Kane County Nuggets

People v. Savedo, 2017 IL App (1st) 152541 (March). Episode 338 (Duration 8:37)

The domestic violence advocate-victim privilege comes under scrutiny but survives intact.

This case involves a domestic violence advocate held in contempt for refusing to provide subpoenaed materials involving a criminal defendant who was being counseled by the domestic violence advocacy center, Sarah’s Inn.

Originally, defendant was charged with armed robbery while she was receiving services from the shelter.

During that trial, defendant allegedly made statements to a Sarah’s Inn advocate that threatened to harm one of the State’s witnesses, a police detective. The advocate disclosed the statements to the police pursuant to an exception to the advocate-victim privilege for imminent risks of serious bodily harm or death.

Later, defendant was indicted for threatening a public official based on the disclosed statements, and the State eventually served a subpoena on Sarah’s Inn to produce documents generated in connection with the report of defendant’s threatening statements.

Sarah’s Inn moved to quash the subpoena based on the privilege for confidential communications between domestic violence advocates and victims.

The circuit court ordered Sarah’s Inn to produce the documents for in camera review, but Sarah’s Inn and Gall refused. The circuit court held them in direct civil and criminal contempt but stayed the imposition of the fine pending the outcome of this appeal.

The issue in the case asks whether or not the center must turn over the subpoenaed documents.

The issue raised concerns the scope of the domestic violence advocate-victim privilege provision of the Act.

When the Act was enacted in 1986, the General Assembly recognized that domestic violence was a serious crime and the legal system historically had dealt ineffectively with family violence.

 Section 227 of the Act specifically protects confidential communications between domestic violence counselors/advocates and victims and states, in pertinent part:

“(a) As used in this Section: * * * (3) ‘Confidential communication’ means any communication between an alleged victim of domestic violence and a domestic violence advocate or counselor in the course of providing information, counseling, or advocacy. The term includes all records kept by the advocate or counselor or by the domestic violence program in the course of providing services to an alleged victim concerning the alleged victim and the services provided. The confidential nature of the communication is not waived by the presence at the time of the communication of any additional persons, including but not limited to an interpreter, to further express the interests of the domestic violence victim or by the advocate’s or counselor’s disclosure to such an additional person with the consent of the victim when reasonably necessary to accomplish the purpose for which the advocate or counselor is consulted. *** (b) No domestic violence advocate or counselor shall disclose any confidential communication or be examined as a witness in any civil or criminal case or proceeding or in any legislative or administrative proceeding without the written consent of the domestic violence victim except (1) in accordance with the provisions of the Abused and Neglected Child Reporting Act or (2) in cases where failure to disclose is likely to result in an imminent risk of serious bodily harm or death of the victim or another person. (c) A domestic violence advocate or counselor who knowingly discloses any confidential communication in violation of the Act commits a Class A misdemeanor. * * * (f) Nothing in this Section shall be construed to limit in any way any privilege that might otherwise exist under statute or common law. (g) The assertion of any privilege under this Section shall not result in an inference unfavorable to the State’s cause or to the cause of the domestic violence victim.”

750 ILCS 60/227. 

The center contends that the nature of this privilege is absolute and thus not subject to any in camera inspection by the court.

Everyone agrees that defendant made the statement to her domestic violence advocate while that advocate was attending defendant’s armed robbery trial in accordance with the advocate’s job to provide information, counseling, or advocacy. The privilege has not been waived by defendant or broken by the advocate’s disclosure pursuant to the imminent risk exception.

The State argues an advocate must actually be providing the victim counseling or support regarding incidents of domestic violence at the time of the communication in order for the privilege to apply, and consequently the advocate’s mere accompaniment of defendant at the armed robbery trial fails to meet this requirement.

In addition, at the time of the statement, defendant was not a domestic violence victim but rather a defendant in her own criminal case.

Moreover, the nature of defendant’s statement demonstrates that the conversation did not take place under the guise of domestic violence counseling because the threat was wholly unrelated to any incident of domestic violence and was directed toward a third party, the detective who testified against defendant in the armed robbery trial.

Further, the State argues that if the threat was made in an advocate-victim context, the threat is still subject to disclosure because it clearly met the exception for the disclosure of communications that present an imminent risk of serious harm and this exception does not expire.

The reviewing court agreed with the center.

First of all the act is intended to cover a broad sweep of communication.

That is the only way it can be effective at meeting its goals. The legislative intent to encourage victims of domestic violence to share confidential information with their advocates without the fear that the very act of seeking or receiving information, counseling, and advocacy will subject them to stigmatization or further victimization.

By its plain terms, section 227(a)(3) protects “any” communication between defendant and the Sarah’s Inn advocate in the normal series of acts or events of providing information, counseling or advocacy. The court discerned no language within this statutory provision that indicates the General Assembly intended to confine the privilege to protect only statements that are limited to the subject of domestic violence.

A correct reading of the statute indicates that the legislature intended to include within its scope any communication beyond the topic of domestic violence, even statements unrelated to the information, counseling, or advocacy being provided to the victim. The reviewing court also held that the plain language of the statute uses the present tense and requires the risk of harm to be “imminent,” which means “ready to take place, that is, hanging threateningly over one’s head.”

There is no support in the statute for the State’s assertion that once an advocate properly utilizes the imminent risk exception, the statement is subject to disclosure indefinitely.

Clearly, this disclosure exception is tied to the requirement of an imminent risk.

Additionally, here the criminal rules of discovery, namely the in camera inspection section, did not overrule any provision of the act. Illinois Supreme Court Rule 415(f) provides that:

“Upon request of any person, the court may permit any showing of cause for denial or regulation of disclosures, or portion of such showing, to be made in camera. A record shall be made of such proceedings. If the court enters an order granting relief following a showing in camera, the entire record of such showing shall be sealed, impounded, and preserved in the records of the court, to be made available to the reviewing court in the event of an appeal.”

However, a privilege may be absolute or qualified in nature, and there are crucial distinctions between the two.

If information is protected from disclosure pursuant to an absolute privilege, the opposing party cannot defeat the privilege by an ad hoc, case-specific showing of need for the privileged information. In such a case, the appropriate inquiry is whether the information sought falls within the scope of the privilege.

If it does, the information is protected from discourse and the inquiry ends.

By contrast, a qualified privilege can be defeated if the party seeking discovery of the privileged information can demonstrate that his or her need for the materials is sufficiently great to overcome the privilege.

