Kane County Nuggets

In re N.A., 2018 IL App (1st) 181332 (December). Episode 578 (Duration 7:08)

It it still appropriate to allow a conviction based on the word of one eyewitness?

An Armed Robbery

Around 8:10 p.m., victim backed her car into her garage.

Her nine year old daughter sat next to her. As the victim opened her car door, two men walked into the garage and positioned themselves on either side of her car. Still seated, she looked up and saw the man’s face. He pointed a gun at her and demanded her to “hand over everything.” She gave the man her purse and cell phone. The two men left and the victim called the police.

The Identification

The victim looked up at the man from her seated position.

He stood two feet away on the other side of her car door. Because the door was ajar, the car’s dome light activated. A “dim” garage light had turned on and there was some additional “ambient lighting from the alley.” She “immediately” saw the man had a gun. It was a “small pistol-type gun,” dark in color and he held it “close to his body.” From her vantage point, the gun was pointed “pretty much to my face.”

He was African-American and wore a “nondescript,” “dark colored sweatshirt” with the hood on, but she could see his face and “short hair.” They appeared to be 20 years old and she guessed that their heights were between five feet, 10 and 11 inches.

After he demanded, “give me everything” and “don’t move,” the victim surrendered her purse and cell phone. The two men left.

The Photo ID

Detective showed her two sets of photographs. This Detective was an independent administrator, meaning that he had “no knowledge of the case or who the suspect may be in the photo array.”

Before viewing the photographs, she signed a photo lineup advisory form indicating that she did not want to be audio or video recorded. The victim understood she did not have to identify anyone. She identified respondent in the first set of photographs as the man who robbed her. She did not identify anyone from the second set.

About a month later, Chicago police detective went to the victim’s home and showed her two photo arrays. She signed a photo advisory form indicating that that she did not want to be audio or video recorded and understood she had no obligation to identify anyone. The victim identified respondent N.A. in the first photo array as the man who robbed her at gun point.

She did not identify anyone in the second photo array.

She Was Certain

On cross-examination, the victim testified that her focus during the robbery was directed at respondent’s gun. She indicated that the alleged robbery lasted five to seven minutes and that respondent did not speak with an accent when he voiced his demands. On re-cross examination, the victim testified that she had “no problem at all” seeing respondent’s face or identifying him in court.

She testified, “I was able to get a really good look at the guy when it was happening because his face was so close to me. So then, when I saw the photo lineup, you know, I knew the photos that were absolutely not the person. And so, you know, when I identified that person, I was certain.”

Issue

The issue on appeal is whether the victim’s eyewitness identification testimony was sufficient to sustain respondent’s delinquency adjudication beyond a reasonable doubt.

Respondent challenges that identification as unreliable and insufficient to support his delinquency adjudication beyond a reasonable doubt.

Single Eyewitness Sufficient To Convict

A single eyewitness identification of the accused is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification. People v. Davis, 2018 IL App (1st) 152413, ¶ 55.

A vague or doubtful identification will not suffice. Illinois courts look at the totality of the circumstances and consider the following factors to determine whether an eyewitness identification is reliable:

(1) the witness’s opportunity to view the suspect during the commission of the offense
(2) the witness’s degree of attention
(3) the accuracy of any prior descriptions provided
(4) the witness’s level of certainty at the time of the identification procedure and
(5) the length of time between the crime and the identification.

People v. Slim, 127 Ill. 2d 302, 307–08 (1989); Neil v. Biggers, 409 U.S. 188, 199 (1972). Respondent argues that the victim’s identification is unreliable.

They Are All Unreliable

In his brief, however, respondent goes further and takes aim at all eyewitness identifications.

He suggests that the Illinois supreme court has “cast doubt” on the reliability of eyewitness identifications and contends that the legislature shares a similar “skepticism” evidenced by its enactment of the section 107A-2 of the Criminal Code of 1963 (725 ILCS 5/107A-2 ) (the Lineup Statute), which governs the procedure by which lineups are conducted.

Circling back to his case, respondent argues that the Biggers factors are no longer the “end-all-be-all of assessing identification testimony” and urges us to find that the Detective's noncompliance with the Lineup Statute further undercuts the reliability of an already unreliable eyewitness identification.

Analysis

The victim’s testimony showed that she had an ample opportunity to view respondent during the commission of the offense. She had “no problem at all” seeing his face from where she sat in her car and got a “really good look at the guy when it was happening because his face was so close to me.” Respondent stood two feet away from the victim. The encounter lasted “five to seven minutes.”

Respondent contends that the lighting conditions were inadequate because the garage light was “dim.” But there is simply no evidence that the lighting conditions (or respondent’s hooded sweatshirt) obstructed the victim’s view or prevented her from seeing respondent’s face. All the testimony is, frankly, to the contrary. The victim was not impeached and the trial court found her testimony to be credible.

The victim’s degree of attention during the robbery was not “particularly weak,” as respondent contends. To be sure, the victim did testify that her “focus” during the robbery was on respondent’s gun, but on re-direct examination she clarified her testimony and indicated she was able to see respondent’s face while focusing on his gun.

We cannot consider respondent’s scholarly article on “weapon focus” (or his reference to an article on the unreliability of “cross-racial” identifications) as the trial court was not afforded the opportunity to consider that information and heard no argument based upon it. 

The victim was not required to describe the physical characteristics of the offender to police with pinpoint accuracy. Our review of the record indicates that the victim’s use of the word “nondescript” was a reference to respondent’s dark clothing, not his facial or other physical features.

Did The Description Match?

The victim testified at trial that she described respondent to police as a nondescript, 20 year old who stood between five feet, 10 to 11 inches in height. Respondent argues that this description was inaccurate and unacceptable given respondent’s age of 17 at the time of the offense and height of five feet, seven inches. He places particular emphasis on the victim’s use of the word “nondescript” and her failure to include respondent’s short hair and lack of facial hair in her initial description of respondent.

Furthermore, the trial court was aware that the victim ventured a guess as to respondent’s exact height and failed to provide an initial description of his hairstyle to police. The trial court addressed these issues within its province and resolved them against respondent. We defer to the trial court’s decision.

Level Of Certainty

As for the victim’s level of certainty at the time she viewed the photo arrays and identified respondent, she testified to being “certain” of her identification and “knew the photos that were absolutely not the person.” The victim had no problem making the identification.

Respondent argues that an eyewitness’ confidence when identifying an offender is not conclusive of accuracy. But whether or not his argument rings true is immaterial as respondent failed to present this argument to the trial court.

Took Her A Month

As respondent requests, we do not “easily brush off” the fact that a month lapsed between the identification and the armed robbery. However, we have upheld positive identifications involving considerably longer lapses in time. See People v. Malone, 2012 IL App (1st) 110517, ¶ 36 (identification was reliable despite lapse in time between crime and identification of one year and four months).

We therefore see no reason to upend the trial court’s determination as a result of the lapse in time here.

Lerma Not An End All

Respondent urges this court to look beyond the Biggers factors and recognize that our supreme court has moved away from them. He supports his argument with People v. Lerma, 2016 IL 118496 and accurately quotes the case to show that the court’s view of expert testimony on the reliability of eyewitness identifications has changed.

We have not only seen that eyewitness identifications are not always as reliable as they appear, but we have also learned, from a scientific standpoint, why this is often the case.

However, we do not see how Lerma, applies to his case. Respondent did not call, or attempt to call, an expert witness at trial. Accordingly, if Lerma changed the legal framework of eyewitness identification, respondent made no attempt to benefit from it at trial.

The Photo Lineup Was Not Recorded

Did Detective violate the Lineup Statute and, as a result, the victim’s identification is entitled to “less weight?”

The Lineup Statute governs the manner and means by which law enforcement conducts lineups. 725 ILCS 5/107A-2, 107A-0.1  A video record of all lineup procedures must be made unless it is not practical or the eyewitness refuses. § 107A-2(h). If making a video record is not practical or the eyewitness refuses, an audio record shall be made, if practical. §§ 107A2(h)(1), 107A-2(1)(B).

The Lineup Statute identifies the following as “consequences” of noncompliance:

(1) the trial court can consider noncompliance as a factor in adjudicating a motion to suppress an eyewitness identification or any other motion to bar an eyewitness identification; and
(2) when warranted by the evidence at trial, the trial court must instruct the jury that it may consider noncompliance to assist in its weighing of the identification testimony of the eyewitness.

§ 107A-2(j)(1)-(2).

The State argues that the lineup form signed by the victim indicated her unwillingness to be video or audio recorded and therefore, this is a nonissue. But, as respondent points out, the Lineup Statute contains no language that would allow an eyewitness to refuse an audio recording. Id. § 107A-2(h)(1)(B).

The State’s argument is therefore misplaced and, absent any argument as to why an audio recording of the photo array procedure was not practical under the circumstances, we are left with sheer noncompliance.

Given technological advancements, the portability of recording devices and law enforcement’s use of body cameras, we see no reason why Detective could not have made an audio record as the Lineup Statute requires.

But the violation had no affect on the reliability of the victim’s identification.

Respondent was not tried before a jury and he failed to file a motion to suppress or bar the victim’s identification. Accordingly, this noncompliance was inconsequential.

Holding

We hold that the totality of the circumstances and Biggers factors favor the State and support the trial court’s finding that the victim’s identification was reliable. Viewed in the light most favorable to the State, the victim’s testimony was sufficient to support respondent’s delinquency adjudication beyond a reasonable doubt. She was “certain” respondent was the man who robbed her at gun point and took her purse and cell phone, and “had no problem at all” picking respondent out of the photo array or identifying him in court.

Despite respondent’s arguments to the contrary, the basic legal principle that a single eyewitness identification of the accused under circumstances permitting a positive identification is sufficient to convict remains fully intact. In re M.W., 232 Ill. 2d 408, 435 (2009). We have one such identification here.

