Kane County Nuggets

Alana De Leon is an Illinois criminal law litigator worth keeping an eye on. In episode 328 (Duration 43:21) of the Criminal Nuggets Podcast she helps us explore some of the intricacies of "knock and talk" warrantless entries. 

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There is a certain amount of timidness often seen in young criminal law litigators. 

An uncertainty and apprehension that only melts away with raw experience.

Well, Alana De Leon, has none of that.

She's built her experience and insight on warrantless entries into homes, so called "knock and talks",  by rolling up her sleeves and challenging them in court.

Alana is the daughter of John De Leon. Her father has a long career as a Cook County attorney.

After graduating from De Paul Law School she was sworn in as an Illinois attorney in November of 2015. 

She focuses her practice on federal and state criminal defense where she's developed a passion for constitutional issues. If it involves crime, murder and mayhem then it has her attention.

To find out more About Alana De Leon go here:

• Facebook
• Avvo
• Website

To contact Alana send her a message here:

alana.m.deleon(AT)gmail(dot)com

✓ The "Knock and Talk" is the weird little cousin of the three types of police-citizen contacts. It's not quite a Terry stop but something else. (Go to 6:39)

✓ How is a "knock and talk" related to a "stop and frisk"? With a "stop and frisk" you are out in the open a lot more vulnerable, but a "knock and talk" involves this most sacred structure. (Go to 9:15)

✓ The most common scenarios leading up to a "knock and talk".  Surveillance details and itchy officers may not be patient enough to wait for a warrant or.... (Go to 11:06)

✓ All "knock and talks" rely on this one type of exception to the warrant requirement. This is the number one reason police say they don't need a warrant. (Go to 12:07)

✓ Are you aware of the biggest factors that can sway a judge when you're running a "knock and talk" motion? (Go to 14:05)

✓ You'll be surprised how often the "foot in the door" scenario turns up in these cases. Here's how to handle them. (Go to 15:52)

✓ When the entire S.W.A.T. team is waiting outside the home, that says a lot about the intent of the "knock and talker". (Go to 16:56)

✓ Here's what you need to know about written consent forms. I'll say this though, generally, the consent form should come before the actual search.  (Go to 18:05)

✓ When expressed written consent does not mean consent. (Go to 19:43)

✓ If the police enter your home and start searching you have an affirmative duty to tell them to stop...WRONG! Failure to speak is not equated with acquiescing to a search. The police alway have the burden to prove they had permission. (Go to 22:57)

✓ The real reason attorneys should think about vigorously litigating these cases. (Go to 26:36)

✓ O.K. - Here's the second main reason attorneys should think about litigating these issues. (Go to 30:43)

✓Did you know the case law outlines the proper course of conduct for police who are met with resistance when they attempt to gain entry without a warrant? (Go to 34:09)

✓ Alana has yet to come across a case where a client is saying these things and using this type of language. Somehow, though, police reports say defendant's use these words all the time. (Go to 35:14)

✓ Remarkably, police may get on the stand and not have an answer for this one most important somewhat obvious question. Encountering these cops on these cases is when the fun really begins. (Go to 37:25)

You may also want to check out podcast episode 014. 

This was the last time we talked about "knock and talks".

Many of the issues highlighted by Alana are front and center here. Particularly, it's a great example of how police should not conduct a "knock and talk."

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention the cases can take any attorney to the next level. 

If you're interested in taking the first step towards mastering your Illinois criminal courtroom then hit the link below.

How do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret

Show Me The Secret.

People v. Evans, 2017 IL App (4th) 140672 (March). Episode 327 (Duration 7:49)

Defendant kept putting his hands in his pocket after he was repeatedly told to take them out; frisk for weapons justified.

Officer is responding to a call of a possible burglary.

He sees defendant walking.

He approached defendant for the purpose of determining whether he was involved in the burglary or saw any possible suspects or other suspicious activity.

He asked where defendant was coming from, to which defendant responded he just left his friend’s house down the block. During the conversation, defendant placed his hands in his pockets, and the officer asked him to remove them several times. When asked, defendant would remove his hands and then place them back into his pockets.

Officer testified he was concerned for his safety because he was alone with defendant and defendant was much larger than he was.

Officer testified he did not know whether defendant was armed, but his concern grew after defendant refused to keep his hands visible during the conversation.

Officer testified he knew the area was a high-narcotics-crime area, and in his experience, those involved with narcotics were often armed with a firearm.

Officer specifically testified the reason he frisked defendant was to determine whether defendant had a weapon in his pocket.

On appeal, defendant argues the trial court erred by denying his “motion to quash arrest and suppress evidence.”

Defendant asserts his constitutional rights were violated because he was unlawfully searched and, therefore, the items seized during the search should have been suppressed.

The central point of inquiry is at what point was defendant seized.

The court adhered to the view that a person is seized only when, by means of physical force or a show of authority, his freedom of movement is restrained.

Here, defendant was walking down the street when his encounter with the police began; thus, Mendenhall applies, and the standard under Bostick (where accused stops himself) is inapplicable.

Under Mendenhall, the proper inquiry is whether “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Mendenhall, 446 U.S. at 554.

This defendant’s path of travel was not blocked or interfered with in any way.

The record suggests the officer saw defendant walking in the vicinity of a possible crime and the officer peaceably approached defendant to speak to him. There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.

The initial encounter here was a consensual encounter.

None of the Mendenhall factors were present, and nothing indicated defendant did not feel free to leave.