To meet this burden, the party seeking the information must show the importance of the inquiry for which the privileged information is sought; the relevance of that information to its inquiry; and the difficulty of obtaining the desired information through alternative means.

After the burden is met, the court then balances the demonstrated need for the privileged information against the degree of intrusion upon the confidentiality of the privileged communications necessary to satisfy the need.

When the legislature created the advocate-victim privilege, they created an absolute privilege.

The plain language of section 227 of the Act indicates the legislature believed the overriding public good requires that domestic violence advocates and victims must be able to communicate with each other freely and frankly without fear that their communications might be publicly disclosed and anything less than the protection afforded by an absolute privilege would adversely affect the freedom of their communication.

But sometimes an in camera inspection may be appropriate.

If a subpoena reveals on its face that the documents sought fall within the scope of an absolute privilege, the court does not need to look further than the face of the request.

If it cannot be immediately determined whether the sought documents are protected from discovery under the advocate-victim privilege, the Illinois Supreme Court Rules authorize the court to evaluate the applicability of the asserted privilege and determine the need for an in camera inspection of the documents.

Here, the court held that the undisputed facts concerning the communication and the face of the subpoena establish that the documents sought by the State are absolutely protected from disclosure under the advocate-victim privilege.

Accordingly, there is no necessity in the instant case for the circuit court to invoke its authority to conduct an in camera review of the sought documents.

The trial court’s judgment of contempt and vacate the fine imposed by the court was reversed. The center’s motion to quash the subpoena should have been granted.

Terry Hake talks about Greylord In Episode 337 (Duration 30:31). Operation Greylord was a massive undercover sting operation that targeted corrupt judges and court officials in Cook County in the early 1980's. 

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"I saw funny things going on. I saw attorneys meeting with judges before their cases were tried behind closed doors for 20 minutes, and then I'd go out and lose the case." -- Terry Hake

Meet Terry Hake, the former attorney turned FBI agent who helped clean-up courthouse corruption.

When Terry Hake became an assistant Cook County State's Attorney in in 1977 the legal landscape in the courthouse was not like we know it today.

No case was immune from the fix. This was not just going on in misdemeanor rooms where the stakes weren't as high. Every case could be bought including:

• Murders
• Rapes and
• Child Molestations

In this interview you'll learn how a young, inexperienced - completely disillusioned - prosecutor turns state's evidence, works undercover and starts recording corrupt conversations.

✓ If you think the criminal courtrooms were a cesspool of corruption, you should have seen the divorce rooms. You won't believe what they were buying and selling there.

✓ There's a very practical reason why life for honest lawyers was tough during this time period. Even honest attorneys had their reputation tarnished in certain circles.

✓ There was one thing the feds told Terry he had to think long and hard about before deciding to go undercover against judges. Terry took a week and balanced his biggest fear with his disgust for the system and decided to do it. For the next 3 years he worked undercover and...

✓ In 2014, Terry came full circle and came back to the Cook County State's Attorney's office as an assistant prosecutor. He was either going to be hailed as a hero by his peers or condemned as a snitch. Listen in to hear how Terry describes his experience when he came back.

✓ The truth about working undercover for the FBI. Newly minted FBI agents train and get sworn in at Quantico. Not Terry. He was sworn in a garage in Addison, Illinois. 

• Amazon Books
• Barnes & Noble
• Target
• Audible
• Amazon Audio Book
• American Bar Association 

• TerryHake.com
• Jerri Williams Interview Part I
• Jerri Williams Interview Part II
• FBI Archives

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention the cases can increase any attorney's litigation skills no matter where they currently at.

If you're looking for the easiest way to keep up with the cases and ready to begin having a systematic-steady litigation advantage over your opponents then hit the link below.

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People v. Zimmerman, 2017 IL App (4th) 170055 (March). Episode 336 (Duration 6:31)

Press has a right to read the lascivious motions in limine filed by the defense but sealed by the trial court.

Defendant stands accused of killing his ex wife.

He filed a motion for leave to file motions in limine under seal.

The document referred to the motions at issue as his fourth and fifth motions in limine.

Defendant noted his fourth and fifth motions in limine sought to exclude the admission of evidence that was sensitive, private, and/or inflammatory about himself and others who may be called as witnesses or who are otherwise connected to him.

According to defendant, given the high level of media attention to his case, the evidence sought to be excluded would taint the jury pool if it became public and his right to a fair trial depended on the motions being sealed.

Additionally, defendant noted he was prepared to provide the circuit court with advance copies of the motions at issue for an in camera examination in the event the court needed additional facts.

The trial court agreed to seal the documents.

The intervenors—the Pantagraph, WGLT FM, and the Illinois Press Association—now properly appeal this decision.

The State did not intend to raise the matters addressed in defendant’s fourth and fifth motions in limine in its case in chief.

Defendant withdrew his motion asking to seal the courtroom, leaving the continued sealing of the fourth and fifth motions in limine as the only remaining contested matter.

Defendant requested the motions continue to be sealed until the jury in his case was impaneled.

The State took no position on the continued sealing of the motions.

After hearing the parties’ arguments, the court allowed, without objection, defendant’s fourth and fifth motions in limine.

The court further ordered the fourth and fifth motions in limine to remain sealed until jury selection and noted any order in limine related to those motions would also be sealed.

The court reasoned the presumption of access did not apply to the motions in limine and ended its analysis with that conclusion.

The United States Supreme Court has recognized the existence of a common law right of access to judicial records and documents.

Additionally, in Illinois, section 16(6) of the Clerks of Courts Act (705 ILCS 105/16(6)) provides for the public’s right to review judicial records.

Specifically, that provision provides, in pertinent part, the following:

“All records, dockets and books required by law to be kept by such clerks shall be deemed public records, and shall at all times be open to inspection without fee or reward, and all persons shall have free access for inspection and examination to such records, docket and books, and also to all papers on file in the different clerks’ offices and shall have the right to take memoranda and abstracts thereto.”

705 ILCS 105/16(6).

Once documents are filed with the court, they lose their private nature and become part of the court file and public components of the judicial proceeding to which the right of access attaches. This right also applies to transcripts of hearings as they are records of trial court proceedings.

Moreover, embedded in the first amendment to the United States Constitution (U.S. Const. amend. I) is a right of access to court records.

However, under all three sources of the right to access court records, the right is not absolute.

Our supreme court has noted the presumption of access can be rebutted by demonstrating suppression is essential to preserve higher values and is narrowly tailored to serve that interest.