People v. Hayden, 2018 IL App (4th) 160035 (December). Episode 577 (Duration 7:14)

Predatory reversed due to non severance of the charges.

Gist

Life sentence in a predatory criminal sexual assault is reversed because the charges were not severed.

Joinder of Charges

A trial court may order that two or more charges be tried together “if the offenses *** could have been joined in a single charge.” 725 ILCS 5/114-7.

“Two or more offenses may be charged in the same [charging instrument] in a separate count for each offense if the offenses charged *** are based on the same act or on 2 or more acts which are part of the same comprehensive transaction”, unless joining the separate charges would prejudice the defendant. 725 ILCS 5/111-4(a) and 725 ILCS 5/114-8(a).

Thus, assuming the lack of prejudice to the defense, two or more offenses may be charged in the same charging instrument only if

(1) the offenses are based on the same act or
(2) the multiple acts are part of the same comprehensive transaction.

Same Comprehensive Transaction

Case law has developed some factors for determining whether multiple acts are parts of the same comprehensive transaction, including

(1) “the proximity in time and location of the offenses,”
(2) “the identity of evidence needed to demonstrate a link between the offenses,”
(3) “whether there was a common method in the offenses,” and
(4) “whether the same or similar evidence would establish the elements of the offenses.”

People v. Gapski, 283 Ill. App. 3d 937, 942 (1996).

Those are merely factors, however, and we must not allow them to supplant the statutory language. In this case, the critical language in section 111-4(a) is “the same comprehensive transaction.”

Dictionary Meaning

Typically, the word “transaction” is used to mean “an exchange or transfer of goods, services, or funds.” Merriam-Webster’s Collegiate Dictionary 1249 (10th ed. 2000). Less often, the word is used to mean “the carrying on or completion of an action or course of action” (Oxford English Dictionary 387 (2d ed. 1989)) or “an exchange or interaction between people” (New Oxford American Dictionary 1787 (2d ed. 2005)). See also Merriam-Webster’s Collegiate Dictionary 1248 (10th ed. 2000) (“a communicative action or activity involving two parties or things that reciprocally affect or influence each other”).

Section 111-4(a) uses the term “transaction,” in this somewhat unusual way, to mean a course of action or an interaction between people because case law preexisting the statute almost always used the term that way when explaining when separate offenses could be joined in a single charging instrument.

See People v. Fleming, 121 Ill. App. 2d 97, 102 (1970) .

Different Victims At Different Times

If a defendant completes offenses at different times and against different victims, the offenses probably are not parts of the same transaction unless there was “a concerted plan of action or scheme on the part of defendant that would link the two offenses.” See People v. Bricker, 23 Ill. App. 3d 394, 397 (1974).

Thus, if at different times a defendant commits the same type of offense against different victims, a similarity in methodology (such as pointing a gun at a clerk) and a similarity of motive (such as the desire for money) do not make the offenses parts of “the same comprehensive transaction.” 

Analysis

Defendant’s alleged sexual offense against his stepdaughter, T.M., and his alleged sexual offense against his stepdaughter’s friend, A.C., at a different place three years later, are not parts of the same comprehensive transaction.

It is logically irrelevant that both victims were female minors and that he sexually molested them in a similar manner and under similar circumstances. The similarity of the two offenses has no logical tendency to make them a “united, continuous and indivisible act.” These offense were, on the face of the information, separate transactions, and, therefore, the trial court abused its discretion by denying defendant’s motion for a severance.

But Was It Harmless Error?

If the charges had been severed as they should have been, section 115-7.3(b) of the Code (725 ILCS 5/115-7.3(b)), would have allowed T.M. to testify in A.C.’s trial and A.C. to testify in T.M.’s trial. Even though the common law rule against propensity evidence is lifted in prosecutions for the listed sex offenses, there is still a condition of admissibility that no other rule of evidence stands in the way of the propensity evidence. If the propensity evidence is, for example, hearsay, there must be an applicable exception to the hearsay rule

Nevertheless, defendant argues—and here is his crucial point—that T.M. or A.C., as a propensity witness, could have testified to defendant’s alleged assault upon her, but her hearsay statements—her out-of-court statements about the assault upon her—would have been inadmissible absent an applicable exception to the hearsay rule (see Ill. R. Evid. 802), such as the exception for excited utterances (Ill. R. Evid. 803(2)).

Severance Would Have Had A Purpose

Thus, defendant argues, the severance of the charges would have resulted in the exclusion of many of the credibility-bolstering hearsay statements that the State presented in his trial. In other words, defendant traces a causal relationship between the denial of his motion for a severance and the abundance of confirmatory hearsay that was allowed in his trial.

With a severance, he could have objected to propensity evidence that was inadmissible because it was hearsay, not because it was cumulative.

Section 115-10 Is Limited To "Victim" Testimony"

With the charges erroneously unsevered, both A.M. and T.M. were “the victims” in the prosecution, and, consequently, under section 115-10 (725 ILCS 5/115-10), hearsay statements regarding sexual assaults upon them were admissible.

But if the charges had been severed, as they should have been, the hearsay exception in section 115-10, would have applied in A.C.’s case only to hearsay statements regarding sexual assaults upon A.C., and in T.M.’s case only to hearsay statements regarding sexual assaults upon T.M.

Defendant agrees that under section 115-7.3(b), each child could have testified in the other child's trial as a propensity witness. But their propensity testimony would have been limited to their in court testimony. None of the additional hearsay testimony pertaining to the propensity witness would have been admitted.

Section 115-10 of the Code creates a hearsay exception not for the out-of-court statements of any victim, but only for the out-of-court statements of “the victim,” designated in the “prosecution.”  The language of the section makes this clear. Additionally,  “the victim” can mean only the victim (or the victims (see id. § 102-3) named in the “prosecution for a physical or sexual act”—not a propensity witness. When the legislature means propensity witnesses, it naturally uses the term “witnesses,” not “victims.” See id. § 115-7.3(d).

Thus, the definite article in “the victim” (725 ILCS 5/115-10(a)(1), (2)) is a restrictive word, signifying that “victim” is someone previously mentioned in subsection (a) (§ 115-10(a)), namely, the “child under the age of 13,” or “person who was a moderately, severely, or profoundly intellectually disabled person” who is the alleged victim in the “prosecution for a physical or sexual act.” “The victim” means not just any victim but “the victim” named in the prosecution.

Plethora of Hearsay In This Trial

As defendant convincingly argues, the misjoinder of counts made A.C. and T.M. both “the victim” for purposes of section 115­ 10(a)(1) and (2), and, consequently, threw the doors open to a lot of bolstering hearsay evidence that would have been inadmissible if the charges had been severed, as they should have been.

For example, in A.C.’s trial, she could not have testified to what T.M. had told her. Nor could D.O. have testified to what T.M. had told her. Nor could Shirita have testified to what T.M. had told her. Nor could Bunyard have testified to what T.M. had told her. Nor could the DVD of her interview of T.M. been played to the jury.

In T.M.’s trial, maybe, under the hearsay exception for excited utterances (see Ill. R. Evid. 803(2)), A.C.’s hearsay statements to D.O. and D.O.’s parents would have been admissible, assuming that such evidence was not unduly cumulative. However, Cassandra could not have testified to what A.C. had told her. Nor could T.M. have testified to what A.C. had told her. Nor could the DVD of Bunyard’s interview of A.C. have been played to the jury.

There Was Prejudice

We can readily infer that all this hearsay evidence was calculated to bolster the credibility of A.C. and T.M.—and defendant has a reasonable argument that their credibility needed such bolstering. The cumulative, bolstering hearsay statements could have persuaded the jury to overlook those arguable weaknesses and inconsistencies in the State’s case and to set aside any questions about the complainants’ credibility.

The prejudice from the misjoinder of the charges was the admission of hearsay that, but for the misjoinder, would have been inadmissible.

the State use what otherwise would have been inadmissible hearsay to bolster the credibility of the complainants—as the misjoinder of the charges allowed the State to do. The record fails to clearly show that the misjoinder of charges and the resulting admission of bolstering hearsay were not prejudicial.

Holding

For the foregoing reasons, we reverse the trial court’s judgment, and we remand this case for further proceedings consistent with this opinion.

This is the December 2018 Illinois criminal case law audio round-up (the fast case law summary). Episode 576 (Duration 23:33)

The December 2018 Top Illinois Criminal Law Cases (The Monthly Round-Up)

Here's a quick snapshot of the top cases:

1. People v. Manzo

This one will be controversial: Illinois Supreme Court holds their was no nexus to the house justifying the search warrant.

2. People v. Clark

2019 will see a new fines and fees law take effect, Supreme Court stuck it to this guy right before the law change.

3. People v. Garza 

In a close one the reviewing court agrees to suppress these statements made on the roadside after a traffic stop.

4. People v. Mueller

Jeep touches he traffic lines 3 times and gets stopped, reasonable?

5. People v. Pratt

Warrantless blood draw after an accident deemed unconstitutional blood results excluded.

6. People v. Racila

Trial judge's ruling that there was no probable cause for this DUI arrest is reversed.

7. People v. McLaurin

State does not admit the gun, acquittal follows thereafter (weird facts though).

8. People v. Fillyaw

Improper to not allow the defense to impeach an unavailable witness with an affidavit obtained by the defense.

9. In re N.A.

It it still appropriate to allow a conviction based on the word of one eyewitness?

10. People v. Boston

Long complicated murder case, here is some information on commenting on pre-arrest silence.

11. People v. Hayden

Predatory reversed due to non severance of the charges.

12. People v. Bona

Dude leaves a less than prudent phone call on a state representatives voicemail.

13. People v. Mitok

Defendant was double enhanced when they used the same DUI to elevate it to an aggravated DUI then on top of that hit him with mandatory X sentencing.

14. People v. Lundy

10 years for armed robbery is not an abuse of discretion.

15. People v. Kelly 

Defendant challenged the constitutionality of banning guns when you got weed on you.

