pattern jury instruction including “substantial step” in the definition of attempt rose to the level of plain error, and held that it did not.

The essential disputed issue here is the identity of the suspect not an accountability issue.

The State is correct that the essential issue at trial did not even concern whether an attempt was made. Here, there was overwhelming evidence of a “substantial step”.

Because of the overwhelming evidence against defendant, we conclude that failure to instruct the jury concerning “substantial step” did not rise to the level of plain error.

The error caused by not giving a “substantial step” instruction is simply not so great nor is the case so factually close that the fundamental fairness of the trial is in question. There is no reasonable probability that the result would be different given the surveillance video, admission by defendant, subsequent recantation by defendant, and presentation of an alibi defense at trial.

Because defendant has failed to show prejudice, we will not correct the forfeited error.

Episode 137 - Police Can Offer Opinion Testimony of Who They Think Is Depicted In a Video - (featuring this same defendant)

People v. Brown, 2017 IL App (3d) 140514 (May). Episode 367 (Duration 14:51)

The jury signed the not guilty of first degree murder conviction and they signed the second degree murder instruction, this was inconsistent, yet the conviction is sustained.

This was a home invasion that led to a struggle resulting in the shooting death of the home owner.

Defendant crashes through the back door with a gun puts a gun to the head of the handyman and starts walking him through the house.

The homeowner hears his wife screaming and he comes to confront the defendant. A struggle ensues and the homeowner is killed.

Defendant says it was a drug deal and victim was ripping him off.

They fought and he had to shoot him in the back in self defense.

At the jury instruction conference, the trial court approved instructions pertaining to selfdefense and second degree murder.

The first degree murder instructions were modified by agreement to differentiate between Count II, which was referred to as First Degree Murder (Type A), and Count I, the felony murder count, which was referred to as First Degree Murder (Type B).

The parties agreed that Illinois Jury Pattern Instruction, Criminal, No. 2.01B (4th ed. 2000) (hereinafter, IPI Criminal 4th) was to be given, modified to refer to first degree murder (Type A), which provided:

“Under the law, a person charged with first degree murder may be found (1) not guilty of first degree murder; or (2) guilty of first degree murder; or (3) guilty of second degree murder.”

IPI Criminal 4th No. 2.01B.

The jury was also given IPI Criminal 4th No. 2.03A, which instructed that if the State proved beyond a reasonable doubt that the defendant was guilty of first degree murder (Type A), then the defendant had the burden of proving by a preponderance of evidence that a mitigating factor was present so that he was guilty of the lesser offense of second degree murder and not guilty of first degree murder (Type A).

The jury was also instructed that it could not consider whether the defendant was guilty of the lesser offense of second degree murder unless it first determined that the defendant was proved guilty beyond a reasonable doubt of first degree murder.

With respect to the charge of first degree murder (Type A), the jury was given three verdict forms:

(1) not guilty of first degree murder (Type A);
(2) guilty of first degree murder (Type A); and
(3) guilty of second degree murder.

The judge instructed the jury to select one verdict and sign it and not to write on the other two forms.

The jury was also given four other verdict forms:

(1) not guilty of first degree murder (Type B);
(2) guilty of first degree murder (Type B);
(3) the allegation that the defendant personally discharge the firearm was proven; and
(4) the allegation that the defendant personally discharged the firearm was not proven.

After deliberations, the jury returned its verdicts.

It did not follow the directions regarding signing only one of the verdict forms relative to first degree murder (Type A) and only signing the discharge of firearm verdicts if it found the defendant guilty of first degree murder.

The jury signed two verdict forms: not guilty of first degree murder (Type A) and guilty of second degree murder.

The jury also signed the verdict forms stating that defendant was not guilty of first degree murder (Type B) and that the allegation that the defendant had personally discharged the weapon was proven.

The jury was not polled, the verdicts were received and entered, and the jury was discharged.

The defendant filed a motion for a new trial, arguing, among other things, that he was not proved guilty beyond a reasonable doubt. The trial court denied the motion and proceeded to sentencing.

The defendant was sentenced to a 24-year term of imprisonment. The defendant’s motion to reconsider his sentence was denied and defendant appealed.

The defendant argues that his conviction of second degree murder must be vacated because a finding of not guilty verdict of first degree murder precluded a finding that he was guilty of second degree murder.

The sole argument defendant has advanced is that the State has failed to prove an essential element of the crime—that he is guilty of first degree murder. Throughout his initial and reply briefs, he has persisted in that very argument.

Nowhere in his briefs has he raised a claim of inconsistent verdicts.

Nor does his argument implicate the principles or precedent relating to lesser included offenses.

The State argues that the jury mistakenly filled out extra verdict forms. Also, the State argues that the defendant forfeited this issue on appeal because he failed to make a timely objection or include the issue in his posttrial motion and did not argue plain error.

A defendant who fails to make a timely objection and include the issue in a posttrial motion forfeits review of the issue. Herron, 215 Ill. 2d at 175. There is no dispute that the defendant did neither of these.

The defendant’s argument, although he denies it, is basically that the verdicts were inconsistent. Since the defendant argued for plain error review in his reply brief, we will consider the issue for plain error under the second prong of the plain error analysis, i.e., where the error is so serious that the defendant was denied a substantial right and thus a fair trial. See People v. Williams, 193 Ill. 2d 306, 348 (2000); Herron, 215 Ill. 2d at 179.

The defendant primarily relies upon People v. Parker, 223 Ill. 2d 494 (2006), wherein the Illinois Supreme Court stated that “a finding that the defendant is not guilty of first degree murder bars the jury from considering second degree murder, and the jury verdict form of ‘not guilty of first degree murder’ would unambiguously establish the jury’s intention to acquit on all charges.” Parker, 223 Ill. 2d at 505. However, the conviction in Parker was upheld and that jury received accurate jury instructions and actually committed no error when they signed their guilty verdict.

In that case, however, the Court was addressing jury verdict forms, not inconsistent verdicts. While the jury in the instant case was similarly correctly instructed, it is clear that the jury did not follow the instructions because it filled out more than one verdict form and signed the form on the allegation that the defendant personally discharged the firearm.

