<p>Scott’s Law in Illinois is the requirement that drivers slow down and move over when police cars or other emergency vehicles are stopped on the roadway.</p> <h2>Scott’s Law Basically Says…</h2> <p>Scott’s law requires that a driver proceed cautiously when an emergency vehicle is stopped and</p> <ol> <li>Move over and change lanes and/or</li> <li>Slow down if changing lanes is impossible.</li> </ol> <p>The law imposes enhanced penalties, a possible driver license suspension, and even jail time for severe violations.</p> <h2>625 ILCS 5/11-907(c)</h2> <p>The exact language of the section provides that:</p> <div>“(c) Upon approaching a stationary authorized emergency vehicle, when the authorized emergency vehicle is giving a signal by displaying alternately flashing red, red and white, blue, or red and blue lights or amber or yellow warning lights, a person who drives an approaching vehicle shall:</div> <div>(1) proceeding with due caution, yield the right-of-way by making a lane change into a lane not adjacent to that of the authorized emergency vehicle, if possible with due regard to safety and traffic conditions, if on a highway having at least 4 lanes with not less than 2 lanes proceeding in the same direction as the approaching vehicle; or</div> <div>(2) if changing lanes would be impossible or unsafe, proceeding with due caution, reduce the speed of the vehicle, maintaining a safe speed for road conditions and leaving a safe distance until safely past the stationary vehicles.”</div> <p><a href= "http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=062500050K11-907"> 625 ILCS 5/11-907(c)</a>.</p> <h2>Scott’s Law Fines</h2> <p>Maximum fines for a violation of Scott’s Law can be up to $10,000. The chart below outlines the minimum fine that is applicable:</p> <table> <tbody> <tr> <td>Minimum $250 up to $10,000</td> <td>For 1st offense</td> </tr> <tr> <td>Minimum $750 up to $10,000</td> <td>For 2nd or more offense</td> </tr> </tbody> </table> <p><a href= "http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=062500050K11-907"> 625 ILCS 5/11-907(d)</a>.</p> <h2>Suspension Of Drivers License Under Scott’s Law</h2> <p>A violation of Scott’s Law is considered a moving violation in Illinois. That means the secretary of state will assign points against your driving record and a discretionary suspension under <a href= "http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=062500050K6-206">625 ILCS 5/6-206</a> may be incurred.</p> <p>However, the chart below describes certain <strong>mandatory suspensions under Scott’s Law </strong>if there are aggravated circumstances:</p> <table> <tbody> <tr> <td>90 days to 1 year</td> <td>If there is property damage</td> </tr> <tr> <td>180 days to 2 year</td> <td>If there is personal injury</td> </tr> <tr> <td>2 year suspension</td> <td>If there is a death to a person</td> </tr> </tbody> </table> <p><a href= "http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=062500050K11-907"> 625 ILCS 5/11-907(e), (f), (g)</a>.</p> <h2>Jail Time For A Scott’s Law Violation</h2> <p>An ordinary violation of Scott’s Law in Illinois is considered a business offense. That means it is punishable by fine only.</p> <p>However, Scott’s Law may classified as a crime and a person may face jail time under the conditions listed below:</p> <table> <tbody> <tr> <td>Class A Misdemeanor</td> <td>If there is damage to anther vehicle</td> </tr> <tr> <td>Class 4 Felony</td> <td>If there is injury or death to another person</td> </tr> </tbody> </table> <p><a href= "http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=062500050K11-907"> 625 ILCS 5/11-907(d)</a><br /> <a href= "https://illinoiscaselaw.com/sentencing-index/#misdemeanor-class">Class A Misdemeanor<br /></a><a href= "https://illinioscaselaw.com/class-4-felony">Class 4 Felony</a>.</p> <h2>Links & Resources</h2> <ul> <li><a href= "http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=062500050HCh%2E+11+Art%2E+IX&ActID=1815&ChapterID=49&SeqStart=126100000&SeqEnd=127300000"> Illinois Vehicle Code on Right-Of Ways</a></li> <li><a href= "http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=062500050K11-907"> Scott’s Law In Illinois</a></li> <li><a href= "http://www.ilga.gov/legislation/ilcs/documents/062500050K11-907.5.htm"> Illinois Vehicle Code On Approaching Disabled Vehicles</a></li> <li><a href= "http://www.ilga.gov/legislation/ilcs/documents/062500050K11-908.htm"> Illinois Vehicle Code On Construction Zones</a></li> </ul> <h2>Attorney Peter Wachowski Discusses Defending Against A Scott’s Law Ticket</h2> <p>Episode 751 <strong>(Duration 13:45)</strong> Illinois attorney Peter Wachowski explains some of the intricacies of defending against a charge under Scott’s Law.