Kane County Nuggets

People v. Billups, 2016 IL App (1st) 134006 (May). Episode 188 (Duration 4:52)

Trial counsel was ineffective for trial court's consideration of two convictions later ruled unconstitutional.

People v. McFadden, 2016 IL 117424 (June). Episode 187 (Duration 5:17)

Defendant questioned the validity of his UUW Felon conviction because it was predicated on a AUUW invalidated under Aguilar.

Defendant robbed three people. He plead guilty to UUW Felon and acknowledged he had a prior AUUW conviction. People v. Aguilar came along and invalidated this form of AUUW.

Subsequently, courts have been grappling with the legal effect.

Here, defendant is not seeking to vacate his 2002 conviction for AUUW. Rather, defendant contends that the State failed to prove all of the essential elements of AUUW Felon and sought to have that conviction reversed.

However, UUW Felon only requires a defendant to have a felon status. The statute does not require proof of a specific felony conviction.

Yes. Aguilar made a facially unconstitutional ruling. Thus, the statute is void ab initio meaning that the statute was constitutionally infirm from the moment of its enactment and, therefore, is unenforceable.

However, the Illinois Supreme court followed the feds in holding that a prior UUW conviction, if not formally vacated in court, may be used as a predicate offense for other charges.

There is nothing absurd or unjust or unreasonable about requiring a person who believes he has been wrongly convicted of a felony to clear his status through the judicial process before being allowed to possess a firearm.

The UUW by a felon statute represents a considered and deliberate decision to require that a prior felony conviction be vacated or expunged before a firearm is possessed. Although Aguilar may provide a basis for vacating defendant’s prior AUUW conviction, Aguilardid not automatically overturn that judgment of conviction.

Thus, at the time defendant committed the UUW Felon offense, defendant had a judgment of conviction that had not been vacated and that made it unlawful for him to possess firearms. Thus, he had the required “felon status” as required by the statute he was convicted of.

Thus, defendant’s prior conviction properly served as proof of the predicate felony conviction for UUW by a felon.

Practically, the principle that the void ab initio doctrine renders a facially unconstitutional statute unenforceable only means a possible predicate felony conviction for UUW by a felon is only subject to vacatur.

Without an actual vacatur, the conviction may properly serve as a predicate felony for other charges.

Birchfield v. North Dakota, SCOTUS No. 14–1468. Argued April 20, 2016—Decided June 23, 2016. Episode 186 (Duration 8:34).

May the State criminalize the failure to comply with implied consent laws?

There were actually 3 consolidated cases each of them turning on whether or not the state could criminalize the failure to comply with implied consent laws.

Two defendants were threatened with prosecution for failure to give blood; one defendant was charged for not blowing.

Thus, success for all three petitioners depended on the proposition that the criminal law ordinarily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant authorizing such testing is issued by a magistrate.

If, on the other hand, such warrantless searches comport with the Fourth Amendment, it follows that a State may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant.

SCOTUS, then had to determine if the searches demanded in these cases were consistent with the Fourth Amendment. This is so because when a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search.

If such warrantless searches are constitutional, there is no obstacle under federal law to the admission of the results that they yield in either a criminal prosecution or a civil or administrative proceeding.

The court applied the search incident to arrest doctrine and noted it is a categorical rule. Since breath tests do not “implicate significant privacy concerns”, (no more intrusion than blowing up a party balloon). Blood tests are a different matter.

Yes, McNeely distinguished between “easily disposable evidence” over “which the suspect has control” and evidence, like blood alcohol evidence, that is lost through a natural process “in a gradual and relatively predictable manner."

But McNeely concerned only one exception to the usual warrant requirement, the exception for exigent circumstances, that exception has always been understood to involve an evaluation of the particular facts of each case.

Here, by contrast, the search-incident-to-arrest exception is duly at play.

Having assessed the effect of BAC tests on privacy interests and the need for such tests, the Court concluded that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving.

The impact of breath tests on privacy is slight, and the need for BAC testing is great.

Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.

Thus, the police generally will need a warrant to get blood from a driver. The court said there must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.

Holding: Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, the court said that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.

Utah v. Strieff, SCOTUS No. 14–1373. Argued February 22, 2016—Decided June 20, 2016. Episode 185 (Duration 13:49)

Does the discovery of a valid arrest warrant sufficiently intervene to break the causal chain between an unlawful stop and the discovery of drug-related evidence?