16. People v. Woods

Defendant was ordered to cooperate with the PSI and the judge turned around and used what he said against him.

17. People v. Price

Kid gets a chance to argue that his murder sentence should be in juvenile court.

18. People v. Mitchell

Felony murder conviction upheld even though the victim was shot and killed in Indiana.

People v. Fillyaw, 2018 IL App (2d) 150709 (December). Episode 575 (Duration 5:52)

Improper to not allow the defense to impeach an unavailable witness with an affidavit obtained by the defense.

Gist

This was a home invasion committed by 2 gunman. One victim was shot and killed while 2 others were shot but survived. Two witnesses were found unavailable by the time the second trial came around. The court allowed the State to read to the juries testimony from the first trial. One witness could not be found and the other one said she had no memory of the events.

The Affidavit

Also prior to the second trial, defendants filed a motion in limine to admit a notarized affidavit. They asserted that they could use the affidavit to impeach an unavailable witness if he were present to testify.

They also stated that the notary would be available to testify to the affidavit’s authenticity.

The affidavit states:

“1-23-14 I Lebraun Graham write this affidavit to say that I never saw who shot me On 7­ 17-07 truth be told the North Chicago police lead me to believe that William Fillyaw was the one who shot me[.] I don’t want a innocent man in jail for this incident when he’s not the person who shot me.”

The word “Sincerely” and Graham’s signature appear below the statement. The document has the notary seal of the notary and her signature on the notary line.

The court denied the request to admit the affidavit, because the affidavit mistakenly stated that the shooting took place on July 17, 2007, when the shooting in fact took place on June 29, 2007.

The Witness Trial Testimony

This witness testified in the first trial that he had seen the two shooters’ faces because they were not wearing masks. He identified defendant as the man who kicked in the door and another man as the person who entered the apartment.

Defendant carried a shotgun, while the other man had a handgun. The witness said the lighting was “okay” and that he did not have difficulty seeing the men. Fillyaw shot him in the left shoulder and the other man shot another victim.

This witness did not immediately identify defendants as the shooters. He was taken to the hospital, where he spent 3½ weeks and had four or five surgeries on his left shoulder. He had just come out of the first surgery and his family was in the hospital room when he spoke to detectives. 

He did not identify defendants as the shooters until almost 16 hours after the shooting, when he picked their photographs from separate arrays from his hospital bed while on morphine and in a great deal of pain, having recently had shoulder surgery. Both of the men he identified he knew.

The witness mistakenly identified a different man from a photo array as a third offender, who he later acknowledged was not involved in the shooting.

The Second Witness

The testimony from the first trial showed that she did not get a good look at the two shooters’ faces, because they wore masks that revealed only their eyes. She testified that one shooter wore a tannish jacket and fired at someone on the floor with a big black gun. She later identified the jacket that one of the men was wearing at the time of his arrest as the jacket worn by one of the shooters.

The juries found defendants guilty of first-degree murder and guilty of 2 counts of attempt murder. The trial court sentenced Fillyaw to 60 years’ imprisonment for the murder and sentenced the codefendant to 55 years’ imprisonment for the murder.

Both defendants were sentenced to 10 years for each of the two attempt first-degree murder convictions both to be served concurrently with their sentences for first-degree murder.

Illinois Rule of Evidence 806

Both defendants contend that the trial court erred in refusing their request, pursuant to Illinois Rule of Evidence 806 (eff. Jan. 1, 2011) (Rule 806), to impeach the witness's prior testimony with an affidavit which recants his identification of defendants as the shooters.

Defendants also argue that the trial court’s refusal to admit the affidavit violated their constitutional rights to present a defense and to confront the witnesses against them.

Evidence Rule 806 provides:

“When a hearsay statement *** has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.”

Ill. R. Evid. 806 (eff. Jan. 1, 2011).

Prior to the adoption of the Illinois Rules of Evidence, it was recognized that, where a statement of an absent declarant is properly admitted into evidence under a hearsay exception, “the opposing party may impeach such statement with a prior inconsistent statement by the declarant.” People v. Smith, 127 Ill. App. 3d 622, 630 (1984) (citing Federal Rule of Evidence 806 (28 U.S.C.A.), which closely tracks the language of Rule 806).

State Admitted The Prior Testimony

The trial court found the witnesses to be unavailable and the court allowed the State to present his testimony from the first trial. See Ill. R. Evid. 804(a)(5) and (b)(1) (eff. Jan. 1, 2011).

Illinois Rule of Evidence 804(a)(5)

A witness is unavailable if the witness - 

"...is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means."

Ill. R. Evid. 804(a)(5) (eff. Jan. 1, 2011).

Illinois Rule of Evidence 804(b)(1)

The following is not excluded by the hearsay rule if the declarant is unavailable as a witness:

"Former Testimony. 

Testimony given as a witness (A) at another hearing of the same or a different proceeding, or in an evidence deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination, or (B) in a discovery deposition as provided for in Supreme Court Rule 212(a)(5)."

Ill. R. Evid. 804(b)(1) (eff. Jan. 1, 2011).

Analysis

The State had the right to introduce the witness's testimony from defendants’ first trial due to his unavailability at the second trial, but defendants had the corresponding right, under Rule 806, to attack his credibility by any evidence which would be admissible if he had testified as a witness.

Had the witness testified at the second trial, he certainly could have been impeached with a written statement recanting his earlier identification of defendants by stating that he did not see who shot him. Before the affidavit would be admitted into evidence, it would be defendants’ burden to authenticate it as having been signed by the witness. 

Here, defendant supplied a rational basis upon which the jury could conclude that the affidavit was authored by the witness. The notary testified that she was a notary public and that, while she did not recognize the affidavit or have memory of this particular transaction because she had witnessed “so many papers,” she did, in fact, state that she notarized the affidavit. She stated that it was her practice for the affiant to show her a State photo identification card or driver’s license and to watch the affiant as he or she signed the document; otherwise, she would not have notarized it.

We find it incomprehensible that the affidavit discusses an incident other than that in question in this case.

It seems obvious the date in the affidavit is not a reference to the date of the shooting but the day of the earlier identification. Regardless, the incorrect date would only concern the weight to be afforded the exhibit, not its admissibility. 

Defendants correctly note that they never sought admission of the affidavit as substantive evidence under the statutory provisions. Rather, defendants sought admission only to impeach the witness identification testimony under Rule 806.

The trial court’s skepticism of the witness's recantation was not a proper basis to exclude the affidavit.

This Was Not A Close Case

The State present any physical evidence tying defendants to the offenses; no latent fingerprints or guns were recovered.

Parker’s cell phone was found in the alley by the victim’s apartment, but Parker lived about two blocks away. A tan jacket was taken from Parker, but no gunshot residue was detected on either cuff of the jacket.

In Fillyaw I, we also called into question Rodger’s credibility. Clearly, Rodgers’ testimony was problematic at best. At times, she stated she could see defendants’ faces and at other times she could “not really” identify them. Rodgers also intimated that she was persuaded to circle defendants’ photographs because of police pressure. In short, Rodgers, as the trial court noted, had a “proclivity to change her mind and let’s just say testify whimsically.”

Graham’s identification testimony was of great importance during the trials. In order to accurately assess the credibility of Graham’s prior testimony, the jury was entitled to know that subsequent to that testimony, Graham allegedly had signed an affidavit disavowing his identification and attributing the misidentification to improper inducement by the police. The jury had a right to consider the affidavit in judging the value and believability of Graham’s testimony.

Holding

We agree that given the weak circumstantial evidence and the problematic eyewitness accounts, the affidavit’s exclusion was “anything but harmless.” If the witness testimony is used in either case on remand, the affidavit may be admitted as a prior inconsistent statement.

Reversed and remanded.

People v. Pratt, 2018 IL App (5th) 170427 (December). Episode 574 (Duration 6:41)

Warrantless blood draw after an accident deemed unconstitutional blood results excluded.

Gist

The Ford Expedition he was driving struck a tractor trailer, causing extensive damage to the defendant’s vehicle. Daniel Tutor, a passenger in the defendant’s vehicle, died at the scene. The defendant sustained serious injuries to his face.

An emergency room nurse drew blood from the defendant at a detective’s request.

The defendant was subsequently charged with aggravated DUI.

Issue

The defendant filed a motion to suppress the results of the blood test, arguing that it violated his right to be free from unreasonable searches under the fourth amendment to the United States Constitution (U.S. Const., amend. IV).

Defendant's Testimony

At a hearing on the motion, the defendant testified that he was treated at St. Louis University Hospital for injuries sustained in a motor vehicle accident. He testified that he did not give any police officer permission to have his blood drawn while he was there. Asked if he spoke to any officers from the Sauget Police Department while he was in the hospital, the defendant testified that he did not remember even seeing any officers at the hospital.

On cross-examination, the defendant testified that he did not remember having blood drawn that night.

He explained that he was “out of it” that night and noted that he lost enough blood that he required a blood transfusion. The court shifted the burden.

Officer At The Scene

One officer testified that he “thought [the defendant] could have been under the influence.” He explained that the defendant had slurred speech and he was unable “to answer straight questions.” When the defendant exited his vehicle, he needed help getting out of the vehicle and walking. This officer didn't know what kind of injury the driver had sustained.

Defendant was not placed under arrest at the scene of the accident.

This officer found an open bottle of Crown Royal on the driver’s seat under debris. There was still some alcohol in the bottle.

Detective At The Hospital

After nurses were done treating defendant the detective read the defendant the warning to motorists (see 625 ILCS 5/11-501.1(c), 11-501.6(c)) and asked the defendant if he understood. Defendant “just gave [him] a grunt.” He then approached the defendant to ask him to provide a blood sample, but the defendant did not respond. He stated that the defendant appeared to be “either unconscious or in a deep, deep sleep.”

The detective then asked one of the nurses to take a blood sample from the defendant.

