Kane County Nuggets

People v. Chairez, 2018 IL 121417 (February). Episode 457 (Duration 10:04)

Another UUW provision is struck down.

Gist

On April 24, 2013, pursuant to a negotiated plea agreement, defendant Julio Chairez pled guilty in the circuit court of Kane County to possessing a firearm within 1000 feet of Virgil Gilman Trail, a park in Aurora, Illinois, in exchange for the State’s agreement to file a nolle prosequi for several other charges and the recommendation that defendant receive a sentence of two years’ probation.

Issue

At issue in this appeal is the constitutionality of section 24-1(a)(4), (c)(1.5) of the unlawful use of a weapon (UUW) statute (720 ILCS 5/24-1(a)(4), (c)(1.5) (West 2012)), which, in pertinent part, prohibits an individual from carrying or possessing a firearm within 1000 feet of a public park.

The Statute

At the time of the proceedings herein, the UUW statute provided:

“§ 24-1. Unlawful Use of Weapons. (a) A person commits the offense of unlawful use of weapons when he knowingly: * * * (4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person’s permission, any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a)(4) does not apply to or affect transportation of weapons that meet one of the following conditions:

(i) are broken down in a non-functioning state; or
(ii) are not immediately accessible; or
(iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner’s Identification Card[.] *** * * *

(c) Violations in specific places. *** (1.5) A person who violates subsection 24-1(a)(4) *** on any public way within 1,000 feet of the real property comprising any school, public park, courthouse, public transportation facility, or residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 3 felony.”

720 ILCS 5/24-1(a)(4), (c)(1.5) (West 2012).

The Second Amendment

The second amendment to the United States Constitution provides that

“[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

U.S. Const., amend. II.

Through the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), this right is “fully applicable to the States.” McDonald v. City of Chicago, 561 U.S. 742, 750 (2010).

The Case Law

In District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the United States Supreme Court determined that there is a guaranteed “individual right to possess and carry weapons in case of confrontation,” based on the second amendment. However, Heller instructs that even though the second amendment guarantees an individual right to bear arms, that right is “not unlimited.”

Adopting the reasoning in Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012), this court in People v. Aguilar, 2013 IL 112116, ¶ 21, recognized that “the second amendment protects the right to possess and use a firearm for self-defense outside the home.”

As such, we held the offense set forth in section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute, which prohibited carrying on one’s person or in any vehicle, outside the home, an uncased, loaded, and immediately accessible firearm, to be unconstitutional on its face.

Two years later, in Mosley, 2015 IL 115872, ¶ 25, we extended Aguilar’s finding of facial unconstitutionality to another portion of the AUUW statute, section 24-1.6(a)(2), (a)(3)(A) (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West 2012)), which prohibited carrying an uncased, loaded, and immediately accessible firearm on a public way.

This court has already said that section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute is facially unconstitutional “without limitation” (id. ¶ 29) because “[t]he offense, as enacted by the legislature, does not include as an element of the offense the fact that the offender has a prior felony conviction” (id. ¶ 25). As such, we held there is only one offense of AUUW based on section 24-1.6(a)(1), (a)(3)(A), and a prior felony conviction that enhances the felony classification at sentencing is not an element of that offense but, rather, a sentencing factor which enhances the penalty from a Class 4 felony to a Class 2 felony. People v. Burns, 2015 IL 117387.

Collectively, this court has held that the second amendment protects an individual’s right to carry a ready-to-use gun outside the home, subject to certain regulations.

What About Bans Within 1000 Feet Of A Park?

The question, then, is whether the offense of possessing a firearm within 1000 feet of a public park, as set forth under section 24-1(a)(4), (c)(1.5) of the UUW statute, impermissibly encroaches on conduct at the core of the second amendment right to armed self-defense and whose right it affects.

There Is A Constitutional Test

In sum, what is taught from these cases is that step two of our second amendment analysis begins with a balance of considerations where the quantity and persuasiveness of the State’s evidence required to justify the challenged restrictions varies depending on how much it affects the core second amendment right to armed self-defense and whose right it affects.

The rigor of this means-end analysis “depends on ‘how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on the right.’” The closer in proximity the restricted activity is to the core of the second amendment right and the more people affected by the restriction, the more rigorous the means-end review.

If the State cannot proffer evidence establishing both the law’s strong public-interest justification and its close fit to this end, the law must be held unconstitutional.

Analysis

Applying this framework to the law at issue here requires an initial determination of where on the sliding scale of intermediate scrutiny the law should be analyzed. To answer this question, our first task is to determine the breadth of the law and the severity of its burden on the second amendment.

We find that the 1000-foot firearm restriction at issue more closely resembles the restrictions at issue in Ezell I, Ezell II, Moore, and Aguilar. In fact, the 1000-foot firearm restriction not only directly implicates the core right to self-defense, it does so more severely than the regulations at issue in the Ezell cases.

That is so because section 24-1(a)(4), (c)(1.5) of the UUW statute prohibits the carriage of weapons in public for self-defense, thereby reaching the core of the second amendment.

While in the Ezell cases, the laws only affected a right (maintain firearm proficiency) that was merely a “corollary” to the right to possess firearms for self-defense. Although the firearm restriction at issue is not a comprehensive statewide ban, like in Moore or Aguilar, the restriction is not minimal. The firearm restriction not only covers a vast number of public areas across the state, it encompasses areas this court held in Mosley to be areas where an individual enjoys second amendment protection, i.e., public ways. See Mosley, 2015 IL 115872, ¶ 25.

Big Burden

As to the second variable on the sliding scale, the severity of the law’s burden on the right, the law at issue affects the gun rights of the entire law-abiding population of Illinois like the laws in Moore, Ezell, Aguilar, and Mosley. As in those cases, the law functions as a categorical prohibition without providing an exception for law-abiding individuals. It is therefore a severe burden on the recognized second amendment right of self-defense.

All of this suggests that elevated intermediate scrutiny should apply.

Government's Burden

And under this more rigorous review, the government bears the burden of showing a very strong public-interest justification and a close fit between the government’s means and its end, as well as proving that the “public’s interests are strong enough to justify so substantial an encumbrance on individual Second Amendment rights.”

That means the State must establish a close fit between the 1000-foot firearm restriction around a public park and the actual public interests it serves.

No Legitimate Public Interest

Turning to the State’s proffered public-interest justifications, the State claims a compelling interest in public safety is served by reducing firearm possession within 1000 feet of a public park. In support, the State relies heavily on an analysis of school violence and the 1000-foot firearm ban surrounding schools.

For instance, the State references the federal Gun Free School Zones Act of 1990, which restricts firearm possession within 1000 feet of school grounds. 18 U.S.C. § 921(a)(25) (2012). The State claims that it was in the atmosphere behind the passage of the Gun Free School Zones Act—a rise in school violence in the late 1980s—that the General Assembly passed the law extending the existing restriction on drugs within 1000 feet of schools, public parks, and public housing to also ban firearms from these locations.

The State attempts to relate the reasoning behind the gun-free school zones to public parks, stating that because there is a substantial and distinctive interest in protecting those in parks due to a large number of children who frequent these places, prohibiting firearms near public parks is substantially related to the important government interest in protecting these children and others.

According to the State, the goal of the 1000-foot firearm restriction around public parks is to extend the distance where a shooter might fire a weapon.

Specific Evidence Required

We certainly accept the general proposition that preventing crime and protecting children are important public concerns. After all, “[g]uns are inherently dangerous instrumentalities.” The State, however, cannot simply invoke these interests in a general manner and expect to satisfy its burden.

There must be sufficient evidence to support the State’s rationale.

In sum, based on the record, the State provides no evidentiary support for its claims that prohibiting firearms within 1000 feet of a public park would reduce the risks it identifies. Without specific data or other meaningful evidence, we see no direct correlation between the information the State provides and its assertion that a 1000-foot firearm ban around a public park protects children, as well as other vulnerable persons, from firearm violence.

The State merely speculates that the proximity of firearms within 1000 feet threatens the health and safety of those in the public park. The lack of a valid explanation for how the law actually achieves its goal of protecting children and vulnerable populations from gun violence amounts to a failure by the State to justify the restriction on gun possession within 1000 feet of a public park.

It's Basically A Complete Ban

There is another flaw in the State’s position.

The State claims that the restriction is not overly burdensome because there are areas throughout Illinois where one could exercise their core second amendment right. Indeed an individual can preserve an undiminished right of self-defense by not entering one of the restricted areas.

But the State conceded at oral argument that the 1000-foot firearm restriction zone around a public park would effectively prohibit the possession of a firearm for self-defense within a vast majority of the acreage in the city of Chicago because there are more than 600 parks in the city.