Indeed, “a seizure does not occur simply because a law enforcement officer approaches an individual and puts questions to that person if he or she is willing to listen.

Defendant next argues he was seized at the moment the officer first requested­ he remove his hands from his pockets.

The two got into a pattern where the officer would ask him to take his hands out of his pockets he would briefly then put them back in his pockets.

Here, defendant continued to consent to the conversation with the officer even after the officer asked defendant to remove his hands from his pockets several times and never indicated an intent to terminate the conversation prior to being frisked.

The fact defendant continued to place his hands back into his pockets shows defendant did not fully submit to the officer’s request.

Defendant did not appear to believe compliance was compulsory because he did not comply with the officer’s obvious wish.

Defendant opines the repeated requests he remove his hands from his pockets may have signaled he was suspected of wrongdoing, thus impacting his willingness to continue the encounter.

Defendant’s willingness to continue the conversation is evidenced by the fact he continued speaking to the officer even after the officer asked him several times to remove his hands from his pockets.

Further, the nature of the conversation indicated defendant was not a suspect or even a witness to the possible crime the officer was investigating.

The thrust of defendant’s claim is that the officer’s request for defendant to remove his hands from his pockets was a show of authority.

Even if the request was a show of authority, defendant resisted the authority by continuing to place his hands back into his pockets.

Further, the central question remains whether a reasonable person would have felt free to terminate the encounter.

The request for defendant to keep his hands visible did not prevent him from exercising his right to terminate the encounter, and a reasonable person in his place should not have believed that right had been extinguished by the request.

The touchstone of the fourth amendment is reasonableness, and the request to keep one’s hands visible is not an unreasonable restraint of liberty. It merely serves as a protection to both officer and citizen.

The court rejected defendant’s argument he was seized when the officer requested he remove his hands from his pockets and conclude defendant was not seized until the officer frisked him.

Under Terry, the officer may conduct an investigatory frisk for weapons upon reasonable suspicion the individual is armed and dangerous. See also 725 ILCS 5/107-14, & 725 ILCS 5/108-1.01.

When an officer has a reasonable suspicion during an investigatory stop that the individual may be armed and dangerous, the officer is permitted to take necessary measures to determine whether the person is armed and to neutralize any threat of physical harm.

Police officers need not have reasonable suspicion of criminal activity to conduct a Terry frisk for weapons during a consensual encounter but, rather, need only have reasonable suspicion the citizen is armed and potentially dangerous.

The fourth appellate district now holds that a police officer may conduct a Terry frisk during a consensual encounter upon developing reasonable suspicion the citizen is armed and dangerous; the officer need not develop reasonable suspicion of criminal activity. In such cases, the seizure and frisk will occur contemporaneously because a consensual encounter is, by definition, not a seizure.

Accordingly, a police officer must have reasonable suspicion the individual is armed and dangerous at the time of the frisk.

By so concluding, defendant’s arguments relating to the lack of reasonable suspicion defendant was involved in criminal activity became inapplicable. Thus, A Terry frisk during a consensual encounter must be predicated by reasonable suspicion the individual is armed with a weapon and, therefore, presently dangerous.

To develop reasonable suspicion, the officer must have more than an “inarticulate hunch”; the officer must “point to specific and articulable facts which, taken together with rational inferences from those facts” demonstrate the suspicion is reasonable. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

When reviewing the reasonableness of an officer’s conduct, it is appropriate to give due weight to the specific reasonable inferences which the officer is entitled to draw from the facts in light of his experience.

This is an objective standard asking if an individual of reasonable caution would believe that the action was appropriate.

This is what the officer new:

He was alone with defendant at a late hour in an area he knew was a high-narcotics crime area. He was substantially smaller than defendant. Defendant was coming from a known drug house, in the officer’s experience individuals who deal with narcotics are often armed with a weapon.

Plus, Defendant acted peculiarly by continually placing his hands in his pockets, even after being asked him to remove his hands from his pockets several times defendant ultimately refused to remove his hands and asked why he needed to.

It was objectively reasonable for the officer to suspect defendant may have been armed with a weapon. This officer did not decide to frisk defendant based solely on one fact alone; he decided to frisk defendant based on the quantum of facts he learned while speaking to defendant, coupled with defendant’s refusal to keep his hands visible.

In sum, the court concluded the totality of the circumstances known to the officer at the time of the frisk warranted the reasonable suspicion defendant was armed and thus dangerous, thereby permitting him to conduct a Terry frisk.

See also People v. Winchester (Novembre 2016) for a case about how to label these motions.

Evan Parke made extensive use of Illinois FOIA requests in the defense of Curtis Lovelace. In Episode 320 (Duration 52:38) we look at how he did it.

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Evan is from the same general area in Quincy, Illinois that Curtis Lovelace and his first wife, Cory, lived. Now he practices law primarily in Washington, D.C. where his firm ---Parke PLLC---handles complex and sophisticated white collar, civil and regulatory matters for companies and individuals.

In the Curtis Lovelace case, Evan performed extensive FOIA inquiries pro bono. 

At all times, his FOIA efforts remained independent of and were not influenced by the Exoneration Project defense team.

