Kane County Nuggets

http://IllinoisCaseLaw.com/725-ilcs-5-111-3c-notice-requirement-lets-keep-it-simple

The 725 ILCS 5/111-3(c) notice requirement doesn't have to be complicated or hard to understand. Things would be easier to understand if it was not thrown necessarily.

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See People v. Sumler, 2015 IL App (1st) 123381 (February 11, 2015).

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Just so we all know what I am talking about, I mean the Illinois Code of Criminal Procedure Section 111-3(c). It provides:

"When the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence and shall state such prior conviction so as to give notice to the defendant. However, the fact of such prior conviction and the State's intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial. For the purposes of this Section, "enhanced sentence" means a sentence which is increased by a prior conviction from one classification of offense to another higher level classification of offense set forth in Section 5-4.5-10 of the Unified Code of Corrections (730 ILCS 5/5-4.5-10); it does not include an increase in the sentence applied within the same level of classification of offense."

725 ILCS 5/111-3(c).

In the end, this is may be just be a little case with no big ramifications.

I agree with the results. They got it right.

My first reaction was that it could not be right.  But upon further, careful review I adjusted my thoughts.

I have figured out my original discontent. I’ll explain, but basically I think I may have been reacting to broad sounding language that was in the opinion. I’ll talk about it and highlight it, but don’t mind so much anymore.

I’ll try to explain this from a big picture perspective, then I’ll drill down just a bit.

The case at hand appears to expand the list of cases that are exempt from the 725 ILCS 5/111-3(c) notice requirement. Generally, the defense bar doesn’t like that.  Of course, that section purportedly requires the State to give written notice of an intent to seek an enhanced felony based on prior convictions.

We want all the notice we can get get.

Up until now, the only exception to that rule were UUW Felon charges.

This decision makes it appear as though new charges have been added to that list.

Ostensibly, the new charge would be a felony domestic battery. But the charges at issue in the case really were aggravated kidnapping charges.

So if the court is trying to slip an expansion of the notice exemption past us, it is with one of those charges. 

Before I mudgle this up even more, lets first cover some brief history.

Defendant in People v. Easley, 2014 IL 115581 (03/20/2014) was charged with unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a)).

Defendant challenged that this was a class 2, and argued he was only convicted of a class 3 offense because the State did not comply with section 111-3(c) nor formally notify him of their intent to seek an enhanced sentence.

In Easley, the Illinois Supreme Court discussed the types of charges where this notice requirement applied. The court noted there were at least 26 crimes that could be enhanced to a higher offense classification based on a prior conviction. Additionally, “the prior conviction that allowed the State to increase the offense classification was not an element of the offense.” Easley, 2014 IL 115581, ¶ 18.

In explaining when the Section applied, it noted that “it is clear that the notice provision applies only when the prior conviction that would enhance the sentence is not already an element of the offense...section 111-3(c) applies only when the prior conviction is not an element of the offense.” Easley, 2014 IL 115581, ¶ 19.

The indictment against Easley precisely alleged that he was guilty of unlawful use of a weapon by a felon in that he was previously convicted of unlawful use of a weapon by a felon.

Thus, language of the charge also clearly indicated that the prior conviction was an element of the offense that must be presented to the trier of fact. Indeed, in that case the jury heard evidence of Defendant’s prior UUW-Felon conviction. See 720 ILCS 5/24-1.1(e); see also Easley, 2014 IL 115581, ¶ 6.

Given these facts the Illinois Supreme Court held that the defendant could only be sentenced as a class 2 offender because that was the only statutorily allowed sentence under section 24-1.1(e), the law allowed nothing else.

So Lets talk about the case at hand.

Here, we have a defendant charged with aggravated kidnapping, violation of order of protection and domestic battery. He was sentenced to 28 years in IDOC.

The gist of the fact pattern included an allegation that Defendant

A kidnapping is committed when a person -

See 720 ILCS 5/10-1.

However, a person commits the offense of aggravated kidnapping when, in pertinent part, at the time he commits the offense of kidnapping, he commits another felony upon his victim. 720 ILCS 5/10-2(a)(3).

Thus, for an aggravated kidnapping, as charged here, part of the element of that crime is proving to the jury that Defendant committed a felony upon the victim during the kidnapping.

Things got a little tricky here because the State was alleging and proving that the felony Defendant committed during the kidnapping was a felony domestic battery. This offense was itself an enhanced charged from an ordinary misdemeanor domestic battery.

Domestic battery is a Class 4 felony if the defendant has any prior conviction for domestic battery. See 720 ILCS 5/12-3.2(b).

The State alleged that they were seeking an “Aggravated Kidnapping” conviction and indeed alleged in the charging language that during the kidnapping of the victim Defendant “committed another felony upon [the victim] to wit: domestic battery...” ¶ 31.

Additionally, the other charges made it clear that Defendant committed a felony domestic battery. The State was seeking an enhanced domestic battery and followed all the notice requirements required by section 111-3(c).

Nonetheless, Defendant contended that his aggravated kidnapping conviction should be reduced to kidnapping because the State failed to introduce evidence during trial of his prior domestic battery conviction that enhanced his domestic battery to a felony domestic battery.

Now, this court held that notice under 111-3(c) was not required.

This is the right decision. It has to be this way. Otherwise, we are brining prior convictions before the jury.

And no we don’t really want that.

Appropriately, the jury was not informed about the prior domestic battery convictions. That was an issue that was brought up and proved up and sentencing.

If I had a bone to pick with the decision, and as an explanation for my original hesitation it was language like this.

In their ruling the court said:

“Here, defendant had a previous conviction for domestic battery at the time he committed the domestic battery at issue in this cause. Thus, when defendant was charged with domestic battery, only a felony was statutorily available. 720 ILCS 5/12-3.2(b)” ¶ 44.

That’s not true. Misdemeanor was available also. But the charging instrument was clear and he was given notice that they were seeking a felony.

Further in explaining why this was an aggravated kidnapping they wrote:

“The State also proved defendant committed domestic battery beyond a reasonable doubt where it established defendant knowingly caused bodily harm to [the victim], with whom he had three children. This domestic battery conviction was a felony because, where defendant had a prior conviction for domestic battery, he could not be charged with or convicted of anything less than the felony. Accordingly, the State proved defendant committed felony domestic battery while also committing aggravated kidnapping.” ¶ 45.

And then they use this kind of language that is just unnecessary, they say:

“Our analysis here shows that, in line with our supreme court's opinion in Easley, defendant was charged with and convicted of felony domestic battery as a matter of law. Felony domestic battery was the only conviction possible for the offense of domestic battery as alleged in the charging instrument..” ¶ 48.

We can see what they are doing. They are just taking the language from Easley and borrowing it. But it horribly out of context and they don’t have to do say it that way to get to the right result.

It’s the aggravated kidnapping that they should be talking about. That’s the issue. More importantly. Aggravated kidnapping is not even necessarily implicated by section 111-3(c) because it doesn’t involve a prior conviction.

First of all Defendant, was not challenging the felony domestic battery conviction (well he was but as a lesser included) he was challenging the aggravated kidnapping.

So the court has to uphold the felony domestic battery in order to keep the aggravated kidnapping conviction.

But just say look he had notice for the felony domestic battery and 111-3(c) wasn’t required for the aggravated kidnapping.

That’s all they had to do.

Section 111-3(c) is tricky enough as it is. Lets keep it simple and we’ll be better off.

Anytime, an appellate court tries to exand upon an Illinois Supreme Court decision we need to be there to evaluate if the expansion is justified.

Again, let me say the decision came out right here. However, I think Easley was probably unncessarily stretched into something that just looks really horrible.

http://IllinoisCaseLaw.com/prosecutorial-misconduct-example-they-all-do-this

What is the most common prosecutorial misconduct example or most common prosecutorial error? Hands down in my experience that has to be the practice of asking the judge to admit clearly inadmissible evidence "for another purpose." Their favorite "other purpoe" is to explain steps in a police investigation.But that's all crap.

