Kane County Nuggets

Sometimes the defense can gather up pretty convincing evidence of police misconduct, and the trial judge just can't pull the trigger on doing the right thing. Episode 198 (Duration 16:04)

See People v. Montanez, 2016 IL App (1st) 133726 (June) and
People v. Serrano, 2016 IL App (1st) 133493 (June). 

People v. Relerford, 2016 IL App (1st) 132531 (June). Episode 197 (Duration 7:46)

Trial court declares stalking and cyberstalking unconstitutional; we'll see what the Illinois Supreme Court says.

Defendant did not get a job at a radio station.

He then proceeded to email the employees and put up thinly veiled threats on facebook. At one point he showed up at the station without permission and was escorted out.

One particular female employee seemed to be singled out.

In its current form, section (a) of the general stalking statute provides:

“A person commits stalking when he or she knowingly engages in a course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to: (1) fear for his or her safety or the safety of a third person; or (2) suffer other emotional distress.”

720 ILCS 5/12-7.3(a)(1), (2).

The general stalking statute defines “course of conduct” as:

“2 or more acts, including but not limited to acts in which a defendant directly, indirectly, or through third parties, by any action, method, device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, engages in other non-consensual contact, or interferes with or damages a person’s property or pet. A course of conduct may include contact via electronic communications.” 720 ILCS 5/12-7.3(c)(1).

The statute further defines “emotional distress” as “significant mental suffering, anxiety or alarm”  and “reasonable person” as “a person in the victim’s situation” 720 ILCS 5/12-7.3(c)(3) & (c)(8).

The United States Supreme Court handed down its decision in Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001 (2015), which addresses a federal stalking statute.

In Elonis, the Court held that due process precluded the government from convicting a defendant under a federal stalking statute because the defendant’s conviction “was premised solely on how his posts would be understood by a reasonable person.” Id. at ___, 135 S. Ct. at 2011.

The defendant was charged with violating a federal statute that made it a crime to “transmit[ ] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another” after he made several Facebook posts about his ex-wife containing violent imagery. Id. at ___, 135 S. Ct. at 2008 (quoting 18 U.S.C. § 875(c) (2006). 

The problem, though, was that the defendant’s conviction “was premised solely on how his posts would be understood by a reasonable person.” Id. at ___, 135 S. Ct. at 2011. The Court explained that imposing criminal liability using a “reasonable person” standard was incompatible with due process requirements:

“Such a ‘reasonable person’ standard is a familiar feature of civil liability in tort law, but is inconsistent with ‘the conventional requirement for criminal conduct–awareness of some wrongdoing.’ Having liability turn on whether a ‘reasonable person’ regards the communication as a threat– regardless of what the defendant thinks–‘reduces culpability on the all-important element of the crime to negligence,’ and we ‘have long been reluctant to infer that a negligence standard was intended in criminal statutes.’ Under these principles, ‘what [Elonis] thinks’ does matter.” Id. at 135.

We note that Elonis was decided in 2015.

Thus, neither the legislature, when it amended the stalking statute in 2009, nor the judge who presided over defendant’s trial in 2013, had the benefit of the Supreme Court’s guidance on this issue.

Instead, an individual’s conduct is criminal under section (a)(2) if, and only if, the defendant “knows or should know” that it would cause “reasonable person” to “suffer ***emotional distress.” 720 ILCS 5/12-7.3(a)(2).

Subsection (a)(2) contains no requirement that the individual actually intend to inflict emotional suffering on a person. Thus, as currently drafted, subsection (a)(2) bypasses “the conventional requirement for criminal conduct–awareness of some wrongdoing” in favor of a reasonable person standard of criminality.

This is a standard which the due process clause does not permit.

Accordingly, the court held that subsection (a)(2) of the general stalking statute, of which defendant was convicted and sentenced, lacks a mens rea requirement and is therefore facially unconstitutional under the due process clause of the fourteenth amendment.

Subsection (a)(1) of the general stalking statute violates due process for the same reason as subsection (a)(2), as it does not contain a mental state requirement. Under subsection (a)(1), a defendant can be convicted of stalking if he or she engages in course of conduct and “knows or should know” that the course of conduct would “cause a reasonable person to *** fear for his or her safety or the safety of a third person.” 720 ILCS 5/12-7.3(a)(1) (West 2012).