Here's a 3-minute summary of the Curtis Lovelace case:

• Former star football player
• Former prosecutor
• First Wife Dies
• Autopsy Inconclusive
• 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 gets involved
• New cause of death determined
• Homicide
• First trial is a hung jury
• First Defense team quits
• Exoneration Project and Evan Parke join the defense
• Undisclosed emails discovered
• Appears detective was "coroner shopping"
• Detective admits he destroyed emails
• Curtis found not guilty

• Lovelace Case from WGEM.com
• Lovelace attorneys claim evidence knowingly withheld by prosecution - WGEM.com
• NOT GUILTY: Firm client acquitted of murder charges in high profile case - LinkedIn Publishing
• 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

• Illinois FOIA
• Illinois Attorney General On FOIA
• Frequently Asked Questions
• Sample FOIA Request

✓ Have you ever used the FOIA in a criminal defense case? FOIA rules don't prohibit it's use to strictly "civil" cases. Do you know what you can and what you can't get through FOIA?  (Go to 4:33)

✓ The one government agency that's excluded from the FOIA and the weird little exception to this exception. Plus, the number one reason agencies cite to avoid having to comply with a FOIA request. (Go to 6:08)

✓ Why sometimes in a FOIA request you actually don't want the agency to tender documents and you'd much rather prefer they claim a certain exemption. (Go to 8:08)

✓ How a Federal Communications Commission investigations attorney gets involved in a state murder trial that doesn't smell right. (Go to 10:40)

✓ How do you start a FOIA request? What are its goals? Who can execute them? What do you ask for? (Go to 14:13) & (Go to 46:11)

✓ The most typical and common response you'll get in a FOIA request and how not to react to it. (Go to 15:42)

✓ An extremely simple practice tip that's going to maximize your FOIA results and arm you with powerful weapons you can use to squeeze what you need from the agency in question. (18:17)

✓ Evan Parke discovered what the lead detective was really thinking and was able to uncover things the detective wanted buried and kept far away from the lead defense team. (Go to 19:42)

✓ The crazy things, never disclosed to the defense team, that Evan uncovered about one key prosecutorial witness. (23:10) & (Go to 32:43)

✓ This is one of the main things you're looking for in your FOIA requests. When you got this you know you're in business. (27:22)

✓ The tipping point that caused Evan to go all in on the Quincy Police Department and what made him just ask for the mother load. (31:00)

✓ Evan: "We all were thinking: 'there's some there there.'" (Go to 31:44)

✓ Evan: "But I was not expecting what I received a couple weeks later." (Go to 34:23)

✓ Lead detective caught red handed in an email admitting he deleted other emails. (Hint: the defense team was not suppose to ever read this email) (Go to 35:09)

✓ Perhaps the most damning emails to the prosecution's case was the back and forth between the detective and the pathologists that made it clear and obvious the detective was "coroner shopping" (Go to 36:32)

✓ How these FOIA requests affected this trial. (39:46)

✓ More practical tips for criminal law attorneys. These tips are wise, prudent activities to be followed in non FOIA settings. (Go to 42:02)

✓ FOIA ain't for sissies. They are labor intensive and require real legal work and pressure. If you go down this track prepare to roll up your sleeves and expect friction. A lot of friction. (43:18)

✓ When you need to find yourself a FOIA "buddie". (Go to 47:37)

Episode 334 With Curtis Lovelace - What Criminal Law Lawyers Need To Know About The Curtis Lovelace Trial With Curtis Lovelace

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention the cases can take any attorney to the next level. 

If you're interested in taking the first step towards mastering your Illinois criminal courtroom then hit the link below.

How do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret

Show Me The Secret.

In re Elijah W., 2017 IL App (1st) 162648 (March). Episode 326 (Duration 4:59)

Plain clothes officer sternly telling a kid to "come here" is a seizure.

Kid was with his buddies when unmarked sport utility vehicle with 3 officers in plain clothes goes by.

Kid starts to walk away and car reverses and slowly follows him.

Each officer was armed, wore a bulletproof vest, and displayed a police badge.

All the officers recognized the kid and new he was a minor.

One of them called for him to "come here" in a casual, but stern tone of voice.

Kid complied and walked towards the SUV.

They ask him "what you doing out here?" Kid shrugged in response. They repeat the question in a stern tone.

Kid then responded, "I got a couple rocks on me."

Kid is placed in handcuffs.

Six ziplock bags containing suspect crack cocaine found on him. Then another plastic bag containing 12 ziplock bags with capsules of suspect heroin are pulled from some sweat pants he had underneath his jeans in the right pocket.

In trying to determine if this was a consensual encounter the trial court said that the United States Supreme Court has recognized that compared to adults, juveniles have a lack of maturity and an underdeveloped sense of responsibility; they are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; and their characters are not as well formed. See Graham v. Florida, 560 U.S. 48, 68 (2010), Miller v. Alabama, 567 U.S., and J.D.B., 564 U.S. at 265 (age of the subject is relevant to the custody analysis of Miranda).

Our supreme court's decision in In re D.L.H., 2015 IL 117341 adopted the analysis set forth in J.D.B. There, the court considered whether the test for determining whether the minor was in custody for purposes of section 5-170(a) of the Juvenile Court Act of 1987 (705 ILCS 405/5-170(a) (West 2012)) was any different than the test for determining whether he was in custody for the purposes of Miranda.

The court noted two discrete inquiries required under Miranda:

(1) "what were the circumstances surrounding the interrogation" and
(2) "given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave."

Our supreme court has identified several factors relevant to the first inquiry, including, among other things,

• the age,
• intelligence, and
• mental makeup of the accused.

The D.L.H. court found that when the person questioned is a juvenile," the reasonable person standard is modified to take that fact into account.

The decision in D.L.H. was limited to fifth amendment Miranda concerns and did not extend to fourth amendment consensual encounters involving a minor.