Officer has a tip of a drug house.

Over a week he sees people coming in and out of the house. Then he sees defendant come out of the house. Follows him to a gas station where he stops him.

Discovers defendant had a warrant. Arrests him and finds drugs.

SCOTUS said that even though the stop was illegal no evidence needed to be suppressed because the search warrant sufficiently attenuated the taint of the bad stop.

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

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

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

Thomas wrote that the warrant discovered after this stop was entirely unconnected to the stop itself...and the attenuation doctrine reflects that rationale by favoring exclusion only when the police misconduct is most in need of deterrence—that is, when it is purposeful or flagrant.

Here the officer was at most negligent.

The officer's errors in judgment hardly rise to a purposeful or flagrant violation of Strieff ’s Fourth Amendment rights.

Moreover, there is no indication that this unlawful stop was part of any systemic or recurrent police misconduct.

Applying these factors, the majority held that the evidence discovered on Strieff ’s person was admissible because the unlawful stop was sufficiently attenuated by the preexisting arrest warrant.

See the dissent for a strong reaction.

Did you know the actual and full title to Illinois’s DUI statute is…

“Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof.”

See 625 ILCS 5/11-501.

Though driving under the influence of alcohol is by far the most common type of DUI, we ought not forget about the drug DUI’s.

I would describe the Drug DUI sections this way:

► 625 ILCS 5/11-501(a)(3) prohibits while driving under intoxicating compounds. For example, this section deals with aerosol cans, cleaning agents, and any other substance not thought of as a “drug” yet clearly intoxicating.

► 625 ILcS 5/11-501(a)(4) prohibits driving on drugs if you can’t do it safely. Usually, we are talking prescription drugs or any drug that has not been labeled as a controlled substance.

► 625 ILCS 5/11-501(a)(6) prohibits driving whenever there is any amount of a controlled substance (including marijuana) in a person’s body. This does not actually require proof of intoxication.

Crucial and important differences are buried within the Drug DUI law and cases.

Illinois criminal law attorney Sami Azhari agreed to sit down with us to help identify some of the crucial features of drug DUIs.

[sami’s background]

In podcast Episode 184 of the Criminal Nuggets Podcast Sami Azhari…

✓ Reveals questionable short-cuts a judge may take when confronted with a drug DUI.

✓ Provides some specific details on what a drug recognition expert can and cannot do in court.

✓ Defines the 12 steps of every drug recognition expert should be taking when evaluating a suspect in the field.

✓ Tells us the truth about how common drug recognition training is among patrol officers.

✓ Highlights a crucial legal difference between prescription drugs and illegal drugs that can get a non-lawyer in serious legal trouble.

✓  Answers the question: Do you know how much of an officer’s training with standard field sobriety testing carries over to drug intoxication investigations?

✓ Discloses the sneaky way state prosecutors may use a drug recognition expert in court.

✓ Outlines the scene: An officer comes upon a driver who has just had a serious accident. The driver is incoherent, can’t put logical sentences together, is non-sensical, has terrible balance, and is obviously under the influence of something. When alcohol is ruled out this is NOT THE TIME to assume drugs are involved.

✓ Tells about the A.R.I.D.E. training program and how it differs from traditional drug recognition training.

✓ These and many other important topics are covered.

Here are the links to some of the cases covered by Sami Azhari

People v. Foltz, 403 Ill. App. 3d 419, 424 (2010)

People v. Vanzandt, 287 Ill. App. 3d 836, 845 (1997)

But also check out…

People v. Ciborowski, 2016 IL App (1st) 143352 (June)

I think we need Sami to come back and help us make sense of Ciborowski.

People v. Rizzo, 2016 IL 118599 (June). Episode 183 (Duration 8:23)

Is it unconstitutional to prohibit court supervision for a strict liability traffic offense?

No way man, says the Illinois Supreme Court.

Defendant was charged with violating section 11-601.5(b) of the Vehicle Code (625 ILCS 5/11-601.5(b)(driving 40 miles per hour or more in excess of the speed limit- a Class A misdemeanor) He was doing 100 in a 55 zone.