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This is both an old and a new issue. See People v. Boling, 2014 IL App (4th) 120634 (03/12/2014); citing People v. Cameron, 189 Ill. App. 3d 998, 1004, 546 N.E.2d 259, 263 (1989).

I created a sample Cameron hearing motion for you to use the next time you win a motion to exclude evience. Just click the image below:

In this podcast, I also talked about how proactice prosecutors often don't accept "no" from a judge. Staying on your toes and admitting evidence through proper channels is generally a good thing. But judges are prone to letting a "bullish" prosecutor geet away with one. 

Here is the kind of hearsay checklist that a prosecutor and defense attorney may use in the heat of trial battle. The good ones have it all memorized. To take a look at this thing just click below:

Ineed, the most common example of prosecutorial misconduct is subtle. This is what makes it so corrosive to the criminal justice system.

To be fair we should call it prosecutorial error. Honest prosecutors are committing this trial error. It happens, not because prosecutors are intentionally trying to circumvent justice.

Good prosecutors are trained to not give up excluded evidence. “If a judge tells you you can’t get into a line of question, find another way in.” This is how zealous prosecutors are taught. This is how they practice in an adversarial system. This is also how honest prosecutors commit the most common example of prosecutorial misconduct.

For example, a trial judge frequently excludes hearsay evidence. There can many reasons for keeping out hearsay. The hearsay could be unreliable, untrustworthy, irrelevant, OR prejudicial to the defendant.

This is what I mean by prejudicial. If the jury is allowed to hear the hearsay testimony, they almost certainly use the information inappropriately. They could jump to unjustifiable conclusions. The real damage to the system occurs when they form negative opinions about the defendant.

When the jury begins to believe that the defendant is “scum” or “slimy” they likelihood of a guilty verdict is guaranteed regardless of the strength of the actual evidence.

A tenacious, well trained prosecutor will not give up. When the state’s attorney sees that they are losing a hearsay argument, they will automatically go through a checklist. The are probing the court the another way to get into what they have already been told to stay away from.

This itself is not illegal. It is not improper. For an example of a typical hearsay admissibility checklist click here.

The most common example of prosecutorial misconduct occurs when the prosecutor settles on one argument. The argument is they are not admitting the excluded evidence for an improper reason, but merely “getting into it” for another purpose.

Typically, almost always, that other purpose is to explain to the jury why the police took the steps that they took in an investigation.

Usually, the prosecutor wants the jury to know that a criminal informant told the police that the defendant did something and that's why the police interviewed the defendant. It can be any other excluded piece of information admitted to prove why the police did something.

A judge will allow this form of “limited” evidence. The prosecutor is not allowed to go too deep into the “excluded information” and must definitely stay away from the information in closing arguments.

But, this evidence type of hearsay evidence is excluded for very strong reasons. Even a small amount of extremely prejudicial evidence will cause huge problems. Allowing The jury to sniff even a small amount of extremely prejudicial evidence causes irreversible damage.

This is how the most common example of prosecutorial misconduct happens.

[example of jury thinking or thought process?]     

We know prosecutors are will push and probe for way to get into otherwise excluded evidence. Unfortunately, trial judges too easily give them a crack with which to enter. Until, People v. Boling, appellate courts were slow to reverse convictions when prejudicial evidence did make its way to a jury.

Defense attorneys, in many ways are the last line of defense. People v. Boling should be known, copied and ready to be thrown around the courtroom when the prosecution begins to get into excluded evidence to explain police action.

Additionally, one mode of defense may include a pretrial motion argued at the same time the court is making its findings on the inadmissible evidence. The motion would simply be asking the judge to be specific about the scope of its ruling.

Judge, the defense is also asking that the court prevent the prosecution from admitting this prejudicial evidence for any other purpose. May we proceed to a Cameron hearing, now before trial? 

-This sort of thing.

Download a sample “Cameron Hearing Motion in Limine” 


that I created. It can be used to prevent a prosecutor from going where she ought not go.

I hope you find my information on the most common example of prosecutorial misconduct helpful. The true danger in this example is not that immoral prosecutors are running rampant with this error. The situation is worse than than that. Honest prosecutors are also engaging in this mistake.

This is a general outline of the major points covered in this podcast episode:

In case your still interested. Here are the links to the available legal resources I mentioned above. If you want to take a look at a sample Motion in Limine (Cameron Hearing) just click the link.

Finally, if you want to see a sample hearsay admissibility checklist used by attorneys in to prepare for a court battleclick here.

Trial court found an ethical violation of defense counsel. This attorney takes a meeting with the prosecution in one case, then is found to be unethical in another case. Find out who did what in podcast Episode 056 of the Criminal Nuggets Podcast.

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There is nothing like a nice little real-life example to help a rule of professional conduct come alive. See People v. Shepherd, 2015 IL App (3d) 140192 (02/11/2015).

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The story can get a little convoluted but here are the main points.

A criminal defense attorney was on record as representing inmate B. The same attorney had one discussion with inmate A who was also being detaining in the same jail.

Inmate A had not paid the attorney yet, but it appears he was ready to have family members leave the retainer at the attorneys office.

Meanwhile...

In the jail, inmate A was talking to inmate B about inmate B killing some or all of the witnesses who could testify against inmate A.

Inmate B, quickly turns over the map (to the victim’s home) and a statement (inmate A wanted to send a message to victims right before the killing) to jail authorities.

A prosecutor then talks to the attorney about the possibility of inmate B agreeing to wear a wire to record inmate A talking about the planned murders.

The attorney tells the prosecutor that he was talking to inmate A about possible representation and decides at that point that he cannot represent inmate A. The family is called and informed not to bring any money because counsel would not represent inmate A.

Of course, inmate B wears the wire.

Incriminating recordings of inmate A are created. And inmate A is charged with several counts of solicitation of murder for hire.

Defendant A then files a motion to dismiss and suppress the recordings. Defendant alleged that the attorney violated Illinois Rules of Professional Conduct Rule 1.18 in that counsel owed a duty to defendant A not to engage in an attorney-client relationship with inmate B when B’s interests were materially adverse to his own.

Keep in mind, no actual attorney-client relationship was formed between inmate A and counsel.

The Illinois Rules of Professional Conduct of 2010 which, sets out the ethical behavior of lawyers, Rule 1.18, specifically says that:

(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:

(1) both the affected client and the prospective client have given informed consent, or

(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and that lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

Rule 1.18, Duties to Prospective Client.

Defendant did not actually call the attorney in his motion nor did the defendant himself testify.

He was asking the court to infer that information that could be “significantly harmful” to a prospective client was communicated to an attorney if the attorney would have normally received that type of information in his consultation with the prospective client.

Defendant is saying that is exactly what the court does in Rule 1.9, Duties to Former Clients.

So the trial court did find that incriminating information against defendant was gained by the State as a direct result of the ethical lapse on the part of defense counsel.

The appellate court has come in and said “Hold on!”

We are talking about prospective client not a current client nor a former client.

Thus, Rule 1.18(c) required the Defendant to establish that defense counsel received in his consultations with defendant information that could be significantly harmful to defendant in either the case he was incarcerated for or the solicitation case.  

Defendant failed to meet its burden.

In the instant case, defendant presented absolutely no evidence of the information the attorney learned from Defendant during the consultations to consider his representation.

Defendant chose not to testify himself and chose not to call the attorney as a witness.

Instead, defendant relied entirely upon speculation as to the information that counsel might have learned. This kind of rank speculation is not enough to establish that a violation of Rule 1.18 occurred.

“Indeed, the comments to Rule 1.18 recommend that an attorney limit the initial interview with a prospective client to only that information that is reasonably necessary for the attorney to determine whether he or she will take the case, so as to avoid acquiring disqualifying information from the prospective client.”  ¶ 31.

This attorney did not do anything wrong.

However, this case does a great job of highlighting the risks involved with each and every consultation we engage in with prospective clients.

There is great wisdom in having the discussion limited to the single question of whether or not the representation will happen.