This reviewing court said that the holding in J.D.B. should apply to a fourth amendment analysis when determining whether an encounter between a minor and law enforcement was consensual.

A 13-year-old youth would not have believed he or she could have denied the officer's two requests to "come here" and avoid the police without raising further suspicion.

But since the kid was breaking curfew the court said the stop was a justified Terry stop.

Police officers observed 13-year-old Elijah outside after 11:00 p.m.

The officers reasonably suspected an ordinance violation based on the late hour of the night which justified the stop. 

In this case, the totality of the circumstances justified a Terry stop.

The curfew ordinance violation made the intrusion reasonable under Terry. 

People v. Qurash, 2017 IL App (1st) 143412 (March). Episode 325 (Duration 8:37)

Do the words, "Come Here", alone constitute a seizure?

Police are driving and they see defendant walking.

When the officers were about 15 feet away from defendant, they stopped the police car, lowered the window, and said to defendant, “come here.”

Defendant immediately drops a bottle.

Defendant testified that he walked right up to the police car like he was told. Police get out of the car and go get the bottle.

There are 26 separate bags of weed in there. They arrest defendant and in his pocket they find two more bottles with pills, a controlled substance (Diazepam).

On appeal defendant asks: Does the Statement “Come Here,” Uttered by a Police Officer to a Citizen, Result in a Seizure?

More specifically, the question was whether the trial court was manifestly erroneous in determining that the words “come here” were issued as a request.

Defendant contends that the court erred in denying his motion to quash because he was seized at the moment the officer said, “come here.”

According to defendant, the officers lacked a reasonable suspicion or probable cause for this seizure.

A person is seized when his freedom of movement is restrained by physical force or a show of authority.

The test is whether a reasonable person would conclude, in light of the totality of the circumstances, that he was not free to leave.

Following the United States Supreme Court’s decision in United States v. Mendenhall, 446 U.S. 544, 553 (1980), the Illinois Supreme Court adopted the Mendenhall plurality factors indicating a seizure when the person does not attempt to leave:

(1) the threatening presence of several officers,
(2) the display of a weapon by an officer,
(3) the physical touching of the person, and
(4) the use of language or tone of voice compelling the person to comply with the officer’s requests.

The absence of any of these factors is not dispositive but highly instructive on the issue of whether a seizure occurred.

Here, it is undisputed that officers Gregory and Oppedisano did not exit their car, display any weapons, or physically touch defendant prior to stating, “come here.”

Thus, the only Mendenhall factor that is in play is the use of language or tone of voice compelling the person to comply.

The trial court, after listening to both the officers and defendant testify, made a finding of fact that officer Gregory’s statement, “come here,” was a request.

The defendant corroborates that in his own testimony by saying he did see the officers, they asked him to come over to the car.

So the defendant doesn’t deny. In fact, they did just ask him.

They didn’t—they didn’t demand that he come here.

They didn’t pull out any weapons. They were in the car, asked him to come over to the car. The trial court then denied the motion to quash.

The reviewing court said that nothing in the record suggests the trial court’s finding that the words “come here” were issued as a request was against the manifest weight of the evidence.

The officer’s tone of voice when he told defendant to “come here” is not possible to discern from this record.

No one testified to the officer’s tone when he said, “come here”; accordingly, this court, or for that matter any reviewing court, cannot determine his tone when he spoke to defendant.

That determination is solely within the province of the trier of fact, who heard the witnesses testify.

It is not the function of the appellate court to reevaluate the evidence that was presented to the trial court and substitute our judgment for that of the trial court because we think a different tone may have been used.

The exact same words can convey a myriad of different meanings based upon the tone used.

Likewise, the officer did not consider the phrase “come here” to be unambiguously or per se compulsory in nature.

An officer calling a person over to the officer does not by itself necessarily constitute a seizure.

Listening to the language and tone used by all participants to the interaction and then deciding what was meant by the statement, what the speaker intended, and what the listener gleaned from the statement are functions of the trial court.

Trial courts are required to listen to all of the evidence and make findings of fact based on what they have heard, including whether “come here” was meant and received as a request.

Here, the court determined the words “come here” were a request, and there is nothing in the record suggesting that determination was against the manifest weight of the evidence.

The fact that a person knows that a police officer is a police officer when conversing has never been suggested as a factor that courts consider as particularly significant at all. If it were, most conversations between a citizen walking alone and an officer would become seizures. Based on the foregoing, the trial court did not err by denying defendant’s motion to quash arrest and suppress evidence.

See also People v. Williams Episode 219 - There it was clear defendant was not free to leave, both testified to that effect, one cop got out of the car as well.

See the dissent in this case for a strong counter argument. To a man walking down the street, alone at night, in a high-crime neighborhood, when two officers stopped their car in the middle of the street and one of them said, “Come here,” any reasonable person would believe that he was required to comply with that directive—that he was not free to leave.

This is the March 2017 Illinois criminal case law audio summary. Episode 324 (Duration 35:31)

There were 44 published opinions in March!

Buckle your seats we're covering the most important ones right here.

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

Here's a quick snapshot of the top cases:

1. Pena-Rodriguez v. Colorado

The constitution must allow for some form of judicial inquiry when it becomes clear that a juror has allowed some kind of racial bias to influence their verdict.

2. People v. Howard

Illinois Supreme Court upholds the constitutionality of anti loitering statute for sex offenders.

3. In re A.S.

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

4. People v. Manning

Second murder trial is also reversed; this time because the judge did not poll the jury on the second degree murder question.