Like subsection (a)(2), criminality under subsection (a)(1) turns entirely on whether the defendant “knows or should know” how a “reasonable person” would react to the defendant’s conduct, without regard to the defendant’s subjective intentions. The two sections differ only in that subsection (a)(2) requires the victim to suffer emotional distress, whereas subsection (a)(1) requires the victim to fear for his or her safety, or the safety of a third person. Subsection (a)(1) of the general stalking statute is therefore facially unconstitutional under the due process clause of the fourteenth amendment.

Subsections (a)(1) and (a)(2) of the cyberstalking statute are virtually identical to subsections (a)(1) and (a)(2) of the general stalking statute. The principal difference is that the cyberstalking statute specifies that the defendant’s course of conduct involved electronic communications. It necessarily follows then, that subsections (a)(1) and (a)(2) of the cyberstalking statute, which also lack a mens rea requirement, are facially unconstitutional under the due process clause of the fourteenth amendment for the same reason that subsections (a)(1) and (a)(2) of the general stalking statute are unconstitutional.

People v. Pettis, 2016 IL App (4th) 140469 (June). Episode 196 (Duration 6:42)

In the Fourth District a positive drug sniff may not necessarily lead to the automatic searching of the car's passengers.

Defendant was in the rear side passenger in car stopped for suspended plates for a mandatory insurance violation.

The driver was arrested for revoked license but also showed signs of nervousness. A drug dog came out. It alerted.

The officers then took defendant out of the car for a pat-down weapon search. Defendant consented to a search of his person. Nothing was found on him.

Defendant was handcuffed because the drug dog alerted on the vehicle. Defendant was then placed in the backseat of one of the police vehicles.

The driver and front seat passenger are then removed. The female told the cops defendant hid drugs in his buttocks.

When they go back to him they felt the “knot of a [Baggie]” between defendant's buttocks.

Defendant's appeal rests on violations of the 4th amendment. He simply argued the search of his person was done without proper probable cause and waived everything else including:

• Any scope of the sniff and 
• Any argument that he should have been released after his warrant check came back clean

Police officers may extend a traffic stop without violating an occupant's constitutional rights as long as the extension is based on evidence leading to a reasonable suspicion of other criminal activity discovered before the original mission of the stop is completed.

In this case, the State presented sufficient information to show the continued detention in this case was appropriate based on evidence discovered during the mission of the original stop.

The evidence in question was the police dog's positive alert on the suspect vehicle with defendant inside.

Defendant did not argue the police dog's open air search was not done within the time reasonably required to complete the purpose of the stop in this case.

While the police did not believe defendant had the drugs on his person after that search, the officers had reasonable suspicion contraband was in the vehicle or in the possession of the driver or front seat passenger.

The police did not violate defendant's rights by continuing to detain him after this consensual search until they could search the vehicle. After the front seat passenger said defendant had the drugs the police had sufficient probable cause for a warrantless search.

In 2000, this court held “that a police canine alert of a car's exterior indicating the presence of a controlled substance within the car does not, without more, provide the police with probable cause to search the persons of the car's occupants.” People v. Fondia, 317 Ill. App. 3d 966, 969, 740 N.E.2d 839, 841 (2000).

However, this court stressed its “holding is limited to the facts of record and turns on the absence of any indicia of suspicion particular to defendant. Without more, the search of defendant's person was not justified.” (Emphasis in original.) Id. at 972, 740 N.E.2d at 844.

The instant case is distinguishable from Fondia because the searches in this case were not based simply on the police canine's positive alert. The other individuals in the vehicle made statements regarding defendant hiding something between his buttocks or in his anus.

The driver told an officer defendant had “his hand up his ass.”

Further, the front passenger told an officer defendant had concealed something in his buttocks and had asked her if the police dog would be able to smell whatever he placed between his buttocks.

Since this court's decision in Fondia, the Second District specifically rejected this court's approach. People v. Neuberger, 2011 IL App (2d) 100379, ¶ 10, 959 N.E.2d 195. The Second District held a police dog's positive alert on a vehicle may provide the police with probable cause to search the vehicle and a passenger in the vehicle. Id. ¶¶ 9-10.

