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Police officer conuducts a police dog sniff around a car after the business of the traffic stop was over. Was this legal or illegal?

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See Rodriguez v. United States, Doc. No. 13-9972 (04/21/2015).

Does the Fourth Amendment tolerate a police dog sniff around a car after completion of a traffic stop?

I have put together a collection of articles and podcasts dealing with the law around drug dog issues. If you are interested on more information then you may want to also check out the following posts:

Police Dog Case Law Summary
Police Dog Sniff of Apartment Door is a No-No

Police Dog Sniff Set-Up Procedure

Police Dog Discovery | Lets Go Get It

In this case, a K-9 Officer sees a car jerk to the right then quickly veer back into the lane. The stop occurred at 12:06 a.m.

Normal traffic stop stuff happens. The officer asks for ID from the two men in the car, asks where they going, and asks about the car jerking out the lane.

Police dog is in the car the whole time.

At 12:28 the officer gives them back their ID and gives Defendant a warning for the lane thing.

The officer asks for permission to conduct a drug sniff around the car. Defendant says “no.” Cops says “get out the car” were doing the dog sniff anyway.

Officer had already called for back-up and was just waiting for that officer to come so he could watch the two men during the sniff.

The dog alerts and the officer finds over 50 grams of methamphetamine in the car.

After, this case I guess I know how prosecutors feel about jury nullification.

The trial judge and the 8th Circuit Federal Appeals court both acknowledge that there was no probable cause or reasonable suspicion for the dog sniff. That in essence is a finding of a violation.

But they held that because the dog sniff occurred only 7 to 8 minutes after the completion of the traffic stop the Fourth Amendment violation was de minimis, not of constitutional significance, and therefore permissible.

You see what I mean. There were saying of course there was a violation of the Fourth Amendment here, but so what? Whats the big deal?

It has been well established in search and seizure law that the scope of a detention must be carefully tailored to the underlying justification for the stop. This is basic stuff.

Consistent with this notion of scope is the idea that authority for the seizure ends when the tasks tied to the traffic infraction are or reasonably should have been completed. This goes way back to Terry v Ohio, 392 U.S. 1 (1968) and Illinois v. Caballes, 543 U.S. 405 (2005).

In Caballes the Court explained that an officer may still -

Check Driver’s Licenses

Conduct Warrant Checks

Inspect Registration

Ask for Proof of Insurance

See Caballes, 543 U.S. at 408.

Also Illinois cases allow officers to ask questions about coming and goings and Illinois courts have allowed broad questions like, “Is there anything illegal in the car?”

However, these other intrusions unrelated to the traffic stop remain lawful “so long as [the unrelated] inquiries do not measurably extend the duration of the stop.” Arizona v. Johnson, 555 U.S 323, 333 (2009).

The court acknowledged that an officer may constitutionally remove a car’s occupants during a traffic stop for officer safety concerns.

This Court said that police dog sniffs are different.

A police drug dog sniff is a measure aimed at detecting evidence of ordinary criminal wrongdoing. “Highway and officer safety are interests different in kind from the Government’s endeavor to detect crime in general or drug trafficking in particular.” See page 8 of decision.

The Supreme Court characterized the government's argument this way: They said the government was arguing that because the officer was diligent of his investigation of the traffic infraction he should be given some bonus time to pursue an unrelated criminal investigation.

The court obviously brushed that notion aside.

Officers should always be moving diligently and not delaying or prolonging traffic stops unnecessarily. Further, the constitutional requirement here is not measured in absolute time. In other words, a traffic stop that occurs in a small amount of time when compared to similar type stops can still be unreasonable if it is otherwise improperly “prolonged.”

A traffic stop prolonged beyond the time that an expeditious officer could reasonably complete the mission of the traffic stop is unlawful.

The critical question is not whether the police dog sniff occurs in a reasonable amount of time, nor whether the dog sniff occurred before or after the ticket is written, but instead the critical question is whether conducting the sniff adds time to the stop.

The case was remanded to the Eighth Circuit to see if the officer may have had an independent basis justifying the expansion of the investigation.

I used to think that K-9 units would be used more and more for general patrol. Get a police officer with a dog as a partner out there and they would be able to kill two birds with one stone.

Traffic stop would automatically turn into a drug investigation.

Well, after this case I can see that it is just not that easy to  the dog during a “sniff” and still deal with a traffic stop.

Police dog is not a partner like a real partner. You know how one officer talks to you during a traffic stop and the other cop is just looking around, flashing his light into your back seat and that kind of thing.

Well, a police dog can’t be set free to just sniff around then report back to the handler.

Yea, man this car is hot. I smell some fresh bud in the back.

No, I guess it doesn’t work that way.

Testimonial statements under Crawford have a simple rule. The person making the statement must be in court and available for cross-examination.

See People v. Barner, 2015 IL 16949 (04/16/2015). The Illinois Supreme Court sheds some light on whether or not the prosecutors must have each and every DNA analysts involved on a case in court to testify.

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DNA evidence can get pretty complicated.

Not my intention here to do a comprehensive review of that topic. Going to speak about it in general terms to make our points.

The case begins with a pretty brutal kidnapping and rape. Victim is abducted and raped for a day. She is not killed, and eventually is released.

She immediately is taken to the hospital where a rape kit is obtained.

Semen and male DNA was located and preserved. Within a couple years a match to Defendant is made.

Defendant’s DNA is already stored in the CODIS (combined DNA Index System) data based. Defendant is tracked down, a fresh blood sample is provided.

This creates a more precise DNA standard for comparison, and against when his profile is compared to the profile from the rape kit a DNA match is found.

So this case gives us a good example of modern DNA analysis.

Two important things about how this is done:

1) Preliminary comparison to DNA in Codis always followed up with a fresh comparison

2) Multiple laboratories consisting of private and public lab’s and scientist are used and employed

Three DNA experts testified for the State in this case.

But each had to testify about results, conclusions, and opinions from other scientists.

For example, in this case one scientist testified about the original CODIS match. This person was comparing the profile generated from the rape kit to a profile that was already in CODIS. Some other scientist put created Defendant’s original profile and put it in the data base.

Then again, the scientist who made the most recent comparison of Defendant’s profile created from a fresh blood sample is also relying heavily on the work of other scientist.

This scientist is relying on whoever created the profile from the rape kit and this state scientist was relying on work done by a private lab. It is becoming increasingly common for state labs to contract out routine DNA work to private labs.

Defendant is saying that his confrontation rights were violated when the State’s forensic witnesses, some of whom did not conduct laboratory analysis themselves, testified regarding the conclusions of non testifying forensic analysts.

The confrontation clause is a portion of the sixth amendment to the United States Constitution that provides that “[i]n all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him.” U.S. Const., amend. VI.

Crawford v. Washington, 541 U.S. 36 (2004), was a United States Supreme Court decision that tied confrontation clause rights to cross-examination at trial. That decision overturned many evidentiary rules and procedures that allowed law enforcement to present testimonial statements without producing in court the witness who said them.

In Crawford, the Court held that …

[quote box]“[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: … the Sixth amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68-69.

Years of litigation after Crawford focused on the question: What exactly is a testimonial statement?

911 Calls

Hospital Tests

Lab Reports

Again, we can spend hours on the case law with this question. But the ones that seem significant to this question were highlighted by the Illinois Supreme Court.

1) Melendez-Diaz v. Massachusetts, 577 U.S. 305 (2009) - Drug analysis reports are testimonial because they were created for use in a criminal trial against the accused.

2) Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011)  - BAC lab reports on a blood-alcohol test are testimonial because they are only created for evidentiary purposes.

3) Williams v. Illinois, 132 S.Ct. 2221 (2012) - In this case, the really bear down on the question of whether or not a scientific report is created for the prosecution of a specific person. Here, DNA reports were found to be non-testimonial, in part because, no prosecution was underway when the testing was done. The report was not created to be used against defendant, but instead was created for the purpose of finding an unknown rapist. Unlike drug and BAC tests, these reports are also used to exonerate people. There was also an argument that said this kind of testing lacked the formality and solemnity associated with testimonial statements.

4) People v. Leach, 2012 IL 111534 - The Illinois Supreme Court has looked at the question of whether autopsy reports constitutes testimonial evidence. The court held that an autopsy report is not testimonial because it is not prepared for the primary purpose of accusing a targeted individual or for the primary purpose of providing evidence in a criminal case.

So looking at these four prior Crawford Issue decisions we see that we have a big mess on our hands.

The Illinois Supreme Court has developed the following test to determine whether or not evidence is testimonial in nature.

First, the court, in an objective manner, looks for “the primary purpose that a reasonable person would have ascribed to the statement, taking into account all of the surrounding circumstances.” ¶ 60 quoting  Leach, 2012 IL 111534, ¶ 120.

Second, if it looks like the evidence in question was “made for the purpose of proving the guilt of a particular criminal defendant at trial, it is testimonial.” Id.

This court strongly pointed out that these reports were not created as evidence against defendant. He was not a suspect at the time of the analysis. The original DNA analysis may have been connected to a different crime. The lab workers could never have known that those results would later inculpate defendant in an unrelated sex case.

The court also actually looked at the reports in this case. They found that it consisted of a various types of documents including:

Lab case notes

Worksheets

Raw Data

Inventory Forms

Consent for Testing Forms

Conversion Logs

This type of documentations is much different fromt the certified and sworn reports attesting to the substance of items seized from the arrested or to the BAC results from Defendant’s blood.

Which if you have seen these things, they basically are just a paragraph or two saying this stuff is cocaine or the Defendant’s BAC was .132.

None of the documents in this case take the form of an-

Affidavit

Attestation

Certification

Sworn statement, or

formal declaration

Thus, the documents in this case lacked the “formality and solemnity” we usually speak of when discussing testimonial statements. ¶ 54.

With the second round of comparisons, we do have a different situation.

Here, because there is a preliminary match, arguably, Defendant’s identity is known to law enforcement and to all the scientists involved in the testing.

However, there is still not a prosecution underway.

The court actually punted on this second round of DNA testing. The court held they did not have enough evidence in the record to establish whether or not the lab was in contact with law enforcement during the testing.

But even if they were in contact and directing further testing be done for an imminent prosecution, the Defendant equally cannot establish that it was done for the primary purpose of targeting him or for creating evidence for use in a criminal prosecution.

Apparently, the State Lab was in the middle of systematic retesting of samples to adhere to the later standards.

The court ultimately concluded, that even if the DNA evidence was testimonial it was harmless error.

We should expect this issue to be flushed out in futures cases.

This is especially true, if we consider the fact that increasingly private laboratories are more and more involved in routine DNA analysis in behalf of the crime labs.

Often, the private lab scientists are in other states.

The costs of actually having to get every expert who did work on a case would be very prohibitive for prosecutors.

Was there improper wintess vouching? This was the question after the prosecutor told the jury he “checked out” his witness’s story?

As a prosecutor I was always taught never say the word “I” in closing argument. Any references to my personal beliefs or to the State’s Attorney’s believes were off limits.  

“Don’t tell them what you think, explain to them what the evidence shows!” - This is more or less what I was told as a prosecutor learning the trade of jury trial work.

Why?

I was never really told at first exactly why this was a rule. Later, I figured out that it can be reversible error to if the first person is used in the wrong way!

That was enough for me to know to stay away from the first person “I”.

What is Improper Witness Vouching?

So, what’s the big deal with telling the jury how you really feel?

Well, the problem comes into play when an attorney suggests or tells the jury that they should believe their witness because the attorney believes the witness.

This line of argument usually goes along the lines of, “I believe this guy so you should too.”

This is considered fundamental error because it robs the jury of their primary role as trier of the facts.

To be clear, an attorney vouching for the credibility of her witness is a no-no both for prosecutors and defense attorneys.

I would suggest leads to greater error and a greater chance for fundamental unfairness when the State  does it.  

This is what I mean -

When a defense attorney tries to vouch for her witness it simply is not that effective. It doesn’t work! And it may actually hurt the defense.

But when the State does it is a different story. You see, the a prosecutor has the power of her office behind her.

Imagine if Saul Goodman was standing in front of a jury explaining that he personally believed in his client’s veracity. “Ineffective plea” is the most kind term that comes to mind.