The case law is clear that the right of access extends to the documents filed with the court.

Similarly, in this case once the circuit court granted defendant leave to file the two legal documents, they became court records.

Moreover, in criminal cases, the purpose of a motion in limine is both to (1) determine prior to trial what, if any, evidence ought to be admitted at trial and (2) establish whether any such evidence that would ordinarily be admissible is inadmissible because of improper police proceedings.

Thus, unlike a the search warrant document, motions in limine are generally related to the criminal trial proceedings and not the criminal investigation, which has historically been private.

As to the logic test, the court held that access to motions in limine plays a significant positive role in the functioning of the criminal justice process.

Sometimes, such motions expose improper police action, or attorney conduct (i.e., discovery violations).

Moreover, public access to evidentiary decision making enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system, hearings often are as important as the trial itself, motions in limine can also be critical to the course of a criminal trial.

Thus, motions in limine also pass the logic test.

The circuit court erred by finding the presumption did not attach to the documents at issue. Since the presumption did attach to the documents at issue, the next step is to determine whether the presumption has been rebutted.

The circuit court did not address that issue, and thus the case wa remanded the cause to the circuit court for further proceedings on the intervenors’ objection to defendant’s fourth and fifth motions in limine being under seal.

In re A.S., 2017 IL App (1st) 161259-B (March). Episode 335 (Duration 15:09)

State fails to raise a race neutral reason for its jury strikes, reversal required.

This case was first discussed in October 2016.

Back To Batson Basics - Episode 255.

There there was a remand for the trial court to consider any race neutral reasons for the state’s peremptory strikes.

On remand the trial judge found a race neutral reason.

Reviewing court now reverses that decision.

On the first day of jury selection, the State successfully challenged for cause Bill B., who had failed to disclose a driving under the influence (DUI) conviction.

Also on the first day of jury selection, the State disclosed that 56-year-old Connie T. had failed to disclose a prior criminal matter: a theft charge from 1977 for which she received supervision. The State proposed that she be stricken for cause. When the court wavered over the significance of a nearly 40-year-old theft case, the court asked the prosecutor whether she felt strongly enough about it to use a peremptory challenge. The prosecutor responded: “We have to be consistent so we have to ask.”

The witness said she just forgot about it.

It happened when she was 18 years old.

When the court refused, the State did not press the issue by expressing its belief that Connie T. had lied about failing to remember the 1977 case.

The State then used peremptories to strike both Connie T. and Madelyn B., another black member of the venire.

At that point, the State had used three peremptories to strike black members of the venire, which prompted respondent’s Batson challenge.

The next black member of the venire questioned was Joe W.

After he was questioned by the court, Joe W. volunteered, “I’m beginning to feel bad now actually. I got medical conditions.” He further revealed he was an insulin-dependent diabetic and had high blood pressure, cholesterol problems, and glaucoma. In chambers with counsel, the court raised the possibility of dismissing Joe W. for cause given his health issues, but counsel for respondent asked that he be brought in for questioning. At that point, the State revealed that Joe W. had a 13-year-old DUI conviction that he did not disclose on his juror questionnaire or during the court’s questioning.

Joe W. Said he was not thinking of the DUI as a criminal case.

It happened in 2003 after his brother’s funeral.

At that point, although it had exercised only four of its seven peremptory challenges, the State accepted Joe W. When the State exercised a peremptory against the next black member of the venire, Rita J., the court sua sponte found that there was a prima facie Batson violation and proceeded to ask the State to articulate race-neutral reasons for its use of peremptories.

The State then proffered explanations for its decision to use peremptories against three of the four black members of the venire but failed to articulate, and the court did not inquire about, a reason for the use of a peremptory challenge to strike Connie T.

During the hearing on remand, the parties again addressed the State’s reasons for exercising peremptory challenges against black members of the venire.

With respect to Connie T., notwithstanding the court’s observation in denying the State’s challenge for cause during the first hearing that her failure to remember the 1977 case was an “honest mistake,” the State asserted that the prosecutors did not believe Connie T. when she claimed not to recall the case.

In particular, according to the State, its use of a peremptory was based on its belief that Connie T. was not truthful about her recollection of the theft case.

According to the State, Connie T. “repeatedly denied” the case and that it was only after she was “pressed” on the matter that she recalled the details.

Defense counsel argued that the State’s acceptance of Joe W. cast doubt on the legitimacy of its reliance on failure to disclose criminal matters as a race-neutral basis for dismissing prospective jurors. The State responded that the distinction between Joe W. and Connie T. was the State’s assessment of their demeanor when questioned in chambers.

The trial court noted generally that “[t]he State was very consistent in requesting strikes for all who answered the jury card questions in an untruthful way,” and in particular as to Connie T., the court found that she “was stricken for race neutral reasons[,] specifically, the State felt that she was being evasive in her answers and not truthful with the Court.”

As to Joe W., the court found that “[the ASA indicated that in their opinion Joe W. was truthful and believable and he was actually very likeable.” The court acknowledged that the State’s failure to exercise a peremptory against Joe W. was contrary to its position that failure to disclose criminal matters was grounds for dismissal but noted that the State “did believe he made a mistake.”

Comparing Joe W. and Connie T., the court stated: “[The State] did not believe her so there’s a distinction that I’m making today between Joe W. and Connie T.; that one was believable; one was not believable.”

Ultimately, the trial court concluded that “[there was no individual exclusion of any of these African-Americans from the jury for anything other than a race neutral reason.”

Now, back on appeal where the reviewing court retained jurisdiction, the court said defendant sustained his burden as to Connie T.

Because the State’s reason for exercising a peremptory against Connie T. rests on the State’s representation, made for the first time on remand, that it did not believe her when she initially failed to recall her theft case, that subjective observation is subject to close scrutiny.

Had the State, in fact, believed that Connie T. was, as it now contends, “lying” about her recall, we would have expected the State to take issue with the court’s assessment of her demeanor and its refusal to dismiss her. But the State said nothing and instead exercised a peremptory.

Conversely, with respect to Joe W., the State claimed on remand that it found believable his failure to recall his 13-year-old DUI conviction until he was reminded of it in chambers. The State elaborates that Joe was credible and “likeable” when he explained that he equated criminal matters with “boom, boom” and not with his DUI.

