Kane County Nuggets

People v. Timmsen, 2016 IL 118181 (March). Episode 153 (Duration 5:36)

Apparently, the police can stop you for trying to legally avoid a roadblock.

Defendant made a U-turn 50 feet from a roadblock to avoid it.

He was stopped and arrested for DWLS and possession of cannabis.

Does avoiding a traffic roadblock itself create a reasonable suspicion of criminal activity justifying a traffic stop by police?

The Illinois Supreme court held that defendant’s avoidance of the police roadblock provided reasonable suspicion for an investigatory stop.

The court felt that Defendant’s U-turn across railroad tracks just 50 feet before the roadblock is the type of evasive behavior that is a pertinent factor in determining reasonable suspicion.

Further, since the roadblock was well-marked, it was readily identifiable as a roadblock rather than being mistaken for an accident site or a road hazard, which one may generally desire to avoid.

Moreover, the roadblock was not busy, which suggests that a driver would not have feared a lengthy delay. When considering “the totality of the circumstances—the whole picture,” the deputy had reasonable suspicion to conduct an investigatory stop. Evasive behavior and a person’s refusal to speak with an officer when an officer approaches him are not one and the same.

This defendant was acting comparable to Wardlow who was do anything but going about his business. He was suspiciously actively avoiding contact with the police.

The court refused to adopt any bright line rules and said its always a totality of the circumstances determination. Avoidance as simply one factor in determining the existence of reasonable suspicion.

People v. Nibbe, 2016 IL App (4th) 140363 (February). Episode 151 (Duration: 2:35)

Second degree murder conviction is vacated because a blow with a bare hand is not ordinarily contemplated to cause death.

Defendant punched the victim in the face.

About a week later the victim died. Defendant appeared to be a drunk hot-head. The victim had bruising above the left eye, a fracture in his upper jaw, nasal bone, and cheek bone. He also had a skull fracture from the left skull base going over the top of his ear.

Additionally, the victim had a significant brain injury with hemorrhaging in both the frontal and temporal lobes of the brain caused from falling backward and hitting the back of his head.

It was the fall backward onto a surface that caused the death.

A person is guilty of first degree murder under a knowing murder theory if he killed another without lawful justification with the knowledge his acts created “a strong probability of death or great bodily harm.” 720 ILCS 5/9-1(a)(2).

“Strong probability” is the situation which lies between the “practical certainty” and the “likely cause” and “substantial and unjustifiable risk” of involuntary manslaughter.

Here, the State's evidence failed to prove he knew his single punch to the victim's face created a strong probability of death or great bodily harm.

“There is a long-standing principle in Illinois that death is not ordinarily contemplated as a natural consequence of blows from bare fists.” However, Illinois courts have recognized exceptions to the principle that death is not ordinarily contemplated as a natural consequence of blows from bare fists.

In this case, none of those exceptions were applicable and the principle that death is not ordinarily contemplated as a natural consequence of blows from bare fists prevailed. The court concluded that the State's evidence was insufficient to prove defendant struck the victim with the knowledge the punch created “a strong probability of death or great bodily harm.” 720 ILCS 5/9-1(a)(2).

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People v. Moore, 2016 IL App (1st) 133814 (February). Episode 149 (Duration 4:49)

Lost photo arrays were not done in bad faith, so no due process violation occurred.

This was a murder trial that took years to investigate.

The case went cold twice because witnesses refused to cooperate Defendant and a codefendant were accused of shooting a man who was lying in the street after being beat.

Then they shot another guy in the arm (they were aiming for his face). Several witness identified defendant from a photo array.

That photo array was lost by the time the case went to trial.

Defendant argued that dismissal of the indictment was appropriate because he could not challenge the identification from the array.

The court said defendant was required to show that the State acted in bad faith in failing to preserve the photo arrays.

There is no evidence to suggest that the State acted in bad faith and defendant concedes this issue. Thus, no due process violation occurred in this case.

Instead the defense was given Civil JI 5.01. The the jury was told that it may infer that missing evidence that was within a party's power to produce would have been adverse to that party.

Kladis does not stand for the proposition that testimony must be barred whenever there is a discovery violation that results in missing evidence.

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People v. Jarvis, 2016 IL App (2d) 141231 (February 2016). Episode 146 (Duration 4:33)

The visual examination of defendant’s buttocks might have exposed defendant’s anus. However, there was no visual inspection of the interior of defendant’s anus, let alone any physical intrusion.

Does a search warrant for the body of person need to specifically say it's going to be a strip search?

The trial judge agreed with the defendant that this search violated 725 ILCS 5/103-1 because it did not specifically indicate it would be a strip search. defendant maintains only that the strip search exceeded the scope of the warrant.

The reviewing court saw it differently.

Defendant is arrested after a warrant to search his person is issued. At the police station in a private room defendant is asked to remove his pants and underwear. One officer gets behind defendant to see better and defendant is asked to squat and cough.

A roll of toilet paper falls out of his anus.

Rolled up inside is a clear plastic baggie with drugs.

First of all, those cases addressing the propriety of a body-cavity search, or other physical intrusion into the body, are not controlling.