It is without question that second degree murder is a lesser mitigated offense of first degree murder. Thus, the jury found essential elements, the elements of first degree murder, to exist and to not exist, resulting in inconsistent verdicts. See People v. Lefler, 2016 IL App (3d) 140293, ¶ 20 (jury verdicts are legally inconsistent when an essential element of each offense is found to exit and to not exist, even though the offenses arise out of the same set of facts); People v. Porter, 168 Ill. 2d 201, 214 (1995) (verdicts that defendant was guilty but mentally ill of both second degree and first degree murder for the death of his mother were inconsistent because they found the murder both provoked and unprovoked at the same time).

This is not a case of inconsistent guilty verdicts, but rather a guilty verdict that is inconsistent with an acquittal on another count. See The United States Supreme Court, in United States v. Powell, 469 U.S. 57 (1984). The Powell court found that inconsistent verdicts were in error, but not of a constitutional nature.

The rationale for not allowing the defendant to challenge such an inconsistent jury verdict was that the government could not challenge the acquittal and it was unclear who the jury’s error favored. Also, the error could have been the result of jury lenity. Finally, the defendant was protected against jury irrationality or error because of sufficiency of the evidence review.

The difference between the instant case and the Powell and Jones line of cases is that those defendants were convicted of the lesser-included offense and acquitted of the greater offense, while the defendant in this case was convicted of the lesser-mitigated offense and acquitted of the greater offense.

However, the rationale of Powell still applies.

While it is clear that the jury was in error in returning inconsistent verdicts, in the words of the U.S. Supreme Court in Powell, “it is unclear whose ox has been gored,” and it is unclear who the jury’s error favored. The government could not challenge the acquittal.

Also, the verdict could still be explained as the result of jury lenity: second degree murder is a “lesser” offense than first degree murder because its penalties are lesser.

Finally, the defendant was protected against jury irrationality or error because he could have sought a review of the sufficiency of the evidence. This sufficiency of the evidence review, which will protect a defendant against jury irrationality, requires us to independently assess the evidence adduced at trial and determine if it would support any rational determination of guilt of second degree murder beyond a reasonable doubt.

The reviewing court went on to independently balance the sufficiency of the evidence and held there was enough there so that the jury could rationally determine that the defendant was the aggressor, that he was not justified in using deadly force, and that any belief that deadly force was necessary was unreasonable.

The court then held the jury erred by returning inconsistent verdicts, the entry of a conviction inconsistent with an acquittal is not of a constitutional nature and it did not deny the defendant a substantial right. The defendant has, therefore, failed to meet his burden of showing that the error affected the fairness of his trial or challenged the integrity of the judicial process.

Accordingly, the second prong of plain-error review does not provide a basis for excusing the defendant’s procedural default, and we affirm the defendant’s conviction of second degree murder.

See the dissent who said that any review of the sufficiency of the evidence to either attack or justify the first degree murder acquittal is both improper and unconstitutional.

Moreover, such a procedure would invite the State to come through the back door to finesse an argument, as it appears to do here, that the jury really intended to find defendant guilty of first degree murder because it intended to find him guilty of second degree murder.

If the State is constitutionally prohibited from a frontal attack on the jury’s finding of not guilty, it surely is similarly barred from assaulting it by indirection or subterfuge.

It is clear that the jury misunderstood the instructions about how to fill out the verdict forms and that a mistake was made.

It is not at all clear, however, what that mistake was.

Despite the arguments of the State, there is no actual factual basis for determining that the jurors did not, in fact, intend to acquit of first degree murder. Without such a finding, his conviction of second degree murder cannot legally stand.

To determine that the jurors did not so intend is to engage not only in an unconstitutional review of his acquittal but also in wanton speculation.

To find defendant guilty of second degree murder in the face of his acquittal of first degree murder flies in the face of the plain and unambiguous language of the statute and frustrates the manifest intent of the legislature.

In summary, the jury acquitted defendant of the first degree murder of the victim; that acquittal cannot be challenged constitutionally by either the defendant or the State; the statute clearly and unambiguously requires, as the first necessary element of proof for second degree murder, that the State prove defendant guilty of first degree murder; the State did not—indeed, could not—provide such proof because of the acquittal; therefore, the evidence was insufficient as a matter of law to prove him guilty of second degree murder.

I can see no choice but to reverse that conviction.

If we do not do so, we will have violated our sworn duty to enforce the law as written and enacted by the legislature. It is possible, but not certain, that defendant was wrongly acquitted of first degree murder. He is nonetheless legally not guilty.

It seems trite but is nevertheless true to say that it is better to risk exonerating a possible wrongdoer than to

(1) ignore the unambiguous language of a duly enacted statute or
(2) intentionally and deliberately undermine the most fundamental constitutional principles and procedures undergirding our criminal justice/criminal judicial system.

Episode 366 (Duration 24:20) In Legal News...College Dean Resigns Amid Allegations of Sexual Harassment...Cook County Bail Reform...Investigation of Drug Money in LaSalle County...

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✓ College dean makes a pass at young female employee and gets rejected, but still manages to squeeze $95,000 from the law school before quitting. 

✓ Cook county wants to send text messages to defendants to remind them to come to court. Yeah, that's gonna work. 

✓ Investigation continues into whether or not confiscated drug money was misappropriated. I ask: "Can dirty money ever really be cleaned? Ever? Really?"

• ABA Journal | NIU gives former law dean $95K for off-campus research - Stephanie Francis Ward
• Dean's Resignation Letter
• Daily Chronicle | Dannenmaier's conduct: See the documents leading to NIU dean's administrative leave - Drew Zimmerman
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• The Chief Judge's Bail Reform Order
• The Times | Donnelly defends right to investigate, prosecute Towne

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• Episode 359 IllinoisCaseLaw.com | What You Need To Know About The Illinois Bail Reform Law 
• Episode 360 PremiumNuggets.com | 102 Additional Police Forces Statewide Directed By A State’s Attorney Not What We Need
• Episode 081 IllinoisCaseLaw.com | State’s Attorney Power | This Prosecutor Misuses Investigator

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Show Me The Secret.

People v. Smith, 2017 IL App (1st) 161231 (May). Episode 365 (Duration 5:38)

Although artful and creative state can't avoid compulsory joinder requirements with careful charging decision.

Chicago police and the Secret Service had information that defendant was making counterfeit money.

They execute a search warrant and found marijuana, counterfeit currency, and some machinery and tools.