But a prosecutor is an advocate for the State, for law enforcement, and for justice (if you buy into that line). An unknown, even young attorney, representing the People is the spokesman for the government.

So lets look at what we got today.

We begin with a drive-by-shooting in Chicago. There is a gang war going on and the State has a “flipper” on the stand.

A “flipper”, of course, is a co-defendant who has turned state’s evidence and testifies against his codefendants. The witness has “flipped” sides, as they say.

Flipper says he was driving Defendant and another passenger in a car. When the rival gang member was seen, Defendant and the rears seat passenger opened fire.

According to Flipper, Defendant was sitting in the front seat passengers seat.

Defendant testified that yea, he was in the car.  But he insisted that he was high on cannabis and alcohol. He was asleep in the front seat when he was awoken by gunfire. According to Defendant, the rear seat passenger and the Flipper were the shooters.

Defendant said that the Flipper reached across him with a gun and fired through the passenger side window.

It was a classic “he said-he said.” Thus, it was a close case.

All the car passengers had motive because they were all the same gang at war with the rival gang that was shot at. The gun, however, was bought by a relative of the Flipper, and the Flipper had been shot in the past by the members of the targeted gain.

So maybe the flipper had a bit more motive for the shooting.

So did the prosecutor improperly vouched for credibility of his gang member witness?

This is what he said:

[quote box] "When a gang member comes before us and is charged with an offense, we don’t just take everything he says for truth immediately, we check it out. And that’s why in January 2010 when [The Flipper] came over to my office and spoke to me with his attorney and I was with the gang specialist, we [took] everything he said and we checked it out, * * * We go over it and we get records from the phone companies and that’s why we go over and we go to the FBI and say help us with this, tell us what happened here, * * * We corroborate. We don’t just put-- and take the word of anyone….we check it out." ¶  9.

So it was not exactly vouching like I first talked about it.

He didn’t say, “Hey, I believe him so you should too.”

He is basically saying, “There is corroborating evidence and that is why you should believe him.”

Generally, there is nothing wrong with supporting your witness and advocating for their credibility.

You know the arguments.

A popular, and quite effective line of argument often made by prosecutors in support of questionable witness comments directly on the unsavory aspects of the witness.

This kind of closing statement to the jury can go like this:

“You don’t have to like this guy. Yes, he is a State witness, but we are not asking that you like him. We are not asking that you to breakfast or to hire him as your babysitter. Your only responsibility towards him is to judge his credibility. Is he telling the truth? That is all that matters.”

This is usually where all the corroborating evidence is then discussed.

This is the part of the argument that involves adding up all the bits of admitted evidence that ted to corroborate the unlikeable State’s witness's story.

There is a second line of argument that is also quite legal, proper and effective. I always was quite fond of this line of argument. It was often called “Blaming Defendant.”

You know how that line went:

“Well, guess what folks? Do you know why know [Flipper] was our main witness? Do you think we walked into the county jail and picked the most savory person in a jump-suit to tell this story? No. [This is where you point to the Defendant] He picked this witness. Defendant picked our witness when he decided to jump into an SUV and troll around the city with [Flipper] hunting rival gang members.”

Anyways back to our story here.

Sounds like the prosecutor was close to committing error but did he?

This case does a great job of describing the dangers associated with improper vouching. The court said that -

"The prosecutor's vouching for the credibility of witnesses *** pose[s] two dangers: [(1)] such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and [(2)] the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence.” People v. Townsend, 136 Ill. App. 3d 385, 402 (1985) (quoting United States v. Young, 470 U.S. 1, 18-19 (1985)). ¶ 13.

The second point is the more familiar one I already discussed, but the first point here is also very important.

The first point is saying that the problem with the “believe him because I do” arguement is that it also tends to imply that there is another compelling evidence out there that supports the credibility of the witness.

Obviously, that is a huge problem. If the evidence has not been admitted then it can’t be used or argued in closing statements. Any inference that there is unadmitted corroborating evidence is a big taboo.

It is just another version of “trust me, he is guilty.” Can’t do that.

With this in mind, it is much easier to see that the prosecutor, committed error with his argument. “We checked it out” combined with the references to the FBI suggested there are other reasons to believe this guy. These other reasons, if they exist, were never admitted in the trial.

Indeed the court held that

“The message that the prosecutor sent to the jury here suggested that the State's Attorney would not put an untruthful witness on the stand. That goes even further than the prosecutor's opinion. The prosecutor explicitly told the jury that [the flipper’s] credibility had already been assessed before he took the stand. The prosecutor urged the jury to believe [their witness] over defendant because of the government's verification of [their witness’s] version of events.”  ¶ 17.

I got to tell you that this other prong with improper vouching was not at all at the forefront of my mind. But after this case it is another thing to be on the look out for during closing arguments.

This was a close case so the trial court's judgment was reversed, defendant's convictions were vacated, and the cause was remanded for a new trial. Ouch.

Go to Show Notes.

What’s so wrong about about a little firearm discharging during the holidays? That’s why we have guns. Am I right? Am I right?

/////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////

Well, this case begins with a little holiday celebrating. See People v. Moreno, 2015 IL App (3d) 130119 (03/25/2015).

Facts

It is News Year’s Eve! Defendant is at home doing a little celebrating with family and friends.

Defendant owns a gun. However, he is a responsible gun owner. He keeps his gun locked up in a box and only takes it out when it is appropriate to do so.

Like after he has been drinking, is a little drunk, and has guests with their children over for a party.

But any how…

Defendant walks out of his house and onto his porch and fires his gun. It was a little .22. And I know it was a little gun from mob movies.

Now, this is important. Defendant shoots the gun into ground; into a grassy dirt area. The gun was not fired while aimed in the air nor in anyones direction.

Police just happened to be in the area because they were reporting to shots fired. Not Defendant’s shots but other shots. Maybe they were shooting guns earlier maybe not. Who knows?

Defendant is quickly arrested and his guns confiscated. Shell cases are recovered in the dirt right where Defendant had fired his gun.

Defendant was convicted of Reckless Discharge.

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Now this in every respect to me seemed like an easy case. Caught, literally with a smoking gun in his hand by the police.

Lets move on to sentencing.

But Defendant in his appeal was saying: “Hey, not so fast.”

“Hey Man, (sounds like something he would say)

I was on my own property

I used my little gun

The kids stayed inside

Everyone was behind me

I fired away from people

I fired into the ground

There was nothing reckless about this shooting.”

The prosecution was, on the other hand was arguing that this shooting occurred in a residential area.

There is more than enough case law around saying that shots fired in a residential area is per se reckless. Defendant is not denying that he did this. His house was in a residential area.

Even though he fired into the ground it was still reckless because there is a chance of

Ricochet off the ground

Gravel is often found in the ground

Metal pipes are in the ground

Can we move on to sentencing?

So, what did the appellate court decide?

Essentially, we are asking the question: What is a Reckless Discharge?

The Illinois Criminal Code says that a …

[quote box]“person commits reckless discharge of a firearm by discharging a firearm in a reckless manner which endangers the bodily safety of an individual.” 720 ILCS 5/24-1.5(a).

Recklessness is further described as when a person …

[quote box] “...consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow... and that disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation...” 720 ILCS 5/4-6.

The prosecution is correct in pointing out that there is a plethora of cases out there saying that shots fired in a residential area is reckless.

But that is not exactly the rule. Its not a per se rule unless the courts say it is.

What the Illinois Supreme Court has actually said about the charge of Reckless Discharge comes down to things:

(1) The discharging of a firearm; and

(2) Endangering the bodily safety of an individual

See People v. Collins, 214 Ill. 2d 206 (2005).

Furthermore, the argument that shooting a gun into the air in a residential area is dangerous because we all know that bullets shot into the air must come down. The bullets coming down can hurt someone.

There are indeeds recorded cases in the books of individuals being killed by a bullets fired into the air miles away in a residential area.

The reviewing court said that firing into a dirt patch is not the same as firing into the air. “[Defendant's shots into the ground were not per se reckless.”  ¶ 43. Even the cop testified that “a dirt pile is utilized at the Illinois State Police headquarters to absorb bullets fired at the range and that defendant fired his gun into a grassy dirt area.” ¶  43.

The court went on to hold that nobody was ever in any real or demonstrated danger here.

There was evidence that

Defendant shot blanks and life rounds

Shots aimed at the ground

The partygoers were behind Defendant

Thus, the risk of danger by potential ricochet was virtually zero. See ¶  44.

Conviction for reckless discharge is overturned. Conviction for possession of controlled substance the cops found in Defendant's room stands.

There was a dissenting opinion.

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Was the burglary definition rewritten by this court decision? A Creative charging decision by the prosecution brings to focus exactly what it means to commit a burglary.

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Let me cut to the chase to lay our foundation in this case.

The majority in this case, overturned a burglary conviction. The reviewing court held that the facts described in this bench trial simply did not add up to a burglary.

Defendant was charged with burglarizing a pawn shop. This was not a “breaking and entering at night” type of thing when the store was closed.

No, he simply walked into the store to sell stolen items.

Specifically the facts at trial were that

This appellate decision said, that ain’t a burglary.

Before we really get into it, I want to look at the dissent first.

The dissent paints a really logical, clean picture of things.

At a first reading, it is hard to argue with the dissent. They seem to get it right. The dissenting judge said that majority was wrong because they have misapplied the theft statute.

Ok, so now the fun can begin.

The exact charge here is that the...

“defendant committed the offense of burglary when he knowingly entered the building of Pawn King with the intent to commit therein a theft. In count IV, the State alleged he committed the offense of burglary when he knowingly entered the building of Pawn King a second time with the intent to commit therein a theft.” ¶  5.

See the Illinois Criminal Code section 720 ILCS 5/19-1(a).

So, we can see that a “theft” is built into the burglary statute.

There are different kinds of theft and different ways to prove a theft. We are going to specifically compare just two kinds of theft.

A “theft” actually consists of two things. It has an action part and a mental part. Action part is usually the taking of a thing. This must be combined with the a mental state of intending to permanently deprive the owner of the use of the thing taken.

So a theft can be thought of as -

The actual relevant portions of the theft statute in the Illinois Criminal Code says this:

“A person commits theft when he knowingly:

(1) Obtains or exerts unauthorized control over property of the owner; or…

(4) Obtains control over stolen property knowing the property to have been stolen or under such circumstances as would reasonably induce him to believe that the property was stolen; … and 

(A) Intends to deprive the owner permanently of the use or benefit of the property; or …

(B) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit.”

720 ILCS 5/16-1(a).

The dissent is correct in explaining that the subsection (A) element of the theft statute is fundamentally different fromt the subsection (B) because the subsection (A) element is a mental state that is present at the moment the defendant obtains control over the stolen property. The subsection (B), on the other hand, is an action that the defendant completes after he obtains control over the stolen property. See ¶ 31.

Now, I know I just said that a theft involves an action and a mental state.

This is still true.

When the dissent talks about subsection (B) as an action completed after control is taking, this is still really just defining a mental state. Its an action that that is done in such a way that clearly demonstrates the intent to permanently deprive the owner of the use of the item in question.

Stay with me.

This is how the dissent described the mistake by the majority.

The dissenting judge explained that “the majority appears to be viewing this case as if it involved the charge of theft under section 16-1(a)(4)(A) ... which requires proof of the defendant's intent at the time he obtains control over the stolen property. This case, however, involves section 16-1(a)(4)(B) …  which requires proof that the defendant used, concealed, or abandoned the stolen property after he obtained control over it.” ¶  29.

The dissent is basically saying that the defendant committed a theft inside the pawn shop because he went in there and demonstrated his intent to permanently deprive the owners of the property the use and benefit of that property.

How did he do that?

He sold their crap to the pawn shop!

The dissent is saying that this defendant committed a 16-1(a)(4)(B) inside the pawn shop. The dissent thought the majority incorrectly limited their view of theft as a 16-1(a)(4)(A) theft, which requires proof of the defendant's intent at the time he obtains control over the stolen property.

See what I mean? It is kind of hard to argue with the dissent.

What is the dissent worried about?

Well, the judge said that to hold otherwise means that a fence would be insulted from their criminal conduct.

“A fence who receives valuable stolen property (which is the definition of what fences do) and keeps the property for three years (the theft statute of limitations) before trying to sell it may now do so with impunity.” ¶ 42.

Lets hit the refresh button and go at this from majorities’ point of view.

The majority, indeed, concluded that “defendant committed the theft when he obtained control over the stolen property on the street.” ¶  14.

The majority noted that:

“The State's theory was that defendant committed theft by obtaining control over stolen property and then pawning the property at Pawn King. The State claims defendant entered Pawn King with the intent to pawn the property and thereby committed the permanent deprivation element of theft. However, a person "obtains" control over property through an act occurring at a specific point in time by "bring[ing] about a transfer of interest or possession." 720 ILCS 5/15-7. Here, the permanent-deprivation element had already been completed when defendant entered the pawnshop.” ¶ 15.

The majority is saying that a theft is only shown when a proscribed act of “taking” or “obtaining control” is proven.

These acts constitute a theft if it is established that they are performed with the mental states requisite for conviction. Subsections (A) and (B) describe these mental states or describe conduct from which we can infer the required mental state.

At all times, the important mental state is the mental state at the time of the taking or obtaining control.

Some later action may demonstrate the mental state at the time of the taking or obtaining control but that does not mean the the theft was completed later. The later action just shows clearly what the mental state was at the time of the taking or obtaining control.

The theft occurred before Defendant entered Pawn King.

“Accordingly, defendant did not enter Pawn King with the intent to commit therein a theft, as required under the burglary statute. In short, the pawnshop was not burglarized.” ¶ 17.

The majority had its own concerns. They had their own “to hold otherwise.” They thought that:

“To hold otherwise under similar facts would lead to bizarre results. For example, defendant could knowingly obtain stolen property on the street and stop by his neighbor's house with the intent to sell the property to that neighbor. See People v. Bailey, 188 Ill. App. 3d 278, 284-85, 543 N.E.2d 1338, 1342 (1989) ... Under the State's theory, upon entry into his neighbor's house, defendant would have committed a residential burglary, a nonprobationable Class 1 felony (720 ILCS 5/19-3(b)).” ¶ 17.

Therefore, the majority had not problem in holding that...

“ by obtaining control over stolen property on the street, defendant acted with the intent to permanently deprive the owners of the use and benefit of their property. Thus, defendant had already committed the theft when he entered Pawn King. As he could not have entered Pawn King with the intent to commit therein a theft, since it already occurred, he could not be found guilty of burglary. Accordingly, defendant's convictions for burglary must be vacated.” ¶ 23.

Who was right? Did the majority just make up a new burglary definition or is it the dissent who is inventing a crime where the there is not one?

How you feel about who is right and who is wrong may largely depend on who had the more serious “to hold otherwise.”

I use to feel apologetic for having an opinion that was “pro” defense. But you know what I am over that.

When was the last time you heard a prosecutor apologize for their views and opinions about the law?

The dissenting opinion’s concerns just don’t hold up.

The dissent is worried about diluting the theft charge. But you know what this was not really a theft charge. It was a burglary. The state could have charged Defendant with Theft and won that charge.

Nothing in this decision prevents the State from going after fences and charging them with the 16-1(a)(4)(B) forms of charge.

Go it. Make the case and bring the charges.

They proved the case. But the didn’t charge Defendant with the theft.

The majority has the more valid concern. They are more worried about the state being allowed to overcharge a defendant and get away with it.

The state actually overcharged Defendant with a residential burglary. The amendment to the burglary of the pawn shop came late in the game as the case moved closer to trial and the state realized they couldn’t prove a residential burglary.

Rather then charge the Defendant appropriately they got caught and called on bringing the wrong charges. To hold otherwise in this case means the court system would make it easier for the state to get away with this.

So how ‘bout them nuggets!

Go to Show Notes.

An unlawful arrest by police cannot legally be resisted by a citizen. That is just the law. Podcast Episode 063 takes a look at the complicated dynamics in one recent unlawful arrest.

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See People v. Jones, 2015 IL App (2d) 130387 (03/17/2015).

The Unlawful Arrest by Police

Neighbor calls police because stuff is breaking in an argument between Defendant and his girlfriend.

When the officer arrives Defendant tells him there is no problem and that he needs to get off his property. The officer notices that Defendant is intoxicated.

The officer, at this point, -

Defendant was openly hostile towards the officer. After cursing at the cop and telling him to go away Defendant began to walk away.

This is when the officer decides to arrest the defendant.

“Defendant started pushing and pulling away, so [the officer] took him to the ground. Defendant began to kick the officer repeatedly.”  ¶  7.

This is finally when the girlfriend comes out to yell at and push the cop.

The struggle then moved to the front yard. The officer was attempting to put Defendant into handcuffs while Defendant attempted to get the officer into a headlock.

At one point, the officer draws his weapon but he holstered the gun when the Defendant walked away. Finally, when additional officers arrive Defendant gets tased twice and finally arrested.

Defendant was convicted of aggravated battery to a peace officer (720 ILCS 5/12-4(b)(18) and obstructing a peace officer (720 ILCS 5/31-1(a)).

The rule of law in this case is quite simple. Nothing complicated going on here.

Yet, the case is significant because it highlights the difficult choices the police officer had to make.

I do think it is important to look at things from the perspective of law enforcement. The headline could very easily be that a false arrest leads to a five year prison sentence and the police just abused their police power.

But there is more going on.

The cop was responding to a domestic. When a man kills a woman it is often in a domestic-type situations. Everybody knows this.

Under the law what should the officer have done differently?

So what is the rule here?

The Illinois Criminal Code explains about a “Private person’s use of force in resisting arrest.” It says:

A person is not authorized to use force to resist an arrest which he knows is being made either by a peace officer or by a private person summoned and directed by a peace officer to make the arrest, even if he believes that the arrest is unlawful and the arrest in fact is unlawful.

720 ILCS 5/7-7.

There are two very important points to make.

- First, this section only covers the arrest however. Anything that happens before the officer is attempting to formally cuff and arrest the defendant is not covered by this section.

- Second, because of this section a person is generally not allowed to claim self defense against an unlawful arrest committed by the police.

The officer’s entry into the defendant’s home in this case was a violation of the fourth amendment and was not an “authorized act” for purposes of the obstruction charge under section 720 ILCS 5/31-1.

The home has a special protection status under the law.

“The fourth amendment generally prohibits the police from entering a private residence without a warrant. People v. Foskey, 136 Ill. 2d 66, 74 (1990). Indeed, the fourth amendment “has drawn a firm line at the entrance to the house.” Payton v. New York, 445 U.S. 573, 590 (1980). Accordingly, absent exigent circumstances, the police may not enter a private residence to make a warrantless search or arrest. Id.; People v. Davis, 398 Ill. App. 3d 940, 948 (2010).” ¶  13.

Thus, the reviewing court concluded that when the officer was assured that there was no problem and he saw that the girlfriend was not beat-up he needed to leave the home. Thus, the court reversed Defendant's conviction for obstructing a peace officer.

The aggravated battery to an officer, however, is a different story.

Even though the arrest itself was unlawful, the facts still demonstrated that defendant was belligerent and combative from the beginning with the officer. When it was clear that defendant would not cooperate, the officer merely grabbed his arm and tackled him, which was the only way to complete the arrest.

The act of attempting to arrest defendant was unlawful but it was “excessive.” This distinction is important.

Citizens may tend to think that any unlawful arrest is “excessive”. But the law sees a difference.

Had the officer acted with undue excessive force then Defendant would have been allowed to legally defend himself with force. That would have erased the rule under 5/7-7 described above.

A jury can be, and only be instructed on a self-defense claim against police action when there is evidence of excessive force. To allow the instruction more liberally would eviscerate the rule that a person cannot resist an unlawful arrest.

Defendant took the position that because the officer unlawfully remained at his home, all his subsequent acts were tainted, entitling defendant to resist them by any force necessary. But This is not the law.

Defendant’s five year prison sentence for aggravated battery to a peace officer was upheld.

We are still left with a situation where a man is doing five years for aggravated battery to a cop who was committing an unlawful arrest.

A fight between a citizen and an officer took place. Gun was drawn. Citizen was tased. Everyone was put at risk.

That is a problem.

Yet, there is still a very complicated dynamic going on here.

The officers perspective is important.

I am not saying this unlawful arrest was justified. I am just saying that the officer’s perspective has to be understood. I don’t read this case as one involving a cowboy cop. This was one of those difficult situations that highlights the difficulties of officers dealing with the public.

The outcome does and should be avoided. But how do we get there?

The simple notion that this is all avoided if Defendant just doesn’t fight is not sufficient. The idea that the arrest would have been thrown out in court and he wouldn’t be doing five years right now gets us nowhere.

That ignores the valid mistrust of law enforcement in some communities.

It is just not helpful.

It is no more helpful than me saying that the police are all corrupt and all they do is create the problems they are supposedly trying to solve. Ignoring or glossing over the real concerns the officer had in this case is equally unhelpful.

The reviewing court seemed to think that the officer was justified until he saw that the girlfriend was uninjured.

So it appears the law recognizes that the officer had a special duty to assure the safety of the girlfriend.

Instead of arresting Defendant, when he did not know her condition, the officer could have explained that he would right after he could see that she was alright.

It may have ended the same way, we don’t know. But I think there is great value in knowing what the “correct” pathway looks like.

Click for Show Notes

An Illinois reporter’s privilege goes up against a defendant’s due process rights in this case. Find out who won when the First Amendment battled the Fifth Amendment.

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The basic idea here is that a reporter was held in contempt of court for refusing to disclose the source of is information in the articles he was writing.

This involved a murder trial against 4 individuals alleged to be involved in the strangling of two victims.

Apparently, the reporter was writing stories about the case that involved details of the events surrounding the murders. It looked like the reporter also got his hands on the police reports as well.

Naturally, one of the Defendant’s wanted to stop these stories because it any potential jury pool would be prejudiced and it made their look client look bad.

Gag orders were filed, motions to compel the other parties to fess up where granted, and everyone involved denied being the “leak.”

Finally, the defense attorney files a motion to divest the author of his reporter’s privilege compelling him to disclose his source of information.

Trial court grants the motion.

The court believed or had grave concerns that -

The court was also keenly aware of the reporters First Amendment Freedom of the Press rights but balanced the competing interests in favor of the Defendant’s criminal rights.

The court flatly said -

“This Court is aware of its duty and obligation to protect the First Amendment Rights of the reporters, but cannot envision where those rights are superior to the fair trial rights of individuals charged by the State with the most serious criminal offenses.” ¶ 6.

The reporter was then held in contempt of court, fined $1000 plus $300 for every day of noncompliance, and threatened with incarceration.

Thank goodness, jail was stayed pending the appeal.

The party asking for the divestiture has to establish some nexus between the news reports and the criminal prosecution. The issue on appeal deals with the scope of relevancy between the leaked information and the court proceeding.

So lets look at what the applicable law is here in Illinois when it comes to a reporter’s privilege under the freedom of the press. See Reporter’s Privilege 735 ILCS 5/8-901 et seq.; see also People v. Pawlaczyk, 189 Ill. 2d 177, 188 (2000).

“‘The purpose of the privilege is to assure reporters access to information, thereby encouraging a free press and a well-informed citizenry.’ Pawlaczyk, 189 Ill. 2d at 187.” ¶ 11.

Section 8-901 grants the privilege.

“No court  may compel any person to disclose the source of any information obtained by a reporter except as provided in Part 9 of Article VIII of this Act.” 735 ILCS 5/8-901.

A party wishing to divest this privilege from the person claiming it must file a written petition with the court that -

See 735 ILCS 5/8-904.

Finally, a divestiture order may only be granted after a court considers certain factors described below:

“In granting or denying divestiture of the privilege provided in Part 9 of Article VIII of this Act the court shall have due regard to the nature of the proceedings, the merits of the claim or defense, the adequacy of the remedy otherwise available, if any, the relevancy of the source, and the possibility of establishing by other means that which it is alleged the source requested will tend to prove.”

735 ILCS 5/8-906.

When it comes to determining if the leaked information is relevant to the legal proceeding, the Illinois Supreme Court has said that -

“...a fact is ‘relevant’ if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Pawlaczyk, 189 Ill. 2d at 193.

So relevancy is this context is basically described the same way it is described under the rules of evidence. See Illinois Rules of Evidence 401.

This is a narrow view of the term that the reporter and all the amicus briefs filed in his behalf were requesting.

Clearly, in this matter the court granted the divestiture motion not because the reporter’s stories tended to prove or disprove an issue in the murder trial.

Remember, the court had all these other concerns on on his mind. But these are only collateral concerns when they don’t deal with the murder case directly with the elements of the crime charged.

Compelling the reporter to disclose his source is not germane to any fact of consequence to the first degree murder charges against the defendant. No information sought, is material to proof of an element of murder, to proof of the defense asserted by a defendant in this charge, to proof of a reduction in the gradation of the charge, nor to proof to a mitigation of the penalty associated with the charge.

“[R]elevance to such collateral matters is not sufficient to satisfy section 8-904’s threshold requirement that the sought-after information be relevant to the proceedings in which it is being sought. See Pawlaczyk, 189 Ill. 2d at 193-94.” ¶ 14.

The court’s order granting divestiture, the contempt finding, and all the associated fines and punishment of the reporter were vacated.

Judge wasn’t crazy.

He had legitimate, serious concerns.

We have seen cases where the written statute doesn’t mean exactly what it says. This, however, is not one of those situations.

Show Notes Here.

Title:   Aggravated DUI Probation in Death Cases With Anthony Vaupel

Category:   Podcast | Evidence --> Impeachment

Keyword:   Aggravated DUI Probation

Illinois statutes allow for aggravated DUI probation in cases where a death results only in extraordinary circumstances. But what exactly is an extraordinary circumstance allowing for probation when someone is killed by a DUI driver?

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We are talking about a very specific section on the Illinois Traffic Code. An aggravated DUI probation refers to the the charge of aggravated DUI listed under 625 ILCS 5/11-501(d)(1)(F) which references the sentencing provision located under 625 ILCS 5/11-501(d)(2)(G).

This aggravated DUI is described this way:

“(1) Every person convicted of committing a violation of this Section shall be guilty of aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof if…(F) the person in committing a violation of subsection (a), was involved in a motor vehicle, snowmobile, all-terrain vehicle, or watercraft accident that resulted in the death of another person, when the violation of subsection (a) was the proximate cause of the death…”

625 ILCS 5/11-501(d)(1)(F).

The sentence provision in question goes on to state that:

“(G) A violation of subparagraph (F) of paragraph (1) of this subsection (d) is a class 2 felony, for which the defendant, unless the court determines that extraordinary circumstances exist and require probation, shall be sentenced to: (i) a term of imprisonment of not less than 3 years and not more than 14 years if the violation resulted in the death of one person; or (ii) a term of imprisonment of not less than 6 years and not more than 28 years if the violation resulted in the deaths of 2 or more persons.

625 ILCS 5/11-501(d)(2)(G).

These provisions in the law have always made me pessimistic that probation would ever be given by a judge sentencing an offender convicted of a DUI when there was a death involved.

I personally have never seen probation actually granted in a real life case that I was involved with or that was handled by an attorney I was acquainted with.

That is until I came across the research conducted by attorney Anthony W. Vaupel. Anthony did his homework on this issue and hunted down cases in the record where a trial judge actually did grant aggravated DUI probation in cases with a death.

Anthony Vaupelis criminal law attorney. Tony is an attorney at Barash & Everett, LLC in Galesburg, Illinois. Tony authored the article “When DUI Causes Death: What ‘Extraordinary Circumstances’ Justify Probation?” Published by the Illinois Bar Journal.  Members of the Illinois State Bar Association can link directly to the article here.

Tony does a great job of highlighting the cases where probation was granted. Here are the cases cited in the article:

People v. Gomez, Cook County 2007 CR 23709

People v. Burgess, LaSalle County 2008 CF 752

People v. Lorusso, Kane County 2009 CF 1775

People v. Palmer, Peoria County 2011 CF 1206

People v. Patel, Stark County 2013 CF 6

Gomez

This case involved a 17 year old who was drinking with his father. Dad told the defendant to drive because, of course, father was intoxicated. There was an accident that lead to the death of the dad.  

Burgess

Defendant Burgess was a mother with her four children in the car. She was driving with a BAC of .23 when she had an accident with another motorist. One her kids was killed. The court felt it could not punish Defendant any more harshly than the punishment of losing a child. Her term of probation still included some county jail time.

Lorusso

This Defendant was perhaps was the least sympathetic. The factual basis revealed that he was belligerent with the police, was spitting blood at officers and told the police he did not care about his passengers. It was one his passengers that was killed. By the sentencing hearing, Defendant had changed his tune. The court was informed of his change in attitude and remorse.

Palmer

This defendant suffered from hypoglycemia when his car crossed the center line and struck the victim’s head-on. There was evidence he was having a hypoglycemic episode at the time of the accident. Unfortunately, he also had cannabis in his system.

Patel

This was another mother who accidently killed a child. This was a single car accident. The father and other siblings all testified they did not want to their mother to go to prison. Additionally, her business would fail if she was imprisoned. Again, the court felt it could not punish her more harshly than the self imposed death of her child.

Click Visit Show Notes

After Aguilar, the fallout for Aggravated Unlawful Use of a Weapon - 720 ILCS 5/24-1.6 convictions remains consistent. Some gun convictions will remain valid. However, the Illinois Supreme Court has recently thrown a bone to the defense bar by invalidating the sentencing provision which made a nonprobationable class 4 AUUW.

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The Illinois Supreme Court has more to say about AUUW charges. See People v. Mosley, 2015 IL 115872 (02/20/2015).

People v. Aguilar, 2013 IL 112116 (09/12/2013), was the watershed case in Illinois that invalidated certain sections of the AUUW statute.

A quick summary of some of twists and turns that followed the case include:

Lets look at what the Illinois Supreme Court is doing now.

The story here is not uncommon for a gun charge.

19 year old defendant is approached in a park by police. He runs away. During the run he drops a loaded revolver from around his waistband.

Police recover the gun and arrest Defendant.

Defendant is charged with and convicted of multiple counts of aggravated unlawful use of a weapon charges.