You don’t have to hash out the entire case in these consultations nor should you.

Defendant failed to establish that the attorney received information that could be significantly harmful to defendant, and he failed to establish a violation of Rule 1.18.

Reversed and remanded.

http://IllinoisCaseLaw.com/llinois-supreme-court-rule-552-violation

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See People v. Geiler, 2015 IL App (5th) 140423 (02/11/2015).

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Defendant was issued a speeding ticket by the City of Troy in Madison County, Illinois for driving 15 miles per hour over the posted speed limit.

This ticket was with the circuit clerk 4 days later. So Defendant files a per se motion to dismiss based on this violation.

[podcast note: I don’t take this case ]

But dude did his homework, and he knew the law.

The Illinois Supreme Court Rules say that police departments should file tickets with 48 hours after a ticket is issued. Specifically, the language of the rule says, in part that:

[quote box] “...The arresting officer shall complete the form or ticket and, within 48 hours after the arrest, shall transmit the portions entitled “Complaint” and “Disposition Report” and, where appropriate, “Report of Conviction,” either in person or by mail, to the clerk of the circuit court of the county in which the violation occurred...”

Illinois Supreme Court Rule 552.

This Defendant knew there was more to the story than just the rule.

First, the rule exists “to ensure judicial efficiency and uniformity as well as ‘to expedite the handling of traffic cases’”. ¶ 9 citing People v. Hanna, 185 Ill. App. 3d 404, 408 (1989); quoting People v. Roberts, 113 Ill. 4 App. 3d 1046, 1050 (1983).

Second, Illinois Supreme Court rules are never “discretionary”. In other words a rule by the big boys and women is meant to be followed. Lower courts, litigants, and the police generally can’t pick and choose which rules to follow.

However, the Illinois Supreme Court does go to the trouble of distinguishing  “directory” rules from mandatory rules.

[quote box] “...a statute [or rule] which specifies the time for the performance of an official duty will be considered directory only where the rights of the parties cannot be injuriously affected by failure to act within the time indicated...”

¶ 10 citing Hanna, 185 Ill. App. 3d at 409; quoting Carrigan v. Illinois Liquor Control Comm’n, 19 Ill. 2d 230, 233 (1960).

The main characteristic of a directory rule is that it is not mandatory.

Clearly, when we are talking about the difference between filing a traffic ticket within 48 hours compared to 4 days we have a “directory” rule. Neither private rights nor the public interest is injured with a violation of the 48 hour rule.

However, the Illinois Supreme Court Rule does not make rules, just so they can be ignored.

Dismissal of a traffic ticket is still warranted and proper when a litigant can demonstrate that “the procedure used by the officer or police department was a part of a pattern of clear and consistent violation of Rule 552.”  ¶ 11 citing Hanna, 185 Ill. App. 3d at 410.

So This Defendant needed to essentially demonstrate to the court that not only did the Troy Police Department file his ticket late they also have a problem filing other tickets on time.

Defendant did his homework. He showed up to court with a stack of tickets that had all been filed late by the police department.

But then a detective testified and solidified the case for Defendant.

The detective essentially said that Monday and Friday are the days that citations are transferred to the courthouse.

You see it is “impossible” to transfer tickets more frequently. It became apparent that this “system” created by the police department left huge gaps where many tickets simply were not going to be filed within the 48 hour requirement.

When asked about the 48 hour requirement of Rule 552 the detective acknowledge that the department was aware of it.

Then he explained, however, that “[It's not a mandate...[T]his is our decision that if you can get them up in 48 hours, if possible, that’s the way it should be.” ¶ 5.

In other words, “We will file them when we want; were the police, leave us the f@#* alone.”

Can you say “pattern of clear and consistent violation of Rule 552”?

‘Em, Yea.

It was impossible for the police to follow the rules! Now how can that be? What did they mean by impossible?

Clearly the detective was not using the word the way normal English speakers use and know the word to be.

What is going on in the Troy Police Department to make honoring Rule 552 impossible? It must be “mom & pop” time operation overthere.  The detective is “pop” and he must not be able to make the 20 mile trek to the court because every day because his police issued battery operated scooter can’t make it that far one charge. And “Mom” well forget about her making it. She’s involved in a big federal case that has her deep undercover in a nursing home investigating cafeteria fraud. Its impossible for her to make it to the courthouse to file the tickets.

Impossible to this guy meant that it was impossible under the completely arbitrary schedule they came up and that was most convenient to them.

Clearly, when they were advised that Rule 552 is not mandatory they took that as a signal that they were free to do what they want. But that is not the law!

This defendant has done a great job of revealing one the things that drives us all crazy in criminal defense.

Sometimes we are actually right on the law or on the facts and we bring it to the attention of the authorities and no action is taken.

Remember, Defendnt took his stack of tickets demonstrating ohter violations to the State and they refused to dismiss and even appealed the trial judge’s dismissal. Troy City Police must have been asking prosecutorial office what “directory” meant.

Thank you Christopher M. Geiler for demonstrating to the Police that they too must follow the rules.

The appellate court upheld the trial judge’s decision to grant Defendant’s motion to dismiss his traffic ticket issued by the Troy Police Department.

http://IllinoisCaseLaw.com/what-is-criminal-accountability

What is criminal accountability? The concept of criminal accountability may be one of the most difficult concepts to explain to a client who "didn't do it." Actually, the problem is more likely on their end.

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An accused defendant who was not the principle actor in a crime, the guy "did it", sometimes cannot make the mental leap to grasp accountability. 

"How can I be guilty if I did not do it?" 

Well, for the rest of us not accused of a serious crime we understand that the criminal law is broad enough to punish not only principle actors to a crime but also those individuals who aided and abbetted in the commission of the crime.

Get-away drivers are in as big of trouble as the guy who walked into the bank with the gun to rob it.

Somehow my clients continue to be aware of the cases where courts have found that criminal liability did not exist. See People v. Cowart, 2015 IL App (1st) 113085. My main piece of advice in this area of the law continues to be that:

"Criminal liability is painted with a broad brush."

Trust me, despite all the cases and "friends' situations" that my clients know about it is my job to explain the law as clearly as I can and bring to their attention all the cases and other "real life" situations that demonstrate the broad breadth of criminal liability in our court system.

Download this podcast, Episode 054, for a thorough discussion on criminal liability and accountability.

The Illinois Supreme Court and appellate courts do from time to time do reverse cases where the state stretched accountability a bit to far. For the most part, however, the courts are doing what they can to reinforce the message that accountability indeed does mean that one can be guilty for acts committed by others. 

This is How I try to counsel my clients...

One can be easily be found guilty for a criminal act that they did not commit. Further, one can be found guilty for a criminal act that one did not know was even going to happen.

At its core, criminal liability is just the idea that you can be punished for committing prohibited conduct. This is simply the premise that society has the right to decide what type of behaviour it wants to punish.

Criminal liability is the way to describe the behavior that society has decided to punish. Criminal liability is also referred to as criminal accountability. This is the way society norms and standards are enforced. This part of the law is often included in the criminal code near the list of punishable crimes.

For example, In Illinois criminal liability is described in the criminal code under the section entitled, “When Accountability Exists.” This section tries to make it clear that a person can go to jail for a crime committed by another person.

In Illinois, this is what the law on accountability says:

A person is legally accountable for the conduct of another when: (c) either before or during the commission of an offense, and with the intent to promote or facilitate that commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person in the planning or commission of the offense. When 2 or more persons engage in a common criminal design or agreement, any acts in the furtherance of that common design committed by one party are considered to be the acts of all parties to the common design or agreement and all are equally responsible for the consequences of those further acts.

See Illinois Compiled Statutes, 720 ILCS 5/5-2.

The court system is doing what it can to remind criminal defense attorneys and defendants that the “common criminal design” rule of accountability is broad and far reaching.

The warning lights are flashing. Caution. Beware.