Aside from the sheer number of locations and public areas that would qualify under the law, not only in the City of Chicago, but throughout Illinois, the most troubling aspect is the lack of any notification where the 1000-foot restriction zone starts and where it would end.

Innocent behavior could swiftly be transformed into culpable conduct if an individual unknowingly crosses into a firearm restriction zone. The result could create a chilling effect on the second amendment when an otherwise law-abiding individual may inadvertently violate the 1000-foot firearm-restricted zones by just turning a street corner.

Likewise, in response to a question at oral argument, the State conceded that an individual who lives within 1000 feet of a public park would violate section 24-1(a)(4), (c)(1.5) every time that individual possessed a firearm for self-defense and walked to his or her vehicle parked on a public street. To remain in compliance with the law, the State said that the individual would need to disassemble his or her firearm and place it in a case before entering the restricted zone. This requirement, however, renders the ability to defend oneself inoperable and is in direct contradiction to this court’s decisions in Aguilar, which recognized that the right to carry firearms for self-defense may be especially important when traveling outside of the home, and perhaps even more important than while at home.

Moreover, the State’s proposition conflicts with Heller’s decision that struck down the requirement that firearms be kept “unloaded and disassembled or bound by a trigger lock” because it “makes it impossible for citizens to use them for the core lawful purpose of self-defense.” (Internal quotation marks omitted.) Heller, 554 U.S. at 630. Thus, the State’s suggestion runs counter to established law.

Holding

For these reasons, the State has not established the required means-end fit between the challenged law and its justifications. Accordingly, we hold that possessing a firearm within 1000 feet of a public park in violation of section 24-1(a)(4), (c)(1.5) of the UUW statute is facially unconstitutional.

Removing this single location offense does not undermine the completeness of the remaining locations in section 24-1(c)(1.5). The remaining specific locations are capable of being executed without the offense of possessing a firearm within 1000 feet of a public park.

We, therefore, find the unconstitutional portion of the statute at issue severable from the remaining portions of the statute. For the reasons set forth above, we affirm the circuit court’s judgment vacating defendant’s Class 3 felony conviction of UUW in violation of section 24-1(a)(4), (c)(1.5) within 1000 feet of a public park, which we find to be unconstitutional. We vacate the circuit court’s judgment to the extent that it declared portions of section 24-1(a)(4), (c)(1.5) of the UUW statute not at issue in this case unconstitutional.

See Also

To help get a handle on Illinois Gun Laws see also:

• People v. Burns (Aguilar Did Facially Strike Down Specific Sections of AUUW – No Person (Not Even Felons) Can Be Convicted)
• People v. Whalum, 2014 IL App (1st) 110959 (September 2014)
• People v. Mosley, 2015 IL 115872 (February 2015)
• The Unlawful Use of a Weapon by a Felon Notice Requirement Under 725 ILCS 5/111-3(c) Doe Not Exist
• Illinois Gun Laws Are a Big Mess
• AUUW Gun Conviction Vacated in the 4th District under Aguilar Even When Defendant Was a Felon!
• Aggravated Unlawful Use of a Weapon – 720 ILCS 5/24-1.6 Revisited by Illinois Supreme Court
• People v. Williams, 2015 IL 117470 (November 2015) (Proportionate Penalties Challenge To AUUW No FOID Section Fails)

People v. Johnson, 2018 IL App (3d) 150352 (January). Episode 456 (Duration 11:30)

Stealing from a Walmart was not a burglary.

Sad Facts

Defendant is caught takign $76.91 in girl’s clothing from a Walmart.

He was pro se and got a hung jury the first time. In the second trial was aquitted of retail therfet but convicted of burglary.

Although burglary is a Class 2 felony with a three-to-seven-year sentencing range (720 ILCS 5/19-1(b) (West 2014); 730 ILCS 5/5-4.5-35(a) (West 2014)), the court sentenced defendant as a Class X offender because his criminal record contained prior theft and burglary felony convictions within 20 years. 730 ILCS 5/5-4.5-95(b) (West 2014).

The court sentenced defendant to eight years in prison.

Burglary

The burglary statute identifies two ways in which a person commits the offense:

“A person commits burglary when without authority he or she knowingly enters or without authority remains within a building, *** or any part thereof, with intent to commit therein a felony or theft.” 720 ILCS 5/19-1(a) (West 2014).

To commit either manifestation of burglary, the offender must lack authority to be present within the building.

Issue

The crux of his argument is that he could not enter Wal-Mart “without authority” because he entered and exited the store during business hours and remained in designated public areas.

See Also

Episode 155 - People v. Bradford, 2016 IL 118674 (March).

Defendant relies on Bradford, where our supreme court held that an offender commits “burglary by remaining” only if “he exceeds his physical authority to be on the premises.” Id. ¶ 31.

Defendant claims Bradford applies to either manifestation of burglary. The State argues that defendant never entered the building lawfully; therefore, Bradford does not require reversal.

More On Bradford

The supreme court recently held that the limited authority doctrine does not apply in “burglary by remaining” shoplifting cases. Bradford, 2016 IL 118674. In Bradford, the defendant walked into a Wal-Mart with another man and immediately stole two DVDs from a display near the cash registers. He took these DVDs to the customer service desk and “exchanged” them for a Wal-Mart gift card.

Next, he walked to the men’s clothing department where he selected a hat, removed the price tag, and wore it.

He then retrieved a pair of shoes from the shoe department and placed them in a Wal-Mart bag that he concealed in his pocket— presumably to represent that he already purchased the shoes. He wore the hat and carried the shoes to the cash registers, where he rejoined the other man.

He paid for the man’s merchandise with the gift card he received in exchange for the DVDs and exited the store without paying for the hat or shoes.

The appellate court, citing Weaver, applied the limited authority doctrine and held that the defendant remained in the store without authority once he formed the intent to shoplift. People v. Bradford, 2014 IL App (4th) 130288, ¶¶ 31, 33-34.

Limited Authority Doctrine

The State relies on the “limited-authority doctrine,” which states that “one’s otherwise valid authority to be in certain premises is vitiated when that individual acts in a manner inconsistent with the authority originally granted.” People v. Wilson, 155 Ill. 2d 374, 378 (1993).

According to the State, shoplifters who form the intent to steal before entering a store lack authority to enter.  They commit burglary the instant they cross the building’s threshold.

Bradford Was Charged Differently

The State claims that this case is distinguishable from Bradford because the State charged defendant with “burglary by entering,” whereas Bradford addressed “burglary by remaining.”

Statutory Construction

The limited authority doctrine, relied upon by the State, took shape before Illinois passed its retail theft statute in 1975 (720 ILCS 5/16-25 (West 2014)). 

In Bradford, the supreme court reversed the appellate court’s decision. The court emphasized that the legislature enacted the retail theft statute in 1975, 14 years after enacting the burglary statute and 7 years after Weaver. Based on this timeline, “it strains logic to presume that the legislature intended most incidents of retail theft to be prosecuted as burglaries.” Bradford, 2016 IL 118674, ¶ 28.

The court reasoned that charging every shoplifter with burglary by remaining would “effectively negat[e] the retail theft statute.” Id. ¶ 27. Because stores are often “building[s]” or trailers (720 ILCS 5/19-1(a) (West 2014)), virtually every retail theft would also constitute a burglary if one’s “authority” hinged on whether he or she intended to shoplift merchandise.

Bradford Changes The Law

To be fair, a long line of cases supports the State’s position that one who intends to commit retail theft lacks authority to enter a store. This limited authority doctrine would allow a prosecutor to charge and convict a first time offender who enters a store with intent to steal a candy bar with burglary rather than with the misdemeanor charge of retail theft.

As explained below, we feel that Bradford changes the law and effectively overrules the law upon which the State relies.

Analysis

Courts should not interpret criminal statutes to provide prosecutors unbridled discretion to arbitrarily charge some shoplifters with Class 2 felony burglary and others with Class A misdemeanor retail theft under similar circumstances.

Another reason not to “give improbable breadth” to our burglary statute in retail theft cases is that the retail theft statute occupies the field of shoplifting crimes. Particularly relevant to this case, the statute covers situations where shoplifters knowingly transfer merchandise “to any other container with the intention of depriving the merchant of the full retail value.” 720 ILCS 5/16-25(a)(3) (West 2014). It also covers situations where shoplifters knowingly use a “theft detection shielding device,” which is “any laminated or coated bag or device designed and intended to shield merchandise from detection by an electronic or magnetic theft alarm sensor.” Id. § 16-25(a)(7), (e).