In addition, this court has stated the smell of cannabis in a vehicle by a police officer can justify the search of a passenger in that vehicle. Williams, 2013 IL App (4th) 110857, ¶ 34, 990 N.E.2d 916. Because the facts in this case are distinguishable from Fondia, we need not determine whether this court's holding in Fondia is still good law.

People v. Reynolds, 2016 IL App (4th) 150572 (June).  Episode 195 (Duration 7:00)

This extrajurisdictional stop is actually legal because the original traffic infraction was a misdemeanor, something more than a petty offense

Defendant filed a petition to rescind her statutory suspension. She argued her arrest was improper because the stop occurred outside the city borders.

Defendant did not challenge her speeding as a basis for the initial stop.

Specifically, defendant challenged the officer's jurisdiction to arrest her because Southern View's municipal boundary did not encompass the northbound lane of Sixth Street. (Apparently, the southbound lanes of Sixth Street in the vicinity of where defendant's speed was clocked is in Southern View.)

Defendant filed an affidavit from the Springfield zoning administrator to prove the northbound lane of Sixth Street was not within the bounds of Southern View. The trial court granted rescinded the SSS based on lack of jurisdiction.

 During the stop, the officer smelled alcohol coming from defendant's car. He then discovered an empty bottle of whiskey.

She blew .231 into the PBT and refused to blow at the station.

Way back in January we had another Weird Little Extra-Territorial DUI Arrest Case (Episode 160). 

Remember, in this extra-territorial arrest cases the rules and laws all are a big jumble. However, the underlying principle is that:

Although generally an officer can arrest a person outside its jurisdictional lines if we have a felony or a misdemeanor, but the officer is not allowed to stop a car outside its jurisdiction for a mere traffic infraction or other petty offense.

An officer from city A cannot stop a car in city B for a traffic violation that occurred in city B. When that happens we have an illegal stop. A motion to suppress then follows where a trial judge is likely to exclude all the subsequent evidence of intoxication.

See 725 ILCS 5/107-4(a-3)(1), (2).

The relevant portions of the arrest statute permit a stop outside an officer's primary jurisdiction if (1) the initial crime occurs within his jurisdiction or (2) an on-duty officer “becomes personally aware of the immediate commission of a felony or misdemeanor violation of the laws of this State.” 725 ILCS 5/107-4(a-3)(1), (2).

The reviewing court now says that the trial court was wrong.

The relevant portions of the arrest statute permit a stop outside an officer's primary jurisdiction if (1) the initial crime occurs within his jurisdiction or (2) an on-duty officer “becomes personally aware of the immediate commission of a felony or misdemeanor violation of the laws of this State.” 725 ILCS 5/107-4(a-3)(1), (2)

The evidence in the record shows Cathers observed and stopped defendant outside the bounds of Southern View.

As a result, section 107-4(a-3)(1) cannot serve as a basis for the stop…but Defendant was pulled over for driving 61 miles per hour in an area with a 35-mile-per-hour speed limit, or 26 miles over the speed limit. Traveling 26 miles-per-hour over the speed limit is a Class B misdemeanor. See 625 ILCS 5/11-601.5(a).

The officer personally observed the immediate commission of this offense. Neither party challenges defendant's speed. As a misdemeanor offense, the officer was justified in stopping defendant under the arrest statute.

Finding the stop by the officer was justified and authorized under the arrest statute, the trial court erred in granting the petition to rescind.

Three different statutory sections quoted above apply to the issue in this case. Each section, by itself, appears susceptible to a single, plain, and ordinary interpretation.

Section 7-4-7 of the Municipal Code defines a single police district as territory which is embraced within the corporate limits of adjoining municipalities within the same county within this State (65 ILCS 5/7-4-7. Section 7-4-8 of the Municipal Code describes the powers of a police officer within a police district (65 ILCS 5/7-4-8).