There is a defense argument that says that a person cannot be guilty for a crime committed by a second person if the first person did not have the same criminal intent of the second person. On its face, this seems like a logical argument.

No matter how logical it may seem, it is wrong.

Technically, the argument in court is that in order for a person to be criminally  accountable for the conduct of another two things needed to be present. A person needs to have the same criminal intent AND share in a common criminal design with the second person.

The court system has shut this down. The courts are making it clear that any one of two pathways will lead a person to jail.

An example will go a long way towards helping to explain this concept.

Say, a man (Fernandez)  agrees to commit car burglaries with another person (Accomplice). Fernandez agrees to be the driver and Accomplice will do the actual deed of breaking into cars. Fernandez drives Accomplice around parking lots looking for cars to break into.

In one parking lot, a police squad rolls into the parking lot just as Accomplice is breaking the car window. If Accomplice takes out a gun and shoots it at the police officer, then Fernandez is also guilty of Aggravated Discharge of a Firearm. Fernandez may credibly claim that he did not know that Accomplice had a gun and certainly did not know that Accomplice was going to shoot at a cop!

That was not the plan. That was not Fernandez’s intent, and to shoot at cops was not a common design Fernandez shared with Accomplice.

Fernandez argues in court that he is only guilty of car burglaries and not the Aggravated Discharge of a Firearm because he did not share in Accomplishes “criminal intent” to shoot at the cop. Fernandez did not agree to a common criminal design that included a shooting so he cannot be guilty of that.

The law on criminal liability and accountability, however, says Fernandez is guilty of the shooting. This was a true story.

See People v. Fernandez, 2014 IL 115527 (March 20, 2014).

You see, “under the Illinois accountability statute, the State may prove a defendant’s intent to promote or facilitate an offense by showing either (1) that the defendant shared the criminal intent of the principal, or (2) that there was a common criminal design.” See People v. Fernandez.

This court is emphasizing that under the rules of criminal accountability there are two distinct pathways to a guilt. The “or” is very important.

The obvious, pathway includes sharing the same criminal intent with the principle actor. If the plan was to shoot at cops, and your partner shoots at cops, then clearly you are also guilty of shooting at cops.

However, the second pathway to criminal liability includes merely sharing a common criminal design with another person. The common criminal design does not have to be for the actual crime that is committed. If you agree to commit a retail theft and your partner shoots someone in the store. It does not matter that you did not know your partner had a gun. Under the second pathway of accountability, you would be guilty of the shooting your partner commits in the store.

Just to be sure this is clear lets consider another example.

Now lets say a different defendant (Phillips) wants to go beat-up a person. Phillip takes his friend (the Accused). The Accused brings a rifle just in case things get ugly in the fight.

When Phillips and  the Accused get to the party where they want to fight they notice that the crowd is much bigger than they expected. Phillips calls off the whole thing. As they are walking away from the crowd, the Accused stops, turns around and fires one random shot into the crowd.

The bullet hits an innocent person in the head, and that person is killed.

Phillips and the Accused are charged with murder. Phillips defends the case in court by saying that he is not accountable for the murder committed by the Accused. Defendant claims that he did share in the criminal intent to commit the shooting nor did he have a common criminal design with the Accused to commit the killing.

This is also an actual case. See People v. Phillips, 2014 Ill App (4th) 120695 (June 18, 2014).

In the above case, the court found Defendant accountable for the murder and he was convicted. This is what the court ruled:

Defendant's argument that the State was required to prove that he shared [the Accused’s] intent to fire the rifle illustrates the erroneous conflation of two distinct bases for proving legal accountability: (1) shared intent (sometimes referred to as "specific intent") and (2) common design. As the supreme court explained in Fernandez, "it is well settled that, under the Illinois accountability statute, the State may prove a defendant's intent to promote or facilitate an offense by showing either (1) that the defendant shared the criminal intent of the principal, or (2) that there was a common criminal design."  Quoting Fernandez, 2014 IL 115527, 21, 6 N.E.3d 145. In other words, accountability cases fall into two distinct categories: (1) shared-intent cases and (2) common-design cases.

See People v. Phillips.

Phillips agreed to commit a crime with the Accused. In that sense, he shared a common design to commit crime the Accused. The act of deciding to not fight because the crowd was too big, was still considered part of the common design to fight.

Because the Accused fired the gun during the commission of the common design (decision to go fight), Phillips is criminally accountable for the killing.

The Phillips court also wrote that:

“the common-design rule provides harsh medicine for those who willingly join with others to engage in criminal acts. Just as the felony-murder doctrine "seeks to deter persons from committing forcible felonies by holding them responsible for murder if a death results," the common-design rule "seeks to deter persons from intentionally aiding or encouraging the commission of offenses."” See People v. Phillips.

Therefore, this broad interpretation of criminal accountability is purposely created as a deterrent to crime in general. It is not a mistake, that one can go to jail for associating with those who commit more serious crimes.

The general message to the public is that one should be very careful about the decisions they make. Agreeing to commit a less serious crime can very easily get you in trouble for much more serious crimes. If your partners in petty crime get out of hand or if they have something else planned, that can be very bad news for you as well.

See People v. Cowart, 2015 IL App (1st) 113085 (02/09/2015).

Should Defendant’s conviction be reversed because the  State failed to prove beyond a reasonable doubt that he committed first-degree murder under a theory of accountability, where the shooter was unknown and the weapon that was used to kill the victim was unknown?

The defendant argued that the State failed to present any facts that connected the his friends to the fatal bullet. The physical evidence implicated numerous unknown potential shooters.

The State gambled and instead of charging the defendant for a crime against the women he was chasing they "overcharged" him with the first-degree murder on a theory of accountability.

This was a summer block party. The Defendant organized it as a tribute to a friend that had been killed years prior.

Several hundred people attended. Then an argument ensues between two women. Defendant handles it by slapping one of the ladies.

That begins a brawl. Guns get pulled out. Shooting starts.

26 shell casings were recovered. Witnesses also described several gunmen firing revolvers which wouldn’t leave a casing behind.

At least 28 gunshots from six or seven different firearms had been confirmed fired at the scene—including two .38-caliber firearms; four 9-millimeter firearms; and one unknown firearm.

The victim was actually a friend of Defendant. He was shot in the back probably while trying to run away. This was a through and through so no bullet comparison could be done. See ¶ 36.

Only one gun was actually recovered. Defendant definitely did not have the kill shot because he was seen chasing a group of women and firing at them. None of them were actually hit.

Defendant explained that the girl was “talking crazy.” ¶ 14.

A person commits first-degree murder when, in performing the acts which cause the death of an individual, (1) he either "intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another"; or (2) "he knows that such acts create a strong probability of death or great bodily harm to that individual or another." 720 ILCS 5/9-1(a)(1), (2).

Furthermore, A person is legally accountable for the criminal conduct of another when, "[e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense." 720 ILCS 5/5-2(c).

The State advanced theory that there was a "common criminal design" by which the defendant showed the intent to promote or facilitate the killing of his friend, the victim.

“To prove that a defendant had the intent to promote or facilitate the crime, the State must present evidence that establishes, beyond a reasonable doubt, "that (1) the defendant shared the criminal intent of the principal or (2) there was a common criminal design." People v. Willis, 2013 IL App (1st) 110233, ¶ 79.” ¶ 31.

“The common design rule holds that ‘where two or more persons engage in a common criminal design or agreement, any acts in the furtherance of that common design committed by one party are considered to be the acts of all parties to the design or agreement and all are equally responsible for the consequences of the further acts.’ In re W.C., 167 Ill. 2d 307, 337 (1995).‘” ¶ 31.

Additionally, when it comes to the common design rule we know that -

Words of Agreement Not Required

No Preconceived Plan Required

Voluntarily Attaching Oneself to a Group Bent on Illegal Acts Leads to Guilt

Spontaneous Group Action Qualifies

Identity of the Principal Actor is Immaterial

Also, ‘[i]n determining a defendant's legal accountability, the trier of fact may consider the defendant's presence during its commission, the defendant's continued close association with other offenders after its commission, the defendant's failure to report the crime, and the defendant's flight from the scene.’ Willis, 2013 IL App (1st) 110233, ¶ 79.” ¶ 31.  

Flight evidence alone is insufficient to convict, but it is circumstantial evidence which may tend to prove and establish a defendant's guilt. See People v. Foster, 198 Ill. App. 3d 986, 993 (1990).

The court noted that many witnesses identified many men at the party armed with guns. “There was no evidence that the multitude of armed men were all members of defendant's ‘crew.’” ¶ 32.

The chaotic scene and resulting melee made it impossible to determine how many guns were fired, who shot them, or which gunmen fired the bullet that killed the victim.

The mere fact that multiple illegal acts simultaneously erupted in the same vicinity, at least in at a Chicago block party, does not necessarily demonstrate a common link between or among the actors.

To win on their chosen theory of a shared common design the State would have had to prove that Defendant shared in the common design of the unknown shooter to fire a gun in an unknown direction at an unknown target.

OR

The State would have had to prove that the unknown shooter was part of Defendant’s criminal design to chase and shoot at the women. This must be proven beyond a reasonable doubt, of course.

Thus, the reviewing court said that “the evidence was insufficient to prove that the unidentified shooter was a member of the defendant's alleged criminal design to shoot [at the women] but instead killed [their “homie”} unintentionally while acting in furtherance of the plan.” ¶ 36.

Murder conviction was reversed.

The appellate court agreed that the State charged Defendant with the wrong crime or “overcharged” him in this case.

“Inexplicably, the State chose to try defendant for the murder of [the victim] on a theory of accountability, when the evidence did not provide proof of either a shared criminal intent (which is conceded) or a common criminal design.” ¶ 35.

“It is also the State's responsibility to ensure that the facts and the proof required to meet the burden beyond a reasonable doubt, are consistent with the crime charged. In this case the State has failed to do so.” ¶ 35.

The court could not help but point out that -

“... it is quite possible that the defendant could have been successfully prosecuted for murder under a different theory, such as felony murder predicated upon mob action, or could have been prosecuted for the attempted murder of [the victim]. However, the State chose to charge the defendant with first-degree accountability murder and ‘must live with the consequences of having proceeded on a theory that it could not establish with the certitude required in criminal cases.’” ¶ 39.

See Fagan v. Washington, 942 F.2d 1155, 1160 (7th Cir. 1991).

This does not by any means means that accountability cases are getting harder for the State to win.

Accountability is painted with a broad brush.  That has not changed. See ...

This is just an example of bad facts that the State tried to squeeze into the wrong theory.

http://IllinoisCaseLaw.com

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In the case of People v. Simpson, 2015 IL 116512 (01/23/2015), the Illinois Supreme Court, settles a recurring issue in regards to the admissibility of prior inconsistent statement as substantive evidence.

However, the real jewel of information in the decision comes from a throw-away line.

First, let me report the main news from the decision.

The case deals with the “personal knowledge” requirement of section 725 ILCS 5/115-10.1, Admissibility of Prior Inconsistent Statements, from the Illinois Code of Criminal Procedure.

That section provides that

“In all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if

   (a) the statement is inconsistent with his testimony at the hearing or trial, and

   (b) the witness is subject to cross-examination concerning the statement, and

   (c) the statement--

   (1) was made under oath at a trial, hearing, or other proceeding, or

   (2) narrates, describes, or explains an event or condition of which the witness had personal knowledge, and

   (A) the statement is proved to have been written or signed by the witness, or

   (B) the witness acknowledged under oath the making of the statement either in his testimony at the hearing or trial in which the admission into evidence of the prior statement is being sought, or at a trial, hearing, or other proceeding, or

   (C) the statement is proved to have been accurately recorded by a tape recorder, videotape recording, or any other similar electronic means of sound recording.

   Nothing in this Section shall render a prior inconsistent statement inadmissible for purposes of impeachment because such statement was not recorded or otherwise fails to meet the criteria set forth herein.

725 ILCS 5/115-10.1.

The case involved a murder trial against defendant who was accused of being one of six men who beat the victim to death with a bat and a medal bar.

The case involved flippers who came off their statements to police at trial, an elderly eyewitness with a sketchy identification, and an occurrence witness who told police that he talked to Defendant the day of the beating.

This witness told the police at the time of the investigation that Defendant had told him that he when he caught the victim he bashed his head in and hit him around 30 times with the bat.

At the trial, this victim testified that he did not remember exactly what Defendant had told him.

This witness was not present for the beating and did not see it.

The States attorney then impeached the witness with his prior statement and proceeded to argue it as substantive evidence in closing.

Was trial counsel ineffective by failing to object to the introduction of the video recording of the “confession” witness with police wherein he claimed that Defendant admitted to the beating?

The State took the position that there was no error because the statement was admissible under 115-10.1 as substantive evidence.

The state argued that the statement “narrates, describes, or explains an event or condition of which the witness has personal knowledge” because the witness was present for the conversation with the Defendant. See 725 ILCS 5/115-10.1(c)(2).

Thus, the State was arguing that the “event” in question is the defendant’s verbal admission to the witness not the actual beating.

“Defendant maintains that the State’s interpretation ignores that the crime is also an event and arbitrarily assumes that the admission is the only event subject to the personal knowledge requirement. Moreover, the State’s reading is contrary to the legislative intent, purpose and history, and is contrary to numerous appellate court decisions that have rejected the State’s interpretation.” ¶ 28.

The Illinois Supreme Court noted that if they were to adopt the State’s interpretation of the section then part of the law would be rendered meaningless because “the personal knowledge” requirement would appear to serve no purpose.

Even without subsection (c)(2), a witness cannot testify to hearsay that they did not personally hear themselves.

The court rejected-

[qb]“the State’s argument that it is the legislative intent to require that the witness simply have personal knowledge of the defendant’s admission, and not the crime being described, for a prior inconsistent statement to be admissible.”  ¶ 32.

The court did find that trial counsel was ineffective for allowing the witness’s prior statement to the police to be admitted.

As a defense attorney, I understand taking up legal positions which may not necessarily be the majority opinion.

There is a time and place for advancing a legal cause or trying to uproot and end unfair or illogical precedence.

However, I do wonder if this was the right issue for the state to be advancing. What would have happened had they won the issue. Would trials have become more or less fair? Think of all the snitch cases that could be advanced with this rule.

This is where the Illinois Supreme Court noted:

{qb}“Given the quarter of a century that the appellate court has repeatedly and consistently interpreted the statute as noted above, it seems clear that the statute has a settled meaning and it would not be appropriate for us to change it (see Young, 2011 IL 111886, ¶ 16), especially in light of the State’s less than persuasive argument for a contrary interpretation.1 We note, however, that if the legislature disagrees with interpretation placed on section 115-10.1(c)(2) by the courts, it should of course feel free to amend the statute.”  ¶ 33.

Ok, so above you have the main point to this decision. The court refuses to undue 25 years of law because it hurts the State’s case.

But I found the true piece of valuable information in the case from this line in the decision:

[qb] “The State conceded that if defense counsel had objected to the recording, the court would not have admitted it to impeach [the witness] because his testimony did not affirmatively damage the State’s case. See People v. Cruz, 162 Ill. 2d 314, 359-60, 643 N.E.2d 636, 658 (1994).”  ¶ 25.

Say what?

This was news to me.

I have always operated with a general assumption that if a statement is admissible under 115-10.1 then it was also impeachable. Is this not true?

Cruz was a messy case. The case is before 1996 and is not publicly available without having to pay a publisher.

But I can tell you that the case involved a nasty child murder and prosecution of an innocent man.

The case involved many statements against him that he allegedly made. Witnesses came of the statements but the State still admitted them. Sound familiar?

In Cruz, the Illinois Supreme Court quoted Weaver and wrote:

[qb] "A court's witness, or any witness for that matter, cannot be impeached by prior inconsistent statements unless his testimony has damaged, rather than failed to support the position of the impeaching party. The reason for this is simple: No possible reason exists to impeach a witness who has not contradicted any of the impeaching party's evidence, except to bring inadmissible hearsay to the attention of the jury. Impeachment is supposed to cancel out the witness' testimony. It is only when the witness' testimony is more damaging than his complete failure to testify would have been that impeachment is useful." People v. Weaver, 92 Ill.2d 545, 563 (1982).

In regards to what is considered “damaging” the Cruz court said that

"Damage" as referred to in Weaver does not occur where a party interrogates a witness about a fact which would be favorable to the examiner if true, but then receives a reply which is merely negative in its effect on the examiner's case. Such testimony is merely disappointing and not damaging since the examiner's case is no worse off than if the witness had not testified.” Cruz, 162 643 N.E.2d at 658.

"Affirmative damage results only from testimony that gives positive aid to an adversary's case." Graham, Prior Inconsistent Statements--Impeachment and Substantive Admissibility: An Analysis of the Effect of Adopting the Proposed Illinois Rules of Evidence, 1978 U.Ill.L.F. 329, 372; see M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 607.4, at 349 (5th ed. 1990).

The Cruz court talked about the delicate dance going on here.

Impeachment is premised on the fact that excluding it would deprive the examining party an opportunity to exhibit the truth with a clearly hostile witness. Yet, these extrajudicial statements are clearly hearsay, often highly incriminating, and deprives a defendant of the chance to cross examining in the statement.

So we invented the rule that a statement could be admitted for the limited purpose of impeachment evidence which only serves to destroy the credibility of the witness and we say that the same evidence cannot be used substantively to establish the truth of the statement.

Impeachment is Separate From 115-10.1

So for me, this language in Cruz definitely helps me distinguish and separate as truly distinctive ideas the notions of impeachment evidence and substantive evidence under 115-10.1

The true scholars may have always known. For me though, in practice it just always felt that if a statement was coming in substantively it was just automatic that it was also coming in for impeachment purposes.

That may not always be true .

It can be true, but it is not necessarily always true.

As far as I can tell, in trial you are always going to want to admit these kinds of statements the same way.

This is where the the C’s kick in:

Commit

Confirm

Confront

It took me a while to figure out that all the action is really with the second C. I think a trial attorney’s first instinct is to emphasise the last “C”. I definitely thought that was were the value of impeachment lay.

When you can figure it out. That’s when impeaching a witness really has great value and can even be fun.

Its in middle phase that you can really let things go a bit.

Strictly speaking, the Illinois Rules of Evidence 613(a) and (b) would not apply to a statement coming in under 115-10.1.

But like I said above 613(b) is describing the the three C’s and you are going to want to follow that playbook.

So Simpson settles the “personal knowledge” sort of non-issue of substantive inconsistent statements.

More importantly, Simpson began digging for me which revealed the true differences between inconsistent statement we call impeachment and the one we call substantive.

http://IllinoisCaseLaw.com/police-dog-sniff-of-apartment-door

A police dog sniff of apartment door is going to require a warrant. It turns out there is no open invitation to the public that says they are free to bring their narcotics trained dog named “Hunter” to an apartment building to conduct a forensic investigation in the middle of the night in the hopes of discovering incriminating evidence. Darn.

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See People v. Burns, 2015 IL App (4th) 140006 (01/30/2015).

The police brought their drug dog to Defendant’s apartment building so that the drug dog could sniff the Defendant's apartment door. The dog alerted to the presence of narcotics. The police and the dog left.

When they came back to search the apartment they had a warrant.

Defendant was charged with unlawful possession with intent to deliver more than 500 grams but not more than 2,000 grams of cannabis under the Illinois Cannabis Act, 720 ILCS 550/5(e).

Did the police violate the Fourth Amendment by obtaining a warrantless sniff of Defendant’s front door?

The relevant case is Florida v. Jardines, 133 S. Ct. 1409 (2013). I discuss this case in my "Police Dog Case Law Summary" article. You can find it HERE.

Remember, this is the one where police brought a police dog to the front door of a single family home so the dog could get a sniff.

The United States Supreme Court said that was unconstitutional.

Defendant, in this case argued Jardines is not limited to those individuals who live in a single-family residence, because the opinion did not include this information.

“Because Jardines protects against a warrantless dog sniff of a home's entrance, the use of a drug-detection dog to sniff defendant's apartment's door violated the fourth amendment.” ¶ 13.

The State argued there is a distinction between a single family residence and a multi-unit dwelling. Residents in a multi-unit dwelling have a lower reasonable expectation of privacy because of an apartment building's layout and any person from that building or from outside of it would have the right to walk up to Defendant’s front door.

I am on the record as saying that Jardines, was technically inconsistent with prior police dog precedent. So it is not surprising to see challenges to exactly how broad Jardines is going to be extended.

Jardines came after Caballes told us drug dog sniffs are not a search.

But Jardines got all touchy feely with a person’s home. So the home is special.

That court reminded us that:

"a simple baseline, one that for much of our history formed the exclusive basis for its protections: When 'the Government obtains information by physically intruding' on persons, houses, papers, or effects, 'a "search" within the original meaning of the Fourth Amendment' has 'undoubtedly occurred.' " Jardines, 569 U.S. at ___, 133 S. Ct. at 1414 (quoting United States v. Jones, 565 U.S. ___, ___ n.3, 132 S. Ct. 945, 950 n.3 (2012)).

The front door and the area immediately outside the front door is also protected because of legal concept of curtilage.

What the heck is curtilage?

The constitution sees a home as not only the structure in which people live but also "the area 'immediately surrounding and associated with the home,' " an area referred to as the curtilage. Jardines, at 1414; quoting Oliver v. United States, 466 U.S. 170, 180 (1984). "This area around the home is 'intimately linked to the home, both physically and psychologically,' and is where 'privacy expectations are most heightened.' " Id. at 1415; quoting California v. Ciraolo, 476 U.S. 207, 213 (1986). "The front porch is the classic exemplar of an area adjacent to the home and 'to which the activity of home life extends.' " Id. at 1415; quoting Oliver, 466 U.S. at 182.

If we flush out the State’s argument a bit more, they are also relying on a line of case law that says that the police don’t have to deny themselves behaviour that normal citizens have the right to utilize.

For example, any normal person has an implicit right to walk into an apartment building and knock on a front door, wait briefly to be received, and leave when they want.

The Supreme Court simply said that although this may be true, the normal people who would do this don’t have trained police dogs that they are using to detect narcotics.

Any implicit invitation a citizen has to knock on a front door does not extend to people who have police dogs with an objective to detect the presence of narcotics.

Specifically the court said that -

There is no customary invitation for someone—including a police officer—to "march[] his bloodhound" up to someone's home to "engage in canine forensic investigation" and use a drug-detection dog "to explore the area around the home in hopes of discovering incriminating evidence." Id. at 1416. Nor is there an implicit invitation for "a visitor [to] come to the front door in the middle of the night." Id. at 1422.

When it comes to a home the “reasonable expectation of privacy” arguments are out the window. In Jardines, the Court said that, "the home is first among equals" when it comes to the fourth amendment. Jardines, 133 S. Ct. at 1414.

A home includes an apartment.

“When the police stood at the entrance to defendant's apartment with a drug-detection dog, their investigation took place in a constitutionally protected area.” ¶ 45.

“In this case, the police not only approached defendant's front door with a drug-detection dog to engage in an investigation of her home, they did so in the middle of the night. As Jardines makes clear, there is no implicit invitation for the police to do this and the officers in this case could not approach defendant's front door, absent a warrant, with a drug-detection dog to conduct a search of the contents her home.” ¶ 46.

http://IllinoisCaseLaw.com/police-dog-case-law-summary

Here I present a police dog case law summary. The drug dog has become one of law enforcements most powerful tools. However, we are best served by remember that this tool, like all other tools, is not perfect.