The Statute Contemplates These Facts

Obviously, persons who enter a store with any of these items formed the intent to commit theft before entering.

The statute contemplates all manifestations of retail theft, regardless of whether shoplifters form the requisite intent before or after entering the store. 

The state's attempt to distinguish Bradford does not logically follow the supreme court’s rationale. Under either manifestation of burglary, the offender must lack “authority.” If forming the intent to shoplift does not revoke one’s authority to remain in a store, then it cannot logically revoke one’s authority to enter either.

We suspect that it is a miniscule percentage of shoplifters who form the intent to steal only after entering a store.

Burglary Is Different Than Retail Theft

The State’s position also ignores the purpose for criminalizing burglary. The “crime of burglary reflects a considered judgment that especially severe sanctions are appropriate for criminal invasion of premises under circumstances likely to terrorize occupants.” Model Penal Code § 221.1 (Explanatory Note). In other words, burglary aims to punish circumstances where a trespass and unwelcomed criminal intent combine to harm the victim more than either individual crime; the whole is greater than the sum of its parts. Applying the limited authority doctrine to shoplifting cases disregards the purpose of criminalizing burglary, negates the retail theft statute, and conflicts with Bradford.

Holding

We hold that Bradford’s physical authority test applies to all retail theft cases, regardless of when the defendant forms the intent to shoplift. In this case, the State alleged that defendant stole $76.91 worth of merchandise from Wal-Mart. Defendant entered the store during its business hours, remained in public areas while inside, and left the store before it closed.

He never exceeded his physical authority. We reverse his burglary conviction.

People v. Brown, 2017 IL App (1st) 150146 (May). Episode 377 (Duration 8:07)

Attempt armed robbery is a per se forcible felony.

Facts

Following a bench trial, defendant Dewayne Brown was convicted of the offense of armed habitual criminal. He was sentenced to 8 years’ imprisonment.

Officers are drawn to a parking lot when a car alarm goes off.

In the lot they find defendant and his girlfriend smoking a blunt in their own car. Defendant gets out of his car, but is immediately handcuffed. Inside the car there was a purse. The purse was open, and the handle of a handgun was “sticking out” in “plain view.”

The officer testified that he recovered the weapon, which turned out to be a Highpoint “black 45-caliber semiautomatic handgun.” The gun was loaded and “contained one round in the chamber and seven in the magazine.”

He Fesses Up

Defendant immediately “stated that the weapon was his” and explained that he had put the handgun into Fain’s purse.

On the way to the station, defendant stated that he wanted to apologize to Fain for placing his gun in her purse. Later at the police station defendant explained where and how he purchased the weapon. Defendant had no FOID card.

Criminal History

The State also entered into evidence certified copies of defendant’s prior convictions, including

a 1998 conviction for attempted armed robbery,
a 2006 robbery conviction, and
a 2012 possession of a controlled substance conviction.

Defendant first challenges the sufficiency of the evidence.

Issue

Specifically, he argues that the State failed to prove beyond a reasonable doubt that his prior conviction for attempted armed robbery was a forcible felony sufficient to satisfy the elements of the offense of armed habitual criminal.

Accordingly, because the State simply presented certified copies of his convictions and did not detail the circumstances surrounding his attempted armed robbery conviction, defendant argues that there was insufficient evidence that his crime involved the use or threat of force against another individual.

He submits that attempted armed robbery is not inherently a forcible felony and that the State failed to present any specific details pertaining to his attempted armed robbery conviction to establish that the offense “involved any kind of use or threat of physical force or violence,” such that it could be categorized as a forcible felony.

Armed Habitual Criminal

Section 24-1.7 of the Illinois Criminal Code of 2012 (Criminal Code or Code) sets forth the offense of armed habitual criminal and provides, in pertinent part, as follows:

“(a) A person commits the offense of being an armed habitual criminal if he or she receives, sells, possesses, or transfers any firearm after having been convicted a total of 2 or more times of any combination of the following offenses: (1) A forcible felony as defined in Section 2-8 of this Code[.]”

720 ILCS 5/24-1.7(a)(1).

Forcible Felony

“‘Forcible felony’ means treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual.”  

720 ILCS 5/2-8.

The "Residual Clause"

Where, as here, an offense is not one of the specifically delineated offenses set forth in section 2-8 of the Criminal Code, it will only be deemed to constitute a forcible felony if it falls within section 2-8’s “residual clause” in that it involved “the use or threat of physical force or violence against any individual.”

Importantly, the Illinois statute that defines forcible felony does not require the actual infliction of physical injury; instead, the statute requires only the ‘use or threat of physical force or violence.

Accordingly, courts construing this provision have emphasized that it is the contemplation that force or violence against an individual might be involved combined with the implied willingness to use force or violence against an individual that makes a felony a forcible felony under the residual category of section 2-8.

Armed Robbery

Therefore, here the relevant inquiry is whether the underlying predicate offense is an inherently forcible felony to satisfy the elements of the armed habitual criminal statute.

Pursuant to Illinois law, a person commits the offense of armed robbery when he or she commits the offense of robbery, which is an enumerated forcible felony that entails knowingly taking property from a person or the presence of another by the use of force or by threatening the imminent use of force, and:

“(1) he or she carries on or about his or her person or is otherwise armed with a dangerous weapon other than a firearm; or
(2) he or she carries on or about his or her person or is otherwise armed with a firearm; or
(3) he or she, during the commission of the offense, personally discharges a firearm; or
(4) he or she, during the commission of the offense, personally discharges a firearm that proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person.”

720 ILCS 5/18-2(a).

Attempt Armed Robbery

A person commits the offense of attempted armed robbery, in turn, when, with the intent to commit armed robbery, he or she takes a substantial step toward the commission of that offense. 720 ILCS 5/8-4(a).

Taking into account these statutory definitions, the offense of attempted armed robbery requires evidence that a defendant possessed the specific intent to knowingly take property from another by threat or use of force while armed with a firearm or other dangerous weapon and took a substantial step to accomplish that objective. 720 ILCS 5/8-4(a), 18-2(a).

Holding

Thus, by virtue of his conviction of that offense, defendant necessarily demonstrated the requisite contemplation or willingness to use force by virtue of the fact that he was armed with a firearm or other dangerous weapon and took a substantial step to deprive another person of property by threat or use of force.

The reviewing court then held that the offense of attempted armed robbery qualifies as an inherently forcible felony for purposes of the armed habitual criminal statute.

See Also

Episode 180 - Some Attempts of Forcible Felonies Are Not Forcible Felonies

Episode 126 - Aggravated Battery is Not Necessarily a Forcible Felony

Kane County Sheriff Ron Hain has instituted a series of new inmate programs. Episode 667 (Duration 34:37)

The Kane County Jail's new Diversion Program is making every effort to leave detainees better off than when they came into the jail.

In This Episode...

"'Go and get that bad guy' is actually a bad way to look at our community." -- Sheriff Ron Hain

Sheriff Ron Hain

Ron Hain was elected Sheriff of Kane County in 2018.

As a deputy his number one focus was on gang and drug enforcement. Now, as Sheriff of Kane County, he's tasked with managing the county jail system and must confront a complicated jail population.

How To Contact The Sheriff of Kane County

Sheriff Ron Hain
Kane County Sheriff's Office
37W755 Route 38
St.Charles, Illinois 60175

KaneSheriff.com

"Can't Miss" Moments:

✓ How "go and get that bad guy" mentality turned into something else. It was drug and gang arrests until the work transformed into a different meaning for Sheriff Hain.  (Go to 2:50)

✓ Doing this over and over helped the Sheriff come to a new understanding about his role in law enforcement. Not everyone will react this way.   (Go to 4:08)

✓ "These are not bad guys they're people, there citizens. And those high crime neighborhoods are also low income neighborhoods. These are people who have never been giving an opportunity in their life. How did we expect them to turn out?"  (Go to 4:50)

✓ The 3 categories of inmates that fill our jails. Understanding the reason people end up in jail is the first step to really helping them.  (Go to 5:25)

✓ 18 of the 122 corrections officers are specially trained certified officers that help triage and help identify this kind of inmate. The most important cog in the system isn't even about providing onsite services. The real work begins with an appropriate "exit strategy".  (Go to 7:37)

✓ When it comes to this "10 is a soft number." When it comes to assisting others what are your practical limits?   (Go to 9:10)

✓ Lane number 1 in the system overpopulates the jail with this kind of inmate. This is the cog in the entire system. Do noble work here and watch the crime rate plummet.  (Go to 9:40)

✓ This type of inmate is 74 times more likely to die of an overdose upon release. Identifying these inmates is literally life saving information.  (Go to 10:04)