A Secret Service agent interviewed Smith and, on the day of the arrest, Smith signed a statement in which he admitted that for three months, he had used the machinery and tools to make counterfeit currency.

The State charged Smith with possession of marijuana, and he pled guilty to the charge.

The circuit court sentenced Smith to probation.

The United States Attorney’s Office decided not to prosecute Smith for counterfeiting.

The Cook County State’s Attorney’s Office also decided not to prosecute Smith further.

Over a year later for some reason the Illinois Attorney General decided to pursue the counterfeit charges.

The compulsory joinder statute provides:

“(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. (b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution *** if they are based on the same act.”

720 ILCS 5/3-3.

The General Assembly enacted the compulsory joinder statute “to prevent the prosecution of multiple offenses in a piecemeal fashion and to forestall, in effect, abuse of the prosecutorial process. A prosecutor might otherwise harass a defendant through successive prosecutions of multiple offenses and put a defendant through the expense of several trials until the prosecutor obtains a result that satisfies him.” People v. Quigley, 183 Ill. 2d 1, 7 (1998).

Obviously, the state was aware of the counterfeiting, but they contest only the circuit court’s finding that the counterfeiting and the possession of marijuana constituted the “same act” within the meaning of the compulsory joinder statute.

State says they can still charge defendant if they make sure to charge him for making counterfeit money before the raid. If police found drugs, guns, counterfeit money, and machinery used to make counterfeit money, possession of the drugs and guns would count as one act separate from the act of making counterfeit money.

In sum, defendant simultaneously possessed the cannabis and two handguns, and this contraband was discovered during the same search, at the same place, and at the same time.

Based on these facts, the court concluded that defendant committed a single physical act within the meaning of the compulsory joinder statute.

A different ruling would mean the state could prosecute a defendant years apart for items recovered out of the same search. 

The State argues that the compulsory joinder statute permits it to charge the defendant with drug and gun possession, wait 160 days, and then file new charges based on the possession of counterfeit money and machinery used to make counterfeit money, as long as the State charged the defendant with making, and not possession of, counterfeit money.

Court said, “nice try” but “no”.

It did not believe the General Assembly intended to reward prosecutors for piecemeal litigation that harasses a defendant, as long as the State artfully pleads offenses discovered at the same time as separate acts committed at separate times.

The State’s interpretation of the compulsory joinder statute would permit prosecutors to impose consecutive sentences the court would not otherwise order, by waiting until the defendant served his sentence on one charge before formally seeking an indictment on other charges based on information prosecutors knew when they filed the original charges.

This reviewing court agreed with the circuit court that permitting the State to pursue the new charges here would contravene the purpose of the compulsory joinder statute as interpreted in the law.

People v. Bonilla, 2017 IL App (3d) 160457 (June). Episode 364 (Duration 15:16)

Constitutional violation did not depend on whether the common door to the apartment was locked.

On a tip police bring a dog to an apartment complex in Moline, Illinois.

The exterior doors leading into the apartment building’s common-area hallways were not locked, and there was no lock, pass card, entry system, or anything whatsoever on the closed exterior doors of the apartment building that would prevent any person off the street from entering into the common-area hallways of the apartment building.

Once inside the apartment building, the canine officer walked his drug-detection dog down some of the common-area hallways.

As the dog came to apartment 304, however, the dog moved back and forth in the doorway, sniffing at the bottom of the door, and signaled a positive alert for the presence of illegal drugs.

The police officers obtained a search warrant for apartment 304 based upon the drug-detection dog’s alert.

After obtaining the search warrant, the officers searched the apartment and found a quantity of cannabis and certain other items. Defendant, who lived in apartment 304, was later arrested and charged with unlawful possession of cannabis with intent to deliver.

The specific issue before us in this appeal is whether the police officer violated defendant’s fourth amendment rights when he entered the common-area hallway of the unlocked apartment building and conducted a dog sniff of the front door of defendant’s apartment.

More specifically, we must determine whether the police officer’s actions constituted a search for purposes of the fourth amendment.

There are two different approaches that a court may be called upon to apply when determining whether a police officer’s actions constitute a search under the fourth amendment— a property-based approach and a privacy-based approach.

If applicable, the property-based approach should be applied first.

First of all, there is no need to apply the privacy-based approach if a violation of the fourth amendment has been found under the property-based approach.

The property-based approach recognizes a simple baseline of protection that is provided by the fourth amendment as it relates to the property interests specified: that when the government obtains information by physically intruding (trespassing) on a person’s house, papers, or effects, a search within the original meaning of the fourth amendment has undoubtedly occurred.

The question a court must ask when applying the property-based approach is whether the police officers intruded (trespassed) upon a constitutionally protected area (one of the protected properties specified in the text of the fourth amendment) to obtain the information in question.

The privacy-based approach recognizes that property rights are not the sole measurement of the fourth amendment’s protections and that fourth amendment protections also extend to areas in which a person has a reasonable expectation of privacy.

Under the privacy-based approach, a fourth amendment search occurs when police officers intrude into an area in which a person has a reasonable expectation of privacy.

The question a court must ask when applying the privacy based approach is whether the complaining person had a reasonable expectation of privacy in the area invaded (the location or object of the alleged search) by the police.

Again, there is no need to apply the privacy-based approach if a fourth amendment search has already been found under the property-based approach (if the situation before the court is such that the police intruded upon a constitutionally protected area to obtain the evidence in question).

That is so because the privacy-based approach adds to the fourth amendment protections provided under the property-based approach; it does not diminish those protections and is not a substitute for those protections. See Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409 (2013).

Prior to the United States Supreme Court’s decision in Jardines, it was generally established that a warrantless police intrusion into a common area of an apartment building did not violate the fourth amendment rights of a defendant tenant.

In Jardines, however, the United States Supreme Court held that a police dog sniff of the front door of a single family home was a search under the fourth amendment.

The Supreme Court reached that conclusion, as stated in its majority opinion, by applying a property-based approach to the police officers’ actions and by finding that the police officers had intruded (trespassed) on the curtilage of the home (the front porch) to gather the information (the alert by the drug detection dog) that was later used as the basis for obtaining a search warrant for the home.

The Illinois Supreme Court later applied the holding of Jardines in the context of a multiunit apartment building in Burns and found that a police dog sniff of the front door of a defendant’s apartment was a search under the fourth amendment because the police officers had intruded on the curtilage (the landing outside of defendant’s apartment door in a locked apartment building) of the defendant’s residence in the middle of the night.