</p> <h2>In This Episode…</h2> <p><em>“That’s the speed limit! You’re suppose to slow down.”</em> — Peter Wachowski</p> <p>Going to trial against a charge of violating Scott’s Law can get kind of tricky. In this episode an experienced trial attorney describes the process.</p> <h2>Attorney Peter Wachowski</h2> <p>Attorney Peter Wachowski has an active civil law practice focussing on Personal Injury, Worker’s Compensation and Civil Litigation.</p> <p>However, Peter also is highly experienced in DUI litigation and defense and represents clients in other criminal law matters.</p> <h2>Contact Information</h2> <p>15 N. Northwest Hwy<br /> Park Ridge, IL 60068</p> <p>peter@bellas-wachowski.com</p> <p><a href= "https://www.bellas-wachowski.com/">www.bellas-wachowski.com</a></p> <h2>“Can’t Miss” Moments:</h2> <p>✓ <strong>The “move over” law says you must do one of two things or both when you see an emergency vehicle stopped on the roadway. Not doing these things can lead to pretty serious consequences.</strong> <strong>(Go to 2:15)</strong></p> <p>✓ Scott Gillen was a Chicago Fire Department Lieutenant who died in the line of duty two days before Christmas in 2000 when a drunk driver collided with vehicles assisting at a crash scene on the Dan Ryan Expressway. <strong>(Go to 3:29)</strong></p> <p>✓ <strong><em>“The official day of remembrance of him is December 23rd.”</em> — Peter Wachowski</strong> <strong>(Go to 3:50)</strong></p> <p>✓ Peter learned some valuable lessons in defending against an allegation of violating Scott’s Law. You don’t want miss what Peter has learned from court trials on this charge. <strong>(Go to 6:07)</strong></p> <p>✓<strong>A great example of when going the speed limit can get you in big trouble. (Go to 7:53)</strong></p> <p>✓ Judge’s don’t like these things. You should expect the judge to do you no favors if you’re accused of violating Scott’s Law. (Go to 10:02)</p>

Scott’s Law in Illinois is the requirement that drivers slow down and move over when police cars or other emergency vehicles are stopped on the roadway. Scott’s Law Basically Says… Scott’s law requires that a driver proceed cautiously when an emergency vehicle is stopped and Move over and change lanes and/or Slow down if changing lanes is impossible. The law imposes enhanced penalties, a possible driver license suspension, and even jail time for severe violations. 625 ILCS 5/11-907(c) The exact language of the section provides that: “(c) Upon approaching a stationary authorized emergency vehicle, when the authorized emergency vehicle is giving a signal by displaying alternately flashing red, red and white, blue, or red and blue lights or amber or yellow warning lights, a person who drives an approaching vehicle shall: (1) proceeding with due caution, yield the right-of-way by making a lane change into a lane not adjacent to that of the authorized emergency vehicle, if possible with due regard to safety and traffic conditions, if on a highway having at least 4 lanes with not less than 2 lanes proceeding in the same direction as the approaching vehicle; or (2) if changing lanes would be impossible or unsafe, proceeding with due caution, reduce the speed of the vehicle, maintaining a safe speed for road conditions and leaving a safe distance until safely past the stationary vehicles.” 625 ILCS 5/11-907(c). Scott’s Law Fines Maximum fines for a violation of Scott’s Law can be up to $10,000. The chart below outlines the minimum fine that is applicable: Minimum $250 up to $10,000 For 1st offense Minimum $750 up to $10,000 For 2nd or more offense 625 ILCS 5/11-907(d). Suspension Of Drivers License Under Scott’s Law A violation of Scott’s Law is considered a moving violation in Illinois. That means the secretary of state will assign points against your driving record and a discretionary suspension under 625 ILCS 5/6-206 may be incurred. However, the chart below describes certain mandatory suspensions under Scott’s Law if there are aggravated circumstances: 90 days to 1 year If there is property damage 180 days to 2 year If there is personal injury 2 year suspension If there is a death to a person 625 ILCS 5/11-907(e), (f), (g). Jail Time For A Scott’s Law Violation An ordinary violation of Scott’s Law in Illinois is considered a business offense. That means it is punishable by fine only. However, Scott’s Law may classified as a crime and a person may face jail time under the conditions listed below: Class A Misdemeanor If there is damage to anther vehicle Class 4 Felony If there is injury or death to another