The trial court concluded that prohibiting court supervision for this crime was “cruel and degrading punishment” and therefore unconstitutional. The Illinois Supreme Court saw it differently. The high court found the trial court’s opinion and order to be an ambiguous analysis and had ill-defined concerns en route to its conclusion that section 730 ILCS 5/5-6-1(p)is unconstitutional.

A proportionate penalties challenge can be made if a defendant can argue that the “penalty for a particular offense is too severe under the ‘cruel or degrading’ standard or that the penalty is harsher than the penalty for a different offense that contains identical elements.”

It appears a major reason the trial court found for the defendant was because of its concern for the collateral consequences of conviction…and maybe didn't like that the statute was tieing the court's hands.

The trial court completely disagreed, writing:

“In our view, the legislature’s prohibition of the dispositional option of supervision, in this context, does not even approach the “cruel and degrading” standard requisite for a finding of unconstitutionality. We do not believe our society has devolved to the permissive point that the legislature is obligated to provide an escape hatch for those who have shown such a blatant disregard for posted speed restrictions. We have, in the context of our community’s evolving standards of decency, reviewed and considered the gravity of defendant’s alleged offense in connection with the severity of the statutorily mandated sentence then set by the legislature. Our consciences are not shocked by the prohibition, individually or collectively. It appears the circuit court reached its result through application of the proportionate penalty analysis this court rejected in Sharpe.”

The trial court also erred in in its improper consideration of possible collateral consequences of a misdemeanor conviction, such as a requirement of disclosure on job or loan applications. None of these consequences are considered punishments. Trial court was reversed.

People v. Diggins, 2016 IL App (1st) 142088 (May). Episode 182 (Duration 5:14)

Is an Illinois State Police certified letter saying Defendant has no FOID testimonial in nature?

Defendant was convicted of AUUW.

The State admitted a “certified letter” from the Firearm Service Bureau of the Illinois State Police, which stated defendant was denied an FOID because he had a pending felony charge.

The State argued it was a self-authenticating document because it was “a certified document with a seal bearing the signature and seal of the office.”

Defense counsel objected, stating that this was not a document kept in the normal course of business, and rather it was the result of a specific request by the State. The trial denied the objection because “the document speaks to a review of documents kept in the normal course of business” and it was certified document of a governmental agency.

“Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Crawford v. Washington, 541 U.S. 36, 59 (2004).

In regards to what is a testimonial statement the Court said:

“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent – that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,  extrajudicial statements … contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, [citation] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. at 51-52.

However, this certificate was clearly testimonial in nature.

It was made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Thus, absent a showing that the witness was unavailable to testify at trial and that defendant had a prior opportunity to cross-examine him, defendant was entitled to be confronted with the witness at trial.

Reversed and remanded for a new trial.

People v. Gacho, 2016 IL App (1st) 133492 (April). Episode 181 (Duration 4:34)

Postconviction petition alleging corrupt trial judge is dismissed.

No joke. The trial judge conducting this murder trial actually was convicted of accepting bribes. See this article. 

The fact that the judge was bribed in some cases does not establish that he was not impartial in others. The judge's pattern of bribe taking cannot alone support an inference that he engaged in compensatory bias in the defendant's case. A defendant must still “who alleges that his trial judge's corruption violated his right to a fair trial must establish (1) a ‘nexus' between the judge's corruption or criminal conduct in other cases and the judge's conduct at [the defendant's] trial; and (2) actual bias resulting from the judge's extrajudicial conduct.” See the dissent for a strong counter argument.

However, defendant's case was not a “fixed” case. The gist of the claim was that a codefendant paid the judge $10,000 for a not guilty in his case.

That meant the judge could not be fair in defendant's case.

Also, defendant said he could not raise $60,000 to pay the judge and because of that the judge could not have been fair.

In sustaining the dismissal of this postconviction petition, the reviewing court found that defendant failed to produce any direct evidence that the judge was, in fact, bribed by the codefendant. The trial attorney denied that he ever talked to defendant or his family about a $60,000 bribe & defendant's story about the codefendant saying he paid $10,000 but got convicted anyway also does not add up.

If the judge possessed a pecuniary interest in the outcome of the defendant's trial, the defendant would be entitled to relief under the Act in the form of a new trial. Defendant did not prove this up sufficiently.

See also Episode 152,  Brady Break Down: Crooked Cops But No Duty To Disclose.