5. People v. Lozano

State failed to prove that the gang partook in a pattern of criminal activity.

6. People v. Pearse

Illinois Supreme Court acknowledges that SORA is a big bloody mess and calls for legislative clarification and police practice changes.

7. People v. Gomez

Another failure to register as a sex offender is overruled; really highlighting it matters how they charge these things.

8. People v. Fretch

Defendant said he was completley denying that he masterbated, therefore it was appropriate for the court to admit the other crimes evidence to prove his intent.

9. People v. Quraish

Do the words, "Come Here." alone constitute a seizure?

10. In re Elijah W.

Plain clothes officer sternly telling a kid to "come here" is a seizure.

11. People v. Evans

Defendant kept putting his hands in his pocket after he was repeatedly told to take them out; frisk for weapons justified.

12. People v. West

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

13. People v. Garcia

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

14. People v. Whitfield

Error to admit this unrecorded statement in this murder investigation.

15. People v. Hernandez

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

16. People v. French

Little review of hearsay rules may do us some good.

17.  People v. O'Dette

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

18. People v. Sevedo 

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

19. People v. Zimmerman

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

20.  People v. Thomas

In the First Appellate District the First Division comes out against the Second Division on the issue of what to do with violent youthful offenders.

21. People v. Morris

Remand for resentencing is appropriate even though this youthful killer had a malignant heart (new law not applied retroactively).

22. People v. Buffer

Remand for resentencing is appropriate new law allowed to be applied retroactively.

23. People v. White

Reversal when judge gets annoyed with defendant who wants to show him his tattoos.

24. People v. Gocmen

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

25.  People v. Acevedo

Discovery sanction in this rescission hearing consisted of a finding that the defendant met its initial burden, then the State was allowed to have the officer testify to the probable cause for the DUI arrest.

People v. Howard, 2017 IL 120443 (March). Episode 323 (Duration 4:52)

Illinois Supreme Court upholds the constitutionality of anti loitering statute for sex offenders.

Defendant dropped his girlfriend off at her children’s school so she could deliver some lunches.

He waited in the car as she ran inside.

An officer noticed how the car was parked and discovered defendant was a registered child sex offender.

He was arrested for loitering in front of a school. See 720 ILCS 5/11-9.3(b).

The law says that...

“(b) It is unlawful for a child sex offender to knowingly loiter within 500 feet of a school building or real property comprising any school while persons under the age of 18 are present in the building or on the grounds, unless...”

Defendant asked the Illinois Supreme Court to find the statute unconstitutionally vague.

Defendant says he was not loitering.

Subsection (d)(11) of section 11-9.3 sets forth three statutory definitions of the term “loiter”: Loiter means:

(i) Standing, sitting idly, whether or not the person is in a vehicle, or remaining in or around school or public park property.
(ii) Standing, sitting idly, whether or not the person is in a vehicle, or remaining in or around school or public park property, for the purpose of committing or attempting to commit a sex offense.
(iii) Entering or remaining in a building in or around school property, other than the offender’s residence.

720 ILCS 5/11-9.3(d)(11).

Defendant maintains that he had a legitimate purpose for being within 500 feet of a school while children were present—he was waiting for his friend to deliver lunches to her grandchildren.

Thus, according to defendant, he was not sitting “idly” in his car but was, instead, sitting with a legitimate purpose.

The Illinois Supreme Court did not agree with defendant’s interpretation.

The language “whether or not the person is in a vehicle” in subsection (d)(11)(i) is a phrase of expansion, not limitation. 720 ILCS 5/11-9.3(d)(11)(i). The phrase clarifies that the term “sitting idly” applies to both child sex offenders on foot as well as those in vehicles.

Nothing in the legislature’s use of the phrase suggests that the terms “standing” and “remaining” would not also apply to child sex offenders in vehicles.

In addition, the term “remaining” is separated from the term “sitting idly” by the word “or.” The word “or” ordinarily is used in the disjunctive sense, meaning that the members of the sentence that it connects may be applied separately. Because the term “remaining” is set off by the word “or,” it constitutes an independent basis for finding that a child sex offender is loitering.

To “remain” means “to stay in the same place.” Webster’s Third New International Dictionary 1919 (1993).

A person need not have an illegitimate purpose for staying in one place in order to commit an act of “remaining.”

Thus, under the plain language of subsection (d)(11)(i), a child sex offender may “loiter” within the meaning of section 11-9.3(b) simply by committing the act of knowingly remaining or staying within 500 feet of a school while persons under 18 are present.

The offender’s purpose for being near the school, under this definition, is not relevant.

Principles of due process require that a criminal statute give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.

In addition, the statute must provide standards that are sufficiently clear to avoid arbitrary and discriminatory enforcement and application by police officers, judges, and juries.

A statute violates due process on the basis of vagueness only if its terms are so ill-defined that the ultimate decision as to its meaning rests on the opinions and whims of the trier of fact rather than any objective criteria or facts. Ordinary people using common understanding can readily deduce that passing through a restricted school zone, and even dropping a person off at the school and then immediately leaving the area, are not acts of “remaining” and, thus, are not prohibited actions under section 11-9.3(b).

On the other hand, it is equally clear that parking one’s car in front of a school and waiting to pick someone up does constitute a prohibited act of “remaining.”

In addition, the act of parking one’s car and waiting for someone provides a sufficiently definite standard for law enforcement officers and triers of fact such that the application of the statute is not rendered arbitrary or discriminatory.