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The law on police dog drug sniffs contains three foundation cases from the United States Supreme Court. See my prior posts on police drug dogs. Click Here & Click Here. 

You can listen to Podcast Episode 049 of the Criminal Nuggets Podcast from the player above or subscribe on iTunes below.

It all begins with Illinois v. Caballes, 543 U.S. 405 (2005):

• Police Dog Drug Sniffs are Not Searches
• Practical Limits Remain
• Not That Many K-9 Units
• Police Can Not Cause an Undue Delay

This case threatened to blow this issue wide open in favor of the police. It concluded that a police dog sniff was not a search. And we all know that things that are not searches are constitutional.

Facts: This was a traffic case. Car was stopped and driver ticketed for speeding. During the traffic stop, a canine unit appeared and a dog handler walked the dog around the car. The police dog alerted on the trunk. Police searched the trunk. Driver was arrested for trafficking cannabis. Everything happened in under 10 minutes.

Everything appeared wide open for police and their well trained four-legged sniffers.The court held:

"That any interest in possessing contraband cannot be deemed legitimate, 'and thus, governmental conduct that only reveals the possession of contraband' compromises no legitimate privacy interest." United States v. Place, 462 U. S. 696 (1983).

The gist of the ruling is that a privacy interest (that society recognizes as reasonable) cannot exist for aromas that come from completely illegal contraband.  “A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”  Caballes, 543 U.S. 405 (2005).

You don't have a privacy interest in illegal smells.

Yet, even Caballes recognized limits on the use of police dogs during a traffic stop. (This limitation would also apply if drug sniffing dogs are used in DUI roadblocks).

The Court approvingly noted that the police officers detaining Caballes did not delay the traffic stop just so that the drug dog could finish the sniffing. This is important.

Had the Court found undue delay, the clear inference is that the case would have come out differently. This is what the court is talking about when it mentions a “prolonged” traffic stop. The Court wrote that:

A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.

Caballes, 543 U.S. 405 (2005). If the police try to slow down the interaction with the driver so that the police dog has time to get make it to the scene of a traffic stop that would be illegal.

Similarly, delaying the writing of the ticket or returning a driver’s license so that the dog has time to finish the sniff is unconstitutional. This may also be referred to as going “outside the scope” of the traffic stop.

Any unnecessary delay would have been unconstitutional as an unreasonable prolonging of the driver. Legally, we like to say the police exceeded the scope of the traffic stop

This “no delay” and “scope” rule serves as a real and practical limitation on the use of police dogs.

The simple fact is that K-9 units are far less numerous than normal patrol vehicles. This specialized team is typically called out on special assignments. The practicality of having a drug dog at every traffic stop is impossible. Remember how Jay-Z got away with one when a police dog did not make it to the scene on time?

The criminal defense bar has to be vigilant about recognizing stone walling by the police. Any proof of an unconstitutional delay must be brought to the trial court’s attention in a motion to suppress evidence illegally seized.

Then came Florida v. Jardines, 133 S.Ct. 1409 (2013):

• Police Take Police Dog to Front Stoop
• Dog Signals for Drugs Inside the Hope
• Police Get a Search Warrant
• Court Said Your Home is Still Your Castle
• Police Can’t Bring Police Dog for Investigative Purposes

Caballes was in a car that was lawfully stopped. His marijuana trafficking charge came from the marijuana found in the trunk. Jardines, on the other hand, was growing the marijuana in his home. This difference is critical to the United States Supreme Court.

Facts: The police were informed that Jardines had a marijuana growing operation in his home. A DEA agent, a trained drug dog handler, and a the police drug sniffing dog all walked up to the front door and knocked. The dog was not there to welcome Jarndines to the neighborhood. The drug dog was working. The K-9 was there to sniff for drugs, and of course, alerted to the presence of contraband.

The police then left to go get a search warrant.

To be clear, the police did not go into the home with the police dog. All three officers remained on the front stoop and only walked on the walkway to the stoop. Nonetheless, the Court commented that the Fourth Amendment actually uses the word “houses” (also known as your home) then held that:

The Amendment establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has undoubtedly occurred. 

Jardines, 133 S.Ct. 1409 (2013); quoting United States v. Jones, 565 US 945, 132 S.Ct. 945 (2012) (this is a GPS tracking case).

The police were in his home and on his property in an investigative capacity. They did not have permission to be there. That is a search.

That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.

Jardines, 133 S.Ct. 1409 (2013).

The Court was well aware of it’s own case law that said dog sniffs are not searches. However, the Court refused to play the “expectation of a privacy interest” game in this case.

They were in his home! Even Scalia lost his puppies over that one!

Canine sniff cases are not completely indefensible. There is still a role for the vigilant defense attorney. When a police dog or drug dog sniff case lands on your desk the analysis looks like this -

• Dog on client’s property without warrant or without permission is an illegal search
• Traffic stop sniff only legal if stop not prolonged
• All police dogs and handlers have to be trained and reliable (get discovery to test reliability)

Finally, there was Florida v. Harris (2014):

• Court Will Depend on Totality of the Circumstances to Assess Dog Reliability
• But Completing Narcotic Training May Be Sufficient
• Dog Reliability Can’t be Determined by Comparisons to Other Cases

Understanding these cases is crucial to any defense of a police dog drug sniff case.

Some of the deeper implications of Harris are discussed below.

The current state of the law surrounding police dogs mandates that criminal defense attorneys  inform themselves in very important areas.

For example, it is paramount that we get up to speed on drug dog training. 

The case law clearly allows a court to assess a dog's reliability based on whether the dog finished narcotics training. If courts are going to find police dogs reliable based on this one factor, it is incumbent on us to learn as much as possible about police dog narcotics training programs.

It is the job of the defense bar to get up to speed on all the important details of appropriate police dog narcotic training. For example, we need to get up to speed on organizations like SWDDOG. This is an organization that establishes standards for dog training programs.

A recent Illinois criminal case on a police dog sniff case suggests it is going to be harder to challenge the reliability of a police dog after all. However, I still want to emphasise that it is not all bad news.

In this podcast episode, I discuss the case of People v. Litwhiler.

In this case the court found the police dog reliable beause the officer testified that:

• The Dog Finished Narcotics Training
• The Dog Became More Reliable With Age
• The Dog Never Changed His Alert Signal

The case presented a situation with factors that should have diminished the reliability of the police dog in that case. First of all, the dog “detected” illegal mushrooms. Yet, the dog had no training in the detection of mushrooms!

Personally, I don't understand how this fact did not play a bigger role in the case. This detail is only mentioned in passing. It is not discussed in an analytically way.

Second, the police dog died four months after the search in that case. Again, this is  a detail that is only mentioned in passing. It seems the fact that the dog may have had significant health problems was completely undisclosed to the defense.

The troubling aspects of the decision is that these factors, although noted by the appellate court, essentially played no role in its assessment of the dog’s reliability.

A dog's health may not be something we know about if we don't actively try to find out.

So the court's are going to place great emphasis on the fact that a dog finished narcotics training. 

But it is up to us to ensure that police dog narcotics training not become the whole story. 

In Litwhiler, he court appeared to rely on that one factor to determine the dog’s reliability. The court relied 100% on the mere fact that the dog had undergone narcotic detection training. So it appeared the court relied on nothing else.

The case does appear to confirm the defense bar’s concern that it is going to be impossible to challenge the reliability of a police drug dog in court.

I am still holding out for optimism. Thorough police dog discovery should not be abandoned.

In this podcast episode, I suggest that thorough discovery on the dog and the dog handler could provide a pathway to challenge the reliability of the drug dog in court.

And for that matter we won't know anything about a police dog's reliability if we don't try to discover it.

We have to be more organized and demanding about the discovery we receive pertaining to the dog in our cases.

We have a right to access training records that can help us assess the specific dog's reliability to not only detect drugs but also the dog's ability to accurately signal this to the handler.

All the cases discussed above point out that the defense attorney has the right to probe and challenge the reliability of a police dog. In order to do that, it means asking for the right kind of discovery.