Yet, notwithstanding the State’s current position that it believed Joe W. genuinely overlooked his criminal case, the State still moved to strike Joe W. for cause, even after hearing his explanation. If the State genuinely believed Joe W. did not remember his DUI conviction and, therefore, did not deliberately fail to disclose it, the rationale for striking him for cause disappears.

On the other hand, if non disclosure, per se, was the determining factor, then the State should have used a peremptory against Joe W., just as it did for Bill B., who was dismissed for cause for failing to disclose a DUI, no questions asked.

At the time the State failed to exercise a peremptory against Joe W., it had three peremptories left. Joe W. became the eleventh juror. Thus, it is apparent that at that late stage in jury selection, the State could have used a peremptory against Joe W. without risking its later inability to strike an unacceptable juror.

It is difficult to give much credence to the State’s fundamentally subjective reasons for dismissing Connie T. while keeping Joe W.

More problematic is the failure of the trial court to reconcile its earlier findings with its acceptance on remand of the State’s newly articulated reason for striking Connie T.

During the first hearing, the court readily found Connie T. believable and specifically determined that she was not lying. During the in-chambers questioning, the court had the same opportunity to observe Connie T.’s demeanor as did the State. When, on remand, the State asserted that contrary to the court’s conclusions, it believed Connie T. was lying, it was incumbent on the court to evaluate the sincerity of this race-neutral explanation.

Yet the court never probed the State’s asserted belief by, for example, asking the State to articulate precisely what it was about Connie T.’s demeanor that led to the conclusion that she was lying or asking the prosecutor why, if she had concluded Connie T. was lying, she did not press her request to dismiss her for cause.

And the State’s characterization of the exchange during chambers questioning is demonstrably incorrect; the court did the questioning, and Connie T. was not “confronted” or “pressed” by the State about anything.

The transcript on remand does not reveal that the court undertook “a sincere and reasoned attempt to evaluate the prosecutor’s explanations in light of the circumstances of the case.” During the third stage of a Batson hearing, a trial court is often called upon to assess the credibility of the lawyers exercising peremptory challenges. But, here, the trial judge’s observation about not seeing any sign of discrimination by the lawyers in his courtroom, to which we defer, is of marginal relevance given that, under Batson, the issue is not racial animus but the respondent’s right to a fair trial, including a jury selection process untainted by improper exclusion of prospective jurors based on race.

The State, like any other party to a jury trial, wants to seat a jury that will be favorable (or at least not hostile) to its case.

Batson focuses on the reason the State believes a particular juror should not be seated, and if the juror’s race is the reason, a violation exists despite the fact that the prosecutor does not otherwise discriminate against or harbor any animus toward that race.

Further, other than the court’s repetition of the State’s reasons for striking Connie T. and retaining Joe W., i.e., that the State believed one and disbelieved the other, the court made no finding that the State’s assessment of Connie T.’s and Joe W.’s truthfulness was sincere. And given the significant indications we have discussed above that the State’s subjective reason for striking Connie T. was, in fact, pretextual, we conclude respondent has sustained his burden to show a Batson violation and is, consequently, entitled to a new trial.

Reversed and remanded.

On March 10, 2017, Curtis Lovelace was acquitted of his first wife's murder. In Episode 334 (Duration 51:50) of the Criminal Nuggets Podcast, Curtis Lovelace lays out the legal lessons from his experience.

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He was falsely accused of killing his wife, was acquitted, and now he's talking about it.

Curtis Lovelace is former star football player at the University of Illinois where he was the team captain. He was an Adams County prosecutor from 2005 through 2012. 

In 2014 his life changed dramatically when he was indicted for murder.

Here's a brief summary of the Curtis Lovelace case:

• Former star football player
• Former prosecutor
• First Wife Dies
• Autopsy Inconclusive
• Lead detective closes the case
• Nothing Happens for 8 years
• Remarries
• Estranged second wife says Curtis killed first wife
• Estranged second wife talks to police
• New detective takes the case
• New examiner recruited
• New cause of death determined
• Homicide
• First trial is a hung jury
• First defense team quits
• Exoneration Project and Evan Parke join the defense
• Released on $350,000 bond after 651 days in custody
• Undisclosed emails discovered
• Appears detective was "coroner shopping"
• Detective admits he destroyed emails
• Prosecutors admit detective lied
• Found not guilty in second trial

• Death on Valentine's Day - The Curtis Lovelace Story on CBS forty eight hours
• Lovelace Case from WGEM.com
• Lovelace attorneys claim evidence knowingly withheld by prosecution - WGEM.com
• Ex-Prosecutor Found Not Guilty in Retrial for Wife's Alleged Suffocation - People Magazine
• Former prosecutor and U. of I. football captain found not guilty in wife's death - Chicago Tribune
• Lovelace found not guilty - IllinoisTimes

✓ What's worse than your wife dieing on Valentine's Day? For Curtis it was when he was subsequently charged with her murder. 651 days is the time he lost away from his family. (Go to 1:18)

✓ A case study in what can go wrong when a pathologist lists the cause of death as undetermined. Seriously, can't they come up with box to check that says undetermined, but not homicide? (Go to case 2:18) & (Go to 8:40)

✓ The world's worst example of "a woman scorned". (Go to 3:40) & (Go to 11:24) & (Go to 23:31)

✓ How an elder care officer makes detective and stumbles upon his first case. (Go to 4:38)

✓ What do you do when your pathologists keep saying the cause of death is something other than a homicide? Naturally, you keep looking until until you find one who says it's a homicide. (Go to 7:25)  

✓ When a pathologist opined a women was suffocated completely ignoring the facts as reported by a respected lead detective and other witnesses. (Go to 10:06)

✓ The very first person you'd think a new detective on a case would interview and talk to would be this person. Unfortunately for Curtis, this interview was skipped. (Go to 11:54)

✓ Did the trial court inappropriately admit prior bad acts? Was this a proper application of the law to protect victims of domestic violence or just mud slinging by the prosecution? (Go to 13:27)

✓ The significance of the stolen computer. (Go to 19:20)

✓ For prosecutors the mother-of-all "caught with your pants down" moments came days before the second trial and forced them to tell the judge their lead detective withheld critical evidence. (Go to 25:25)

✓ When criminal litigation is like peeling an onion. (Go to 27:56)

✓ The detective said he turned over the documents to the prosecution, but said he was told to take it back. The prosecutor says he's a big fat liar. (Go to 30:54)

✓ In the end, it was the new detective versus the old detective. (Go to 34:01)

✓ The single biggest lesson here is not for the defense bar but for prosecutors who take law enforcement at their word and don't...(Go to 35:34) 

✓ The scary thing here is that the prosecution was an extremely experienced murder trial team. If tunnel vision plagued the investigators then the prosecution added to the fiasco by doing this. (36:52)

✓ The single biggest takeaway and legal lesson for this former prosecutor and criminal law lawyer that has now been permanently chiseled into his legal brain is the following. (Go to 39:59)

✓ Why it's problematic when pathologist know who's paying the bill. (Go to 42:34)

Episode 320 With Evan Parke - Behind The Scenes Of The Curtis Lovelace Trial | Attorney Evan Parke Discloses How The Defense Team Made Use Of FOIA

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People v. O'Dette, 2017 IL App (2d) 150884 (March). Episode 333 (Duration 13:56)

There was an abuse of the grand jury subpoena power in this child porn case, but defendant needs to show prejudice for relief.