People v. Sanderson, 2016 IL App (1st) 141381 (April). Episode 180 (Duration 6:40)

Attempted residential burglary is not a forcible felony that can be used to sustain an armed habitual criminal conviction.

Originally published on June 14, 2016.

The Code defines “forcible felony” as follows:

“[T]reason, 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.

An unenumerated felony falls within the residual clause if the defendant “contemplated that the use of force or violence against an individual might be involved and [was] willing to use such force or violence.” (Emphasis in original.) People v. Belk, 203 Ill. 2d 187, 196 (2003).

But the defendant need not actually inflict physical injury.

Additionally, “Because every attempted murder involves a specific intent to cause death, the trier of fact who finds a person guilty of attempted murder must find that the guilty person contemplated the use of sufficient force to cause very serious injury, injury that can lead to death."

Reviewing courts have held that  every attempted murder qualifies as a forcible felony for purposes of the armed habitual criminal statute.

A felony can qualify as a forcible felony, even if a crime does not have violent intent as an element, is if the State proves that “under the particular facts of this case,” the defendant contemplated the use of force and was willing to use it.

Defendant's conviction for attempted residential burglary is neither by definition nor by circumstance a forcible felony.

None of the elements of attempted residential burglary requires that the defendant contemplate the use of violence. Second, there is no evidence that, under the particular facts of this case, Defendant contemplated the use of force.

See Also People v. White, 2015 IL App (1st) 131111 (December 2015). Episode 126 (Duration 3:01)

• Battery With only Mere Harm Not a Forcible Felony
• Domestic Batteries in That Case Not a Forcible Felony

The May 2016 Illinois criminal case list is now available for download. There is one controversial DUI case here you don’t want to miss. The podcast round-up for this month is the month is 29 minutes 44 seconds long.

Here are the top 12 criminal law cases from the Illinois court system (and one SCOTUC case) for May 2016. There were 28 published cases released this month.

For a brief summary of all the cases, make sure to download a copy the case list by clicking the orange bar above. For now, here is a quick overview:

1. People v. Guillermo

Hands down this is the most controversial case released this month. Are DUI defense attorneys crying foul over nothing or do they have a legitimate issue. See alsoEpisode 177 where Thomas Glasgow Explains Why DUI Lawyers Are Saying, “Court Got This All WRONG”. Go to case.

2. People v. Swanson

This case is a credibility contest between defendant’s wife and the police. Check it out to see who the judge believed. Go to case.

3. People v. Hernandez

Illinois Supreme Court puts to bed this proportionate penalties challenge revolving around the proper definition for “dangerous weapon.” Go to case.

4. People v. Billups

Defense counsel is ineffective for allowing the trial judge to commit trial error. Just when you think we all have People v. Aguilar etched in our brains… Go to case.

5. In re H.L.

Judge fails to say these “magic words” which leads to a reversal. Go to case.

6. People v. Walsh

Defendant takes a creative approach to interpreting the gun add-on section. Reviewing court has to really look at exactly what factors are appropriate to consider when applying the 20 to life term. Go to case.

7. People v. Warren

Another fines and fees case! But maybe you want to take a look at this one because it involves a drug case. Don’t we all have a drug case? Go to case.

8. People v. Smith

Can you believe it? This is another medical doctor-sexual assault case. We had one last month as well! This time the issue deals with determining the appropriate statute of limitations. Go to case.

9. Foster v. Chatman 

This is the SCOTUS case. See how the initial “B” tanked the case for the prosecution. Clarence Thomas was the lone dissent in this successful Batson challenge made by the defense. Go to case.

10. People v. Diggins

State has confrontation clause issues when they try to use a certified letter from the State Police saying the defendant did not have a valid FOID card. Do prosecutors have to rethink how they approach these gun cases? Go to case.

11. People v. Boston

Interesting question. Is it ever legal for an inmate to possess a shank in prison? Go to case.

12. People v. Gray

The definition of “house hold member” is unconstitutionally applied to this defendant. The case describes the unique fact pattern that lead to the reversal of this domestic violence conviction. Go to case.

13. People v. Coto

It is settled. Defendant has a right to the reasonable assistance of counsel in a postconviction petition when he is appointed counsel AND when he contracts and hires his own private attorney. Go to case.

Hey, if you want to check out a brief summary of all 29 of the published Illinois criminal law cases for May 2016 just hit the banner below: