People v. Cummings,2016 IL 115769 (January 2016). Episode 131 (Duration 4:38)

Remember, the case where the officer stops a car because the owner is a women with a warrant? The officer quickly discovers the driver is a man and arrests him for suspended license. 

Well, in light of Rodriguez v. United States the United States Supreme Court asked the Illinois Supreme Court to take another look at this case.

Here the initial stop was lawful, because the officer knew the registered owner of the car had a warrant, thus “the driver was subject to seizure.”

But the officer's reasonable suspicion that the driver was subject to arrest disappeared when he saw that the driver was a man and not, a woman.

The interest in officer safety permits a driver’s license request of a driver lawfully stopped. Such ordinary inquiries are part of the stop’s mission and do not prolong the stop, for fourth amendment purposes. Asking for driver's license is part of the normal attending to a traffic stop, so this driver's suspended DL status is admissible even the officer quickly determined the driver was a man and not the registered owner who was a women.

A traffic stop is analogous to a Terry stop, and its permissible duration is determined by the seizure’s mission. Every traffic stop inherently includes traffic enforcement and “related safety concerns.” Those related safety concerns include ‘ordinary inquiries incident to [the traffic] stop,’ ” and typically “involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.”

Ordinary inquiries within the traffic stop’s mission clearly do not offend the fourth amendment. Additionally, officer safety justifies a check for criminal a record and outstanding warrants. Ordinary inquiries incident to the stop do not prolong the stop beyond its original mission, because those inquiries are a part of that mission.

Conviction for aggravated battery to a senior citizen must be reduced to battery because the IPI was wrong.

Defendant was charged aggravated battery of a senior citizen for slapping around the old man he was the caretaking.

Effective in 2006, the legislature amended the aggravated-battery statute to state a defendant commits an aggravated battery against a person over the age of 60 when he knowingly commits a battery and…

“[k]nows the individual harmed to be an individual of 60 years of age or older.” Pub. Act 94-327, § 5 (eff. Jan. 1, 2006) (amending 720 ILCS 5/12- 4(b)(10).

The statute has since been renumbered. See 720 ILCS 5/12-3.05(d)(1).

The new language adopted in Public Act 94-327 added an element to the offense requiring the State to prove the defendant knew the individual harmed was 60 years of age or older.

Before 2006, the pertinent statutory definition of aggravated battery to a person over the age of 60 required the State to prove the defendant…

“[k]nowingly and without legal justification and by any means cause[d] bodily harm to an individual of 60 years of age or older.” 720 ILCS 5/12- 4(b)(10).

As you can see, the older version of the law did not require that the State prove that the Defendant was aware of the victim's age.

IPI 11.15 and 11.16 became effective prior to substantive changes to the statutory language. Currently, they do not reflect the element requiring the defendant to be aware of the victim's age.

In short, IPI Criminal 4th Nos. 11.15 and 11.16 do not accurately convey the present law regarding the charge of aggravated battery to a person over the age of 60. Thus, in this case the state never established exactly what Defendant knew of the victim's age.

The aggravated battery conviction to a senior was reduced to misdemeanor battery.

People v. Ealy, 2015 IL App (2d) 131106 (December 2015). Episode 129 (Duration 5:18)

Harmless error to allow the State to argue consciousness of guilt when defendant refused voluntary DNA testing.

Why was it error for the state to let it slip that Defendant was the only refusal out of 22 people who were asked to provide a voluntary DNA sample?

A Burger King manager was murdered and the the safe was robbed.

Palmprints and fingerprints from 22 current and former employees were collected. However, when asked for a DNA sample, defendant adamantly refused while the 21 other employees complied.

Eventually, the get a warrant.

Immediately, I think of two very similar situations with different outcomes.

It takes no time to “know” that a prosecutor is not allowed to comment a Defendant's right to refuse to testify or to talk to the police.

This clearly implicates an individual's right to remain silent.

However, in a DUI arrest a person who refuses to provide a BAC sample can have that point used against them at trial.

A prosecutor can indeed argue to the jury that Defendant refused to provide a BAC sample because he knew he was drunk.

So what gives? Why are these scenarios different?

A compelled DNA extraction undeniably constitutes a search under the fourth amendment to the federal constitution (U.S. Const., amend. IV) and the search-and-seizure provision of the Illinois Constitution (Ill. Const. 1970, art. I, § 6).

Thus, for a DNA sample generally a warrant is required.

At the time of his refusal, defendant had no legal obligation to provide his DNA.

It is fundamental that the admission of evidence that a defendant has exercised his rights is unduly prejudicial and deprives him of a fair trial because it permits the jury to infer consciousness of guilt from the defendant’s exercise of his rights.

The admission of defendant’s refusal to consent to DNA testing was an abuse of discretion because it permitted the jury to infer consciousness of guilt from defendant’s exercise of his rights.

Under 625 ILCS 5/11-501.1, the so-called ‘implied consent law,’ a motorist operating a vehicle on a public highway in Illinois is deemed to have consented, if arrested for DUI, to chemical testing to determine his or her blood alcohol level.”

Therefore the driver no longer has a “right” to refuse BAC testing. The end result is that it becomes entirely appropriate for the State to then argue consciousness of guilt when a Defendant refuses to blow.

Had the police obtained a warrant for Defendant's DNA, and he still refused to provide a sample, the prosecution WOULD HAVE BEEN WITHIN THEIR RIGHTS to argue consciousness of guilt.

Obviously, after a warrant defendant no longer has a right to refuse.

People v. Wright, 2016 IL App (5th) 120310 (January 2016). Episode 128 (Duration: 5:20)

Police fail to Mirandize defendant arrested for armed robbery because it would have been a waste of time; 86 year conviction and sentence reversed.

Police officer said he recognized Defendant from watching some video surveillance of two robberies. Both involved a large man matching Defendant's physique and mannerisms.

Defendant was arrested coming out of a liquor store. The officer did not Mirandize Defendant because the officer thought he was old school and not some 17 year old kid who would talk.

Here the officer deliberately conversed with Defendant about the evidence against him, and drove him to an area so he could see his girlfriend getting arrested.

This was particularly, evocative and likely to elicit an incriminating response from defendant.

Most people would be susceptible after seeing their loved one implicated in a crime in which he or she had not participated.

The Defendant's perspective is what is relevant not the officer's subjective intent.

What happened to defendant was the “functional equivalent” of a police interrogation, and it clearly undermined defendant's privilege against self-incrimination.

Defendant's exact statement was that they should let her go because she don't know nothing about it. Defendant would show them where the gun and mask are at and tell them who gave him the clothes he was wearing.

State argued these are not the kind of statements an innocent man would make.

See Rhode Island v. Innis, 446 U.S. 291 (1980).

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People v. Wuckert, 2015 IL App (2d) 150058 (December 2015). Episode 124 (Duration 3:46)

Trial court's suppression of hospital drug test is reversed because 625 ILCS 5/11-501.4 trumps hospital policy that the results should not be used for legal purposes.

This was a one car accident.

Police find a drug pipe in the car and it smells like cannabis. Trial judge suppressed the state blood because there was no probable cause for the arrest.

However, the hospital told defendant that their lab tests could only be used for medical reasons and not for any legal purposes. Relying, in part, on this hospital policy the trial judge suppressed the hospital drug tests.

However, the reviewing court said that  625 ILCS 11-501.4 trumps the hospital policy.

The fact that the trial court was perturbed that defendant consented to the test under a misimpression created by the hospital personnel, however unfortunate, is not a legally sound basis to suppress the test results.

Here, because the test results here were procured by a nurse who was not acting as a State agent, neither the test nor the hospital’s disclosure of the results to the police, as the statute required, violated defendant’s rights.

Additionally, no fourth amendment analysis was appropriate here because these blood results were a completely civil process. 

Even assuming the arrest was improper, these results were coming in because no state actor was involved in their procurement.

People v. Burnett, 2015 IL App (1st) 133610 (December 2010). Episode 123 (Duration 8:45)

Defendant was not denied his constitutional right to confrontation when the domestic violence victim testified she did not remember the incident.

In this trial for violation of order of protection the trial court found the victim unavailable pursuant to. 725 ILCS 5/115-10.2a(a). This statute only applies if no other hearsay exception applies

However, the same victim with the same testimony was declared “available” for confrontation purposes.

Crawford v. Washington, 541 U.S. 36, 68 (2004) says a testimonial out-of-court statement is admissible under the sixth amendment only if the witness is available for cross-examination at trial or the defendant had a prior opportunity to cross.

Here, the statement to the police was properly admitted only if the witness can be said to be both unavailablefor purposes of this statutory hearsay exception, but available for purposes of the sixth amendment right to confrontation.

The trial court found that the victim was, in fact, unavailable due both “to a lack of memory” (725 ILCS 5/115-10.2a(c)(3)) and a refusal “to testify concerning the subject matter” of her statement “despite an order of the court to do so.” 725 ILCS 5/115-10.2a(2).

The question was whether the victim was “present at trial to defend or explain” her prior accusations of harassment.

This was not a case where the victim got up there and said noting.

In fact, she did answer questions at trial about Defendant…

• Telephoning
• Following
• And Keeping Her Under Surveillance

She also testified they had been in a relationship for five years; that she had four children; that defendant was the biological father of her two youngest sons; and that he also acted as a father to  her other two children.

She even acknowledged that she took out the OP, and that Defendant texted her the day of the arrest.

This victim continued to assert a refusal to testify to some questions, thus satisfying the court that the requirements of this particular hearsay exception were met.

Yet , she still answered both preliminary questions, as well as a number of questions about the offense Defendant was charged with.

Thus, the reviewing court said this particular statutory exception, as applied to defendant, did not violate his sixth amendment right to confrontation.

• Does it make sense she was unavailable for the state but available constitutionally?
• Did she really testify in any meaningful way?
• Is there a statutory/constitutional basis for this split in interpreting what available means?
• What should be the rule?

People v.  Tsiamas, 2015 IL App (2d) 140859 (December 2015). Episode 122 (Duration 5:12)

Add this case to the list of “DUI Discovery Violation” cases we should know about.

These cases are:

• People v. Kladis, 2011 IL 110920
• People v. Moravec, 2015 IL App (1st) 133869
• People v. Aronson, 408 Ill. App. 3d 946 (2nd Dist. 2011)
• People v. Tsiamas, 2015 IL App (2d) 140859 (December 2015)

People v. Kladis supports some kind of discovery sanction in this DUI case where police failed to turnover booking room video.

After a traffic stop, Defendant gets arrested for possession of cannabis. At the station they say he failed the fields. The events in the booking room were recorded on video maintained by the police department.

The same day defendant filed his rescission petition, he also filed a motion for pretrial discovery under Illinois Supreme Court Rule 214 and a notice to produce at trial under Illinois Supreme Court Rule 237.

After 30 days, the police department informed the court, that it “ha[d] no recordings” responsive to the subpoena. Thereafter, defendant made an oral motion for sanctions against the State.

Here, the trial court incorrectly framed the controlling issue: The question was not whether Kladis specifically had yet been “extended to the booking room.” Rather, the question was whether, in the trial court’s discretion, a properly requested recording of field sobriety testing or the warning to motorists—regardless of where either was performed— was discoverable in a rescission proceeding.

The answer is YES, and it would have been an abuse of discretion had the trial court exercised its discretion and found otherwise.

The FSTs were done in the booking room, accordingly, because the booking room recording was discoverable, a subpoena to obtain the recording was not required. Once defendant filed his motions, the State was officially on notice to take action to preserve the recording for its eventual production either before trial or at trial. The State also suggested that it was defendant’s burden to determine when the recording was destroyed. This notion was handsomely struck down.

For one thing, the State simply ignored the request for discovery. It is well settled that when counsel presents his adversary with a Rule 237 notice to produce, absent being served with objections, “he has the right to assume that his opponent has complied.”

The court held that if the police record a driver’s field sobriety tests or the officer’s recitation of the warning to motorists, and the driver timely requests that recording in discovery in his or her rescission case, it should be provided as expeditiously as possible.

Trial court was reversed, and the case remanded so the trial judge can craft an appropriate remedy. The court need not automatically impose the sanction used in Kladis, viz., barring the arresting officer’s testimony. Rather, the court is free to exercise its discretion and craft a sanction befitting the situation at hand.

…So we should keep an eye on this one to see what happens on remand.

People v. Espinoza, 2015 IL 118218 (December 2015). Episode 121 (Duration 7:59)

To what extent must the state identify the victim in the charging instrument?

The story before the Illinois Supreme Court accepted this case was just how "intransigent" the State was with the lower court for refusing to name the minor victims in their complaint. See my previous story.

As set forth in section 111-3 of the Code, a defendant has a fundamental right to be informed of the nature and cause of criminal accusations made against him.

Because the requirement is founded upon the protection of the right of the accused against double jeopardy, it is a substantial requirement designed to safeguard a constitutional right and is not a mere technical rule. Although, neither section 111-3 nor the respective criminal code sections expressly state that the name of the victim is an element of the offense, it is well settled that “[w]here an indictment charges an offense either against persons or property, the name of the person or property injured, if known, must be stated, and the allegation must be proved as alleged.”

Effective January 1, 2014, the legislature added section 111-3(a-5) to the statute. That section states: “(a–5) If the victim is alleged to have been subjected to an offense involving an illegal sexual act including, but not limited to, a sexual offense defined in Article 11 or Section 10–9 of the Criminal Code of 2012, the charge shall state the identity of the victim by name, initials, or description.” 725 ILCS 5/111-3(a-5).

Here, defendant was charged with domestic battery, and second defendant was charged with endangering the life or health of a child. Both domestic battery and endangering the life or health of a child are crimes on which the impact is focused upon an individual.

Accordingly, the identity of the victims was an essential allegation of the charging instruments. Consequently, the lower courts were correct that the State was required to include the names of the victims in each charging instrument in order to comply with section 111-3. When an indictment or information is challenged before trial, the indictment or information must strictly comply with the pleading requirements of section 111-3. If the indictment or information does not strictly comply with the pleading requirements of section 111-3, the proper remedy is dismissal.

1. Dismissal is not going to be the standard remedy. What is suppose to happen is that the State makes the changes to the charging instrument. Here, the State was refusing to make the changes so the only remedy was the dismissal.
2. Is there really any principled reason why Double Jeopardy ceases to be a concern when we are dealing with a sex case?

People v. Burns, 2015 IL 117387 (December 2015). Episode 119 (Duration: 6:54)

This 10 year AUUW conviction is reversed because Aguilar struck down the statute facially notwithstanding the defendant's felony history.

Defendant was charged under the exact section ruled unconstitutional by People v. Aguilar, 2013 IL 112116 (September 2013).

See also last month's case (People v. Williams, 2015 IL 117470 (November 2015).) to see the exact sections we are talking about here:

However, defendant was sentenced as a class X offender because of his prior felony history. The appellate court sustained the conviction because it noted that Aguilar commented on allowing gun convictions against felons.

The Illinois Supreme Court reversed.

The Illinois Supreme Court noted that the the legislature is indeed free to create gun laws against felons and minors as they have done. However, this defendant was charged with a statute declared void. His criminal history doesn't matter when they chose to charge him under an unconstitutional crime.

The State should have charged him under 720 ILCS 5/24-1.1 - AUUW Felon.

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

• 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!