Here we have a sheriff’s detective who was investigbating child pornongrphy.

Someone sent him some illegal pictures. He used a grand jury subpoena to AT&T to discover the internet subscriber’s name and address.

He then used that information for a search warrant.

Defendant’s main issue is that the sheriff did not return the subpoena to the grand jury. In fact, the sheriff really was not working with a grand jury at all.

Defendant says, however, that the detective's “pro forma” appointment—one of 488 made simultaneously—was the full extent of his interaction with the grand jury and that, in reality, he used his position to conduct an independent investigation from which the grand jury was excluded.

He had a clerk from the State’s Attorney’s office draft the subpoena and got it signed with the clerk’s help. Then the material was delivered directly to the detective, and it was never presented to the grand jury.

Although, a state's attorney got involved for the subsequent search warrant no attorney ever looked at or approved of the grand jury subpoena.

It turns out every single detective in Lake county is sworn in as a grand jury investigator, just in case.

A grand jury does not need a pending charge against a person or probable cause, as the purpose of the grand jury is to decide whether probable cause exists such that a charge should be brought.

The only requirements for the information sought were “some quantum of relevance” of the information and “some showing of individualized suspicion” against the person whose information was being sought.

Also, the grand jury must remain independent and thus must operate in secrecy. Therefore, with limited exceptions, the State’s Attorney may not disclose grand jury matters and may not use the grand jury as his own compulsory administrative process.

Under 725 ILCS 5/112-6(c)(2), any person to whom grand jury matters are disclosed shall not use them for any purpose other than assisting the State’s Attorney in his duty to enforce state law.

The State pointed out that the order not only appointed the detective as an investigator for the grand jury but also authorized him to issue subpoenas for investigative matters to be heard by the Lake County Grand Jury, to receive materials and documents pursuant to those subpoenas, to provide those documents to the State’s Attorney or his Assistants for enforcement of the laws of the State of Illinois, and nothing required him to obtain approval from the grand jury before issuing a subpoena.

Appointments of investigators for a grand jury are covered under 725 ILCS 5/112-5(b).

It says: the trial court may appoint an investigator or investigators “on petition showing good cause for same and signed by the foreman and 8 other grand jurors. The duties and tenure of appointment of such investigator or investigators shall be determined by the court.”

Well, it’s true that the detective’s actions as a grand jury investigator did not have very much to do with the grand jury.

He admitted that, he had no contact with the grand jury. From the start, his investigation of defendant proceeded as though the grand jury did not exist. To be sure, he did not need to obtain the grand jury’s explicit authorization to issue the subpoena.

However, as the trial court noted, the subpoena was made returnable to the detective personally at the sheriff’s department building or his email address.

Although the subpoena was headed “Grand Jury” and stated that the detective was an investigator for the grand jury, it was not made returnable to the grand jury. Moreover, it stated that the detective had made a complaint before the grand jury—which he had not.

The inaccuracy was potentially misleading, implying that defendant was already under grand jury investigation. The return and later use of the subpoena also occurred in disregard of the grand jury. After receiving the documents, he did not disclose them to the grand jury.

He did not do so even later on.

He did not even disclose them to the State’s Attorney’s office, although he gave that office the physical address of the suspected offender.

The detective never reported anything to the grand jury.

Thus, the search was made possible by the detective’s actions, all of which he undertook as an agent of the grand jury but in complete isolation from it.

The reviewing court said that all of this raises serious problems.

There was an abuse of the grand jury subpoena power.

The subpoena itself was defective, and the handling of the confidential information that it produced was tainted by the original defect and by the subsequent disregard of the grand jury, which should have originally received the information.

In substance, the detective used the grand jury’s subpoena power to conduct an independent investigation that did not end until after he had twice obtained information in which defendant had a constitutional privacy interest.

Although the appointment of 488 law-enforcement officers as grand jury investigators circumvented one problem raised by the case law, it did not eliminate the danger of police abuse of the grand jury’s powers.

The mere fact of appointment did not entitle the officers to perform their own investigations without any contact with the grand jury until the last moment, as was done here.

The convenience of the mass appointment cannot be a justification for disregarding the purposes of the grand jury system and the relatively mild restraints on its investigative powers.

In People v. Wilson, 164 Ill. 2d 436 (1994), our supreme court held that the State had abused the grand jury’s subpoena power but the defendant was entitled to no relief without a showing that he was prejudiced

Defendant is still required to show prejudice before he may be given relief.

Since, the state could have gotten their hands on this material had they followed the correct procedures the defendant failed to show prejudice.

The trial court’s ruling denying defendant’s motion to suppress was sustained.

See In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 393-94 (1992) for an explanation of what is really going on (the grand jury generally works in concert with the police to investigate criminal behavior, and that the State’s Attorney as the county’s chief law-enforcement officer coordinates the work of both groups thus there is nothing improper when they issue these subpoenas).

See also Episode 144 People v. Boston, 2016 IL 118661 (February).  

People v. Hernandez, 2017 IL App (1st) 150575  (March). Episode 332 (Duration 11:51)

Confession is out; giving the defendant a fake gun residue test did not sufficiently attenuate the bad arrest.

Defendant was arrested after his ex girlfriend was found dead in her car with a shotgun wound to her head.

In sum, more than 20 police officers, some armed, arrived at defendant's home, handcuffed him and patted him down, and then removed his handcuffs and seated him next to an armed officer in the back of a police vehicle and transported him to another police vehicle, which then transported him to an interrogation room in a police station, where he was questioned from nine at night until almost three in the morning.