Defendant’s act of knowingly parking his car and waiting for his girlfriend, while school children were visibly present fewer than 20 feet away, clearly falls within the statutory prohibition.

The Illinois Supreme Court held that, therefore, that the statute is not unconstitutionally vague as applied to the facts of this case.

Case law finding that anti gang loitering was unconstitutionally vague is inapplicable here.

In that case, the standard was “inherently subjective because its application depends on whether some purpose is ‘apparent’ to the officer on the scene.” The ordinance therefore conferred an arbitrary and, thus, unconstitutional authority on law enforcement officers to determine what activities constituted loitering. This case is distinguishable. While the ordinance in Morales applied to all persons, whether gang members or not, section 11-9.3(b) applies only to child sex offenders.

Moreover, while the ordinance in Morales applied in all public places, section 11-9.3(b) applies only to areas within 500 feet of schools and only when persons under the age of 18 are present. Most importantly, however, the key holding of Morales has no relevance here.

Morales holds that a law that defines loitering as remaining in one place for “no apparent purpose” is unconstitutionally vague.

Subsection (b)(11)(i) does not define loitering in this way.

Morales simply does not speak to the type of statute at issue here, i.e., one that defines loitering as simply remaining in one place, regardless of the reason. And Morales does not hold that such a statute is unconstitutionally vague.

The statute required the State to prove that defendant, a child sex offender, knowingly remained within 500 feet of school while persons under 18 years of age were present. The evidence was sufficient to meet this standard.

• People v. Pepitone, 2018 IL 122034 (April). Episode 497 (Duration 6:20) (The Crime Against Being A Sex Offender At A Park Is Back On The Table)
• People v. Green, 2018 IL App (1st) 143874 (June). Episode 512 (Duration 6:09) (Gun Laws Banning Firearms 1,000 Feet From Protected Places Are Unconstitutional)
• People v. Bell, 2018 IL App (1st) 153373 (June). Episode 513 (Duration 7:40) (Gun Laws Banning Firearms In Protected Places Are 100% Constitutional)

People v. Gomez, 2017 IL App (1st) 142950 (March). Episode 322 (Duration 5:56)

Another failure to register as a sex offender is overruled; really highlighting it matters how they charge these things.

The State charged defendant with one count of failing to register as a sex offender under section 3(a)(1) of the Act, alleging that defendant “knowingly failed to register, in person, as a sex offender with the Chicago police department within 3 days of establishing a residence or temporary domicile in the city of Chicago.”

Chicago PD have defendant in custody on another matter. They notice he has not registered as a sex offender living in Chicago. The say he should have registered with them within 3 days after being released from prison.

Apparently, Defendant told them that he had tried to register, but the officer did not let him complete the registration because the address he wanted to use was too close to a school.

The court found defendant guilty, stating that the State had proved that defendant “knowingly failed to register in person as a sex offender with the city of Chicago within three days of establishing a residence or temporary domicile in the city of Chicago.” The court sentenced defendant to three years’ incarceration. Defendant filed his appeal.

Section 3(a)(1) of SORA requires a sex offender to register in person: “with the chief of police in the municipality in which he or she resides or is temporarily domiciled for a period of time of 3 or more days, unless the municipality is the City of Chicago, in which case he or she shall register at the Chicago Police Department Headquarters.” 730 ILCS 150/3(a)(1).

The Act defines “place of residence or temporary domicile as any and all places where the sex offender resides for an aggregate period of time of 3 or more days during any calendar year.” 730 ILCS 150/3(a).

Inherent in each definition is the idea of a specific location.

In order to prove a violation of section 3(a)(1) in this case, then, the State was required to prove both

(1) that the defendant resided or was temporarily domiciled at a specific location within Chicago, and
(2) that the defendant failed to register there.

The State didn’t prove that defendant was living in Chicago.

While defendant’s presence at the Chicago police station could lead to the logical inference that defendant was present in Chicago when he was arrested, it does not prove that defendant resided in Chicago on that date, nor could it possibly prove that he had resided in Chicago both on that day and at least two other days in that calendar year, to reach the necessary three-day, temporary domicile element under the statute.

Without any evidence placing defendant’s residence in Chicago for at least three days, the State failed to prove that defendant permanently resided, or was temporarily domiciled, in Chicago.

While the law does require defendant to register within three days of his release from prison, and the evidence showed that defendant never registered anywhere, defendant was not charged with failing to register within three days of his prison release or with failing to comply with annual registration (or even with failing to register weekly if homeless).

See also 730 ILCS 150/3(a), 3(b), 6 (requiring homeless sex offender to report weekly, sex offender to register with police within three days of establishing residence in municipality, and sex offender to report annually with police department he last registered with).

He was charged with failing to register in Chicago.

True, it is well within the realm of possibility that defendant moved to Chicago for three days or longer after he was released from prison, but it is just as possible that he did not. The record contains no evidence one way or the other.

And the fact that defendant, at one point, attempted to register at an address located within Chicago tells us nothing about his length of stay at that address.

We do not know if defendant resided at that address for one or more days before he attempted to register, or how long he remained at that address after being denied registration, if at all.

Simply put, we have a length of time that defendant did not register—the entire time he has been out of prison—but we have no “specific location” of his residence sufficient to show that defendant was required to register in Chicago, as opposed to any other jurisdiction. Reasonable inferences are one thing, but courts will not fill in the gaps in the State’s evidence with conjecture.