The Illinois Criminal Code Aggravated Unlawful Use of a Weapon Aggravated Unlawful Use of a Weapon - 720 ILCS 5/24-1.6 (AUUW) section provides that:

(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:

(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her 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; or

(2) Carries or possesses on or about his or her person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town, except when an invitee thereon or therein, for the purpose of the display of such weapon or the lawful commerce in weapons, or except when on his or her own land or in his or her 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; and

(3) One of the following factors is present: (A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense; or *** (C) the person possessing the firearm has not been issued a currently valid Firearm Owner’s Identification Card; or *** (I)  the person possessing the weapon was under 21 years of age and in possession of a handgun as defined in Section 24-3, unless the person under 21 is engaged in lawful activities under the Wildlife Code or described in subsection 24-2(b)(1), (b)(3), or 24-2(f).

***

(d) Sentence.

(1) Aggravated unlawful use of a weapon is a Class 4 felony; ***

(2) Except as otherwise provided in paragraphs (3) and (4) of this subsection (d), a first offense of aggravated unlawful use of a weapon committed with a firearm by a person 18 years of age or older where the factors listed in both items (A) and (C) of paragraph (3) of subsection (a) are present is a Class 4 felony, for which the person shall be sentenced to a term of imprisonment of not less than one year and not more than 3 years.”

720 ILCS 5/24-1.6.

Here is a summary of the charges against defendant.

“The State charged defendant in count I with UUW in a public park (720 ILCS 5/24-1(a)(10) (West 2012)), and with six counts of AUUW: count II, carrying on his person or in any vehicle, outside the home, a firearm which is “uncased, loaded and immediately accessible” (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2012)); count III, carrying on his person or in any vehicle, outside the home, a firearm without a valid FOID card (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2012)); count IV, carrying on his person or in any vehicle, outside the home, a firearm which is “a handgun” while under 21 years of age unless “engaged in lawful activities under the Wildlife Code” (720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2012)); count V, carrying or possessing on his person, upon any public way, a firearm that is “uncased, loaded and immediately accessible” (720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West 2012)); count VI, carrying or possessing on his person, upon any public way, a firearm without a valid FOID card (720 ILCS 5/24-1.6(a)(2), (a)(3)(C) (West 2012)); and count VII, carrying or possessing on his person, upon any public way, a handgun while under 21 years of age unless “engaged in lawful activities under the Wildlife Code” (720 ILCS 5/24-1.6(a)(2), (a)(3)(I).” ¶ 6

AUUW Subsections Under Which Defendant Was Convicted

720 ILCS 5/24-1.6

(a)(1)-Person or Vehicle

(a)(2)-Public Way

(a)(3)(A)-Uncased, Loaded

Count II

Count V

(a)(3)(C)-No FOID Card

Count III

Count VI

(a)(3)(I)-Under 21 & Not Hunting

Count IV

Count VII

Count I was the misdemeanor “NO FOID” section under 720 ILCS 5/24-1(a)(10).

I have already mentioned People v. Aguilar, 2013 IL 112116 (09/12/2013). This was the watershed case in Illinois that invalidated certain sections of the AUUW statute.

The fallout since that decision have largely remained consistent with a few twists and turns along the way. However, in this decision the conclusions remain straight forward.

Certain sections of the AUUW statute remain unconstiutional. Yet, some sections remain valid and good law.

A summary of the Illinois Supreme Court’s findings in this case is summarized below in the table.

AUUW Subsections Under Which Defendant Was Convicted

720 ILCS 5/24-1.6

(a)(1)-Person or Vehicle

(a)(2)-Public Way

(a)(3)(A)-Uncased, Loaded

Count II: 
UNCONSTITUTIONAL

Count V:
UNCONSTITUTIONAL

(a)(3)(C)-No FOID Card

Count III:

VALID

Count VI:

VALID

(a)(3)(I)-Under 21 & Not Hunting

Count IV:

VALID

Count VII:

VALID

- Count II was the exact charge under scrutiny in Aguilar. No surprises. It remains unconstitutional in this case.

- Count V was found to be unconstitutional as a logical extension of the holding in Aguilar.

One of the most important points after Aguilar is the fact that some provisions of the AUUW statute remained constitutional, valid crimes. Again, there are no surprises here and the

Illinois Supreme Court again concluded that certain convictions were going to be upheld against Defendant.

In upholding the remaining counts as valid convictions the court found that “the FOID card requirement of subsection (a)(3)(C) is consistent with this court’s recognition that the second amendment right to possess firearms is still ‘subject to meaningful regulation.’” Quoting Aguilar, 2013 IL 112116, ¶ 21.

- Thus, Counts III and Counts VI convictions were upheld.

In regard to minors possessing guns, the court concluded “that where ‘the possession of handguns by minors is conduct that falls outside the scope of the second amendment’s protection’’ Quoting Aguilar, 2013 IL 112116, ¶ 41.

AUUW section 24-1.6(d)(2) creates a nonprobationable class 4 offense when the defendant

As far as I know, this is the only nonprobationable class 4 offense in Illinois. The Illinois Supreme Court pretty easily struck down that provision as a logical extension of Aguilar.

The court found “that section (d)(2) is invalid, as it incorporates subsection (a)(3)(A), found to be unconstitutional in Aguilar.” ¶ 52.

The Court said that because subsection (a)(3)(A) has been found unconstitutional, the requirements for sentencing under subsection (d)(2) cannot be met, as a statutory section cannot be “present” if it is void ab initio. Citing In People v. Blair, 2013 IL 114122, ¶ 28.

Since, one part of (d)(2) was invalid from the beginning, the entire sections has to be invalidated “ as it requires a conviction based upon an unconstitutional and unenforceable statutory section.” ¶ 55.

This is not entitled as a comprehensive summary of the state affairs after People v. Aguilar. That may be something that happens down the road.

The main objective was today was to do a limited recap of Aguilar but more importantly to announce the death of Illinois’s class 4 nonprobationable sentencing provision.

It was crazy to believe that the great State of Illinois ever had a nonprobationable class 4 offense. That's crazy. Especially this felony. The Illinois Supreme Court, in Aguilar, confirmed that these actions were not even crimes, but you could have gone to prison for that very conduct!