Notably, section 7-4-8 states “police of any municipality in such a police district” (emphasis added) (65 ILCS 5/7-4-8 suggesting more than one municipality falls within a single police district. Both sections appear under the division entitled “Territorial Jurisdiction.” 65 ILCS 5/7- 4-1 to 7-4-8.

Under the plain and ordinary meaning of these sections, an officer has “full authority and power” in his own municipality and any adjoining municipality in the same county. Section 7-4-8 of the Municipal Code endows officers with “full authority and power” (65 ILCS 5/7-4-8) within any municipality in a police district.

While defendant attempts to construct an argument that section 7-4-8 conflicts with the arrest statute, section 104-7(a-3) of the Criminal Procedure Code, the reviewing court found no conflict. The arrest statute applies, as discussed below, to any jurisdiction in the State, whereas the Municipal Code provisions apply to extend the jurisdiction of police officers in a police district, defined as adjoining municipalities in the same county.

The appellate court also found that officer had jurisdiction solely based on the arrest section of the Criminal Procedure Code. On its face, section 107-4(a-3), quoted above at supra, affords police the jurisdiction to effect an arrest in any jurisdiction as long as one of the enumerated provisions applies. 

People v. Ciborowski, 2016 IL App (1st) 143352 (June). Episode 194 (Duration 5:40)

You don't always need a drug recognition expert on the scene to establish probable cause for a Drugged Driving DUI.

Defendant rear ended a car and causes a three car collision.

The officer ruled out alcohol and cannabis but noticed defendant had difficulty speaking, lethargic, and disheveled.

Then Defendant is asked if he was taking drugs and he admitted to taking Zoloft, Ambien, and Celexium.

Defendant failed SFTS and was arrested.

The officer only knew that Ambien is taken to help people sleep.

He knew nothing about the other drugs, this particular drug mixture, and was not a drug recognition expert.

The defense challenged this arrest by an officer untrained in the recognition of drugs and made without the aid of a drug recognition expert at the scene.

The reviewing court, however, held that when defendant admitted taking Ambien and other drugs, the officer had probable cause to believe that it had something to do with the conduct that the officer observed.

There is no requirement that an officer have individualized suspicion of drugs and/or alcohol before arresting one for drugged DUI.

In addition to the officer’s training and experience, the facts observed at the time he arrested defendant constituted probable cause to support the arrest.

These were the observations: Defendant was the cause of the rear-end automobile accident that rendered his own vehicle inoperable and severely damaged. Defendant was driving the easternmost vehicle, and the other two vehicles involved in the accident were in front of him proceeding westbound. Defendant rear-ended the vehicle in front of him, causing his license plate to stick to the other vehicle.

Defendant also exhibited signs of being under the influence of drugs including: (1) dilated pupils, (2) deliberate and lethargic movements, (3) a disheveled appearance, (4) difficulty keeping his eyes open and a sleepy appearance; and (5) speech that was mush-mouthed and slurred.

Furthermore, defendant provided conflicting answers about where he lived, where he had been, and how the accident occurred. When asked for his insurance card, defendant repeatedly handed the officer his AARP card.

In addition, defendant failed each of the three field sobriety tests which the officer administered. Defendant nearly fell to the ground several times during the tests, two of which had to be terminated for safety purposes.

Defendant also admitted he was prescribed Zoloft, Celexium, and Ambien. These facts were ample for a reasonable person to believe that there was probable cause that defendant was under the influence of drugs to a degree that it rendered him incapable of driving safely.

See Also

You should also checkout my podcast with Sami Azhari where we talked about this exact issue.

It was podcast episode 184. Click here to see it now.

People v. Bryant, 2016 IL App (5th) 140334 (May). Episode 193 (Duration 6:21)

Defendant said he was to emotionally distraught during his plea hearing to have acted knowingly and voluntarily. 

People v. Boston, 2016 IL App (1st) 133497 (May). Episode 192 (Duration 5:42)

Was it error for trial court to deny defendant the necessity instruction for possessing a shank in jail when he could prove he was stabbed and in danger? 

In many ways this is the month that the judges (that is the high court judges) could do no wrong.  We had 2 significant cases released by the Supreme Court of the United States (SCOTUS) and 2 cases released by the Illinois Supreme Court.