Detective did not observe the defendant displaying any signs of intoxication. Asked to describe the defendant’s injuries, the detective replied, “His nose was just laid open.” A nurse obtained a blood sample from the defendant and gave it to the detective.

Trial Court Excluded The Blood

The court stated that, after reviewing the pertinent statutes and applicable case law, it found that “the sole path to admissibility” of the defendant’s blood test results was the exigent circumstances exception to the requirement of a warrant. The court further found that the State’s evidence did not satisfy the requirements for this exception. The court therefore granted the defendant’s motion to suppress the evidence.

Should The Trial Court Have Shifted The Burden?

The State correctly argues that the defendant bore the initial burden of proving both that a search occurred and that the search was not valid.

In this case, the State points out, the defendant testified that he did not remember the emergency room nurse drawing his blood, and he did not present any evidence that the blood draw occurred at all. The State acknowledges that the detective later testified that the blood draw occurred. It emphasizes, however, that it is the defendant’s initial burden to prove that a search occurred. 

We are not persuaded.

For one thing, we believe that this case is distinguishable from Brooks. The defendant in that case, who was conscious at the relevant time, testified that he refused to consent to a blood draw. But he never testified that he was, in fact, subjected to a blood draw. A police officer testified that he accompanied the defendant to the hospital, where he observed nurses treating the defendant. However, the officer testified that he did not know whether any blood draw took place. Thus, in Brooks, there was no evidence in the record to establish that the defendant’s blood was actually drawn.

The record in this case does contain such evidence.

Plus, the State has forfeited this claim by failing to raise it before the trial court. Allowing the State to raise this argument for the first time on appeal would unfairly deprive the defendant of the opportunity to present evidence to address the issue.

Implied Consent

The implied consent provisions are found in three sections of the Illinois Vehicle Code— sections 11-501.1, 11-501.2, and 11-501.6 (625 ILCS 5/11-501.1, 11-501.2, 11-501.6).

Section 11-501.1(a) provides that any motorist driving on the roads of this state “shall be deemed to have given consent” to the administration of drug or alcohol testing if he is arrested for DUI. Id. § 11-501.1(a).

Section 11-501.6(a) contains similar language, which provides that a motorist “shall be deemed to have given consent” to such tests if he is in a motor vehicle accident involving a personal injury or fatality and he is arrested for any nonequipment violation of the Illinois Vehicle Code. Id. § 11-501.6(a).

Both statutes also provide that a motorist who is deceased, unconscious, or otherwise rendered unable to refuse testing “shall be deemed not to have withdrawn” his implied consent to the testing. Id. §§ 11-501.1(b), 11-501.6(b).

Section 11-501.2 does not itself provide that motorists give implied consent to drug or alcohol testing, but it governs the procedures for obtaining and admitting such tests into evidence. Subsection (a) provides that evidence of intoxication obtained through tests performed pursuant to these provisions is admissible in “any civil or criminal *** proceeding arising out of an arrest” for DUI or in statutory summary suspension proceedings, subject to certain requirements not relevant here. Id. § 11-501.2(a). Subsection (c)(1) provides that “[i]f a person under arrest refuses to submit” to testing, evidence of the person’s refusal is admissible. Id. § 11­ 501.2(c)(1).

Finally, subsection (c)(2) provides as follows:

“Notwithstanding any ability to refuse under this Code to submit to these tests or any ability to revoke the implied consent to these tests, if a law enforcement officer has probable cause to believe that a motor vehicle driven by *** a person under the influence of alcohol [or] other drug or drugs *** has caused the death or personal injury to another, the law enforcement officer shall request, and that person shall submit, upon the request of a law enforcement officer, to a chemical test or tests *** for the purpose of determining the alcohol content thereof or the presence of any other drug or combination of both.” Id. § 11-501.2(c)(2).

We note that in People v. Eubanks, 2017 IL App (1st) 142837, ¶ 66, the First District held that, under the United States Supreme Court’s decision in McNeely, section 11-501.2(c)(2) is unconstitutional on its face.

That case is currently pending on appeal before the Illinois Supreme Court. 

None Of The Statues Were Followed Here

Constitutional question does not need to be addressed because none of the statutes were followed in this case.

First, the defendant was not under arrest when the tests were ordered, and second, the State failed to demonstrate that the facts known to the police were sufficient to give them probable cause to believe the defendant had driven under the influence at the time they ordered the blood draw.

As we previously explained, subsection 11-501.2(c)(2) appears within a statute that is otherwise applicable only to motorists who are under arrest. In addition, the provision must be read in conjunction with sections 11-501.1 and 11-501.6—the statutes that actually provide that consent to chemical testing is implied. Both of those statutes, by their express terms, apply only to motorists who are under arrest.

See People v. Hayes

In People v. Hayes, 2018 IL App (5th) 140223, ¶¶ 42, 44 the court explains that section 11-501.1 applies only to motorists under arrest for DUI when asked to submit to testing, while section 11-501.6 applies only to motorists under arrest for any nonequipment Vehicle Code violation in an accident involving a fatality or serious injury.

It is worth noting that the State also relies on section 11-501.6(b), which provides that a driver who is unconscious or otherwise unable to give consent is deemed not to have revoked his implied consent to chemical testing. See 625 ILCS 5/11-501.6(b) (West 2014). Absent an arrest, however, there is no implied consent to revoke. Moreover, even if we were to accept the State’s interpretation of section 11-501.2(c)(2), we do not believe the record in this case establishes that anyone had probable cause to believe that the defendant had driven under the influence.

A Recap Of Recent DUI Probable Cause Cases

See People v. Williams, 2018 IL App (2d) 160683 (October) (odor of alcohol, slurred speech, and red-shot glassy eyes plus anything else constitutes probable cause for a DUI).

Here, the detective asked the nurses to draw the blood because he was ordered to have it done. He did not personally observe any signs that the defendant was intoxicated, and there is no evidence that he read the reports of any of the responding officers before he requested the blood draw.

Additionally, the Chief of Police who gave the order also was not aware of any indicia of intoxication the defendant may have been exhibiting. The prosecutor essentially conceded as much at the probable cause hearing.

Arguably, the officer at the scene could establish probable cause for a DUI arrest, but it doesn't look like anyone talked to him. Because probable cause is based on the facts and circumstances known to the officer before he conducts a search, the record does not support a finding of probable cause.

Still, The Officer At The Scene Didn't Know Much

The officer could see that defendant had difficulty answering the paramedic’s questions, slurred speech, and difficulty walking.

These can be indicia of intoxication. However, the undisputed evidence showed that the defendant was seriously injured in a motor vehicle accident. His injuries were likely to cause difficulty speaking and walking whether or not he was intoxicated. There was also an open liquor bottle in the defendant’s vehicle, something which might give rise to a reasonable inference that the defendant consumed at least some of the liquor. However, there was no evidence as to when the liquor was consumed or how much of it was consumed by the defendant.

There was no other evidence of intoxication in this case—there was no evidence that the defendant drove erratically before the collision, no evidence that he had red or glassy eyes, and no evidence that he smelled of alcohol or admitted to drinking.

Without some corroborating evidence, we do not believe these facts known to one officer were sufficient to support a finding of probable cause.

Absent probable cause and an arrest, the implied consent statutes do not apply.

They Could Have Got A Warrant

In addition, there was no evidence presented to show that it would have been impossible for any of the numerous officers involved in the investigation to obtain a warrant before requesting the blood draw. See McNeely, 569 U.S. at 154-55 (explaining that advances in technology and changes to the procedural rules in most states allow officers to apply for warrants remotely and provide for streamlined processing of warrant applications in DUI cases).

We note that the prosecutor admitted at trial that it was “possible [based on] the timeline” that the Detective could have obtained a warrant. We conclude that neither exigent circumstances nor implied consent applied in this case.

Holding

Because no recognized exception to the requirement of a warrant was applicable, the warrantless blood draw violated the fourth amendment. Thus, the trial court correctly suppressed evidence of the test results. For the foregoing reasons, we affirm the order of the trial court granting the defendant’s motion to suppress.

See Also

Episode 469 - Warrantless Blood Draws Coming To A Hospital Near You

People v. Manzo, 2018 IL 122761 (December). Episode 573 (Duration 10:14)

This one will be controversial: Illinois Supreme Court holds their was no nexus to the house justifying the search warrant.

Gist

3 buys from a guy is used for a search warrant into the house the guy came from. None of the buys occurred at the house. Defendant was not the target, but it was his house. 

3 Buys

An undercover had purchased from the cousin 3 times over 20 days. 2 purchases were near the vicinity of the home. 

Purchase #1 - Police purchase $150 of cocaine from Defendant's girlfriend's cousin. Deal goes down at a supermarket. Police see the target getting out of a black Ford Explorer. Defendant drives away in the same black Ford Explorer. The Explorer came back registered to Defendant's girlfriend listed at residing in Defendant's house.

Purchase #2 - Police arrange for the purchase of $300 of cocaine. This time the sale occurs at a liquor store.

Purchase #3 - Arrangement for purchase of $150 worth of cocaine is made. This time police are watching the house. They see the cousin leave the house and walk to the liquor store. Then the cousin called the officer to change locations, and had him walk to a grocery store where the deal went down.

The Cousin

Not sure if police knew the target was Defendant's girlfriend's cousin. They only know he is "associated" with her, and they know where she lives. Defendant is not known to police at this time.

Police never established where he lived.

Police never established how long he was at the house before he left for the last deal.

Police never established where he was before the first and second deals.

Police never established if he really had access to larger amounts.

The Search

Police find 348 grams of cocaine, a handgun, ammunition, a digital scale, a box of plastic bags, over $9000 in United States currency, and proof of residency for both defendant and the target.

The cocaine, the handgun, the ammunition, the digital scale, and the box of plastic bags were found in a safe inside the master bedroom closet.

The cash was found in the pockets of two jackets in the master bedroom closet. Defendant’s proof of residency was found in a bedroom drawer and elsewhere in the house. None of the paperwork concerning the cousin’s residency indicated that house was his address.