When the Hanover detectives got there they asked APD to uncuff defendant.

They asked if he would agree to go with them to the police station. He agreed.

They put him in the back seat with an HPD detective sitting right next to him.

This court concluded that no reasonable person in defendant's shoes would have thought that he or she was free to leave.

After a first appeal the case was remanded for an attenuation hearing.

During the hearing we learned that defendant was first arrested by 20 Aurora Police Officers.

The interview lasted five hours and 45 minutes.

There were two periods of time when defendant was left alone for 10 to 20 minutes.

Defendant asked to use the bathroom once, and a Hanover Park police officer took him.

After defendant exited the bathroom, he went directly back to the interview room.

Defendant received a bottle of water and, after the interview, he ate a hamburger. During the interview, he was asked if he was hungry and he said no.

When Defendant wanted to know if it was legal for officers to search his truck he the detective got angry with him accusing him of saying he was going to plant something in his truck.

Later in the interview when detectives asked defendant to submit to a gunshot residue test, defendant responded by asking what his rights were.

Again, they called defendant a liar several times, defendant agreed to take the test.

About 5 hours in, the gave defendant a bogus gun residue test which he “flunked”.

About 10 to 15 minutes later, defendant began making incriminating statements, saying the killing was accidental.

The trial court found that it was the fake GSR test which prompted defendant to confess and that was sufficiently attenuating.

The reviewing court felt differently.

The conclusion that a defendant's arrest was illegal under the fourth amendment does not automatically mean that his subsequent statement is suppressed.

The question then becomes whether the statement was obtained by means sufficiently distinguishable from the illegal arrest such that we can say that the statement is purged of, or attenuated from, the taint of the original fourth-amendment illegality.

Attenuation analysis under the fourth amendment is distinct from the threshold question of voluntariness under the due process clause.

Attenuation analysis under the fourth amendment is distinct from the threshold question of voluntariness under the due process clause. The absence of physical abuse or coercion, and the voluntariness of the statement, are merely threshold requirements for its admissibility.

As a result, the fact that a trial court found no physical abuse or coercion does not resolve the issue of attenuation.

To satisfy its burden, the State must prove by clear and convincing evidence that the challenged evidence was obtained by means sufficiently distinguishable to be purged of the primary taint. Clear and convincing evidence means evidence greater than a preponderance of the evidence but less than proof beyond a reasonable doubt.

To determine whether a statement is attenuated from an illegal arrest, courts generally consider the following factors:

(1) the proximity in time between the arrest and the statement;
(2) the presence of intervening circumstances;
(3) the provision of Miranda warnings; and
(4) the flagrancy of the police misconduct.

Of these four factors, the presence of intervening circumstances and the flagrancy of the police conduct are the most important.

In the case at bar, the State does not argue that the police had any intervening probable cause between the time of defendant's arrest and his statement.

In addition to providing probable cause, an intervening circumstance can also be an event that prompts or induces a voluntary desire to confess, thereby breaking the causal connection between the illegal arrest and the confession.

However, it cannot be

[1] something that was obtained illegally, such as statements from unlawfully arrested codefendants, or
[2] information obtained by exploiting the illegality of the defendant's detention, such as "a polygraph examination conducted during the defendant's illegal detention.

Like a polygraph examination, the bogus gunshot residue test was used, in this instance, as a form of interrogation, and it was also a consequence of the illegal arrest and the resulting detention.

Similar to a codefendant's confession that was suppressed due to police misconduct, the bogus test was, itself, a form of misconduct. Thus, the bogus test cannot serve to purge the taint of the prior illegal arrest.

Our supreme court and this court have found that even a validly given polygraph test cannot be an intervening circumstance that purges the taint of an illegal arrest. If a valid test cannot purge the taint, then a completely bogus test certainly cannot.

The State cites cases from the 1980's and early 1990's in which the police lied to defendants and the subsequent confessions were still admitted as voluntary under the due process clause.

However, voluntariness under the due process test is not the issue in front of us.

The question here is: when a custodial bogus test is the primary event prompting a defendant's confession, does that bogus test purge the taint of a prior illegal arrest under the fourth amendment?

True Miranda warnings were given.

But, the warnings occurred once at the very beginning of the six-hour interrogation and were not repeated, even after defendant asked what his rights were—immediately prior to the test.

When the officers asked defendant if they had his "permission" to "check" his hands for gunshot residue, defendant replied: "what are my rights?"

Instead of informing him of his rights, one of the officers stated: "I'm asking you. If you don't want it we won't do it."

The Miranda warnings carry some weight but not much under the circumstances of this case.

Our supreme court has explained that police misconduct is flagrant when it is carried out in such a manner as to cause surprise, fear, confusion, or when it has a quality of purposeful or intentional misconduct.

The trial court found that the officer's tone during the detention following the initial arrest was cordial, and that defendant was not handcuffed during the ensuing detention.

However, the trial court did not consider the flagrancy of the police misconduct during the initial arrest, when over 20 officers arrived with weapons drawn at defendant's residence and handcuffed him.

Although the trial court found that the officer's' tone was cordial during the ensuing detention, the apparent purpose of the defendant's arrest and detention was to enable the police to conduct an expedition for evidence in the hope that something might turn up, a practice that the Supreme Court has condemned.

Further, officers repeatedly told defendant he was lying and confronted him with a bogus test in order to induce him to confess. Thus, this factor does not help the State meet its burden of showing clear and convincing evidence of attenuation.

In sum, after having reviewed all the factors, the appellate court concluded that the statement was not attenuated from the taint of the illegal arrest,

(1) where the duration between the illegal arrest, as found by the trial court, was short and thus did not provide time for independent reflection;
(2) where the event that prompted the confession, as found by the trial court, was the bogus gunshot residue test, and it did not qualify as an intervening circumstance purging the taint of the illegal arrest, since it was itself a form of interrogation occurring as a consequence of the illegal arrest and a form of misconduct;
(3) where Miranda warnings were provided once at the start of the six-hour interrogation but were not repeated again, even when defendant specifically asked what his rights were; and
(4) where the State introduced no evidence at the attenuation hearing concerning the circumstances of the initial arrest, and thus the trial judge, who had not presided at the original suppression hearing, had no information on which to determine whether or not the initial illegality constituted egregious police conduct, and where the police were on a fishing expedition during the subsequent detention.

The statement was not attenuated from the illegal arrest and must be suppressed under the fourth amendment.