Here's what you missed from the high court cases for June 2016:

1. Utah v. Strieff

Discovery of a valid arrest warrant after an improper seizure sufficiently attenuates the taint of the bad stop such that suppression of the discovered contraband runs counter to the exclusionary rule. In other words, the cops can stop you illegally and if you have a valid arrest warrant while you are holding drugs, those drugs are going to be used against you. Go to case.

2. Birchfield v. North Dakota

There is a big difference between refusing to provide a breath sample after a DUI arrest and failing to give blood. States don't need a warrant for you to blow and they can charge you with an additionally crime if you refuse to blow. However, police will generally need a warrant to get your blood. If there is no warrant they can't charge you for refusing to give them your blood. Go to case.

3. People v. Rizzo

It is constitutional to prohibit court supervision if you are  charged with driving more than 40 mph over the speed limit. Go to Case.

4. People v. McFadden

Prosecutors my use invalidated Aguilar AUUW's that have not been formally vacated as predicate offenses to support a new charge of AUUW by a Felon. Go to case.

June 2016 was hopping and sizzling for Illinois criminal law court decisions. Much was going on and much for us to keep up with. For example...

✓ We had 2 important state DUI decisions. One really got the private defense bar jumping up and down and the other one made some law on drugged driving cases. Can an officer not trained to detect drugged driving nonetheless make a drugged driving arrest?

✓ There was an interrogation done with a defendant detained more than 98 hours before seeing a judge

✓ A prison shank case, a recanting snitch case, one crime was declared unconstitutional, another unconstitutional sentencing provision declared constitutional again. Is the Illinois cyber stalking still good law?

✓ A case with a murderer who put his coworkers head in display freezer, (not making this up)!

✓ Somebody counted their days wrong in a speedy trial case. Was it the state or the defense?

✓ and much much more.

Really, there is way too much going on in June to summarize here but...

Don't worry.

Just download the June case list.

Read the top line (one sentence) summarizing the case. Only invest more time in those cases that seem interesting or look like they can impact a case you are working on.

I've already read the cases and pulled out the most important lessons from each. Please take my work.

Don't waste your precious summer evenings sifting through cases that may not even help you.

Your June Illinois criminal case List is waiting for you below. Click the image  below to download your case list right now:

.

People v. Gray, 2016 IL App (1st) 134012 (May). Episode 190 (Duration 6:58)

The definition of “household member” was unconstitutionally applied to this defendant (dating relationship had ended 15 years earlier) this in turn allowed the State to improperly get into other crimes evidence. 

Foster v. Chatman, SCOTUS No. 14–8349. Argued November 2, 2015—Decided May 23, 2016. Episode 189 (Duration 7:29)

Prosecution makes it pretty clear that they struck black jurors because of their race.

In a 7-1 decision written by Roberts (Thomas was the lone dissent). The defense had obtained prosecutor's files years after he was convicted of strangling and raping a 79 year old victim.

The files had hand written “B”s in front of all the black jurors.

Ultimately, the Court found that, while all of the five potential black jurors had been kept off the jury for racial reasons, the proof was clear at least as to two of those jurors that there was no reason but race for excluding them.

“Two peremptory strikes on the basis of race are two more than the Constitution allows,” Roberts wrote.

The prosecution had an array of excuses for striking these two jury members, including:

• she had a job working with disadvantaged youth
• she kept looking at the ground
• she gave short answers
• she appeared nervous
• she was too young
• she misrepresented her familiarity with the location of the crime
• she failed to disclose her cousin was arrested on a drug charge
• she was divorced
• she had two children and two jobs
• the defense asked her few questions and
• she did not ask to be excused from jury service.

Many other jurors accepted by prosecutors had the same attributes as that juror and the second juror whose elimination was at issue.

The State tried to argue that the markings in their file were they because they wanted to be careful and mindful of a Batson issue, but Roberts did not buy that for a second.

Instead, he noted that the argument was made for the first time in the U.S. Supreme Court and it “reeks of afterthought.”

The sad thing here is that 4 of the black stricken members were found to be “justified” ie had valid race neutral reasons and this case really suggests the facts have to be way out there before a judge is likely to find that a Batson violation has indeed occurred.