The Verdict

Defendant was found not guilty of the drug charges but was convicted of the gun charge.

Issue

Prior to trial, defendant filed a motion to quash arrest and suppress evidence, arguing that the officers lacked probable cause to search his home. The motion argued that, prior to the execution of the search warrant, no corroborating information was sought or found by the responding police officers to verify that the target ever resided at the residence.

The four corners of the search warrant completely lacked sufficient probable cause to conduct the search that led to defendant’s arrest and to the seizure of certain items of purported evidence.

Probable Cause

Probable cause exists in a particular case when the totality of the facts and circumstances within the affiant’s knowledge at the time the warrant is applied for “was sufficient to warrant a person of reasonable caution to believe that the law was violated and evidence of it is on the premises to be searched.” People v. Griffin, 178 Ill. 2d 65, 77 (1997). It is the probability of criminal activity, rather than proof beyond a reasonable doubt, that is the standard for determining whether probable cause is present. Tisler, 103 Ill. 2d at 236.

Whether the necessary probability exists is governed by commonsense considerations that are factual and practical, rather than by technical rules. Id. As the United States Supreme Court explained in Illinois v. Gates, 462 U.S. 213, 238 (1983):

“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

Moreover, in determining whether an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases should Whether the necessary probability exists is governed by commonsense considerations that are factual and practical, rather than by technical rules. In determining whether an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases should largely be determined by the preference to be accorded to the warrants.

The House Was Clean

Defendant points out that there was no direct evidence that criminal activity was occurring in defendant’s home, as there were no observations that the target was dealing drugs from the home, and defendant was not the target of the search. Defendant contends that, in the absence of direct information, the warrant application must establish a nexus or connection between the criminal offense, the items to be seized, and the place to be searched.  

Defendant claims that a person’s simple presence in a home, for an undetermined amount of time before conducting a drug transaction in public, does not establish a fair probability that criminal activity was ongoing in the home.

There Was A Nexus With The Home

Here, police knew the following:

• two of the three drug buys conducted over a period of 203 days occurred in the vicinity of the home
• the target arrived at the location of the first drug buy in a vehicle registered to defendant's girlfriend/wife
• she listed the home as her place of address
• target was at the residence when 3rd deal was negotiated by text
• police see the target exit the residence and walk to the grocery store where the third deal takes place 
• police knew the target was an associate of defendant's girlfriend who resided at the resident 
• The target used a vehicle registered to defendant’s residence to drive to the first drug transaction

Analysis

The connection between the target and defendant was not explained, and the connection to defendant's girlfriend on its own did not create an inference that the target and defendant were involved in drug dealing, let alone that the cousin was storing evidence of drug dealing at defendant’s home.

In fact there was no discussion of defendant in the complaint, particularly any evidence that he had ever been suspected of, arrested for, or charged with any crime, much less a drug-related offense. Indeed, there was no information in the complaint concerning whether the cousin had a prior criminal history. There was nothing in the complaint indicating that he had ever been arrested for, or convicted of, a drug-related offense or had been involved in drug dealing prior to the three transactions.

Yea, But He Drove Her Truck

At best, the totality of facts and circumstances in the sworn complaint creates an inference connecting Hernandez’s vehicle to the drug sale, but it fails to further connect defendant’s home to the drug sale. The fact that an alleged drug dealer drives another individual’s car to one drug deal does not create an inference that the vehicle’s owner has contraband in his or her home and does not justify a search of the vehicle owner’s home. To hold otherwise could expose virtually any innocent third party to a search of the home. Such a result would be entirely at odds with the protections accorded an individual’s home under the fourth amendment.

Yea, But The Deals Were Close By

The State also argues that, because the second and third drug sales took place at businesses within a five-minute and three-minute walk of the hoem, it was reasonable to infer that the target was familiar with the neighborhood around. Therefore, the State claims that it was reasonable to infer that the residence was a logical and convenient place for him to store and access his drug supply and his tools of drug dealing.

Here too, we do not agree with the State that an inference arises based upon the location of the two drug sales vis-á-vis defendant’s home.

No evidence was presented that defendant lived at the home, nor was there evidence that he was a frequent visitor. The cousin was seen at the house one time, and it's not clear the police knew what the cousin's legal address was.

In addition, with regard to the second sale, the sworn complaint contains no information describing whether the cousin walked or drove to that sale, nor does the complaint describe where he had been immediately prior to that sale. Absent such information, we find no basis for the State’s inference finding significance based upon the proximity of the second sale to defendant’s home.

In any event, that the target conducted two drug sales in the vicinity of, the residence, and may have been familiar with the area, does not give rise to an inference that he would store his contraband in defendant’s home, as opposed to any other home in the vicinity of the drug sales. Here, the information set forth in the sworn complaint fails to connect defendant’s home to the cousin’s drug sales. Therefore, the complaint does not create a nexus between the specific items listed in the complaint for a search warrant and defendant’s home sufficient to support a finding of probable cause to issue the search warrant.

Yea, But Dude Left The House For The Last Deal

The State also argues that the fact that the cousin left the home to complete the third drug sale supports an inference that it is likely that the cousin possessed the drugs there and also supports an inference that his drug supply and other tools of drug dealing were stored there. Again, we disagree that any such inferences flow from the evidence in the affidavit.

He went to one of three drug sales from defendant’s home. The three drug sales took place over a period of 19 days. With regard to the third drug sale, there was no evidence indicating how long he had been at defendant’s home before he left the home and walked to the drug sale.

While the cousin apparently had the drugs on his person when he left the home to meet the officer for the third drug sale, it does not follow that he obtained those drugs from defendant’s home as opposed to any other place. Without more information connecting defendant’s home to the drug sale, it is equally possible to infer that the cousin had the drugs on his person when he arrived at defendant’s home.

Flimsy Complaint

The complaint for a search warrant failed to supply the necessary nexus between defendant’s home and the evidence sought in the complaint.

The facts and inferences in the sworn complaint were more suggestive of an occasional sale than a full-scale drug operation, much less a drug operation run out of defendant’s home. There was no allegation in the complaint that the amount of drugs sold was indicative of a large-scale drug operation, nor was there an allegation that the cousin was a known drug dealer.

Even assuming this dealer had access to a ready supply of drugs, the sworn complaint fails to create a nexus between defendant’s home and that supply. There certainly was no evidence in the sworn complaint supporting an inference that defendant’s home was a “stash house.”

At best, the complaint established that the cousin was an acquaintance of the owners of the residence. It did not establish a nexus to believe evidence of his illegal activities would be found in the residence.

This complaint does not describe drug distribution techniques, or habits of drug dealers, that might support an inference that the target stored his drugs and tools of the drug trade at defendant’s home.

Aside from the three sales to the undercover, there was no evidence that the cousin was an established drug dealer with an ongoing, regular trade or whether the amount of drugs sold was consistent with personal use.

Holding

Contrary to the lower courts, we find those facts fail to establish a sufficient nexus between the cousin's criminal activities and the residence.

The sworn statement broadly concludes that the evidence sought will be found at defendant’s house, without providing any basis sufficient to establish probable cause for that conclusion. The totality of the circumstances fails to establish a nexus between the drug deals and defendant’s home. The magistrate had no substantial basis to conclude that probable cause existed to believe that evidence of the crimes of unlawful possession of a controlled substance and unlawful possession of a controlled substance with the intent to deliver would be found in a search of this residence.

For that reason, the search warrant in this case was not supported by probable cause and was thereby invalid.

The trial court therefore erred in denying defendant’s motion to quash, and the appellate court erred in affirming the trial court’s order. We reverse the appellate court’s order affirming the trial court’s order denying defendant’s motion to quash the search warrant and suppress evidence, and we reverse the trial court’s order on defendant’s motion to quash and suppress as well.

Judgments reversed. Cause remanded.

Bare Bones Search Warrant Precludes Application Of The Good Faith Exception

Keeping in mind that exclusion is a “bitter pill” that is to be used only as a “last resort” (Davis, 564 U.S. at 237 (quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006))), we nonetheless find that the affidavit in this case was bare-bones and failed to establish the required minimal nexus between defendant’s home and the items sought in the search warrant. 

The good faith exception to the exclusionary rule does not apply in this case.

The police officers could not have acted with an objectively reasonable good faith belief that their conduct was lawful in executing the search warrant on defendant’s residence.

There are no facts directly connecting defendant’s residence with the cousin's drug dealing activity, nor does the complaint for a search warrant create an inference connecting the drug dealing to defendant’s home. The complaint for a search warrant is conclusory, asserting only the belief that probable cause existed. We find that the facts stated in the complaint and the inferences to be draw therefrom were so lacking in indicia of probable cause as to render official belief in the existence of probable cause entirely unreasonable.

This is such an unusual case.

Sanctity Of The Home

The home is the first among equals under the fourth amendment. Burns, 2016 IL 118973, ¶ 24. With regard to the search of an individual’s home, “the critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978).

As stated by the Court of Appeals for the Sixth Circuit, “there must be, in other words, a nexus between the place to be searched and the evidence sought.” United States v. Brown, 828 F.3d 375, 381 (6th Cir. 2016) (quoting United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc)).

The right of citizens to be free from unreasonable governmental intrusion into their homes prevails over the legitimate aims of law enforcement under the facts of this case. The purpose of the exclusionary rule, to deter police misconduct, has no application here.

We decline to sanction the search of a third party’s home based solely on the fact that an individual was seen leaving that home to go to one drug deal and arrived at another drug deal 19 days earlier driving a vehicle registered to that home. To hold otherwise would undermine the express protections accorded a citizen’s home under the United States and Illinois Constitutions.