The court said it was reasonable to believe that a person who conceals drugs on his body would put them in places, such as between the buttocks, that could be revealed only via a strip search.

Therefore, the scope of the warrant authorizing a search of defendant’s body for controlled substances necessarily included a strip search that would reveal drugs concealed in such areas of defendant’s body.

Thus, the strip search, as conducted here, 3 did not exceed the scope of the warrant and did not violate the fourth amendment. Neither the complaint nor the search warrant itself needed to expressly refer to a strip search.

People v. Zayed, 2016 IL App (3d) 140780 (February).(Episode 145 Duration 4:09)

The officer crossed the line by whipping out the defendant's penis and essentially conducting an unreasonable strip search.

Officer observed a silver Dodge fail to signal a turn. He initiated a traffic stop of the vehicle. After he activated his emergency lights, the back seat passenger—the defendant—move around the back seat and that the defendant’s “head came close to the roof line of the vehicle.”

It looked like he was trying to stand up.

A strong odor of cannabis came from the car.

The driver stated cannabis had been smoked in the car earlier in the day. Officer had the defendant exit the vehicle. He “was concerned for [his] safety because of [the defendant’s] movements inside the car during the traffic stop.”

During a pat down frisk of the defendant, the defendant’s pants were then unzipped and his belt undone. Officer finds two plastics bags in the area of the defendant’s genitals, one of which contained what he believed to be crack cocaine.

Usually, the odor of cannabis provides sufficient probable cause to search a car and its occupants.

However, the roadside strip search crossed the line of reasonableness.

The search of the defendant involved extremely intrusive means and it should have been performed in a manner that respected the defendant’s privacy. 725 ILCS 5/103-1 regulates a strip search.

This one was not done in a minimally intrusive manner and as such it was unreasonable.

Apparently, whipping out the defendant's penis on the roadside in front of the officer's squad camera made the defendant visibly uncomfortable.

People v. Buschauer, 2016 IL App (1st) 142766 (February 2016). (Episode 143 Duration 4:27)

The trial court’s finding was against the manifest weight of the evidence in that a reasonable person would have felt free to leave at any point during the interrogation.

Defendant calls the police to tell them his wife has drowned in the tub. Defendant is transported to a police station where he is interrogated for 13 hours.

He is not formally arrested nor charged. 13 years later they charge him.

The trial court suppressed his original statement because it was at a (i) police station (ii) duration (13 hours); (iii) mood (“focused, persistent, and unrelenting”); (iv) police presence (two State Police officers); (v) the absence of family and friends; and (vi) the police attitude of subjectively viewing him as a suspect.

The fundamental question to be answered is if a reasonable person would have felt free to leave.

The Illinois Supreme Court identified several factors relevant to objectively assessing the circumstances at the interrogation:

1. Location, time, length, mood, and mode of questioning;

2. Number of police officers present during interrogation;

3. Presence or absence of family and friends of the accused;

4. Indicia of formal arrest procedure, such as the show of weapons or force, physical restraint, booking or fingerprinting;

5. Manner by which accused arrived at the place of questioning; and

6. Age, intelligence, and mental makeup of the accused.

The court will also look at

(i) the intent of the officer;

(ii) the understanding of the accused;

(iii) the accused being informed either that or he she could leave or was under arrest;

(iv) the probability of restraint of accused had he or she attempted to leave;

(v) length of time of interrogation; and

(iv) the giving of Miranda warnings. The record indicates the tone as “conversational.”

The reviewing court found the presumption expressed in the trial court's order unsupported by the evidence.

Additionally, defendant's age and intelligence was not a neutral factor but weighed heavily against an arrest.

Simply giving Miranda warnings as a precautionary measure does not transform an investigative interrogation into a custodial interrogation.

Examining the factors of the intent of the officers; the understanding of the defendant; whether the defendant was told he was free to leave or that he was under arrest; whether the defendant would have been restrained if he had attempted to leave; the length of the interrogation; and whether Miranda warnings were given, we find that a reasonable individual, innocent of wrongdoing, would have felt free to leave.

People v. Little, 2016 IL App (3d) 130683 (February 2016). Episode 142 (Duration 4:09)

This DWLR conviction stands because the police officer didn't need to proof of every element of the crime he was investigating.

Defendant was stopped by a sheriff who was investigating a complaint of criminal trespass.

At the suppression hearing, no evidence was admitted that there were “no trespass” signs posted in the rural woods the complaint was based on.

Was the stop of the defendant unreasonable in light of the fact that the officer did not know if there were any “no trespassing” signs on the property?

An officer may make a lawful Terry stop without first determining whether all the elements of a particular offense have been met. See People v. Hackett, 2012 IL 111781, ¶ 28

In a Terry stop, a police officer is not required to rule out all possibility of innocent behavior before he initiates the stop. 

Here, the deputy was not required to have evidence that the notice element of criminal trespass to real property was satisfied before he could make an investigatory stop of defendant's vehicle to investigate a possible commission of that offense.

While evidence of notice may be required for a person to be found guilty of committing some forms of criminal trespass to real property under 720 ILCS 5/21-3(a)(2), (a-5), (b), it is not required for a police officer to have reasonable suspicion to investigate whether a criminal trespass to real property has been committed.