✓ How a 30 person pilot program within a month ballooned to 54 people. The Sheriff won't say "no" to people in need. You'll learn all about it in the "Recovery Pod."  (Go to 10:50)

✓ Here's a common comment the Sheriff hears: "Hey I don't want to pay for a criminal's recovery and addiction programs; they should be paying for it." Go here to see what the Sheriff says in response.   (Go to 11:38)

✓ How the jailhouse commissary can be used to run down the crime rate...on the outside. No joke and it doesn't cost Joe Tax Payer a dime.  (Go to 12:50)

✓ If inmates think they'll take a few classes and get a shiny letter from the Sheriff they can give to the judge they got another thing common. The rubber hits the rode in these programs and no inmate is guaranteed placement.  (Go to 13:46)

✓ A positive vibe, real life mentors, and better life skills can be seen in this Kane County Jail pod. Recently, they even started an online store that sells their own pressed shirts. Learn all about it here.  (Go to 14:50)

✓ One of the most successful inmates out of "Recovery Pod" runs his business in the jail. He's not selling contraband either. It's 100% legit and has the Sheriff's blessing. The Sheriff's Office is even prepared to help him when he gets to the outside.   (Go to 16:57)

✓ What does female inmate recovery look like? There's a mural in the Kane County Jail that only inmates can see. The Sheriff says he can look at it for hours. It was painted by the inmates of "female" pod. In many ways it captures the entire focus of the whole jail.  (Go to 18:20)

✓ What "soft skills" training looks like, and how it translates into opportunities for inmates who have historically lacked any meaningful opportunity. One of the most fun things that happens in this jail is a fair. It's a different kind of fair than you are thinking.  (Go to 20:12)

✓ What is the biggest push-back Sheriff Hain is getting? It's coming from prosecutors and other police. How does the Sheriff (the keeper of 500 misdirected soles) respond to these critics? Go here to see what the Sheriff says. (He doesn't mind losing friends over this.  What he minds most is something else.)  (Go to 24:40)

✓ "You have to get it started to see what will work." (Go to 26:50)

✓ A phone call most defense attorneys never expect to receive. They won't believe their clients when the client says the attorney is getting the call. Go here for a message to defense attorneys directly from Sheriff Hain. (Go to 30:36)

Links & Resources

• Association for Individual Development in Aurora
• Ecker Center for Mental Health in Elgin
• Lighthouse Recovery Center in St. Charles
• The Pie Project (Yoga to Impact People)

Jamie Mosser, candidate for Kane County State's Attorney, stops by to provide an update on the new Illinois cannabis law and lets us know what's happening with bail reform in Illinois. Episode 658 (Duration 26:11).

In This Episode…

“What I want to do is take a strong office that we already have with some amazing people, and I just want to make it better.” — Jamie Mosser.

Attorney Jamie Mosser

Jaime Mosser is a former Kane County Assistant State’s Attorney. She’s now in private practice, and is a Democratic candidate for the head Kane County State’s Attorney.

Contact Information

Legal Office
Mosser & Eisenmenger Law, LLC
525 Tyler Rd Ste Q2
St. Charles, IL 60174
(630) 549-0364
https://www.mosserlawfirm.com/

Campaign Office
Mosser For Kane County
https://mosserforkanecounty.com/

“Can't Miss” Moments:

✓ Beginning January 1, 2020 Illinois will do away with all misdemeanor charges for possession of cannabis. However, there are some significant restrictions. (Go to 2:05) & (5:55)

✓ The law makes it quite clear there is still a certain amount you cannot exceed or you risk facing felony drug possession charges. There are exceptions for possession of cannabis for medical purposes. (Go to 2:50)

✓ The distinction between decriminalization and full blown legalization still matters. It's not accurate to say Illinois went full legalization. It's not legal across the board.  (Go to 3:48)

✓ The truth about cannabis decriminalization is revealed when you consider the raw logic behind the law. Minor possession is not crime anymore. Selling the stuff is a different story. The law has a pretty strict licensing requirement. (Go to 4:19)

✓ How Illinois is going to make money from all this. (Go to 5:28)

✓ The list of things you still can't do with cannabis runs deeper than just a prohibition against selling it. Jump to this time stamp for a detailed description provided by Jamie on everything else you can't do with cannabis. (Go to 5:55)

✓ When police get a hint of the "smell of weed" that currently has significant legal ramifications for citizens. Jamie takes a stab and how things will change after the law takes effect...will things change?  (Go to 7:58)

✓ Jamie asks: "What's going to happen with the DUI's?" Carol Stream Police Department is working with scientists to be the fist department in Illinois with this new type of machine. (Go to 9:33)

✓ Bail reform in Illinois is in effect and underway. How's it going? We are suppose to be emptying out the jail system. How's that going? (Go to 12:32)

✓ The 7-Day Rule was created to act as a stop-gap against oppressive pretrial detention. Here's how it works. (Go to 15:50)

Links & Resources New Illinois Cannabis Law

• The law decriminalization cannabis is called the Cannabis Regulation and Tax Act (CRTA) 
• See Also HB1438
• Story About Carol Stream Police Department New Cannabis Testing Machine

Bail Reform In Illinois

• Article 110 BAIL
• Meaning of Words and Phrases 725 ILCS 5/102-7.2
• Illinois bail reform law draws mixed reviews
• Bail law a good measure you don't want to use – by Burt Constable

See Also

You may also want to check out…

New Illinois Cannabis Law

• Episode 207 - The New Illinois Marijuana Law: A Ken Wang Debriefing (This is now the old law that was changed)
• Episode 251 - Jeffrey Hall On The Latest Developments And Problems With The Illinois Cannabis Decriminalization Law
• Episodesode 258 - Interview With Jeffrey Hall (A behind the scenes look at the legislative process including the good, the bad, and the ugly. )
• Episodesode 340 - The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant With Kim Bilbrey
• Episode 556 - Charles Schierer On The Best Reason To Change The “Smell Of Cannabis” Rule
• Episode 509 – Analysis of In re O.S. The Stench Of Weed Still Supports Probable Cause For A Full Vehicle Search
• Episode 015 – Police Car Search Legal in Illinois if They Smell Marijuana…Police Officer Describes A Faint Odor Of Marijuana
• Episode 276 - People v. Kavanaugh, 2016 IL App (3d) 150806 (December) (You Just Can’t Ignore The Stench Of Weed…And An Accident)
• Episode 050 - People v. Burns, 2015 IL App (4th) 140006 (January) (Police Dog Sniff of Apartment Door Is a No-No)
• Episode 630 - People v. Campbell, 2019 IL App (1st) 161640 (April) (Dropsy, Smells-Me, Front Seating, and Other Testilying Testimony Has To Be Weighed On It’s Own Merit)
• Episode 621 - People v. Brandt, 2019 IL App (4th) 180219 (April) (Police Can Rely On Their Own Cannabis Detectors Located On Their Face)
• Episode 623 - People v. Rice, 2019 IL App (3d) 170134 (April) (3 Districts All Have Said The Smell Of Weed Still Justifies A Car Search)
• Episode 584 – People v. Hill, 2019 IL App (4th) 180041 (January) (4th district says the same thing adding burnt or raw cannabis doesn’t matter that car is getting searched) 

Illinois Bail Reform

• Episode 359 - What You Need To Know About The Illinois Bail Reform Law
• The Early History of Bail Bonds In Illinois
• Illinois Bail Bond Law Ten Percent Rule May Cause Heart Attack to the Uninformed
• Sample Bail Bond Related Criminal Law Motions

Mitchell v. Wisconsin, SCOTUS No. 18–6210, Decided June 27, 2019. Episode 647 (Duration 22:02)

Unconscious drivers plus natural BAC dissipation create an exigent circumstance for a blood draw.

Gist

Police get a call of a very drunk man driving off.

Man Is Found

Man is found near a lake stumbling and slurring his words.

He could hardly stand without the support of two officers. Field sobriety tests were hopeless, if not dangerous, but he could blow for a preliminary breath test. It registered a BAC level of 0.24%, triple the legal limit for driving in Wisconsin.

Man Is Arrested

He is arrested for operating a vehicle while intoxicated and, as is standard practice, drove him to a police station for a more reliable breath test using better equipment. By the time the squad car had reached the station, he was too lethargic even for a breath test.

Hospital Instead

Police drove him to the hospital instead.

Defendant lost consciousness on the ride over and had to be wheeled in. Police asked hospital staff to draw a blood sample. Mitchell remained unconscious while the sample was taken, and analysis of his blood showed that his BAC, about 90 minutes after his arrest, was 0.222%.