See Lower Court Opinion

Episode 421 - People v. Manzo, 2017 IL App (3d) 150264 (October) -Bare Bones Affidavit Allegedly Does Not Establish A Nexus To The House Searched

See Also These Other Search Warrant Cases

• Episode 015 - The Anticipatory Warrant: A Search Warrant That Tells the Future 
• Episode 014 - What is a Knock and Talk? Are They a Good Idea?
• Episode 168 - People v. Swanson, 2016 IL App (2d) 150340 (May) - Persistent Aggressive Deputies Push Their Way Into A Home
• Episode 328 - Litigating “Knock And Talk” Warrantless Entries With Alana De Leon
• Episode 078 - People v. Harris, 2015 IL App (1st) 132162 (June) -This Anticipatory Search Warrant Was Premature Execution
• Episode 134 - People v. Chambers, 2016 IL 117911 (January) - “John Doe” Warrants Do Not Preclude a Franks Hearing
• Episode 157 - People v. Carter, 2016 IL App (3d) 140958 (March) - It's In The Couch: When Is A Search Warrant Expired?
• Episode 283 - People v. Fernandez, 2016 IL App (1st) 141667 (December) - Insufficient Evidence Of Habitation In This Search Warrant Case
• Episode 444 - People v. Ross, 2017 IL App (4th) 170121 (December) - Wrong Address Goes On The Search Warrant

See Also One More Case...

Episode 563 - People v. Sadeq, 2018 IL App (4th) 160105 (November) - No Doubt This Traffic Stop Was Delayed But Was It Reasonable?

People v. Mueller, 2018 IL App (2d) 170863 (December). Episode 572 (Duration 8:47)

Jeep touches he traffic lines 3 times and gets stopped, reasonable?

Charges

Defendant, Amy Lynn Mueller, was charged with driving under the influence of alcohol (625 ILCS 5/11-501(a)(1), (a)(2)) and improper lane usage (ILU) (625 ILCS 5/11-709(a)).

Innocent Left Turn

Defendant’s Jeep was stopped in the left-turn lane at a light at the intersection at 1:40 am on a rural rode. When the light turned green, she turned left onto Route 31. There was nothing unusual in the turn.

The sheriff's deputy followed defendant. She was not speeding.

First Touch

Then Jeep’s driver’s-side tires rolled onto the yellow center line and touched it for a few seconds. The vehicle did not cross the line but returned to its lane.

Did It A Second Time

Then a second time after traveling some distance, the Jeep’s passenger’s-side tires touched the white fog line but never crossed over it. The Jeep never left the lane. The Jeep moved back toward the center of the lane without doing anything unusual.

Happened A Third Time

Then a third violation was when the Jeep’s passenger’s-side tires again rode on the white fog line. This was “momentary.” The tires never crossed over the line. Other than the three incidents of what he regarded as ILU, the sheriff's deputy did not see defendant violate any traffic laws.

Jeep Stopped

He acknowledged that the stretch of road on which he followed defendant was not straight and had “some twists and turns.” Also, he acknowledged that the video system in his squad car had been inoperable since October 2016 and that he had not requested any repair.

Based on the three incidents alone, he stopped the Jeep nearly a mile from where he first saw it.

Trial Court Findings

The trial court said the sheriff's deputy’s testimony had been “problematic. He either didn’t remember important details or was flippant with defendant’s attorney.  The sheriff's deputy never saw the Jeep’s tires cross over either the yellow center line or the white fog line, nor did he observe any jerky or erratic driving corrections.

The three lane-line touches occurred over a mile-long twisting and turning stretch of road.

The trial court noted that, current law required evidence that defendant’s tires crossed over the lane lines to create a reasonable suspicion of ILU.

That had not occurred.

Issue

She moved to quash her arrest and suppress evidence, contesting the initial stop of her vehicle for ILU. 

Question: Was there sufficient reasonable suspicion justifying the traffic stop? Does a vehicle have to cross the line or does merely touching it register as an improper lane usage?

Illinois Traffic Code on Lane Usage

Section 11-709(a) states that,

“Whenever any roadway has been divided into 2 or more clearly marked lanes for traffic,..vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”

625 ILCS 5/11-709(a).

Crossing The Lane Will Get You Stopped

Although the statute requires a driver to remain entirely within a single lane only as nearly as practicable, it is settled that an officer may stop a vehicle for driving outside its lane for no obvious reason, without further inquiry into practicability. Hackett, 2012 IL 111781, ¶¶ 27-28.

To be clear what we are asking here is if the sheriff's deputy had a reasonable suspicion that defendant failed to drive “entirely within a single lane” (625 ILCS 5/11-709(a)), when (1) her driver’s-side tires touched, but did not cross, the yellow center line or (2) her passenger’s-side tires touched, but did not cross, the white fo

Trial Court's Ruling

The trial court relied on

• People v. Hackett, 2012 IL 111781,  ¶ 9
• People v. Smith, 172 Ill. 2d 289, 297 (1996)
• People v. Flint, 2012 IL App (3d) 110165, ¶¶ 8, 17 and
• People v. Leyendecker, 337 Ill. App. 3d 678, 680, 682 (2003)

...which, it stated, all held that a person commits ILU only when his or her vehicle crosses the center line or the fog line.

However, in none of those cases did the defendant merely touch the line without crossing it. Each motorist crossed the line. In each case the court held that crossing the line is ILU, but in no case did it explicitly hold that only crossing the line is ILU.

What Is A Traffic Lane?

The Illinois statute does not define “lane” and does not specify whether either a center line or a fog line is part of the “lane” in which the driver is traveling.

Although the Code does not specifically define “lane,” it defines “laned roadway” as

“a roadway which is divided into two or more clearly marked lanes for vehicular traffic.”

625 ILCS 5/1-136.

As a matter of established usage, a “lane” is “a strip of roadway for a single line of vehicles.” Merriam-Webster’s Collegiate Dictionary 652 (10th ed. 2001). As these definitions suggest, in common practice, a traffic “lane” is one in which vehicles legally and customarily are driven toward their destinations.

Dividing lines or boundary lines, by contrast, are legally and customarily used only to change lanes, turn, or make other maneuvers (see 625 ILCS 5/11-709(a) (vehicle “shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety”)).

If a line’s purpose is to divide two lanes, then a vehicle has not changed lanes until it has crossed the line.

Moreover, this interpretation is consistent with the official rules of the road, in Illinois and elsewhere. “Yellow center lines separate lanes of traffic moving in opposite directions.”  Ill. Sec’y of State, 2018 Illinois Rules of the Road 76 (Mar. 2018)), https://www.cyberdriveillinois .com/publications/pdf_publications/dsd_a112.pdf. [https://perma.cc/3GA7-MJGH].

Not Ambiguous Either

We conclude that the statute is unambiguous. Therefore, Heien and Gaytan do not apply and the stop cannot be validated as based on a reasonable mistake of law.

Analysis

In any event, we note that a stop for ILU is valid when “a police officer observes multiple lane deviations, for no obvious reason.” Hackett, 2012 IL 111781, ¶ 28.

Here, even if defendant’s multiple touches could be considered “lane deviations,” the road’s “twists and turns” provided an innocent (and obvious) explanation for those brief touches.

Holding

Thus, under any construction of section 11-709(a), the trial court correctly granted defendant’s motion to quash and suppress. We affirm the order of the circuit court of McHenry County.

See Also

• Episode 232 - People v. Lubienski, 2016 IL App (3d) 150813 (September) (Crossing The Line One Time Justifies A Traffic Stop)
• Episode 434 - People v. Lomeli, 2017 IL App (3d) 150815 (December) (Traffic Stop Based On Dangling Rosary Is Legal)
• Episode 142 - People v. Little, 2016 IL App (3d) 130683 (February) (Reasonable Suspicion Does Not Require Ruling Out All Innocent Behavior)

People v. Blakey, 2015 IL App (3d) 130719 (November). Episode 571 (Duration 16:52)

We use this case as an example on to how to think through and analyze a prior inconsistent statement problem when it comes up at trial.

Facts

The focus in this example is simple analyze the thought process an attorney would run through if they were confronted with the following example. Let’s say we have an Aggravated DUI where the defendant was accused of huffing a can of of compressed air when he blacked out, crashed and rolled the car he was driving. 3 male passengers in the back seat all were killed while defendant and the front seat passenger survived.

The Recorded Statement

The front seat passenger (Frizzy) tells the police at the hospital that,

“I was looking out the window listening to some music that was playing and then Larry asked me a question so I started talking to him and that’s when I turned around and you know looking at the backseat started talking to Larry and I can’t remember if it was Ben or Ken that said hey Morgan you shouldn’t be doing that.”

Frizzy’s interview at the hospital was recorded on a small digital audio recorder.

Trial Testimony

Despite the death of three of his friends, Frizzy is still friends with defendant and doesn’t want to see him get in any more trouble over the accident. In defendant’s trial the state calls Frizzy to the stand and he testifies, in part that,

“I was in the process of thinking of a way to convince my mom to let me out of school the next day because we had a half a day, so I was busy on my phone, and a little bit before, Larry had asked me what we were going to do when we got back, and I said I thought we were going over–we were going to go over to one of my friend’s house, and he said yeah, that’s fine, and we didn’t talk after that. And then we just kept riding. The music was on. It was fine. And then they kept saying his name over and over again, and I wasn’t sure what was happening, so I looked back, and they were all–they–all their attentions were focused on him, trying to wake him up. I’m not sure what had happened.”

It becomes obvious that the prosecution is laying the foundation to impeach Frizzy with the recorded interview from the hospital. It’s clear to both sides what is missing. Frizzy keeps out the part where one of the boys from the back seat says to defendant,

“Hey Morgan, you shouldn’t be doing that.”

The prosecution obviously wants to argue to the jury that defendant was seen huffing from the can and the back seat passengers were trying to discourage him from doing that. The defense attorneys stands up and objects, then asks the judge for a few moments to gather her thoughts. The judge says,

“Take all the time that you need.”

Is The Statement In Or Out?

So, can the defense attorney keep that recorded statement out? Or is it coming in? What should counsel tell the judge?