See People v. Burns, 2016 IL 118973, ¶¶ 32-45.

In reaching that conclusion, the supreme court emphasized that the apartment building where defendant lived was locked and that the common areas of the building were not open to the general public.

In the present case, although we are mindful of the supreme court’s comment in Burns, we nevertheless conclude that the police officer’s actions constituted a search under the fourth amendment, even though the apartment building involved was unlocked and unsecured.

Other than the unlocked status of the building itself (and the time of the search, of which we have no knowledge), the officer’s conduct in the present case was virtually identical to that of the officer in Burns.

This court could not conclude that a person who lives in an unlocked apartment building is entitled to less fourth amendment protection than a person who lives in a locked apartment building. The fourth amendment draws a firm line at the entrance to the home as the home is first among equals in the protected areas specified in the fourth amendment.

At the very core of the fourth amendment is the right of a person to retreat into his or her own home and there to be free from unreasonable governmental intrusion.

In providing that protection, the fourth amendment does not differentiate as to the type of home involved.

The court acknowledged that there is precedent to support the State’s assertion that a person does not have a reasonable expectation of privacy in the common area of an apartment building, that a dog sniff is not a search under the fourth amendment, and that a dog sniff is not the same as the thermal imaging scan.

Nonetheless, the state’s arguments were rejected based on the above analysis.

People v. Martin, 2017 IL App (1st) 143255 (June). Episode 363 (Duration 17:41)

Constitutional violation depended on whether the 2 story flat was more like a single family home or an apartment building.

Police searched a home without a warrant.

Police say they observed a man approach defendant and raise his right index finger, whereupon defendant acknowledged the gesture and entered the main door frame of a two story flat.

The door to was slightly ajar.

Defendant stood on the immediate threshold and reached into the door inside of the doorframe.

Defendant retrieved a blue plastic bag, manipulated it, and then retrieved a smaller unknown item from the bag. Police could not tell what the item was that defendant took from the bag.

Defendant then placed the bag on top of the door and returned to the man, where he received money from and tendered the small unknown item to the man. Defendant tendered the money to another male who was standing outside of the house.

The man was arrested and he said he just purchased heroin.

Police then arrested defendant.

An officer then reached above the doorframe on the inside of the door and recovered the blue bag.

The items inside the blue bag matched the suspect narcotics that were recovered from the man. The baggies were branded with a bomb logo and said “stay high imagine”.

The police said the door was open, he observed that the front door opened into a vestibule or common area that had another door, leading into the residence.

The parties stipulated that the officers did not have a warrant.

The court acquitted defendant of the hand to hand delivery and of possession with intent to deliver but found him guilty of possession of a controlled substance.

On appeal defendant challenges the warranty seizure of the drugs.

Turning to defendant’s contentions, defendant relies on Jardines, 569 U.S. ___, 133 S. Ct. 1409, and the expectation of privacy test from Katz, 389 U.S. 347.

We briefly summarize each framework.

Under Katz, to claim the protection of the fourth amendment, a person must have exhibited an actual (subjective) expectation of privacy in the place searched or thing seized, and this expectation must be one that society is willing to recognize as “reasonable. ”

Of note, Illinois courts have found that there is no reasonable expectation of privacy in common areas of apartment buildings that are accessible to others.

• See People v. Smith, 152 Ill. 2d 229, 245 (1992) (no reasonable expectation of privacy in a conversation that occurred in an apartment building’s unlocked common area that was shared by other tenants, the landlord, their social guests, and other invitees);
• People v. Carodine, 374 Ill. App. 3d 16, 23 (2007) (the defendant had no reasonable expectation of privacy in the dryer vent of his three-unit apartment building where dryer vent was in a common area that was accessible to the landlord and other members of the general public);
  
• People v. Lyles, 332 Ill. App. 3d 1, 7 (2002) (stating that a tenant has no reasonable expectation of privacy in common areas of an apartment building that are accessible to other tenants and their invitees).

In Jardines, 569 U.S. ___, 133 S. Ct. at 1413, the Court considered whether using a drug sniffing dog on a homeowner’s porch to investigate the contents of a home was a “search” within the meaning of the fourth amendment.

The Court stated that pursuant to Katz, “property rights are not the sole measure of Fourth Amendment violations.” The Court stated that the area “immediately surrounding and associated with the home,” known as curtilage, was “part of the home itself for Fourth Amendment purposes.”

The Court then assessed whether the officer's’ investigation “was accomplished through an unlicensed physical intrusion.”

The Court stated that a police officer without a warrant “may approach a home and knock, precisely because that is no more than any private citizen might do.”

Ultimately, the Court found that the use of trained police dogs to investigate a home and its immediate surroundings was a “search” within the meaning of the fourth amendment.

The Illinois Supreme Court applied Jardines to a 12-unit apartment building in People v. Burns, 2016 IL 118973. See Also Police Dog Sniff of Apartment Door Is a No-No

There, the court considered whether the warrantless use of a drug detection dog, located in a locked apartment building in the middle of the night, violated the defendant’s fourth amendment rights.

The dog sniff occurred outside the defendant’s apartment door.

The State in Burns suggested that Jardines did not apply to leased apartments or condominiums because there is no legitimate expectation of privacy in the common areas of multi-unit dwellings.

Disagreeing with the State, the court noted that the entrances to the apartment building were locked and the common areas were not open to the general public. The court also found that the landing to the defendant’s apartment was curtilage, noting that the landing was directly in front of the apartment and a clearly marked area within a locked building with limited use and restricted access.

The court stated that the police conduct in the case “certainly exceeded the scope of the license to approach [the] defendant’s apartment door,” as the officers entered a locked building in the middle of the night and remained in the building for more than a very short period of time.

Although Burns applied Jardines to a multi-unit apartment building, the specific contours of Jardines are unsettled.

Jardines left open the middle ground between traditional apartment buildings and single-family houses, including split-level duplexes, buildings that were converted from houses to apartments, and garden apartments whose doors open directly to the outdoors.

The court further stated that “a strict apartment versus single-family house distinction” was troubling because it would apportion fourth amendment protections on grounds that correlate with income, race, and ethnicity, citing data showing that a smaller percentage of African-Americans and Hispanics live in one-unit detached houses than whites and that the percentage of households that live in one-unit, detached houses rises with income.