person 625 ILCS 5/11-907(d) Class A MisdemeanorClass 4 Felony. Links & Resources Illinois Vehicle Code on Right-Of Ways Scott’s Law In Illinois Illinois Vehicle Code On Approaching Disabled Vehicles Illinois Vehicle Code On Construction Zones Attorney Peter Wachowski Discusses Defending Against A Scott’s Law Ticket Episode 751 (Duration 13:45) Illinois attorney Peter Wachowski explains some of the intricacies of defending against a charge under Scott’s Law. In This Episode… “That’s the speed limit! You’re suppose to slow down.” — Peter Wachowski Going to trial against a charge of violating Scott’s Law can get kind of tricky. In this episode an experienced trial attorney describes the process. Attorney Peter Wachowski Attorney Peter Wachowski has an active civil law practice focussing on Personal Injury, Worker’s Compensation and Civil Litigation. However, Peter also is highly experienced in DUI litigation and defense and represents clients in other criminal law matters. Contact Information 15 N. Northwest Hwy Park Ridge, IL 60068 peter@bellas-wachowski.com www.bellas-wachowski.com “Can’t Miss” Moments: ✓ The “move over” law says you must do one of two things or both when you see an emergency vehicle stopped on the roadway. Not doing these things can lead to pretty serious consequences. (Go to 2:15) ✓ Scott Gillen was a Chicago Fire Department Lieutenant who died in the line of duty two days before Christmas in 2000 when a drunk driver collided with vehicles assisting at a crash scene on the Dan Ryan Expressway. (Go to 3:29) ✓ “The official day of remembrance of him is December 23rd.” — Peter Wachowski (Go to 3:50) ✓ Peter learned some valuable lessons in defending against an allegation of violating Scott’s Law. You don’t want miss what Peter has learned from court trials on this charge. (Go to 6:07) ✓A great example of when going the speed limit can get you in big trouble. (Go to 7:53) ✓ Judge’s don’t like these things. You should expect the judge to do you no favors if you’re accused of violating Scott’s Law. (Go to 10:02)

Criminal Nuggets A Criminal Law Podcast

Scott’s Law In Illinois 625 ILCS 5/11-907(c)

<p><a href= "http://www.illinoiscourts.gov/Opinions/AppellateCourt/2019/1stDistrict/1172322.pdf" target="_blank" rel="noreferrer noopener"><em>In re K.M</em>., 2019 IL App (1st) 172322 (February)</a>. Episode 595 <strong>(Duration 13:05)</strong></p> <p>Police entered onto private property without a warrant to retrieve stolen property, the fallout is widespread.</p> <h2>Anonymous Call</h2> <p>Sauk Village Police Department received an anonymous call on, around 12:18 p.m. from an individual who reported seeing people enter the residence at 22438 Yates Avenue, with items, particularly a television.</p> <p>The caller called multiple times during the investigation directing the police to 22438 Yates Avenue.</p> <p>The police department opened a <a href= "https://illinoiscaselaw.com/burglary-in-illinois-is-a-class-2-felony/">burglary</a> investigation.</p> <h2>The Search But No Seizure</h2> <p>Police arrive and conduct a search of the area surrounding the residence including the garbage cans located on the driveway and the detached garage.</p> <p>The garbage can was not covered with a lid.</p> <h2>Home Owner Finally Called</h2> <p>That same afternoon, Sauk Village police received another call reporting a burglary.</p> <p>The caller stated that he had returned home and discovered computer accessories, personal documents, and a large flat-screen television were missing. The items taken were documents including a passport, bank statements, a black television, a black laptop, and a black external hard drive. </p> <h2>Back To The Garbage Cans</h2> <p>According to police, the garbage was full, but they could identify documents in the garbage that belonged to the victim. The officer did not have to manipulate the garbage in any way to see the victim’s name on the documents.</p> <p>Police immediately could see a garbage can with a black box on top of the garbage can. They opened the black box and found the victim’s passport and documents with the victim’s address inside the black box. </p> <h2>Into The Detached Garage</h2> <p>The officers then returned to the garage and found items matching the description of the stolen items. They entered through an open side door.</p> <p> Once inside, they spotted a black laptop with an external hard drive in the rafters of the garage. An officer retrieved the laptop and the hard drive before attempting to make contact with the people inside the residence.</p> <h2>Now To The House Itself</h2> <p>They removed these items from the garage and knocked on the door of the residence. No one answered the door; however, the detective noticed people peeking out of the window. A short time later another person arrived at the residence and then alerted the owner of the home, who arrived at the residence shortly after.</p> <p>This lady was the mother.</p> <p>Officers explained their presence at her house. Mom then entered the home. She returned to the outside carrying a large flat-screen television. She also brought outside K.M. and two other individuals from inside the house.</p> <h2>Immediately Arrested</h2> <p>The detective testified that they then arrested K.M. based on the totality of the circumstances, the residential burglary report that they had, the description provided by the anonymous caller, and the items recovered.</p> <p>What description?</p> <p><strong>At no point did the officers obtain a search warrant or an arrest warrant.</strong></p> <p>The detective and the officers stayed outside and never went into the home.</p> <h2>Mom’s Testimony</h2> <p>She is K.M.’s mother, she lived at 22438 Yates.</p> <p>She lived with her brother, six children, and her niece. Her yard was fully enclosed by a fence, including the garage and the area next to the driveway where her garbage cans are located.</p> <p>When the police first arrived at her home, she was in South Holland that morning with her friend. A detective called her over the phone, and he stated that there were burglary suspects inside of her home and told her to come home in 10 to 15 minutes or else he would kick in her door.</p> <p>When she arrived, she spoke with the officers outside of her home but she denied giving the officers consent to search her property.</p> <h2>Issue</h2> <p>On appeal, K.M. argues that the trial court erred when it denied his motion to suppress both physical evidence and his custodial statement because they were obtained as a direct result of an illegal search. K.M. contends that his arrest was due to law enforcement’s exploitation of illegally obtained evidence.</p> <p>Specifically, he asserts that Mom’s delivery of the television, his arrest, and his confession were fruits of an illegal search.</p> <h2>State Concedes Some Illegality</h2> <p>The State does not dispute that the search of the property was an illegal search of the curtilage of the home.</p> <p>The State argues, however, that the arrest was proper because the officers had independent probable cause to believe that a crime had been committed by someone in the house prior to any illegal search. Alternatively, the State argues that Mom was not induced to produce the television because of the illegally seized evidence obtained by the police.</p> <h2>The Fourth Amendment</h2> <p>The fourth amendment of the United States Constitution ensures the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV; see also Elkins v. United States, 364 U.S. 206, 213 (1960) (noting that the fourth amendment applies to state officials through the fourteenth amendment).</p> <p>The amendment protects individuals and not specific locations.</p> <div align="center"> <h2><strong>Search & Seizure Resource Page</strong></h2> To see more <a href= "https://illinoiscaselaw.com/illinois-search-and-seizure-guide/">Illinois Search And Seizure Resources </a>and case law go here.</div> <h2>See Also These Property Based Cases</h2> <p>Episode 501 – <a href= "https://illinoiscaselaw.com/3-scotus-criminal-law-cases-q2-2018/" target="_blank" rel="noreferrer noopener"><em>Collins v. Virginia</em>, SCOTUS (May 2018)</a> (police need a warrant to search a vehicle on private property)</p> <p>Episode 552 – <a href= "https://illinoiscaselaw.com/clecourses/drug-dog-case-supreme-court-is-pushed-to-decide-if-apartments-have-less-constitutional-protection-than-houses/" target="_blank" rel="noreferrer noopener"><em>People v. Bonilla</em>, 2018 IL 122484 (October)</a> (constitutional violation did not depend on whether the common door to the apartment was locked)</p> <p>Episodes 464 – <a href= "https://illinoiscaselaw.com/constitutionality-based-on-structure-do-houses-have-more-protection-than-apartments/" target="_blank" rel="noreferrer noopener"><em>Florida v. Jardines</em>, 133 S. Ct. at 1409 (2013)</a> (police can’t bring a police dog to your front stoop for a sniff without a warrant)</p> <h2>Was There Independent Probable Cause?</h2> <p>The State posits there was enough information to satisfy the probable cause requirement because the victim’s phone call corroborated the anonymous call that a burglary had occurred and K.M. matched the anonymous caller’s description.</p> <p>Probable cause exists when the facts known to the officer at the time of the arrest are sufficient for a reasonably cautious person to believe that the arrestee has committed a crime. People v. Wear, 229 Ill. 2d 545, 563-64 (2008). The existence of probable cause depends upon the totality of the circumstances at the time of the arrest.</p> <p>The court deals with probability when assessing probable cause.</p> <h2>Probable Cause From An Anonymous Tip</h2> <p>In the context of tips forming the basis for probable cause, a reviewing court considers the informant’s “veracity, reliability, and basis of knowledge.” People v. Sparks, 315 Ill. App. 3d 786, 792 (2000). The anonymous tip must provide some indicia of reliability; otherwise the police officers are forced to conduct additional investigation to verify the information or may not respond to the tip.</p> <div>Ordinarily, information from a “concerned citizen” is considered more credible than information from a paid informant or a person who provided information for personal gain. People v. Linley, 388 Ill. App. 3d 747, 750 (2009).</div> <p>The State asks us to assume that the tipster called the 911 dispatch system and thus the caller had some indicia of reliability. However, there is no evidence in the record indicating that the tipster contacted the police through an emergency number. Furthermore, the tipster did not provide a name and therefore <strong>must be treated as anonymous</strong>.</p> <h2>Was There Sufficient Corroboration?</h2> <p>Thus, the tipster’s “reliability hinges on the existence of corroborative details observed by the police.”</p> <p>Here, the anonymous caller only relayed to the police that they saw people entering the residence of 22438 Yates Avenue carrying items such as a television. Nothing in the record suggested that the caller observed these people participate in any unlawful conduct. In fact, it could appear that the people entering into the house were engaging in innocuous behavior.</p> <p><strong>There was no indication what-so-ever that the television was stolen.</strong></p> <p>Furthermore, there is no evidence that any effort was made to verify the anonymous tip before the officers attempted to contact the residents of 22438 Yates Avenue. The officers never observed anyone engaged in criminal activity to corroborate the phone call. In fact, the officers did not even see K.M. until they arrested him.</p> <p><strong>Therefore, we find that the tip was uncorroborated and unreliable.</strong></p> <h2>See Also Recent Anonymous Tip Cases</h2> <p>Episode 549 – <a href= "https://illinoiscaselaw.com/clecourses/anonymous-tip-on-a-dui-has-got-to-be-specific-plus-identity-information-is-suppressible/" target="_blank" rel="noreferrer noopener"><em>People v. Lopez</em>, 2018 IL App (1st) 153331 (October)</a> (caller only said the driver was “DUI” – what the heck is that?)</p> <p>Episode 101 –<a href= "https://illinoiscaselaw.com/anonymous-tip-scotus-murks-it-all-up/" target="_blank" rel="noreferrer noopener"><em> Navarette v. California</em>, 134 S.Ct 1683 (2014) (April)</a> (almost driving the caller off the rode justified a traffic stop)</p> <p>468 – <a href= "https://illinoiscaselaw.com/clecourses/citizens-tip-that-driver-almost-hit-the-building-justifies-investigatory-stop-for-dui/" target="_blank" rel="noreferrer noopener"><em>People v. Meo</em>, 2018 IL App (2d) 170135 (March)</a> (Citizen’s Tip That Driver Almost Hit The Building Justifies Investigatory Stop For DUI)</p> <h2>But The Caller Said His TV Was Gone</h2> <p>Other than the unverified call that did not report a crime, the only information provided was the victim’s call, and this evidence is insufficient to establish probable cause to arrest K.M.</p> <p>We find the detective’s testimony, that the officers arrested K.M. “based on the totality of the circumstances, the residential burglary report that they had, the description provided by the anonymous caller, and the items recovered,” telling as to whether the officers had independent probable cause.</p> <p><strong>His testimony is contrary to the State’s position and indicates that the items recovered from the garage and the garbage were indeed a factor in this case.</strong></p> <p>Accordingly, we find that the State did not have independent probable cause to arrest K.M. on his porch.</p> <h2>Was There Sufficient Attenuation?</h2> <p>Having found that no independent probable cause existed to arrest K.M., we now determine whether Mom’s delivery of the television, K.M.’s arrest, and K.M.’s subsequent confession were attenuated from the initial illegal search.</p> <p>“The fruit-of-the-poisonous tree doctrine is an outgrowth of the exclusionary rule providing that ‘the fourth amendment violation is deemed the “poisonous tree,” and any evidence obtained by exploiting that violation is subject to suppression as the “fruit” of that poisonous tree.’ ” People v. Burns, 2016 IL 118973, ¶ 47 (quoting People v. Henderson, 2013 IL 114040, ¶ 33).</p> <p>Courts have recognized several exceptions to the exclusionary rule. See <a href= "https://illinoiscaselaw.com/clecourses/to-break-the-chain-of-illegality-police-have-to-be-aware-of-the-intervening-circumstance/" target="_blank" rel="noreferrer noopener"><em>In re Jarrell C</em>., 2017 IL App (1st) 170932, ¶ 24</a>.</p> <h2>The Exceptions To The Exclusionary Rule</h2> <p>Those exceptions are</p> <ul> <li>the independent source doctrine</li> <li>the inevitable discovery doctrine and</li> <li>the attenuation doctrine.</li> </ul> <p>The exception at issue here is the attenuation doctrine, under which evidence challenged for a fourth amendment violation is admissible if the connection between the unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstances. <a href= "https://illinoiscaselaw.com/thomas-guts-the-exclusionary-rule/" target="_blank" rel="noreferrer noopener">Utah v. Strieff, 579 U.S. ___, ___, 136 S. Ct. 2056, 2061 (2016)</a>.</p> <p>“The attenuation doctrine evaluates the causal link between the government’s unlawful act and the discovery of evidence, which often has nothing to do with a defendant’s actions.” Id. at ___, 136 S. Ct. at 2061.</p> <h2>Brown v. Illinois</h2> <p>Our inquiry is guided by the three factors articulated in Brown v. Illinois, 422 U.S. 590 (1975).</p> <p><strong>First</strong>, we consider the “temporal proximity” between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. <br /> <strong>Second</strong>, we examine “the presence of intervening circumstances.”<br /> <strong>Third</strong>, we consider “the purpose and flagrancy of the official misconduct.”<br /> <strong>Fourth</strong>, if a confession is being challenged, whether Miranda warnings were given.</p> <p>The State argues that Mom’s conduct in producing the television was a voluntary act, free from any taint of the illegal search, and constituted an intervening circumstance that provided independent probable cause to seize the television. However, the record belies the State’s contention.</p> <p>The record demonstrates that after the illegal search and the recovery of the victim’s documents and computer accessories, the detective’s discussion with Mom on the phone prompted her return home. Upon her return, he then explained to her in person the “situation and case status.” The police never broke the causal connection between their illegal search and obtaining the television.</p> <p>The officers never left K.M.’s property, which demonstrates that the taint of the unconstitutional conduct was ongoing at the time that the police made contact with Mom. Any contact with Campbell during that timeframe was sufficiently a part of the taint including her delivery of the television.</p> <h2>Holding</h2> <p>We conclude that there was no independent intervening event that broke the causal chain between the illegal search and the discovery of the television. Here, the police officers illegally searched the curtilage of K.M.’s home twice in a short time span. There was no warrant authorization to search nor was there any indication of circumstances justifying an exception to the search warrant requirement.</p> <p>The police only attempted to contact Mom once they had recovered the items from the garage and garbage reported missing by the victim.</p> <p>The police had no warrant or exigency to be on the property; thus any action the officers had on the property after the second call was akin to embarking “upon a course of illegal conduct in hope that some incriminating evidence *** might be found.” Jennings, 296 Ill. App. 3d at 765.</p> <p>We determine that this factor weighs in favor of K.M.’s argument for suppression. Taken together, all the factors weigh in favor of suppressing the evidence.</p> <p>We find that there was no attenuation between the illegal search of property, the officers obtaining the television, and K.M.’s arrest. As such, we hold that the trial court erred in denying the motion for suppression as to the television and to quash K.M.’s subsequent arrest.</p> <p>The record is silent as to, inter alia, K.M.’s testimony and circumstances around his confession. We cannot make an independent determination of the admissibility of respondent’s confession. Therefore, we find it appropriate to remand the case for an attenuation hearing on this issue.</p> <p>For the foregoing reasons, we reverse the judgment of the trial court and remand for further proceedings.</p>

In re K.M., 2019 IL App (1st) 172322 (February). Episode 595 (Duration 13:05) Police entered onto private property without a warrant to retrieve stolen property, the fallout is widespread. Anonymous Call Sauk Village Police Department received an anonymous call on, around 12:18 p.m. from an individual who reported seeing people enter the residence at 22438 Yates Avenue, with items, particularly a television. The caller called multiple times during the investigation directing the police to 22438 Yates Avenue. The police department opened a burglary investigation. The Search But No Seizure Police arrive and conduct a search of the area surrounding the residence including the garbage cans located on the driveway and the detached garage. The garbage can was not covered with a lid. Home Owner Finally Called That same afternoon, Sauk Village police received another call reporting a burglary. The caller stated that he had returned home and discovered computer accessories, personal documents, and a large flat-screen television were missing. The items taken were documents including a passport, bank statements, a black television, a black laptop, and a black external hard drive.  Back To The Garbage Cans According to police, the garbage was full, but they could identify documents in the garbage that belonged to the victim. The officer did not have to manipulate the garbage in any way to see the victim’s name on the documents. Police immediately could see a garbage can with a black box on top of the garbage can. They opened the black box and found the victim’s passport and documents with the victim’s address inside the black box.  Into The Detached Garage The officers then returned to the garage and found items matching the description of the stolen items. They entered through an open side door.  Once inside, they spotted a black laptop with an external hard drive in the rafters of the garage. An officer retrieved the laptop and the hard drive before attempting to make contact with the people inside the residence. Now To The House Itself They removed these items from the garage and knocked on the door of the residence. No one answered the door; however, the detective noticed people peeking out of the window. A short time later another person arrived at the residence and then alerted the owner of the home, who arrived at the residence shortly after. This lady was the mother. Officers explained their presence at her house. Mom then entered the home. She returned to the outside carrying a large flat-screen television. She also brought outside K.M. and two other individuals from inside the house. Immediately Arrested The detective testified that they then arrested K.M. based on the totality of the circumstances, the residential burglary report that they had, the description provided by the anonymous caller, and the items recovered. What description? At no point did the officers obtain a search warrant or an arrest warrant. The detective and the officers stayed outside and never went into the home. Mom’s Testimony She is K.M.’s mother, she lived at 22438 Yates. She lived with her brother, six children, and her niece. Her yard was fully enclosed by a fence, including the garage and the area next to the driveway where her garbage cans are located. When the police first arrived at her home, she was in South Holland that morning with her friend. A detective called her over the phone, and he stated that there were burglary suspects inside of her home and told her to come home in 10 to 15 minutes or else he would kick in her door. When she arrived, she spoke with the officers outside of her home but she denied giving the officers consent to search her property. Issue On appeal, K.M. argues that the trial court erred when it denied his motion to suppress both physical evidence and his custodial statement because they were obtained as a direct result of an illegal search. K.M. contends that his arrest was due to law enforcement’s exploitation of illegally obtained evidence. Specifically, he asserts that Mom’s delivery of the television, his arrest, and his confession were fruits of an illegal search. State Concedes Some Illegality The State does not dispute that the search of the property was an illegal search of the curtilage of the home. The State argues, however, that the arrest was proper because the officers had independent probable cause to believe that a crime had been committed by someone in the house prior to any illegal search. Alternatively, the State argues that Mom was