To begin with the defense attorney quickly runs through the threshold questions.

⛾ Is the in court testimony inconsistent with the hospital recorded statement? If there is an inconsistency here, it’s inconsistent by omission, but that counts. Counsel isn’t going to put any chips on betting she can convince the court the statement is not inconsistent.

⛾ Next threshold question. Is the prior inconsistent statement material? Hellz yea. Was the kid taking a puff from a can right before the crash? Yes. That’s material. Ok.

⛾ Now we quickly need to rule in or out if Frizzy’s recorded hospital statement is consistent with 725 ILCS 5/115-10.1? Can it come in under the statute as substantive evidence?

⛾ Let’s see was the prior statement, made under oath in a sworn statement? No. No way. Frizzy didn’t testify about this in any other trial, proceeding, or hearing. The state didn’t put him in front of a grand jury either, so no.

⛾ Next question: Was the prior statement recorded? Bingo. They got tape on the kid at the hospital. This looks like it could be a prior consistent statement under the statute. But there is one one quick last question.

⛾ Did Frizzy have personal knowledge of the contents of the statement? Frizzy said he heard a back seat passenger say to defendant, “hey Morgan you shouldn’t be doing that.” Frizzy didn’t say the thing. He heard someone in the back say it. Actually, Frizzy was distracted on his phone either texting his mom or listening to music or both. Frizzy was not paying attention to what the driver was doing. No way. Frizzy has no personal knowledge of the contents of the statement. Bingo. Happy lights are going off in the attorney's head because she knows what she is going to tell the judge.

⛾ But counsel can’t be done asking questions because even if the state loses on substantive evidence you can bet for darn sure they will try to impeach Frizzy with the statement for impeachment purposes only. This attorney would try that, so she’s pretty sure the prosecutor will try that as well.

⛾ Ok. Who witness is? This is the state’s own witness. If defense counsel was trying to impeach it would be allowed, but this is the state’s own witness so...

⛾ Did this witness affirmatively damage the state’s case? The state has to establish that the witness has affirmative damaged their case if they want to impeach him with a prior inconsistent statement. If the state has just been disappointed they can’t impeach their own witness. The kid actually gave it all up. He just left out that one crucial part. But you know it’s not like Frizzy is saying, he saw the driver and he didn’t have an aerosol can in his hand and he didn’t see him huffing. He’s not saying that. He’s just saying they kept saying his name over and over but he admits he doesn’t know what was happening. That’s not affirmative damage. The kid still admits he doesn’t know what happened. The state is no worse off had they never called Frizzy to the stand. There is no affirmative damage here so they can’t impeach the witness with the prior recorded inconsistent statement.

After the attorney has taken a few moments to run all these ideas through her head she tells the judge,

“Judge may we approach?”

Judge says, “Sure. Why not?”

At the bench away from the jury counsel tells the judge,

“Judge it’s pretty clear the state wants to confront this witness with his recorded hospital statement to the police, specifically the part where he tells them he heard a back seat passenger say ‘hey Morgan you shouldn’t be doing that.’ Well judge there is no rule of evidence that allows that. This is not a prior inconsistent statement under 725 ILCS 5/115-10.1 because although the statement is recorded the declarant had no personal knowledge of the events being described in the statement. Frizzy admitted he didn’t know what the driver was doing. Only the passengers could see what was going on in the front. Additionally, judge this is not a case where the state can impeach their own witness. I say this because Frizzy has not affirmatively damaged their case. He’s only disappointed them by leaving out one small, but crucial line. Nonetheless, it’s not like he’s saying he saw defendant and he didn’t see him do anything wrong.”

That’s pretty much it.

In this example the judge tells the attorney,

“Well thank you counsel. You have a very well thought out argument. I was a bit confused on some of the issues, so I’m glad you laid it out like that, counsel for the state what do you have to say?”

At this point, the prosecutor is pretty much agreeing with you and kind of knows they don’t got much hope for a prior inconsistent statement under the statute nor getting it in for impeachment purposes only.

Instead counsel says,

“How about excited utterance judge?”

Objection Sustained

At this point, the judge says he is going to grant the defendant’s objection. He tells the prosecutor to ask another question unless he’s got a better argument.

In Closing

 You can get an idea from this example why attorneys might choke under pressure.

There is a lot to keep organized and keep straight in a very small amount of time. As we said before, it helps if much of the brain power was applied well before the trial, especially with recorded statements. Although you don’t know for sure what a witness will say, flagging this witnesses recorded statement before trial may have given counsel a leg up on being ready to react quickly and accurately during the trial.

I wanted to run through one thought analytical example so you had an idea of what needs to be going through your head when this issue comes up.

People v. Garza, 2018 IL App (3d) 170525 (December). Episode 570 (Duration 7:03)

In a close one the reviewing court agrees to suppress these statements made on the roadside after a traffic stop.

Charges

The State charged defendant, by information, with one count each of unlawful possession of a controlled substance (720 ILCS 570/402(c)), unlawful possession of cannabis (720 ILCS 550/4(d)), and possession of drug paraphernalia (720 ILCS 600/3.5(a) 2).

Gist

Defendant filed a motion to suppress confession. 725 ILCS 5/114-11 (West 2016).

The motion alleged that defendant made an incriminating statement during a custodial interrogation without being advised of his Miranda rights. As a result, defendant sought suppression of the statements that he had made in response to the police questioning.

The Traffic Stop

A mini-van with 5 individuals inside it was stopped for speeding.

The officer radioed for back-up and when it arrived the initial officer transferred the citation preparation duties to the second officer and conducted a free-air sniff with his canine unit. Approximately 10 minutes into the stop, the canine alerted to the presence of narcotics at the rear of the minivan.

More back-up was requested and the occupants were directed to exit the minivan. The two officer searched each of the occupants as they exited the vehicle. The officers did not ask for consent to search. The search was more than a pat-down and included searching inside the occupants’ pockets, waistbands, hats, socks, and shoes.

ID’s were gathered and warrant checks were done.

After this search, the officer directed the five occupants to move to an area near his patrol vehicle. Two uniformed police officers watched the occupants while the two officers conducted a search of the interior of the minivan. 

The Backpack

During the vehicle search, the officer found a backpack in the trunk area.

Inside of the backpack, he saw what appeared to be illicit substances and pipes used to consume narcotics. Postarrest analysis indicated that the backpack contained 13.8 grams of marijuana and 1.8 grams of cocaine.

Following his discovery, the officer removed the suspected contraband from the backpack, concluded the search of the minivan, and approached the occupants.

The Interrogation

The officer asked the occupants who owned the backpack.

At the time, none of the occupants had received Miranda warnings and at least two additional plain clothed police detectives had arrived at the scene for a total police presence of six officers. In response to the officer’s question, defendant indicated that he owned the backpack.

Defendant was placed in handcuffs and then asked by the officer “whose bag is this?” and “what is this white powder?” Defendant said the powder was cocaine.

Trial Court Ruling

The trial court found that the restraint imposed upon defendant was comparable to a formal arrest. The court concluded that “not only would a reasonable person believe they were not free to leave, I also find that there—that the restraint imposed upon the subjects were comparable to those associated with a formal arrest.”

The court granted defendant’s motion.

Issue

The State argues that the circuit court erred in granting defendant’s motion to suppress statements because defendant was not subject to a custodial interrogation that would require the issuance of Miranda warnings.

Miranda Warnings

In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the United States Supreme Court prescribed a set of prophylactic warnings that a police officer must provide to a suspect before conducting a “custodial interrogation.” These warnings are intended to protect a suspect’s fifth amendment right against self-incrimination. Michigan v. Tucker, 417 U.S. 433, 444 (1974).

Miranda was motivated by concerns “that the ‘interrogation environment’ created by the interplay of interrogation and custody would ‘subjugate the individual to the will of his examiner’ and thereby undermine the privilege against compulsory self-incrimination.” Rhode Island v. Innis, 446 U.S. 291, 299 (1980) (quoting Miranda, 384 U.S. at 457-58).

The Miranda warnings assure that any inculpatory statement made by an individual held in custody is not simply the product of “ ‘the compulsion inherent in custodial surroundings.’ ” Yarborough v. Alvarado, 541 U.S. 652, 661 (2004) (quoting Miranda, 384 U.S. at 458). Miranda further holds that where an individual is subject to a custodial interrogation without the benefit of the prescribed warnings, the prosecution may not use that individual’s inculpatory or exculpatory statements at trial. Miranda, 384 U.S. at 492.

Custodial Interrogation

“Custodial interrogation” means “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” It consists of two elements:

(1) whether an individual was subject to interrogation and
(2) whether the interrogation occurred in a custodial situation.

People v. Tayborn, 2016 IL App (3d) 130594, ¶¶ 18-19.

Was It An Interrogation?

First, we find that the officer's first question—“Whose backpack is this?”—called for an incriminating response because the officer knew that the backpack contained illicit substances and drug paraphernalia. An interrogation is any practice that police should know is reasonably likely to evoke an incriminating response from a suspect. Therefore, the first question, about the ownership of the backpack, was interrogatory.

Second, we find that the officer’s question about the white powder substance found inside the backpack also was interrogatory. This question also called for an incriminating response—an identification of the contraband that the officer believed to be narcotics.

Therefore, both of the questions were interrogatory, and we next must determine whether defendant was in custody at the time that the officer posed these questions.

Police Are Allowed To Ask General Questions

We note that our opinion is not intended to limit the ability of the police to pose sufficiently general questions.

With regard to these “general, on the-scene” questions, Miranda explains:

“Our decision is not intended to hamper the traditional function of police officers in investigating crime. When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.”

Miranda, 384 U.S. at 477-78. This explanation contemplates that the “general on-the-scene questioning” exception will apply only when police pose general questions in a noncustodial environment to nonsuspects regarding the facts that surround a crime.