Issue

We granted certiorari, 586 U. S. ___ (2019), to decide whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement. 

Implied Consent

A states implied consent scheme is centered on legally specified BAC limits for drivers—limits enforced by the BAC tests promoted by implied-consent laws. In Birchfield, we applied precedent on the “search-incidentto-arrest” exception to BAC testing of conscious drunkdriving suspects. See Birchfield v. North Dakota.

We held that their drunk-driving arrests, taken alone, justify warrantless breath tests but not blood tests, since breath tests are less intrusive, just as informative, and (in the case of conscious suspects) readily available. Id., at ___ (slip op., at 35).

Exigent Circumstances

We have also reviewed BAC tests under the “exigent circumstances” exception—which, as noted, allows warrantless searches “to prevent the imminent destruction of evidence.” Missouri v. McNeely, 569 U. S. 141, 149 (2013).

In McNeely, we were asked if this exception covers BAC testing of drunk-driving suspects in light of the fact that blood-alcohol evidence is always dissipating due to “natural metabolic processes.” Id., at 152. We answered that the fleeting quality of BAC evidence alone is not enough.

Don't Forget About Schmerber

But in Schmerber it did justify a blood test of a drunk driver who had gotten into a car accident that gave police other pressing duties, for then the “further delay” caused by a warrant application really “would have threatened the destruction of evidence.” McNeely, supra, at 152 (emphasis added). See Schmerber v. California, 384 U. S. 757, 765 (1966).

Reasonableness Is The Standard

The Fourth Amendment guards the “right of the people to be secure in their persons . . . against unreasonable searches” and provides that “no Warrants shall issue, but upon probable cause.” A blood draw is a search of the person, so we must determine if its administration here without a warrant was reasonable.

The important question here is what officers may do when a driver’s unconsciousness (or stupor) eliminates any reasonable opportunity for a breath test.

Though we have held that a warrant is normally required, we have also “made it clear that there are exceptions to the warrant requirement.” Illinois v. McArthur, 531 U. S. 326, 330 (2001). And under the exception for exigent circumstances, a warrantless search is allowed when “‘there is compelling need for official action and no time to secure a warrant.’” McNeely, supra, at 149 (quoting Michigan v. Tyler, 436 U. S. 499, 509 (1978)).

Categorical Conclusion

Like Schmerber, this case sits much higher than McNeely on the exigency spectrum.

McNeely was about the minimum degree of urgency common to all drunkdriving cases. In Schmerber, a car accident heightened that urgency. And here this driver's medical condition did just the same.

Here today the court addresses not the specific facts of this case but instead on how the exception bears on the category of cases featuring an unconscious driver. In those cases, the need for a blood test is compelling, and an officer’s duty to attend to more pressing needs may leave no time to seek a warrant.

While our exigent-circumstances precedent requires a “totality of the circumstances” analysis, “the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.” McNeely, 569 U. S., at 166 (ROBERTS, C. J., concurring in part and dissenting in part).

BAC Tests Are Important

The bottom line is that BAC tests are needed for enforcing laws that save lives.

The specifics, in short, are these: Highway safety is critical; it is served by laws that criminalize driving with a certain BAC level; and enforcing these legal BAC limits requires efficient testing to obtain BAC evidence, which naturally dissipates.

So BAC tests are crucial links in a chain on which vital interests hang. And when a breath test is unavailable to advance those aims, a blood test becomes essential.

Dissipation Is Still A Thing

It must be noted that enforcement of BAC limits also requires prompt testing because it is “a biological certainty” that “[a]lcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour. . . . Evidence is literally disappearing by the minute.” McNeely, 569 U. S., at 169 (opinion of ROBERTS, C. J.). As noted, the ephemeral nature of BAC was “essential to our holding in Schmerber,” which itself allowed a warrantless blood test for BAC. Id., at 152.

When a breath test is unavailable to promote those interests, “a blood draw becomes necessary.” McNeely, 569 U. S., at 170 (opinion of ROBERTS, C. J.).

Thus, in the case of unconscious drivers, who cannot blow into a breathalyzer, blood tests are essential for achieving the compelling interests described above. Indeed, not only is the link to pressing interests here tighter; the interests themselves are greater: Drivers who are drunk enough to pass out at the wheel or soon afterward pose a much greater risk.

It would be perverse if the more wanton behavior were rewarded—if the more harrowing threat were harder to punish. For these reasons, there clearly is a “compelling need” for a blood test of drunk-driving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test.

Dissipation + Unconsciousness = Exigent Circumstance

The only question left, under our exigency doctrine, is whether this compelling need justifies a warrantless search because there is, furthermore, “no time to secure a warrant.”

So even if the constant dissipation of BAC evidence alone does not create an exigency, Schmerber shows that it does so when combined with other pressing needs:

“We are told that [1] the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where [2] time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case [without a warrant] was . . . appropriate . . . .”

Schmerber, 384 U. S., at 770–771.

Thus, exigency exists when

(1) BAC evidence is dissipating and
(2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application.

Both conditions are met when a drunk-driving suspect is unconscious, so Schmerber controls: With such suspects, too, a warrantless blood draw is lawful.

In Schmerber, the extra factor giving rise to urgent needs that would only add to the delay caused by a warrant application was a car accident; here it is the driver’s unconsciousness.

Indeed, unconsciousness does not just create pressing needs; it is itself a medical emergency. It means that the suspect will have to be rushed to the hospital or similar facility not just for the blood test itself but for urgent medical care.

Just as the ramifications of a car accident pushed Schmerber over the line into exigency, so does the condition of an unconscious driver bring his blood draw under the exception.

An Accident Could Cause Exigent Circumstance

In many unconscious-driver cases, the exigency will be more acute, as elaborated in the briefing and argument in this case. A driver so drunk as to lose consciousness is quite likely to crash, especially if he passes out before managing to park.

And then the accident might give officers a slew of urgent tasks beyond that of securing (and working around) medical care for the suspect. Police may have to ensure that others who are injured receive prompt medical attention; they may have to provide first aid themselves until medical personnel arrive at the scene.

In some cases, they may have to deal with fatalities. They may have to preserve evidence at the scene and block or redirect traffic to prevent further accidents. These pressing matters, too, would require responsible officers to put off applying for a warrant, and that would only exacerbate the delay—and imprecision—of any subsequent BAC test.

Holding

In sum, all these rival priorities would put officers, who must often engage in a form of triage, to a dilemma. It would force them to choose between prioritizing a warrant application, to the detriment of critical health and safety needs, and delaying the warrant application, and thus the BAC test, to the detriment of its evidentiary value and all the compelling interests served by BAC limits. This is just the kind of scenario for which the exigency rule was born—just the kind of grim dilemma it lives to dissolve.

When police have probable cause to believe a person has committed a drunk-driving offense and the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, they may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment.

We do not rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties. Because Mitchell did not have a chance to attempt to make that showing, a remand for that purpose is necessary.

The Dissent

The dissent took issue with such a broad categorical approach in light of the most recent case law which seemed to counsel against such an approach.

The dissent also questioned whether there was really no time to go get a warrant. Isn't there always time for that?

See Also

Episode 574 - People v. Pratt, 2018 IL App (5th) 170427 (December) (Warrantless blood draw after an accident deemed unconstitutional blood results excluded.)

Episode 469 - Warrantless Blood Draws Coming To A Hospital Near You (A Summary Of Recent Warrantless Blood Draw Cases In Illinois). Including the following cases:

• Episode 462 - People v. Turner, 2018 IL App (1st) 170204 (February) (good faith exception applies and allows the admissibility of this warrantless blood draw)
• Episode 438 – People v. Eubanks, 2017 IL App (1st) 142837 (December) (really bad defendant held down in the hospital)
• Episode 461 – People v. Hayes, 2018 IL App (5th) 140223 (February) (defendant was not ticketed so so state could not establish consent to the blood draw)
• Episode 558 - People v. Williams, 2018 IL App (2d) 160683 (October) (Challenging this DUI traffic stop went nowhere fast.)
• Episode 439 – People v. Sykes, 2017 IL App (1st) 150023 (December) (no police action when police hold a lady down in the hospital)
• Episode 423 – People v. Brooks, 2017 IL 121413 (November), (our supreme court recently held that mere police participation, absent the private actors acting as an agent or instrumentality of the State, is not state action)
• Episode 319 How Can Police Enforce A Blood Warrant | A Discussion With Anthony Cameron 
• Episode 186 – Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016)
• Episode 258 - Jeffery Hall Interview - He Discusses The Krystin Rennie Case

Episode 643 (Duration 31:51) Illinois attorney Gary True explains the risk involved for anyone who reveals their gun in public. Licensed and unlicensed gun carriers have something to worry about.