The reviewing court said that the statute can only be interpreted to mean that that the state must prove the exact address defendant was living at.

The court held that because a defendant’s duty to register is inextricably intertwined with the municipality where he resides or is temporarily domiciled, the proof of a defendant’s place of residence or temporary domicile is an essential element of the offense of failing to register under section 3(a)(1).

Conviction reversed outright.

People v. Pearse, 2017 IL 121072 (March). Episode 321 (Duration 10:54)

Illinois Supreme Court acknowledges that SORA is a big bloody mess and calls for legislative clarification and police practice changes.

This is a failure to register as a sex offender case. See 730 ILCS 150/3.

As far as I can tell the Defendant was properly registered as living in his father’s home.

Then defendant went to the hospital. Where, remarkably, he also registered that address with the police where the hospital was located.

Then when defendant was released from the hospital he went back to his father’s home. An address that he had already registered.

Nonetheless, he was charged with failure to register a change of address because he did not let his home police department know that he was back and out of the hospital.

The central question posed by the appeal was whether defendant was legally required to register again with the home police upon his return from the hospital?

To say that the law is big freak’en mess in this area would be a huge understatement.

The trial judge and appellate court had no problem finding the defendant guilty even though there was considerable uncertainty among the parties and the circuit court as to what, precisely, defendant was charged with and what the State had to prove, and intended to prove, in order to secure a conviction under section 3 of the Act, the statutory provision identified in the indictment.

The Illinois Supreme Court agreed that there was considerable uncertainty among the parties and the circuit court as to what, precisely, defendant was charged with and what the State had to prove, and intended to prove, in order to secure a conviction under section 3 of the Act, the statutory provision identified in the indictment.

In that respect, it bears repeating that a statute with which a defendant is charged should

(1) be sufficiently definite, when measured by common understanding and practices, to give a person of ordinary intelligence fair warning as to what conduct is prohibited or required and
(2) provide sufficiently definite standards for law enforcement and triers of fact such that its application, in a given circumstance, does not depend merely on their private conceptions.

With respect to the facts of this case, there is certainly ambiguity, as the appellate majority found.

The high court held disagreed with the construction given the statute by the appellate majority and with its implicit determination that only its construction of the statutory scheme adequately furthers the intent of the legislature.

Contrary to the appellate court’s conclusion, neither the Act’s purpose nor its language “compels requiring reregistration in this case”; nor does the statute give adequate notice that such is required.

As applied to these facts, the court construed the statutory scheme as follows—a construction, we believe, that fully promotes the purpose of the Registration Act and is in accord with the legislature’s intent:

Thus, defendant was required to report his presence at the hospital as a place of residence or temporary domicile. He did that, providing information for and signing a registration form filled out by a Forest Park police officer.

Thereafter, depending how one interprets the term “temporary domicile,” defendant either had a reported temporary domicile at the Forest Park hospital, in addition to his place of residence in Belvidere, or he had two registered, fixed residential addresses:

First and foremost, for purposes of the requirement of registration, the Act adopts a very broad definition of “fixed residence” and “place of residence or temporary domicile,” defining those terms, respectively, as “any and all places that a sex offender resides for an aggregate period of time of 5 or more days in a calendar year” and “any and all places where the sex offender resides for an aggregate period of time of 3 or more days during any calendar year” (730 ILCS 150/2(I), 3(a)), namely his home (his father’s home), and the hospital.

In either case, he indisputably reported the hospital address, as required by statute, and he clearly never intended to abandon his home address, as it was listed on the required registration form, along with the address of the hospital, as an address where he might be found.

As noted, defendant reported the addition of a “temporary domicile” or new statutory “residence” in Forest Park (hospital’s location), as is apparently required by sections 3 and 6.

The form he reviewed and signed, properly listed both of his addresses.

The next step of notification apparently required by the statutory scheme would have been precipitated by defendant’s departure from the hospital in Forest Park to return to his previously, and currently, registered home address in Belvidere.

Defendant’s obligation under the statute, as we construe it, was then to notify “the law enforcement agency with whom he *** last registered,” i.e., Forest Park, of “his *** new address.” See 730 ILCS 150/6.

The record here does not inform us one way or the other whether defendant did that; however, despite the confusion over the charge or charges defendant faced, the trial court stated, definitively, without contradiction by the State, that “he’s not charged with failure to let Forest Park know within three days that he was no longer going to be living at his father’s house.

He was not charged with that.

He’s charged with failure to notify the Belvidere police that he has moved here.

In order for defendant to be guilty of a failure to notify Belvidere authorities of his return, there would have to be a statutory duty to “reregister” defendant’s home address, which was already registered and reported once again when defendant registered the Forest Park hospital.

There is no statutory basis for such a duty.

The terms “reregister” or “reestablish” do not appear anywhere in the statutory scheme.

The phrase in subsection (b) of section 3 that the circuit court found problematic and upon which the appellate majority sustained defendant’s conviction for a section 3 violation—stating that a sex offender must, “regardless of any initial, prior, or other registration” register “within 3 days of *** establishing a residence” (730 ILCS 150/3(b)) - to the Illinois Supreme Court only meant that that a defendant must register additional locations where he or she “resides” for three or more days, notwithstanding registration of earlier locations.

The Act’s broad, highly inclusive locational definitions dictate that result, providing the authorities with every location where an offender might be found.

The court explained, however, that the statutory mechanism for more precisely tracking the present whereabouts of an offender is that contained in the following provisions of section 3 and section 6 of the Act.