Reversed and remanded for a new trial.

• Episode 273 Multiple Officers In Your Bedroom In The Dead of Night Leads To Custodial Interrogation
• Episode 274 Multiple Officers In Your Bedroom...Part 2
• Episode 291 24 Hours Constituted Sufficient Attenuation To Allow a Tainted Confession
• Episode 250 Police Tell A Little Lie To Encourage Signing The Consent To Search
• Episode 252 Handcuffing During This Traffic Stop Justified (It Was Really A Drug Investigation)
• Episode 199 Recorded Interrogation Justifies Holding Defendant More Than 98 Hours Before Seeing a Judge
• Episode 158 Taint From A Bad Confession Still Stunk Up The Place
• Episode 030 Right to Remain Silent: “No” Means “No” But This is Not a Rape Case
• Episode 185 Thomas Guts The Exclusionary Rule (SCOTUS Extends Attenuation Doctrine)
• Episode 075 The Exclusionary Rule and The Good Faith Exception
• Episode 330 Warrantless Entry Into Home Does Not Merit Suppression of Evidence
• Episode 161 Premature Arrest Leads To Suppression of Murder Confession - No Attenuation

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.

Officer responds to the scene of an unconscious person in a vehicle.

He finds a Ford Explorer with its passenger side tires on the grass and part of the vehicle still on the road.

Paramedics were already present, attending to defendant. He finds Red Bull can cut in half with burn marks on the interior. He runs a cocaine swipe on it and comes back positive.

There is also a used one millimeter syringe in the vehicle.

A brown, granular substance was also found in a small baggy in defendant’s wallet, for which test results were not available at the time of the hearing.

There were no signs of alcohol use, but the paramedics did say that there was a fresh track mark on defendant’s arm where a needle would have been used. The paramedics also noted that defendant was sweating, had pinpoint pupils, and had a heart rate of 144 beats per minute.

Defendant was also in and out of consciousness.

This officer had zero training in the detection of narcotics use.

Defendant was able to tell the officer he was a diabetic.

The officer arrested defendant for DUI drugs at the hospital.

The trial court granted the motion to rescind the statutory summary suspension.

The State stressed defendant’s physical symptoms: that defendant was sweating, had pinpoint pupils, and had a heart rate of 144 beats per minute.

However, the officer admitted that he never observed defendant and only knew these symptoms by speaking to the paramedics. As he never observed these symptoms and did not have any training or experience in DUI of drugs, his opinion as to the cause of said symptoms is tenuous at best.

Specifically, the State argues “the unfortunate explosion in illicit drug use throughout all sectors of our society has made the effects of drugs on people common knowledge.”

The State exaggerates the pervasiveness of drug use. It defies logic and borders on insulting to say that the average person in Illinois is so familiar with illicit drug use that he or she is able to recognize its effects.

The dissent says that there was also a baggie of what field tested as positive for drugs, as well as an uncapped syringe lying on the passenger seat.

Paramedics advised the officer that defendant had not only a hole in his arm from a recent injection, but also track marks on his arm. One need not be a 20-year police veteran or drug expert to connect these dots.

Track marks are a common sign of a drug abuser who injects his or her drug of choice repeatedly, ultimately causing collapse of veins and distinct marks in the affected area.

Defendant is not the first drug user to tell police he is a diabetic upon being found with a hypodermic syringe.

The reviewing court agreed noting that the main problem was that the officer had no training or experience that would enable him to distinguish between a diabetic reaction and a drug reaction.

Moreover, the officer further based his arrest on the residue found at the bottom of the Red Bull can. 

Though he conducted a “NARK Cocaine ID Swipe” of the residue, which he said tested positive for opiates, we find it curious that a “Cocaine ID” test would be used to test for opiates when cocaine is not an opiate. See People v. Vernor, 66 Ill. App. 3d 152, 154-55 (1978) (finding that opiates are narcotic drugs while cocaine is not).

Therefore, it is unclear whether the officer even administered the correct type of test, and if so, whether he administered it correctly.

This officer would not have known the difference between a diabetic reaction and a reaction to drugs.

Though a layperson can testify regarding intoxication from alcohol, the effects of drugs are not commonly known, and training and experience are necessary to understand their effects on people.

Finally, the substance found in defendant’s wallet carries no evidentiary weight as test results were not available at the time of the hearing.

While an officer need not necessarily have “advanced training” or be certified as an expert, some training and experience in DUI of drugs is necessary.

People v. Garcia, 2017 IL App (1st) 142141 (March). Episode 330 (Duration 4:34)

Police entered a home without a warrant to make a misdemeanor arrest; the exclusionary rule does not mandate suppression of evidence.

Defendant was charged with one count of unlawful possession of a firearm based on his possession of a firearm while under 18 years of age. 720 ILCS 5/24-3.1(a)(1).

 Officers knock on defendant’s door and either his little brother or mother answered.

They come in an immediately arrest the defendant in the living room. The family testified that they barged in and did not identify themselves as police officers. They took defendant outside the home and before placing defendant in their vehicle, he performed a search of defendant and recovered a six-shot .32 caliber revolver handgun.

The police said defendant was wanted on an armed robbery. They had a signed misdemeanor complaint for theft and battery. In fact, they had no search or arrest warrant.

Defendant filed a pretrial motion to quash arrest and suppress the gun seized from him on the grounds that it was obtained through a warrantless entry into his home.

 On appeal, defendant contends the trial court erred in denying his motion to quash arrest and suppress evidence because the evidence was obtained through exploitation of the illegal warrantless arrest within his home and is therefore subject to the exclusionary rule.

In other words, the handgun recovered from his pocket was only recovered through “exploitation of the illegality” of the police officers’ unconstitutional entry into his home.

In Payton v. New York, 445 U.S. 573, 602-03 (1980), the United States Supreme Court held that warrantless entry by police officers into a defendant’s residence to make a routine felony arrest in the absence of consent or exigent circumstances violated the defendant’s fourth amendment right to be free from unreasonable search and seizure.

Ten years later, in New York v. Harris, 495 U.S. 14, 16 (1990), the Court again addressed the warrantless entry of police officers into a defendant’s home, examining the issue of whether a statement made by a defendant outside of the home should have been suppressed because the police, by entering defendant’s home without a warrant and without consent, violated Payton's rights.

The Court concluded that the defendant’s statement should not be suppressed.