In This Episode...

"A law abiding person that exposes his gun too much, what ever too much is, is subject to being charged and subject to being searched ." -- Gary True.

Attorney Gary True

Gary True practices in the areas of business and corporate law, mergers and acquisitions and estate planning.  He also concentrates in the area of self-defense and firearms law. 

Gary is licensed to practice law in Illinois, Missouri and Wisconsin. He also teaches a course for other Illinois conceal carry instructors.

Contact Information 

Gary True
515 St. Louis Street, Suite 203
Edwardsville, Illinois 62025

Tel: 314.872.0331
Fax: 314.872.0321
[email protected]

http://www.summerscomptonwells.com

"Can't Miss" Moments:

✓ What does the Illinois Concealed Carry law say about exposing your gun in public? What every properly licensed gun carrier has to be worried about. (Go to 3:58)

✓ This two-word adjective has become a term of art for lawyers and gun owners. Funny how the term is not defined anywhere in the code, and reasonable minds can invent their own working definitions. This is the term we are all waiting for the court to define. (Go to 5:12)

✓ Like it or not, properly licensed gun carriers can still get arrested for carrying a gun if this happens. Here's a clear example of how not to carry your gun in public...when just a few seconds can get you arrested. (Go to 5:49) & (9:42)

✓ A certain group of gun instructors believe this legal term means something else entirely different than what some Illinois judges say it means. The consequences may be dire for certain people if we don't all get on the same page. (Go to 7:15)

✓ The absurdity of it...Guy walking down the street and a gust of wind blows his jacket open a bit exposing the butt of his gun. Some say a crime has just been committed.  (Go to 8:25) & (10:00)

✓ This "ordinary common sense" standard is dead. Why the old rules before the current laws existed don't help us, and in fact, might hurt us. (Go to 8:39)

✓ The real reason you're likely to get arrested if you are seen with a gun in public.  (Go to 10:00)

✓ WARNING - All gun owners licensed to conceal carry better make sure they understand the "traffic stop" rule. If the officer says these magic words a gun carrier has to respond in the right way or risk getting arrested for providing the wrong answer. (Go to 11:55)

✓ What is NOT in the statute is as important as what is in the statute. Knowing what's not in there can save you some hassle. There are a lot of unanswered questions about the law, but Gary says there are some clear-cut examples of when an officer cannot stop you even when they know for sure you have a gun.  (Go to 13:16)

✓ 3 serious hints are out there, if you know where to look, strongly suggesting what the court is going to do next. (Go to 18:30)

✓ How a federal case can come along and upend and change the rules in Illinois. If it's going to happen it will happen this way. (Go to 21:05)

✓ Holding your crotch is not indicative of gun possession precisely because police see no gun. That being said, once you take this out of your pants all bets are off...and if it's fully out then you really have some problems. (Go to 24:01)

✓ Let's face it, most law abiding conceal carry citizens are not going to have trouble with the police. This is the number one thing they have to worry about. (Go to 25:40)

✓ Keep an eye on the case law and look for answers to these questions: (1) What in the world does "mostly concealed" mean? (2) Will the Thomas dicta hold-up? (3) Exactly what other factors can be used to justify a gun search? (Go to 28:40)

Links & Resources

• People v. Thomas, 2019 IL App (1st) 170474 (March): (in dicta court suggests seeing a gun otherwise properly concealed does not establish probable cause or reasonable suspicion)
• Illinois Conceal Carry Law
• Illinois FOID Law
• Andrew Branca Law of Self Defense
• People v. Norals, 2019 IL App (1st) 173010-U (Rule 23 case, police see the outline of a gun through this skinny jeans)
• People v. Harris, 2018 IL App (1st) 151142-U (February) (Rule 23 case, very anoymous tip of person with a gun cannot be used to justify this stop and search)
• People v. Holmes, 2017 IL 120407 (July) (good faith exception says a stop and a search before the change in the law does not mean evidence has to be suppressed)

Here's That Dicta From Thomas

People v. Thomas, 2019 IL App (1st) 170474 (March):

"We wish to emphasize that under the current legal landscape, police cannot simply assume a person who possesses a firearm outside the home is involved in criminal activity. Likewise, they cannot use a firearm in partial view, such as a semi-exposed gun protruding from the pant pocket of a person on a public street, alone as probable cause to arrest an individual for illegal possession without first identifying whether the individual has the necessary licenses."

See Also

You may also want to check out...

• Episode 609 - People v. Thomas, 2019 IL App (1st) 170474 (March) (Police see a man hand a gun to another man in dicta court states seeing a gun alone does not create basis for a stop.)
• Episode  387 – People v. Holmes, 2017 IL 120407 (July) (Before The Conceal & Carry Became Law Police Could Stop You If They Saw A Gun)
• Episode 601 – People v. Holmes, 2019 IL App (1st) 160987 (March)(police get a tip of man with a gun problem was the tip was completley anoymous)
• Episode 447 - In re Jarrell C., 2017 IL App (1st) 170932 (December) (holding your crotch is not indicative of carrying a gun)

People v. Clifton, 2019 IL App (1st) 151967 (April). Episode 633 (Duration 7:31)

Lay witness testified about the details of the gun that he saw.

Charges & Sentence

Defendant was found guilty of armed robbery and sentenced to 35 years in prison (20 years for the underlying offense and 15 years for the mandatory firearm add-on).

The Crime

2 men walked up to a group of 4 people (1 man & 3 women) and rob them.

One man said “you know what this is, it’s a robbery” and then pointed a gun at them. The man pointed the gun as close as one inch from one of the victim’s face.

The man took two phones from the victim’s pants pocket. The other man took items from the women. The men then got into a Jeep and drove away.

Armed Robbery

Armed robbery requires taking “property *** from the person or presence of another by the use of force or by threatening the imminent use of force” and doing so “armed with a firearm.” 720 ILCS 5/18-1(a) (definition of robbery); 720 ILCS 5/18-2(a)(2) (armed robbery).

A violation of subsection (a)(2) carries a mandatory 15-year sentencing enhancement. 720 ILCS 5/18-2(b).

Firearm Definition

For the purposes of the armed robbery statute, we derive the definition of “firearm” from the FOID Card Act. 720 ILCS 5/2-7.5 (referring to 430 ILCS 65/1.1).

The FOID Card Act defines “firearm” as “any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas” and exempts many types of guns including pneumatic guns, spring guns, paintball guns, BB guns, signal guns, and antique guns. 430 ILCS 65/1.1.

Proof a brandished object constitutes a firearm can be established by the testimony of a single eyewitness. Wright, 2017 IL 119561, ¶ 76.

We can rely on the eyewitness testimony of a single witness, but that testimony must provide sufficient facts to allow one to objectively conclude that the object used in the robbery meets the statutory definition of a firearm.

Sufficiency Of The Evidence To Prove Armed Robbery

See People v. Washington, 2012 IL 107993 and People v. Malone, 2012 IL App (1st) 110517.

Before January 1, 2000, the armed robbery statute had one requirement: a defendant commits robbery while he or she carried, or was otherwise armed with, a dangerous weapon. See Pub. Act 91-404, § 5 (eff. Jan. 1, 2000) (amending 720 ILCS 5/18-2). The amendment left the requirement of a dangerous weapon in place but made separate categories allowing for sentencing enhancements when a defendant possesses or uses a “firearm” in the course of a robbery. Pub. Act 91-404, § 5 (eff. Jan. 1, 2000); see also 720 ILCS 5/18- 2(a)(1)-(4) (West 2012). See also People v. Ross, 229 Ill. 2d 255, 277 (2008).

The decisions in Wright and Malone analyze the sufficiency of the evidence to prove armed robbery under the current statute.

A different panel in this division called Ross into question in People v. Fields, 2017 IL App (1st) 110311-B, on which the State relies. We respectfully disagree and find that cases analyzing the preamendment armed robbery statute remain just as precedential after amendment.

Under The Old Armed Robbery

In Ross, our supreme court defined “dangerous weapon” broadly, allowing proof that the weapon used be either

(i) Dangerous per se, as is a loaded gun;
(ii) Not necessarily dangerous but actually used in a dangerous manner; or
(iii) Not necessarily dangerous but capable of use in a dangerous manner.

Under that expansive definition, the State need not prove that a gun was loaded and operable to be dangerous. Instead, the State could meet its burden on the “dangerous weapon” element by showing the gun capable of use as a club or a bludgeon. Under The New Armed Robbery

By amending the armed robbery statute to require the presence of a “firearm,” the General Assembly narrowed the scope of the offense by virtue of the Criminal Code’s crossreference to the FOID Card Act’s stringent definition of firearms.

The State needs to rely on more than the common sense notion that a firearm is dangerous because it is capable of being used dangerously; the State must prove that the object wielded during a robbery “is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas.” 430 ILCS 65/1.1 (West 2012).

The legislature then struck the balance by automatically increasing a defendant’s sentence by 15 years when the State meets its heavy burden of proving the presence of a “firearm.” 720 ILCS 5/18-2(b) (West 2012). So the state has a higher burden but they get more out of it.

Ross and Malone, and other cases interpreting the preamendment armed robbery statute, still apply. What has changed is what the state must prove.

This Case

Turning to this case we see this victim was very specific.

He testified that the gun was black, a revolver, and either a .32 or .38 caliber. He had personally observed .32-caliber guns before. And, he testified that the gun was within one inch of his face. This was a high level of specificity like that in Wright. The witness testified about the color of the gun and explained that he had experience firing the exact type of gun he believed was used. Wright, 2017 IL 119561, ¶ 76.

Plus, the witness felt the gun and described “something sharp” being pressed into his back. Id. All of his observations led him to be “100% sure” that the weapon was “an actual firearm.” Id. Looking at the objective evidence provided by the victim in this case compared to the testimony of the victim in Wright, we find sufficient evidence that the nature of the firearm was proven beyond a reasonable doubt.

Do You Need A Gun To Prove The Existence of A Gun?

Illinois courts hold that the State need not present physical evidence of a gun to establish the presence or use of a firearm. People v. Jackson, 2016 IL App (1st) 141448, ¶ 15 (citing Washington, 2012 IL 107993, ¶ 36).

Absent some physical evidence, it seems almost impossible to prove that an item alleged to be a firearm meets the technical statutory definition unless fired. The FOID Card Act’s definition of “firearm” requires the object to expel a projectile “by the action of an explosion, expansion of gas or escape of gas.” 430 ILCS 65/1.1 (West 2012). No lay witness would ever be able to testify to this feature unless the gun was fired or the witness somehow had an opportunity to examine the gun.

As Clifton suggests, the act exempts BB guns and other guns that “expel[ ] a single globular projectile not exceeding .18 inch in diameter.” Id.

Again, no lay witness would be able to confirm that the object brandished met this definition without examining the ammunition or seeing the weapon fired. As the court indicated in McLaurin, and as the facts establish here, armed robberies pose a pernicious possibility that an offender will use a firearm (or even an object that looks like one) to force compliance with the robbery.

Technically No But…

This court sustained the armed robbery without the gun.

But there is a strong suggestion that if the gun evidence is light or whimsical the state may have a problem.

The General Assembly has already accounted for that possibility with the aggravated robbery statute.

Aggravated robbery involves taking property from the person or presence of another, “while indicating verbally or by his or her actions to the victim that he or she is presently armed with a firearm ***. This offense shall be applicable even though it is later determined that he or she had no firearm ***.” 720 ILCS 5/18-1(b)(1) (West 2012).

The General Assembly has addressed concerns like those expressed in McLaurin by creating an offense punishing an offender who attempts to coerce compliance by implying he or she has a firearm. While precedent compels us to affirm defendants’s conviction, it appears the aggravated robbery statute more aptly describes this defendant’s conduct.

The FOID Card Act contains highly technical definitions and exemptions for “firearms.” Those technical definitions have been imported wholesale into the Criminal Code for any offense that punishes the use or possession of a “firearm.” It appears the General Assembly has crafted a careful balance, requiring the State to prove the technical presence of a firearm but allowing a much greater punishment should they be successful.

Holding

We are troubled by the cases that allow for proof of a firearm with testimony that does not come close to describing the technical features of a firearm outlined in the FOID Card Act, but our supreme court has expressly approved of that type of testimony. Indeed, our supreme court has condoned convictions for armed robbery with far less specific testimony than is present here.

So we affirm defendant’s conviction.

See Also

Episode 634 –People v. McLaurin, 2018 IL App (1st) 170258 (December) (officer testified about seeing a gun from 50 feet away)

Illinois Rules Of Evidence Check out the Illinois Rules of Evidence Resource Page to learn more about Illinois Evidence. People v. McLaurin

Both the majority and concurrence in People v. McLaurin, 2018 IL App (1st) 170258, provide assistance.

In McLaurin, the criminal offense, armed habitual criminal, also requires proof that the defendant possessed a “firearm” as defined in the FOID Card Act. Id. ¶¶ 1, 20-21. The court found the evidence insufficient to prove the defendant’s possession of a “firearm” because the sole witness to see him with the gun, a police officer, testified that she saw what appeared to be a gun but could only provide details about color because all she observed was the handle and the barrel. Id. ¶ 26.

The majority in McLaurin distinguished armed robbery cases on the ground that “the underlying offense is robbery” and, to prove robbery, “there is no requirement to prove that a firearm was used in the taking.” Id. ¶ 24.

The majority, thus, found that use of a firearm during a robbery to be an “aggravating factor” and, as a result, the State had more leeway to prove the presence of a firearm by circumstantial evidence. Id. To the extent the McLaurin majority has implied a different standard of proof applies to a “firearm” in robbery cases as opposed to possession cases, we disagree.

Instead, we adopt the approach of the special concurrence. See id. ¶¶ 33-36 (Mikva, J. specially concurring). The presence of a firearm undoubtedly presents more than an “aggravating factor” under subsection (a)(2) of the armed robbery statute; indeed, the State must prove it beyond a reasonable doubt. Id. ¶ 34; see also Wright, 2017 IL 119561 ¶¶ 70- 71.

While true that the State may be able to prove a firearm by different types of circumstantial evidence in an armed robbery case than in a possession case (McLaurin, 2018 IL App (1st) 170258 ¶ 24; see also id. ¶ 34 (Mikva, J. specially concurring)), the same definition of “firearm” applies in both the robbery and the possession contexts. Again, we find Clifton’s case distinguishable from McLaurin.

The witness in McLaurin could only see the color of the gun and saw it from 50 feet away. Id. ¶ 26 (majority opinion). Smith testified to the color as well as the type of gun and caliber. And, the gun was an inch or so from Smith’s face, giving him a substantially better opportunity to observe the gun up close than the officer in McLaurin.

Long-standing precedent allowing proof of a “firearm” based on the testimony of a single lay witness, coupled with the testimony actually elicited, compel our conclusion.

People v. Foreman, 2019 IL App (3d) 160334 (April). Episode 629 (Duration 5:42)

A felony DWLR can’t be used to sentence and individual as a mandatory X sentence.

Charges & Sentence

After a jury trial, defendant was convicted of unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2)). The trial court sentenced defendant to 9½ years in prison as a Class X offender pursuant to section 5-4.5-95(b).

The unlawful possession of a controlled substance with intent to deliver was a Class 1 felony (1 gram or more but less than 15 grams of cocaine).

Search Warrant

The charges stemmed from the execution of a search warrant at the residence where defendant and another person were living.

Defendant’s Criminal History

Defendant’s PSI showed that defendant was convicted of, among other things, delivery of a controlled substance in 2000, a Class 2 felony, and driving while license revoked (DWLR) in 2009, a Class 2 felony.

Issue

The State argued that defendant was subject to mandatory Class X sentencing under section 5-4.5-95(b) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-4.5-95(b)), and defendant disagreed.

Defendant asks that we vacate his sentence and remand this case for a new sentencing hearing.

Defendant Says

Defendant asserts as a matter of statutory interpretation that his prior 2009 DWLR conviction was not a qualifying offense under section 5-4.5-95(b) because

(1) the elements of his 2009 DWLR conviction were equivalent to those of a misdemeanor offense and not a Class 2 or greater felony and

(2) the legislature intended that a defendant’s fifteenth or subsequent DWLR conviction would constitute a Class 2 felony only if the original underlying suspension or revocation was for one of the three enumerated offenses (leaving the scene of an accident involving death or personal injury, driving under the influence, or a statutory summary suspension) and all of the 14 prior DWLR convictions occurred while the defendant was suspended or revoked for that basis, which are not the facts of the 2009 DWLR conviction.

Mandatory X Sentencing

Section 5-4.5-95(b) of the Unified Code provides that:

“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted in any state or federal court of an offense that contains the same elements as an offense now (the date the Class 1 or Class 2 felony was committed) classified in Illinois as a Class 2 or greater Class felony and those charges are separately brought and tried and arise out of different series of acts, that defendant shall be sentenced as a Class X offender. This subsection does not apply unless: (1) the first felony was committed after February 1, 1978 (the effective date of Public Act 80-1099); (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second.”

730 ILCS 5/5-4.5-95(b).

Under section 5-4.5-95(b), Class X sentencing is mandatory—a trial court must sentence a defendant as a Class X offender if the defendant has prior qualifying felony convictions that satisfy the requirements of the statute.

Felony DWLR

The second statute at issue in the present case, section 6-303(d-5) of the Illinois Vehicle Code, provides that:

“Any person convicted of a fifteenth or subsequent violation of this Section is guilty of a Class 2 felony, and is not eligible for probation or conditional discharge, if the revocation or suspension was for a violation of Section 11-401 or 11-501 of this Code, or a similar out-of-state offense, or a similar provision of a local ordinance, or a statutory summary suspension or revocation under Section 11-501.1 of this Code.”

625 ILCS 5/6-303(d-5).

Elements Of The Prior Offense

For the issue raised in this particular case, the language of section 5-4.5-95(b) of the Unified Code is clear and unambiguous. The focus is on the elements of the prior offense.

To constitute a qualifying offense under the statute, the prior offense must contains the same elements as an offense now classified in Illinois as a Class 2 or greater Class felony. Defendant’s 2009 DWLR conviction in the instant case was elevated from a misdemeanor offense to a Class 2 felony based, in part, upon defendant’s prior convictions for DWLR.

Our supreme court has found, however, that those prior underlying convictions do not constitute elements of the offense. See People v. Lucas, 231 Ill. 2d 169, 180-81 (2008) (finding that the prior convictions that served as the basis for a felony DWLR conviction were sentencing enhancements and not elements of the offense).

Elements of DWLR

Rather, the elements of defendant’s prior 2009 Class 2 felony DWLR were that defendant was driving upon a highway of this State and that when he did so, his driver’s license was revoked. See 625 ILCS 5/6-303(a).

Those are the elements of a misdemeanor DWLR offense.

Thus, as defendant asserts, his 2009 DWLR conviction could not be used as a qualifying offense to make him eligible to be sentenced as a Class X offender under section 5-4.5-95(b) of the Unified Code.

Holding

We, therefore, vacate defendant’s sentence and remand this case for defendant to be resentenced as a Class 1 offender.

We affirm defendant’s conviction, vacate defendant’s sentence, and remand this case for the trial court to conduct a new sentencing hearing.

See Also

Episode 133 – People v. Williams, 2016 IL 118375 (January 2016). (The drug enhancement under 720 ILCS 570/408(a) remains “valid” but it doesn’t apply when other sentencing enhancements kick in.)

While the decision here lowers the minimum prison sentence for which defendant is eligible from six years down to four years, the maximum prison sentence for which defendant is eligible would still be 30 years because defendant has a prior conviction under the Illinois Controlled Substances Act.

See 720 ILCS 570/408(a) (stating the any person convicted of a second or subsequent offense under the Illinois Controlled Substances Act may be sentenced to a term of imprisonment of up to twice the maximum term otherwise authorized).

People v. Kruckenberg, 2019 IL App (3d) 170505-U. Episode 628 (Duration 31:43). 

Matthew Paulson and Larry Vandersnick describe a drug interdiction traffic stop and analyze where it went wrong for the prosecution.

In This Episode...

"The appellate court is looking at what is actually going on in the case versus just looking at the total amount of time." -- Matthew Paulson.

Matthew Paulson & Larry Vandersnick

Matt Paulson has over 7 years of experience and has distinguished himself in both Illinois and Iowa as a successful criminal defense attorney handling all matters including Drug Trafficking and DUI / OWI cases.

Larry Vandersnick is a former Henry County State's Attorney and a former Rock Island County and Henry County Circuit judge. Now he mainly handles criminal cases in state court.

Contact Information

Paulson & Vandersnick
4709 44th Street Ste 1
Rock Island, IL 61201

(309) 558-0774

https://www.mplvlaw.com/

"Can't Miss" Moments:

✓ Abolish it. Does it still make sense to have Rule 23 cases? What's the point now that information is so easily accessible online? If you know how to find them why can't you use them? (Go to 2:49)

✓ A surprising and disturbing reason why an attorney may not want to ask the court to publish a winning decision. (Go to 5:59)

✓ How the "tag team" approach is used on I-80 to get you to lower your shield so low you don't go home again for a very long time. (Go to 7:15)

✓ How to measure 15 minutes. Everybody doesn't experience the same 15 minutes the same way. Go here to uncover how the appellate court is measuring 15 minutes. (Go to 8:29)

✓ When common day pleasantries is considered outright rude and even illegal. (Go to 9:40)

✓ When the "K-9 search duration principle" that determines if a search is likely to be upheld or stricken down...again exactly what the officer is doing matters. (Go to 12:00)

✓ What police don't want you to know about what exactly they are doing during a traffic stop. What is actually happening doesn't feel like what is happening. It feels much differently to the driver. (Hint: profiling and pretextual stops are 100% legal.) (Go to 13:38)

✓ Drug interdiction officers are there to write speeding tickets. How this officer tipped his hat and showed his cards in a way that revealed his true intentions to the appellate court. (Go to 14:09)

✓ It took just 6 minutes of interaction with the driver, these 6 minutes of nothing much happening, the officer didn't radio in the drivers information until 6 minutes after they got back in his squad car, these were 6 minutes recorded as an eternity. (Go to 14:09)

✓ This is happening all over the place all the time...at least since 1995. Who's gonna stop it. This is the one thing that actually takes longer and has been slowed down by modern computers. (Go to 17:14)

✓ The only way known to man to turn 10 into infinity. (Go to 19:45)

✓ Exactly what is happening when you are "front seated". Wether you know it or not that's when a  Spidey sense is being aimed directly at you. (Go to 20:55)

✓ Doing this one thing in life can get you suspended or expelled from a program. Doing it in the law not only is completely ethical and proper it actually helps you win cases. (Go to 20:55)

✓ If attorneys shared more of this the world would be a better place...or at least for defense attorneys and their clients.  (Go to 26:06)

Links & Resources

• People v. Kruckenberg, 2019 IL App (3d) 170505-U
• Illinois Supreme Court Rule 23
• ISBA LawPulse: The incredible, unciteable Rule 23 order
• ISBA Civil Practice Let’s Get Rid of Rule 23 Orders
• The Battle Over Rule 23: Authority v. Precedent
• People v. Pulling, 2015 IL App (3d) 140516
• Illinois Attorney Dan Dalton
• People v. Koutsakis, 272 Ill. App. 3d 159 (3rd Dist. 1995) (routine traffic stop may not be used as a subterfuge to obtain other evidence based on an officer's suspicion)
• Illinois Attorney Anthony Cameron (See also discussion on Timbs v. Indiana, 2019 SCOTUS (February). )

See Also

You may also want to check out...

• Episode 458 - People v. Lee, 2018 IL App (3d) 170209 (February) (“No Talking” Command Was An Order Not A Request & 25 Minute Wait For Dog Was Too Long)
• Episode 069 - Rodriguez v. United States, 135 S. Ct. 1609 (2015)(SCOTUS case that set the unreasonable delay standard for rode side drug dog sniffs)
• Episode 049 -  A summary of drug dog case law
• Episode 043 - People v. Thomas, 2014 IL App (3d) 120676 (October) (police dog sniff set-up procedures may be ordered by the police)
• Episode 087 - People v. Reedy, 2015 IL App (3d) 130955 (August) (this drug dog made it to the scene in a flash)
• Episode 417 - People v. Paddy, 20172017 IL App (2d) 160395 (October) (police unreasonably delayed this traffic stop to give the dog time to get there)
• Episode 446 - People v. Heritsch, 2017 IL App (2d) 151157 (December) (this is how you do it if your an officer who wants to conduct a rode side dog sniff every minute has to be accounted for)
• Episode 533 - People v. Thomas, 2018 IL App (4th) 170440 (August) (Unreasonable Delay For A Drug Dog Sniff – Accumulation of Road Trash Is Not Reasonable Suspicion)
• Episode 563 - People v. Sadeq, 2018 IL App (4th) 160105 (November) (Steigmann says the delay to have the drug dog come out was justified because defendant was, in part, extremely nervous.) 
• Fourth District Doing Something Different With Dog Sniff Cases – People v. Pettis – Episode 196
• People v. Pulling, 2015 IL App (3d) 140516 (June 2015)(stop was unreasonably prolonged when drug dog is walked around the car)
• People v. Litwin, 2015 IL App (3d) 140429 (September 2015) (drug trafficking conviction must be reversed because this drug dog sniff exceeded the applicable scope of the traffic stop and oh yea, reviewing court doesn’t believe the officer)