By using phrases like “in the field” and “persons not under restraint,” the Supreme Court indicates that this exception truly only applies to circumstances where the interviewed individual is subject to few, if any, indication of formal custody. In these noncustodial circumstances, the citizen-witnesses do not need the protections of the Miranda warnings because they are

(1) not subject to the compelling pressures of police custody,
(2) not suspects with a fifth amendment privilege against self-incrimination, and
(3) providing general information about the “facts surrounding a crime".

This Miranda exception is almost expressly directed at scenarios where police officers openly speak with unrestrained bystanders who witnessed a crime. This exception does not apply in the instant case because defendant was subject to the compelling pressures of police custody. 

The officer had reason to suspect that defendant had committed a narcotics offense, and the officer's question sought an incriminating statement from defendant that established the actus reus of the crime, instead of the generic facts surrounding the crime.

When Is An Individual In Custody?

The determination of whether defendant was “in custody” for purposes of Miranda includes two discrete inquiries:

(1) what were the circumstances surrounding the interrogation? and
(2) given those circumstances, would a reasonable person have felt that he was not at liberty to terminate the interrogation and leave?

Thompson v. Keohane, 516 U.S. 99, 112 (1995). The custody inquiry is an objective test. The following factors are determinative of whether a suspect was in a custodial setting:

• the location
• time
• length
• mood
• mode of interrogation
• the number of police officers present
• the presence or absence of the family and friends of the accused
• any indication of formal arrest
• the age
• intelligence and
• mental makeup of the accused.

People v. Havlin, 409 Ill. App. 3d 427, 434 (2011).

Were They Occupants In Custody?

The investigation deviated from its traffic stop origin when the officer's canine alerted to the presence of narcotics in the minivan that defendant was a passenger. At this point, the “nonthreatening character” of the stop began to dissipate, and the stop started to evolve into a custodial situation. See, e.g., People v. Jordan, 2011 IL App (4th) 100629 (traffic stop for a seatbelt violation transformed into a drug search and custodial interrogation where the passenger was locked in a squad car, isolated from the driver, and was told police intended to send for a drug-detection canine); People v. Rivera, 304 Ill. App. 3d 124, 129 (1999) (purpose of on-the-scene investigatory stop ended when a bag of suspected cocaine was removed from defendant’s vehicle and the officers’ reasonable suspicion of criminal activity developed into probable cause of defendant’s involvement in cocaine delivery).

The officer directed the vehicle occupants to exit the minivan and subjected the occupants to a thorough search. 

Following the search, the officer directed the five occupants to stand in an area near his patrol vehicle. Two uniformed police officers watched the occupants while 2 other officers searched the minivan. During the vehicle search, two additional police officers arrived at the scene for a total police presence of six officers.

During the vehicle search, the officer discovered a backpack that contained an illicit substance and drug paraphernalia. He then concluded the vehicle search and asked the group of occupants, as a whole, who owned the backpack.

Holding

We find that these circumstances would cause a reasonable person to feel that he was not at liberty to terminate the interrogation and leave the scene. Thompson, 516 U.S. at 112. At the time of the question, defendant and the other occupants had been subjected to several exercises of police authority that evidenced a growing custodial atmosphere.

First, the directed all of the vehicle occupants to exit the minivan and then conducted a thorough search of each occupant. This search was akin to a search incident to arrest as it exceeded the scope of a search for weapons and appeared to search for evidence of a criminal offense. See People v. Flowers, 179 Ill. 2d 257, 263 (1997) (purpose of a pat-down search is to protect the officer and others in the vicinity, not to gather evidence). Arizona v. Gant, 556 U.S. 332, 338 (2009) (search incident to arrest exception to the warrant requirement derives from interests in officer safety and evidence preservation that are implicated in arrest situations). While the validity of this search is not at issue, the search itself evidenced a growing custodial atmosphere.

Second, Allspaugh directed the five occupants to move away from their minivan and stand near his police vehicle where two uniformed officers watched over them. Thereafter, the police presence grew to outnumber the occupants as two additional officers arrived on the scene for a total of six officers and five occupants. Although none of the officers told the occupants that they were not free to leave, their overwhelming presence would cause a reasonable person to question their ability to merely walk away without permission. Moreover, the occupants’ departure from the scene was rendered impractical by the lack of access to their vehicle. Together, these circumstances established the type of coercive custodial environment that Miranda is intended to address.

A reasonable person, in these circumstances, would not have felt at liberty to terminate the interrogation and leave. Therefore, defendant was in custody when the officer asked who owned the backpack. Further, when the officer asked the second question, about the white powder substance, the custodial environment was even more apparent as defendant was then in handcuffs.

Therefore, we conclude that the circuit court did not err when it suppressed defendant’s custodial and unMirandized statements.

People v. Havlin

The instant case differs from People v. Havlin, 409 Ill. App. 3d 427, 434 (2011) in two major respects.

First, there is no express indication that the officer's initial pat-down was motivated by the officer’s safety concern. Unlike Horn, this officer did not testify as to his motivation for the search of each occupant as they exited the vehicle. The record indicates that, based on the depth of the search, the officer sought evidence of illicit drugs and was not simply conducting a patdown for officer’s safety. See Flowers, 179 Ill. 2d at 263. As a result, Allspaugh’s search resembled a search incident to arrest and carried strong implications of police custody.

Second, the police presence in the instant case was far greater than that in Havlin. In Havlin only 2 officers were present at the scene. Here, the number of officers at the scene exceeded the number of occupants. The imposing presence of six officers for five occupants created a greater environment of police custody.

Thus, in contrast to Havlin, the facts of the instant case established that defendant was subject to a custodial interrogation without Miranda warnings, and the court did not err in granting defendant’s motion to suppress.

People v. Sophanavong, 2018 IL App (3d) 170450 (November). Episode 569 (Duration 4:20)

They didn't tell the judge the prior sentences on the prior convictions so this 55 year sentence has to be vacated and remanded for a new sentencing hearing.

Charges

Defendant was charged by indictment with three counts of first degree murder, one count of aggravated kidnapping, and one count of violation of an order of protection in the kidnapping and shooting death of his estranged wife.

Plea Deal

Pursuant to a fully negotiated plea agreement, defendant pled guilty to one count of first degree murder and was sentenced to 55 years in prison (30 years for murder plus a 25-year sentencing enhancement for personally discharging a firearm).

Pursuant to the terms of the plea agreement, the State nol prossed the remaining charges and agreed not to file certain other charges.

During The Plea Hearing

During the plea hearing, the trial court inquired as to defendant’s criminal history.

The State informed the trial court that defendant had previously been convicted of manufacture or delivery of cannabis, a Class 1 felony, in a 2004 Tazewell County case and that defendant had also been convicted of a speeding offense and of a seatbelt offense.

The State did not, however, report to the trial court the disposition on any of defendant’s prior offenses.

Upon inquiry, the parties informed the trial court that they were waiving a presentence investigation report (PSI). The trial court accepted the plea agreement and entered the agreed upon conviction and sentence.

Issue

On appeal, defendant abandons his challenge to the trial court’s ruling on his second amended motion to withdraw guilty plea and argues instead that his sentence should be vacated and the case remanded for a new sentencing hearing because the trial court failed to strictly comply with section 5-3-1 of the Code when it accepted the parties’ plea agreement. More specifically, defendant asserts that vacation and remand are required under section 5-3-1 because no PSI was ordered and the trial court was not informed of the dispositions on defendant’s prior criminal offenses when the trial court accepted the plea agreement and sentenced defendant.

The Sentencing Code

Section 5-3-1 of the Code, which states that:

“A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court. However, other than for felony sex offenders being considered for probation, the court need not order a presentence report of investigation where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant’s history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment. The court may order a presentence investigation of any defendant.”

730 ILCS 5/5-3-1.

The PSI requirement contained in section 5-3-1 is a mandatory legislative requirement that cannot be waived except as provided for in the statute. The purpose of the requirement is to ensure that the trial court has all of the necessary information about the defendant, including the defendant’s criminal history, before the trial court imposes a sentence.

Can't Waive PSI

A defendant cannot waive the PSI requirement, other than as noted above, because the requirement serves not only to benefit the defendant, but also to enlighten the trial court and is a useful tool for the sentencing judge.

Although section 5-3-1 is primarily concerned with making the sentencing judge aware of the dangerousness of a particular defendant, the lack of a criminal history is also relevant in determining the appropriateness of the sentence. When the trial court is presented with a negotiated plea for an agreed-upon sentence, section 5-3-1 of the Code requires that the trial court be aware of the history of the defendant’s criminality and delinquency in determining whether to accept the negotiated plea. 

Compliance Mandatory

Strict compliance with section 5-3-1 is mandatory. People v. Harris, 105 Ill. 2d 290, 302-03 (1985); Bryant, 2016 IL App (5th) 140334, ¶ 49. If the trial court fails to strictly comply with section 5-3-1, the sentence imposed must be vacated, and the case must be remanded for a new sentencing hearing so that the trial court can consider the defendant’s criminal history before deciding if the negotiated sentence is appropriate.

This Case

Although the State provided the trial court with some information as to defendant’s prior criminal history, no information whatsoever was presented as to the dispositions defendant received in his prior criminal cases.

Defendant’s sentence, therefore, must be vacated and the case remanded for a new sentencing hearing so that the trial court can be informed of defendant’s history of delinquency and criminality before it determines whether the agreed-upon sentence is appropriate. Once informed, if the trial court determines that the sentence is appropriate, it should resentence defendant in accordance with the terms of the plea agreement.

If the sentence is not appropriate, however, the trial court should allow defendant to withdraw his guilty plea.

To the extent that the appellate court in Haywood reached a different conclusion we disagree. See Haywood, 2016 IL App (1st) 133201 (March), (Since we have affirmed the trial court’s denial of defendant’s motion to withdraw his guilty plea, and the negotiated plea agreement remains in effect, defendant has no basis on which to challenge his sentence. 

Holding

Sentence vacated; cause remanded.