I created a sample doggie discovery motion that you can use to try to find out all that you can about the drug dog in yoru case. You can download the doggie discovery motion below.

Police dog discovery is one way to gather the tools necessary to challenge the reliability of a drug dog sniff. 

Police dog medical records have to be included in any doggie discovery that the defense is demanding.

In my original article on police dog discovery, I did not include a specific request for doggie medical records. Therefore, the first paragraph of that discovery motion should be amended by the addition of the following lettered paragraph.

any and all veterinarian and or medical records pertaining to the health and medical condition of Underdog (or said canine)

This new front on the Fourth Amendment battle field is not encouraging.

The defense bar must do its best to hold-up the line and prevent what appears to be rampant, unquestioned acceptance of police dog reliability.

There will only be more and more of these police dog cases to come. Good luck out there!

Listen to this podcast episode with the audio player above or on iTunes:

By leaving your email address, a PDF of my original Police dog Discovery motion can be downloaded here: (Don't forget to add the additional request for veterinarian records.)

The bottom line is that the police won't need a warrant to use a police dog outside your home. But the dog better be there already or get there fast.

To bring a police dog onto your property, the police will need a warrant.

I created this infographic to summarize these drug sniffing dog cases.

Click here to download a PDF of the infographic.

I hope it helps keep the cases straight.

http://illinoiscaselaw.com/illegal-search-and-seizure-cop-pulls-gun/

Illegal search and seizure results after a cop pulls a gun on a lady. If the officer had a reason to be so aggressive, he certainly did not articulate it for the record. In a hearing on a defense motion to suppress, failure of the officer to articulate his reasons usually means they are going to lose the motion.

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See People v. Bozarth, 2015 IL App (5th) 130147 (01/26/2015).

So The defendant was challenging the basis for her seizure by the police. At the trial level, she filed a motion to quash and suppress evidence that was denied.

She was charged and found guilty of DUI.

She was challenging the stop.

This is what we know from the hearing.

Trooper is on duty at 1:22 am in a rural and quiet area. There is only one car on the road. Yup, the Defendant.

Cop is in an unmarked squad car. He turns around and follows Defendant where he says he was “looking for violations.” ¶ 3.

Sees none.

Then the car appears to turn into a long private driveway but then disappears. The lights go off, and it is unclear where the car went.

So cop pulls into the driveway and notices that the car is parked alongside a barn way before the residence. Naturally, he pulls up behind the car about a car and half length away.

The officer then approaches the driver with his flashlight and gun drawn.

Then this is what happened:

• Driver rolls down window
• Says Property Not Hers
• Cop Smells Alcohol

At this point, the officer removes the driver from her car for field sobriety tests.

The trooper testified that when he first saw the car he “had no real suspicion at that time.” ¶ 6. But, you never might what happen. Am I right?

The trooper was asked directly what suspicions he had when he saw the driver turn into the driveway. This is what he said:

“... It was an awkward way to just pull off in a driveway and shut off your lights. It depends on–it entered my mind, is where they stealing something, maybe doing something involving anhydrous, making methamphetamine." ¶ 6.

This is how the trooper answered the question:

"Um, there was not a residence in the immediate area of the barn. An individual pulled in behind a barn, and immediately shuts off the lights. Not knowing if they had seen me–I drive an unmarked squad car, so I didn't know if something was going on, or if they were trying to hide or not. *** I didn't know if there was any foul play going on, if they were trying to hide from me or not whenever they pulled up to the barn." ¶ 7.

Of course, the trooper testified that she was free to leave at any time.

So let me end the suspense. The appellate court reversed the trial court’s decision to deny the defendant’s motion to suppress.

No big surprise given the way the facts were rolled out.

However, I think that the prosecution could have had a better shot at winning the motion if they had just had some better preparation from the trooper.

These cases teach us that perspective matters. There are going to be judges and juries who 100% are on board with the views, opinions, and perspectives held by law enforcement.

Part of the problem for the State was that the trooper was not articulating anything. This left a horrible record (for them). The appellate court had no choice but to reverse this case.

If we have learned anything about cops, citizens, and especially search & seizure analysis it is that:

"There is always wiggle room." And
Their perspectives really matter.

Perhaps, with slightly different testimony from the trooper the State could have pulled out a victory, even with these facts.

I have lost plenty of trials and motions and thought I would win because of two main reasons:

• Legal Wiggle Room
• Personal Perspective of Judge or Jury

Now look, I think the result was definitely correct in this case. However, the litigator in me also can see how these same facts could have resulted in a win for the State. 

That does not mean that is what I think should have happened. It just means it is always in our best interest when we can explore a case and its results from all angles. 

You know what I'm saying?

On the law side, we don’t have to look to hard for wiggle room.

We know that police are people too. They are free to walk up to people or follow cars the same way a normal citizen can do it.

"It is well settled that not every encounter between the police and a private citizen results in a seizure." People v. Luedemann, 222 Ill. 2d 530, 544 (2006).

The test to determine whether a person seated in a parked vehicle has been "seized" by the police is whether a reasonable person in the defendant's position would have believed she was free to decline the officer's request or otherwise terminate the encounter. Luedemann, 222 Ill. 2d at 550-51.

"When a police officer, through the use of physical force or show of authority, has in some way restrained the liberty of a citizen, the court may conclude that a 'seizure' has occurred." People v. Carrera, 321 Ill. App. 3d 582, 589 (2001). 

A person may be seized with less than probable cause under Terry principles. "And Terry, a police officer may conduct a brief, investigatory stop of a person where the officer reasonably believes that the person has committed, or is about to, commit a crime." People v. Close, 238 Ill. 2d 497, 505 (2010). "The investigatory stop must be justified at its inception." Id.

And of Course we know that the ...officer must be able to point to specific, articulable facts which, taken together with rational inferences, reasonably warrant the investigatory stop.” Id. "The officer's suspicion must amount to more than an inarticulate hunch [citations], but need not rise to the level of suspicion required for probable cause [citation]." Id.

So had the State applied some of these search and seizure principles with a strong showing of the officer’s perspective who knows what might have happened in court?

The gun was the deal killer for the appellate court.

Yea, drawing your gun and her was a significant show of authority. Despite, the officer’s statement that she was free to leave a reasonable person knows you ain't’ going anywhere when the cops pull a gun on you.

“Effectively, the defendant was seized from the point where the officer pulled in behind her vehicle.” ¶ 16.

The problem for the State is that the trooper had done a terrible job of articulating his suspicions. He doesn’t point to anything solid and doesn’t make sue of the very minimal flexible standards in the law.

This is where the huge difference in perspectives comes into play in these cases.

Clearly the appellate judges were swayed by the defendant’s story in this case. Her perspective is that -

• She Was Minding Her Own Business
• She Was Not Doing Anything
• She Was Scared When Car Followed Her
• She Couldn’t Avoid the Car
• Then He Pulled a Gun on Me

Officer never really lays out his train of that or exactly what he was thinking. His perspective is not articulated well at all.

Which usually the prosecution would want to do because there are sympathetic judge and jurors out there who share the same view point.

Why didn’t they ask him directly,

“Why did you take out the gun?”

Make a record of him saying, “I was scared.” It seems the trooper did not take an opportunity to express exactly what he felt when he took his gun out.

We all know what was going on. She was hiding from him. But he never really takes a chance to address issues that always seem to come up in the cases I litigate.

• Was she was making furtive movements in the car?
• Do barns get burglarized?
• Why else do people hide behind barns?
• What other crimes were you worried about preventing?
• Do these people who hide behind barns ever have weapons on them?
• Do barn-hiders hate cops?

All I am saying is that I have seen the State hit home runs with these kinds of issues.

Maybe the issues were not there for the taking in this case, maybe the trooper just fumbled it, or maybe the defense just had the better story.

“Here, the evidence reveals that the officer could not articulate any facts to support a reasonable suspicion that the defendant had committed, or was about to commit, a crime that would justify the investigatory stop.” ¶ 19.