The applicable provision of section 3 requires an offender “temporarily absent from his *** current address of registration for 3 or more days” to “notify the law enforcement agency having jurisdiction of his *** current registration” of, inter alia, his “itinerary for travel, in the manner provided in Section 6 of this Act for notification to the law enforcement agency having jurisdiction of change of address.” 730 ILCS 150/3(a).

Section 6, the explanatory section referenced in section 3, like section 3, requires someone changing his or her address to notify the “law enforcement agency with whom he or she last registered” of “his or her new address.” 730 ILCS 150/6.

In both instances, an offender, upon leaving a current registered address, must notify the law enforcement agency having jurisdiction of that location that he is departing, either temporarily or perhaps permanently, specifying where he is going.

Thus, we believe it is the intent of the legislature that the offender be tracked by giving notice to the law enforcement authorities in the jurisdiction he is leaving.

Defendant was not charged with failure to give that notice, and there was no evidence in any event that he failed to do so.

The court held that that the evidence presented by the State failed to establish a violation of section 3 of the Act, the section specified in the indictment.

The high court made a call for legislative clarification and noted that persons subject to the Act’s provisions must also have fair notice of what is required.

It appears to us that defendant attempted to comply.

Even after all the evidence had been presented in this case, the parties and the trial court struggled to figure out what compliance entailed.

It should not be thus.

Additionally, the state forms that make use of terms that don’t appear in the statute is extremely problematic and the “technological shortcoming” of the computer system set up by the ISP, which “spits out only a single address in response to an address query,” should not, where it does not reflect statutory requirements and realities, “equate to a finding of a defendant’s criminal liability.”

In Episode 319 (Duration 35:33), Anthony Cameron sits down with us to talk about how police can enforce a warrant for a suspect's blood.

More and more DUI's will be proven based on the chemicals in a person's blood. 

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Show Me The Secret.

Which begs the question: What exactly happens when a person refuses to give up their blood even though there's a warrant?

Well, Anthony Cameron helps us figure this out.

Anthony Cameron is a lawyer in Quincy, Illinois. Anthony was Adams County state's attorney from 1980 to 1984. Now, his practice does it's fare share of criminal defense.

However, Anthony does not limit his practice to only criminal justice cases.

Any dilemma involving conflict with a government agency is in his wheelhouse.

• Birchfield v. North Dakota 
• Birchfield v. North Dakota (audio summary)
• Driving Under The Influence of Drugs
• People v. Brooks 2016 IL App (5th) 150095-U

✓ What is a blood draw? (7:13)

✓ Why contempt of court is a horrible way to force someone to give up their blood. (Go to  8:06)

✓ The truth about hospital medical staff when they encounter an individual absolutely refusing to submit to a blood sample withdrawal. (Go to 9:20)

✓ An anecdotal account of a case where an officer was looking for the one state that was willing to strap a guy down to take his blood. (Go to 10:21)

✓ Illinois has chosen its remedy to force DUI suspects to give up their blood. It's not contempt of court or a criminal charge but this. (Go to 10:41)

✓ "What is the State's remedy when the defendant says, 'I'm sorry sir. I know you have this warrant, but I'm not giving you permission to take my blood.'?" (Go to 11:27)

✓ The only crime where the defendant gets to control the crime scene. (Go to 11:58)

✓ How Illinois implied consent law works. (Go to 13:18)

✓ The story in Birchfield begins with police getting a warrant for a DUI suspect's blood. (Go to 15:27)

✓ Illinois can absolutely choose to criminalize refusing to give up a biological sample. For now, they have chosen this other route. (Go to 17:11)

✓ The thing I didn't understand about charging someone with obstruction of justice when they refuse to comply with a warrant for their blood. (Go to 17:52)

✓ Respiration and absorption are biological processes, do you "knowingly" perform them? (Go to 19:03)

✓ The one time Anthony bit his lip and held back during a "bogus" plea deal. (Go to 20:13)

✓ This former state's attorneys says he's looked through the code and he doesn't see a charge that would allow authorities to charge, penalize or otherwise coerce a hypothetical defendant who refuses to give blood after a warrant. (For now, that is.) (Go to 21:17)

✓ Yea, but what about a simple charge of obstructing for "interfering" with lawful police activity? (Go to 21:41)

✓ The problem with the use of force in the execution of any warrant for biological material...This is the number one thing a hospital supervisor is thinking about. (Hint: It ain't worrying about your health.) (Go to 22:43)

✓ "Defensive medicine" has been a term for more than 50 years. (Go to 23:25)

✓ The right way to get yourself charged and convicted of obstruction of justice. (Go to 23:35)

✓ Why we think we'll be seeing more and more "blood" cases. (Hint: Benevolent and compassionate cannabis is on the rise) (Go to 27:24)

✓ WARNING: This scared the crap out of Anthony when he was going through his own physical rehab and got a taste of those pain killers. (Go to 28:12)

✓ A little prediction about what Anthony thinks we'll see from law enforcement in this area. (Go to 30:23)

✓ The seminal case on many of these blood cases is before the Illinois Supreme Court. You bet we'll be following it here. You never know when a case is going to walk through your doors, and it turns out to be the "big one". (Go to 31:34)

Case law mastery is crucial to zealous and effective advocacy.

I've come to believe that steady, persistent attention the cases can take any attorney to the next level. 

If you're interested in taking the first step towards mastering your Illinois criminal courtroom then hit the link below.

How do you get a judge to do what you want and dominate your courtroom?

Show Me The Secret

Show Me The Secret.