In People v. Alexander, 212 Ill. App. 3d 1091 (1991), this court first addressed the Supreme Court’s decision in Harris and reiterated the Harris holding that “where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though [that] statement is taken after an arrest made in the home in violation of Payton, ” because “as long as the police have probable cause for holding the suspect in custody, such statements are neither “the product of being in unlawful custody *** [nor] the fruit of having been arrested in the home rather than someplace else.” Alexander, 212 Ill. App. 3d at 1104 (quoting Harris, 495 U.S. at 19).

This court went on to decide that although Harris only referred to statements obtained outside the home, “we see no reason why the rule it enunciates should not apply as well to other evidence obtained outside the home, as the argument for excluding statements was that they were the fruits of an illegal arrest rather than that there was some basis for distinguishing between statements and other evidence.”

As a result, this court held that because the defendant did not deny the existence of probable cause for his arrest, the trial court did not err in admitting the evidence obtained from the defendant away from his home after his arrest.

This court has previously recognized, on at least two occasions, that the rule from Harris regarding statements has been applied to other evidence obtained outside the home, even going so far as to say that, “we see no reason why the rule Harris enunciates should not apply as well to other evidence obtained outside the home.” Alexander, 212 Ill. App. 3d at 1104.

Thus, here, like in Harris, because the officers had probable cause, defendant was not unlawfully in custody when he was removed from his home and searched before being placed into the officer's vehicle. The court found that where officers had probable cause to effectuate defendant’s arrest, and while their entry into his home to do so was unlawful under Payton, the evidence recovered outside his home is not required to be suppressed.

The trial court properly denied defendant’s motion to quash arrest and suppress evidence.

In the 20th century the exclusionary rule became the principal judicial remedy to deter Fourth Amendment violations.

But the significant costs of this rule have led the court to apply it only where its deterrence benefits outweigh its substantial social costs.

Suppression of evidence has always been their last resort, not our first impulse. The attenuation doctrine holds that evidence discovered after an illegal seizure is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.”

People v. West, 2017 IL App (3d) 130802 (March). Episode 329 (Duration 10:59)

This obvious drug interdiction traffic stop was nonetheless 100% consensual.

12,204 grams of cannabis in 16 bundles wrapped in duct tape hidden in defendant’s vehicle doors are discovered by police during a traffic stop.

Defense counsel argued the stop was impermissibly prolonged by “drug interdiction” questions unrelated to the purpose of the stop, that the officer did not have reasonable, articulable suspicion to ask those questions, and that defendant’s consent to search his car was merely acquiescence to the show of authority.

Ultimately, the trial court denied defendant’s motion.

The court found that the traffic stop was not unreasonably prolonged; it ended when defendant was told he was free to leave, and the ensuing encounter was consensual, not coerced.

Interestingly, the office noticed defendant after the car ahead of him flew by him, obviously speeding. Hmmm?

Upon stopping the car the officer noticed defendant had an Arizon DL.

Then the officer asked numerous questions unrelated to the traffic stop.

Defendant said he was driving from Arizona to Flint, Michigan, to visit friends. He said he planned to stay until the end of the week and indicated that he did not know his friends’ address in Michigan.

Illegal narcotics suppliers sometimes hold back the precise drop-off location to prevent drivers from cooperating with police in the event they are stopped before delivering the drugs.

The defendant had a suitcase in the backseat, a mechanic’s shirt hanging inside the car, and a camera in the rear window.

The officer asked defendant to sit in his squad car with him while he checked his documents and wrote him a warning ticket.

The officer stated he found it odd that defendant said his business was not going well but he was taking a costly trip to visit friends.

Approximately 14 minutes after Johnson initiated the stop, he issued defendant a written warning, returned his documents, and told defendant he was “free to go.”

Defendant exited the squad car.

Johnson exited the squad car in quick succession.

Thereafter, he voluntarily remained outside of his car and engaged the officer in conversation.

He told defendant to have a “nice trip,” they shook hands, and they remarked that it was nice meeting each other.

Defendant exited the squad car with his paperwork and began walking back to his car. Before defendant got back into his car, the officer asked defendant if he could talk with him further. Defendant agreed to do so. But before defendant gets into his car the the officer asks for permission to search.

Defendant says “yes.”

This is not a reasonable suspicion case.

Clearly, the officer did not have reasonable suspicion.

He ultimately decided he did not have reasonable, articulable suspicion sufficient to prolong the traffic stop and ended it. Armed with the knowledge that he was free to leave, defendant twice consented to the trooper’s request for permission to search the car, and the defendant said “Yes.”

Defendant presented no evidence at trial that the traffic stop was prolonged.

The officer’s testimony and the video footage of the traffic stop established the opposite. He did not cease working on the traffic stop while engaging defendant in conversation.

The defendant points to nothing in the record suggesting otherwise.

Even assuming, for sake of argument, the traffic stop was unreasonably prolonged by the officer’s questions, the defendant’s point is irrelevant.

The traffic stop ended before defendant consented to a search of his vehicle.

The State need only prove defendant’s consent to search was voluntary by a preponderance of the evidence. The officer concluded the traffic stop by returning documents to the defendant, along with a written warning, and telling him he was free to leave.

 Generally, a valid traffic stop ends when the paperwork of the driver and any passengers has been returned to them and the purpose of the stop has been resolved.

There is no seizure if the motorist understands that he or she is free to leave and voluntarily prolongs the contact.

The evidence at issue was discovered during a consensual encounter preceded by a traffic stop.

Defendant was unequivocally told he was free to leave.

He remained on the side of the road and eventually consented—twice—allowing Johnson to search his vehicle. An officer may convert a lawful traffic stop into a consensual encounter by returning the driver’s documentation and informing the driver that he or she is free to leave.

The encounter can become a seizure, however, if, inter alia, the Mendenhall factors are present.

In this case, none of the Mendenhall factors are present in the alleged seizure before or after the traffic stop. Defendant gave his consent, not once, but twice after explicitly told him he was free to leave.

This search was not unconstitutional.  

The dissent said the more realistic and tenable conclusion is that any reasonable person, evaluating the totality of these circumstances, would have realized that the stop had not ended and would have concluded, despite the officer’s representations to the contrary, that he or she was not free to leave.

He said that the redundant and repeated questioning gave rise to an objectively reasonable belief that the stop had not ended and West was not, in fact, “free to go.”

Defendant merely submitted to the continuing show of authority and involuntarily remained at the scene to reiterate his prior answers to the officer’s same questions.