Thus, under both Katz and Jardines, the type of building at issue matters.

Here, the State and defendant dispute how to characterize the two story flat, with the State asserting that it is a multi-unit apartment building and defendant contending that it is a single-family home.

Defendant's mother owned the flat, he was a guest there, and the second story was empty. Nobody was living upstairs.

The court found that cases from other jurisdictions indicate there are greater expectations of privacy in duplexes owned and occupied by one family persuade us that this flat should be treated as a single-family home for fourth amendment purposes.

This was not a typical multi unit building where numerous tenants and members of the public were expected to enter. Rather, it was viewed as the family home, and was treat it as such for the purposes of this case. Under Jardines, the area “ ‘immediately surrounding and associated with the home,’ ” known as curtilage, is considered part of the home itself for fourth amendment purposes.

In United States v. Dunn, 480 U.S. 294, 301 (1987), the Supreme Court listed four factors to consider when defining the extent of a home’s curtilage:

(1) the proximity of the area claimed to be curtilage to the home;
(2) whether the area is included within an enclosure surrounding the home;
(3) the nature of the uses to which the area is put; and
(4) the steps taken by the resident to protect the area from observation by passersby.

These factors are “useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration—whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.”

Here, Officer Warner recovered an item from above the inside door frame of the outer door of 5154 West Fulton.

Although the area beyond the outer doorway led to two apartment doors, we determined above that the entire building is a single-family home, which includes the area above the inside door frame.

As “the Fourth Amendment has drawn a firm line at the entrance to the house”, the area above the inside door frame was a constitutionally protected area. Further, that area outside the door was akin to a porch, which is a “classic exemplar” of curtilage.

The next question is whether the officers’ actions were accomplished through an unlicensed physical intrusion. A police officer without a warrant may approach a home and knock because that is no more than any private citizen might do.

Here, the police went up the stairs of the flat reached above the inside door frame, and recovered a blue bag. This was well beyond what an ordinary private citizen could do. Here, the police physically intruded on the inside of the home to gather evidence. That the door was open does not change this result.

A private citizen would not think that he could breach the open door of a home and investigate its contents. Any physical invasion of the home’s structure by even a fraction of an inch is too much. Police exceeded what a private citizen was permitted to do at the front door.

The court held that this was a warrantless search under Jardines.

Here, there were no exigent circumstances to justify the warrantless entry.

Relevant factors for determining whether exigent circumstances were present to effectuate an arrest include whether

(1) the crime under investigation was recently committed;
(2) there was any deliberate or unjustified delay by the police during which time a warrant could have been obtained;
(3) a grave offense was involved, particularly a crime of violence;
(4) there was reasonable belief that the suspect was armed;
(5) the police officers were acting on a clear showing of probable cause;
(6) it was likely that the suspect would escape if he was not swiftly apprehended;
(7) there was strong reason to believe that the suspect was in the premises; and
(8) the nonconsensual entry was made peaceably.

No list of factors is exhaustive and the factors listed above are guidelines, rather than cardinal maxims to be applied rigidly in each case.

The court acknowledged that the crime under investigation was recently committed, the entry was peaceable, and there was probable cause to believe that defendant committed a crime and that evidence was in the home.

Further, the record does not suggest that the police delayed their entry.

However, the circumstances indicate that the officers could have obtained a warrant without risk that the evidence would be destroyed. If the destruction of narcotics is the primary motivation for the warrantless entry, the police must have particular reasons to believe that the evidence will be destroyed for exigent circumstances to arise.

The state did not provide any evidence of urgency.

It’s is entirely speculative to say the unknown man was in the house destroying evidence. He could have just as easily just left the scene.

The court recognized that the lines between single family homes and multiunit apartment buildings may not always be crystal clear, but an officer working under non-exigent circumstances can always satisfy fourth amendment requirements by presenting evidence of probable cause to a neutral magistrate and obtaining a warrant.

With no basis for avoiding the exclusionary rule, we find that the evidence in this case should have been suppressed.

Further, without the suppressed evidence of the narcotics, the State cannot prove that defendant possessed the narcotics and his conviction must be reversed outright.

People v. Jackson, 2017 IL App (1st) 142879 (June). Episode 362 (Duration 13:26)

DOJ's report on CPD use of force cited in an appeal for the first time in a case featuring a mentally ill defendant.

After James Jackson calls 911 for an ambulance, the paramedics arrive to find him “agitated,” “nervous,” “irrational,” and “very uncooperative,” suffering from some type of psychological issue and with an “altered” mental state.

He doesn’t believe they are the paramedics.

Jackson began to yell profanities, so paramedics requested police assistance.

They thought Jackson might be suffering from some type of psychological issue: “he was not rational. We couldn’t get through to him. *** He was nervous. There was something going on.”

They thought, perhaps, his “mental status was altered;” Jackson did not follow simple directions and did not seem to be thinking clearly. They also noted that Jackson smelled of marijuana.

Jackson tried to go back inside the building but did not have his key for the second door, so he and the paramedics waited in the vestibule area for the police to arrive. During that time, Jackson kept yelling “don’t touch me” and appeared agitated. When the police get there all shit breaks loose.

The first responding officer reached for Jackson’s shoulder; Jackson pulled away and fell backwards, sliding down the vestibule wall to the floor. Jackson then began to punch and kick in a defensive manner rather than violent.

Jackson screams and flails.

They try to cuff him while defendant is trying to bit them. Then the stun gun came out. One officer uses his taser on Jackson, striking him 10 times. Normally, using the taser would make a subject less combative.

On Jackson, the taser had “no effect whatsoever.”

Another officer arrives and tries to grab and help handcuff Jackson and gets kicked in the shins. Jackson resists being placed in handcuffs. Handcuffs get on one of Jackson’s wrists, but Jackson pulled away, and began punching the glass window in the vestibule. Jackson gets tased again, which had no effect. After struggling for several minutes to subdue Jackson, the two officers succeeded in placing handcuffs on him.

Jackson was placed on a stretcher, put in the ambulance, and transported to the hospital.

Jackson is charged and convicted of battery and resisting arrest.

This, in sum, is what happened to James Jackson, and what happens all too often to individuals who may be experiencing a mental health or other crisis.

When they (or their families) call for help, they are met with some use of force by officers. See United States Department of Justice Civil Rights Division and United States Attorney’s Office, Northern District of Illinois, Investigation of the Chicago Police Department (Jan. 13, 2017), at 37 (listing incidents where Chicago police officers “used force against people in crisis who needed help”).

The DOJ report reveals that, as here, law enforcement officers, often “first responders” to mental health emergencies, are not necessarily trained or prepared to deal with the complex situations in which they may find themselves.

The lesson in these cases can be stark:

Call 911 and someone could end up charged with a crime, or worse.

Battery against a police officer is a serious charge, but being kicked in the legs by a mentally unstable person (causing no serious injury) is not the type of touching that requires either specific or general deterrence.

Sometimes, the initial decision to arrest or charge a defendant becomes a boulder rolling downhill, and no one feels strong enough to say, “stop,” regardless of the resources wasted.

The officers should have received training in how to de-escalate such a situation.

The officers didn’t tase Jackson out of malice, but because they did not know what else to do.

The restraint used on Jackson did not assist the paramedics in assessing Jackson’s health—how could they do so, after he had been zapped with 50,000 volts? All they could do was bundle Jackson into an ambulance. The lack of training turned a call for help into a contentious encounter with police.

Prosecutors too should receive training to enable them to distinguish between those responsible for their actions and those, like Jackson, whose vulnerable or abnormal mental state causes them to act in uncooperative or confused ways.

We will say it outright—this prosecution was a waste of time and money, all so that Jackson could be sentenced to 18 months of conditional discharge.

Jackson challenges the sufficiency of the evidence and other things.

He contends he was having a medical emergency and lacked the mental state for either knowingly committing battery or knowingly resisting a peace officer.

Battery occurs when, without legal justification, a person knowingly “makes physical contact of an insulting or provoking nature with an individual.” 720 ILCS 5/12-3(a)(2).

A person resists a peace officer when he or she knowingly resists the performance by one known to the person as a peace officer. 720 ILCS 5/31-1(a).

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).

Intent, such as knowingness, may be proven by circumstantial evidence, and inferred from the defendant’s action and the conduct surrounding it.

Here, the evidence was insufficient to support a finding that Jackson had the requisite mental state to commit these crimes.

Rather, there was an abundance of evidence—almost all of it from State witnesses—that Jackson was not “knowingly” acting during the incident. Both paramedics observed, on their arrival, that Jackson was “nervous” and “agitated.” Jackson’s verbal coherence does not indicate a “knowing” state of mind indicating that he understood what was happening to him.

Whatever the cause of Jackson’s behavior—epilepsy, drug intoxication, some undiagnosed mental illness, or being tasered 10 times—carries no consequence in as much as the State presented little-to-no evidence that Jackson behaved “knowingly.”

• When Jackson was thrashing in the vestibule in a “defending myself” manner, was he “consciously aware” that his thrashing would result in kicking an Officer?
• If Jackson did not recognize paramedics, where was the evidence that he “knew” that the other men were police officers, as the statute requires?

The court said it did not know why Jackson was behaving this way, but we don’t need to know.

Jackson’s mens rea of “knowing” was an element that the State needed to prove, and it failed to do so.

Jackson’s intent can be inferred from his conduct surrounding the battery and resistance, as well as the actions themselves. When a defendant behaves “normally,” it is simple to make this inference—we assume that a rational person who kicks a police officer, or resists arrest, knows what he or she is doing. But here, all the State witnesses testified that Jackson was not behaving “normally,” and so we cannot infer from his actions (as the dissent does) that Jackson was “consciously aware” of what he was doing and the results of his actions.

Rather, from the State’s witnesses’ testimony about his actions and conduct, we can infer that Jackson’s intent was not “knowing,” in the sense that he was not “consciously aware” of the results of his actions.

The court held that the State’s evidence establishing Jackson’s mens rea or mental state, here his knowledge, was so conflicting, so unsatisfactory, as to create reasonable doubt of Jackson’s guilt.

Accordingly, the evidence was insufficient to support Jackson’s convictions.

Convictions reversed outright.

See the strong dissent that asks what the hell does the majority think the police can do.

People v. Dismuke, 2017 IL App (2d) 141203 (June). Episode 361 (Duration 8:30)

Zehr principles are royal screwed up leading to a reversal under plain error.

Defendant was convicted of being an armed habitual criminal after an informant said he was responsible for a shooting of car that happened a year earlier.

Defendant’s neighbor found the gun wrapped in a garbage bag under his stairs.

Forensic analysis proved that this gun was used in the shooting of the Isuzu, and the informant told police defendant said he needed to get rid of the gun.

The state’s theory was that defendant had the gun from the time the informant gave it to him to the time that his neighbor found it.

A fingerprint expert testified that a print on the garbage bag was a partial left thumb print that matched defendant’s.

The informant testified he was in defendant’s kitchen when another guy gave defendant the gun with instructions to get rid of it.

Police did not find the gun after executing a search warrant in defendant’s home.

At the beginning of voir dire, the court admonished the venire as to “certain principles of law that apply to all criminal cases."

These are:

(1) the presumption of innocence;
(2) the State has the burden of proof;
(3) the defendant is not required to offer evidence on his own behalf; and
(4) the defendant’s failure to testify cannot be used against him.

See Ill. S. Ct. R. 431(b) (codifying People v. Zehr, 103 Ill. 2d 472 (1984)). We refer to these principles as the “Zehr principles.”

**The rule provides that the court “shall ask” each juror, either individually or in a group, whether he or she “understands and accepts” the Zehr principles.

In People v. Thompson, 238 Ill. 2d 598, 607 (2010), our supreme court made clear that the court must ask both whether the jurors understand and accept the principles. Rule 431(b) mandates “a specific question and response process.” The court “shall ask” whether the potential jurors understand and accept the enumerated principles. 

Asking jurors they had any “difficulty or disagreement” was not equivalent to asking if they understood.

For example, someone might not disagree with a statement simply because he or she does not understand it.

The court instructed the entire venire to raise hands if the potential jurors did not “understand or accept these principles or don’t agree with them.”

Just prior to that instruction, the court had instructed the venirepersons not to raise their hands if they did understand, agree with, and accept the principles.

The court then recited each principle followed by a different question:

“Is there anyone who has any difficulty or disagreement with this proposition of law?”

The court instructed the venirepersons to raise their hands if they did. No hands were raised.

Defense counsel did not object to the court’s handling of the Zehr principles.

After the alternate jurors were chosen the court then for the first time told the alternates that it would explain the Zehr principles.

The court further explained that not raising their hands signified that they understood and accepted those principles.

The court stated that, if they raised their hands, it would signify that they did not accept or understand the principles or did not agree with them.

The court recited the Zehr principles and inquired after each recitation whether either of the alternate jurors had “any difficulty or disagreement” with the stated principle.

Neither raised a hand.

The court then had the entire jury, including the two alternates, sworn. On the second day of trial, one of the alternate jurors replaced a juror who was excused for illness.

The inclusion of the court’s entire colloquy with the venire by Justice Burke in his special concurrence demonstrates how unclear and inadequate the court’s instructions were.

First, the court instructed the potential jurors not to raise their hands if they understood, agreed with, and accepted the Zehr principles.

Second, the court instructed the potential jurors to raise their hands in response to its question if they did not understand or accept the principles.

Third, after reciting each principle, the court changed the question from “understand and accept” to “difficulty or disagreement.”

So, potential jurors received three different instructions about what they were supposed to do with their hands. More problematic was the court’s substitution of “difficulty or disagreement” for “understand and accept.”

In sum, by using this confusing multi-task exercise, the court’s method of inquiry failed to determine whether the potential jurors understood the principles.

Rather than make the procedure so convoluted, it was necessary only to recite the principles and ask the potential jurors one question:

whether they understood and accepted the principles.

Accordingly, the court held that the court violated Rule 431(b).

Incidentally, the case law doesn’t require any specific time for when this questioning should be done.

It can be done after the jurors are chosen.

The next question is whether the error requires reversal and remand for a new trial pursuant to plain-error review.

It is undisputed that defendant did not preserve the error by objecting to the procedure at voir dire or in his post trial motion.

The plain-error doctrine allows a reviewing court to consider unpreserved error when a clear or obvious error occurred and (1) the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) the error was so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process.

In Thompson, our supreme court held that a violation of Rule 431(b) is not cognizable under the second prong of the plain-error doctrine. Thompson, 238 Ill. 2d at 611.

Consequently, defendant argues that the evidence in the present case is so closely balanced that reversal of his conviction is required. Whether the evidence is closely balanced is a separate question from whether the evidence is sufficient to sustain a conviction against a reasonable-doubt challenge.

In determining whether the evidence is closely balanced, the evidence is viewed in a commonsense manner in the context of the totality of the circumstances. The court held that under the totality of the circumstances, the evidence is closely balanced.

Accordingly, the court’s failure to comply with Rule 431(b) requires reversal and a new trial.

People v. Ringland, 2017 IL 119484 (June). Episode 360 (Duration 13:06)

Prosecutors cannot designated officials with general policing power.

5 defendants were each stopped by Jeffrey Gaither, a special investigator for the La Salle County State’s Attorney.

Each traffic stop occurred on Interstate 80 in La Salle County and resulted in the discovery of a controlled substance.

At issue in this case is the Counties Code section 55 ILCS 5/3-9005(b). Did Gaither have the authority to make these traffic stops?

In the litigation, defendant called the elected SA, Brian Towne, as a witness.

Brian said he created the State’s Attorney’s Felony Enforcement (SAFE) unit specifically to conduct drug interdiction traffic stops on route 80, so he could get his hands on some of that drug money flowing through his county.

Gaither was ex ISP and was hired for this task.

He was paid by La Salle County and was an employee of the State’s Attorney of Lasalle County.

He had a Ford Explorer equipped with lights and a video camera.

55 ILCS 5/3-9005(b) of the Counties Code provides in relevant part:

“The State’s Attorney of each county shall have authority to appoint one or more special investigators to (1) serve subpoenas, (2) make return of process and (3) conduct investigations which assist the State’s Attorney in the performance of his duties.”

55 ILCS 5/3-9005(b).

Section 3-9005(b) expressly limits its investigation authorization to those investigations that assist a State’s Attorney in the performance of his or her duties.

Thus, to be valid, the instant traffic stops, must constitute investigations that assist a State’s Attorney in the performance of his or her duties.

Additionally, Section 3-9005(a) prescribes certain powers and duties of the State’s Attorney. These duties of each State’s attorney shall be:

• to commence and prosecute all actions, suits, indictments, and prosecutions, civil and criminal, in the circuit court for his or her county, in which the people of the State or county may be concerned;
• all actions and proceedings brought by any county officer in his or her official capacity;
• to prosecute charges of felony or misdemeanor, for which the offender is required to be recognized to appear before the circuit court (55 ILCS 5/3-9005(a)(6);
• to prosecute all forfeited bonds and recognizances and all actions and proceedings for the recovery of debts, revenues, moneys, fines, penalties, and forfeitures accruing to the State or his or her county or to any school district or road district in the county;
• to prosecute all suits in the county against railroad or transportation companies, which may be prosecuted in the name of the People of the State of Illinois (55 ILCS 5/3-9005(a)(2));
• to defend all actions and proceedings brought against his or her county, or against any county or State officer, in an official capacity, within the county (55 ILCS 5/3-9005(a)(4);
• to attend the examination of all persons brought before any judge on habeas corpus, when the prosecution is in his or her county (55 ILCS 5/3-9005(a)(5);
• to give his or her opinion, without fee or reward, to any county officer in the county, upon any question or law relating to any criminal or other matter, in which the people or the county may be concerned (55 ILCS 5/3-9005(a)(7));
• to assist the Attorney General whenever necessary (55 ILCS 5/3-9005(a)(8);
• to pay, without delay, all moneys received in trust to the officer who by law is entitled to the custody thereof (55 ILCS 5/3-9005(a)(9);
• to notify, by first class mail, complaining witnesses of the ultimate disposition of cases arising from an indictment or an information and to notify various school officials upon the felony conviction of a teacher or educator (55 ILCS 5/3-9005(a)(10), (a)(13));
• to appear in all proceedings by tax collectors against delinquent taxpayers for judgments to sell real estate and see that all the necessary preliminary steps have been legally taken to make the judgment legal and binding (55 ILCS 5/3-9005(a)(12); and
• to perform such other and further duties as may, from time to time, be enjoined on him by law (55 ILCS 5/3-9005(a)(11)).

The fundamental question here is if prosecutor’s duties include criminal litigation as well as general policing duties.

The office of State’s Attorney is constitutionally established.

The State’s Attorney provision contains no reference to the powers and duties of the office. See Ill. Const. 1970, art. VI, § 19; see Ill. Const. 1870, art. VI, §§ 22, 32.

A State’s Attorney is a state, rather than a county, official. The office of State’s Attorney is considered part of the executive branch of government, and State’s Attorneys exercise executive powers.

The State’s Attorney’s powers are analogous to and largely coincident with those of the Attorney General and it follows, therefore, that the legislature may not usurp those constitutionally derived powers.

Any powers the office had before the constitution was written remain in full force and effect and can’t be removed by legislatures.

The enumeration of a State’s Attorney’s duties in section 3-9005 is not meant to be all-inclusive or restrictive, as evinced by subsection (a)(11)’s broad, catchall language.

At the common law courts recognized that the role of a public prosecutor in our legal system has two distinct aspects.

On the one hand, a prosecutor functions as an advocate for the State by evaluating evidence and interviewing witnesses in preparing for the initiation of a prosecution or for judicial proceedings.

On the other hand, a prosecutor may also perform “the investigative functions normally performed by a detective or police officer” by searching for the clues and corroboration that might furnish probable cause to recommend that a suspect be arrested.

To be clear: Illinois case law recognizes that a State’s Attorney has an affirmative duty to investigate the facts and determine whether an offense has been committed.

The state argues that the execution of traffic stops by the SAFE unit assists the State’s Attorney in his or her common-law duty to investigate suspected illegal activity. The state says that neither Section 3-9005(b) nor the common law bars them from contributing its own resources in service of the law enforcement community’s shared duty to maintain the rule of law.

The ABA helps flush this out by saying:

“The bulk of a prosecutor’s work consists of cases in which a complaint has been made by a citizen or by a public agency or cases that develop subsequent to an arrest made by the police. But there are instances in which a citizen is reluctant to prosecute, from ignorance, fear, inertia, or other motive, or in which the police have not taken the initiative. This may be because the area of illegal activity in question is not one that attracts law enforcement interest *** or where law enforcement officials are themselves involved. It is important, therefore, that in some circumstances the prosecutor take the initiative to investigate suspected criminal acts independent of citizen complaints or police activity.”

But the Illinois court system has previously said that:

“A State’s Attorney’s duty to investigate is not exclusive and necessarily involves him with other investigative agencies. Justice is not served when the State’s Attorney’s duty to investigate collides with the duty of the police to investigate. The State’s Attorney does not possess the technical facilities nor the manpower that the police have. Consequently, it is the recognized practice that the State’s Attorney sensibly defers to the investigative duties of the police. It is also the general practice that the State’s Attorney stands ready to provide assistance to the police.”

Professor LaFave has written that:

“Although the police and prosecutor share a common goal in the effective enforcement of the criminal law, they come at that goal with differences that create a real potential for conflict. They approach the task of enforcement from the outlooks of different professional backgrounds, while performing different roles and viewing the offense, the offender and the victim from different vantage points.”

Clearly, the State’s Attorney’s common-law duty to investigate suspected illegal activity is premised on a deference to law enforcement agencies.

Write this down:

The Illinois Supreme Court said that a State’s Attorney has an affirmative duty to investigate suspected illegal activity “when it is not adequately dealt with by other agencies."

 The Illinois Supreme Court jumped on this band wagon and said the State’s Attorney’s common-law duty to investigate suspected illegal activity is limited to circumstances where other law enforcement agencies inadequately deal with such investigation (see Williams, 147 Ill. 2d at 256) or where a law enforcement agency asks the State’s Attorney for assistance.

In this case, the record was quite clear that SAFE investigators independently initiated the instant traffic stops without cooperation with or input from other law enforcement agencies.

A majority of judges had no problem finding that based on Towne’s exhortation to “go out and enforce the law,” the SAFE unit essentially operated as a county police force at the direction of Towne, generating its own cases.

The legislature could not have intended such a far-reaching result.

The court noted that ruling the other way would potentially allow the formation of 102 additional police forces statewide, each directed by a State’s Attorney, rendering superfluous the three statutory functions of State’s Attorney special investigators.

The high court held that the State’s Attorney’s common-law duty to investigate suspected illegal activity did not apply to Towne because he made no showing that law enforcement agencies inadequately dealt with such investigation or that any law enforcement agency asked him for assistance.

Absent this duty, the conduct of the SAFE unit fell outside of the scope of section 3-9005(b).

See chief justice Garman’s strong dissent.

Particularly, the dissent stressed that the common law and commentary in the record demonstrated that prosecutors typically cooperate with law enforcement agencies for the purpose of investigation and that the State’s Attorney has a duty to take action when such agencies fail. It says nothing about the State’s Attorney’s duties in other situations, and certainly doesn’t prohibit a more general view of their power authority.

See Episode 081 - The Podcast On The Lower Appellate Opinion

Episode 359 (Duration 20:21) Illinois has taken a crack at bail reform. Here are the dirty little details on the new Illinois Bail Reform Law. 

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"Same old song." -- Anonymous Lawyer.

Let's take a closer look at the new Illinois bail reform law...

I think it's fair to say the goal was to empty the jails of a certain class offender, the so called, "class B" offenders.

Class B offenders are defined in the newly minted 725 ILCS 5/102-7.2.

The main prong of the law is covered in 725 ILCS 5/110-5(a-5). That's where they put the provision saying that there shall be a presumption that class B offenders get a "non-monetary" bail condition.

Section 725 ILCS 5/110-6(a-5) then describes this "automatic" hearing where detainees get an automatic bail-bond review to see why the heck they're still in jail.

And finally, they invented a $30 credit that can be applied towards any inmates "monetary bail" - whatever the heck that means. See 725 ILCS 5/110-14. 

• Bail law a good measure you don't want to use - by Burt Constable
• Illinois Bail Bond Law Ten Percent Rule May Cause Heart Attack to the Uninformed
• How Do Bail Bonds Work?
• Sample Bail Bond Related Criminal Law Motions
• Illinois bail reform law draws mixed reviews
• Article 110 BAIL
• Meaning of Words and Phrases 725 ILCS 5/102-7.2

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