not induced to produce the television because of the illegally seized evidence obtained by the police. The Fourth Amendment The fourth amendment of the United States Constitution ensures the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV; see also Elkins v. United States, 364 U.S. 206, 213 (1960) (noting that the fourth amendment applies to state officials through the fourteenth amendment). The amendment protects individuals and not specific locations. Search & Seizure Resource Page To see more Illinois Search And Seizure Resources and case law go here. See Also These Property Based Cases Episode 501 – Collins v. Virginia, SCOTUS (May 2018) (police need a warrant to search a vehicle on private property) Episode 552 – People v. Bonilla, 2018 IL 122484 (October) (constitutional violation did not depend on whether the common door to the apartment was locked) Episodes 464 – Florida v. Jardines, 133 S. Ct. at 1409 (2013) (police can’t bring a police dog to your front stoop for a sniff without a warrant) Was There Independent Probable Cause? The State posits there was enough information to satisfy the probable cause requirement because the victim’s phone call corroborated the anonymous call that a burglary had occurred and K.M. matched the anonymous caller’s description. Probable cause exists when the facts known to the officer at the time of the arrest are sufficient for a reasonably cautious person to believe that the arrestee has committed a crime. People v. Wear, 229 Ill. 2d 545, 563-64 (2008). The existence of probable cause depends upon the totality of the circumstances at the time of the arrest. The court deals with probability when assessing probable cause. Probable Cause From An Anonymous Tip In the context of tips forming the basis for probable cause, a reviewing court considers the informant’s “veracity, reliability, and basis of knowledge.” People v. Sparks, 315 Ill. App. 3d 786, 792 (2000). The anonymous tip must provide some indicia of reliability; otherwise the police officers are forced to conduct additional investigation to verify the information or may not respond to the tip. Ordinarily, information from a “concerned citizen” is considered more credible than information from a paid informant or a person who provided information for personal gain. People v. Linley, 388 Ill. App. 3d 747, 750 (2009). The State asks us to assume that the tipster called the 911 dispatch system and thus the caller had some indicia of reliability. However, there is no evidence in the record indicating that the tipster contacted the police through an emergency number. Furthermore, the tipster did not provide a name and therefore must be treated as anonymous. Was There Sufficient Corroboration? Thus, the tipster’s “reliability hinges on the existence of corroborative details observed by the police.” Here, the anonymous caller only relayed to the police that they saw people entering the residence of 22438 Yates Avenue carrying items such as a television. Nothing in the record suggested that the caller observed these people participate in any unlawful conduct. In fact, it could appear that the people entering into the house were engaging in innocuous behavior. There was no indication what-so-ever that the television was stolen. Furthermore, there is no evidence that any effort was made to verify the anonymous tip before the officers attempted to contact the residents of 22438 Yates Avenue. The officers never observed anyone engaged in criminal activity to corroborate the phone call. In fact, the officers did not even see K.M. until they arrested him. Therefore, we find that the tip was uncorroborated and unreliable. See Also Recent Anonymous Tip Cases Episode 549 – People v. Lopez, 2018 IL App (1st) 153331 (October) (caller only said the driver was “DUI” – what the heck is that?) Episode 101 – Navarette v. California, 134 S.Ct 1683 (2014) (April) (almost driving the caller off the rode justified a traffic stop) 468 – People v. Meo, 2018 IL App (2d) 170135 (March) (Citizen’s Tip That Driver Almost Hit The Building Justifies Investigatory Stop For DUI) But The Caller Said His TV Was Gone Other than the unverified call that did not report a crime, the only information provided was the victim’s call, and this evidence is insufficient to establish probable cause to arrest K.M. We find the detective’s testimony, that the officers arrested K.M. “based on the totality of the circumstances, the residential burglary report that they had, the description provided by the anonymous caller, and the items recovered,” telling as to whether the officers had independent probable cause. His testimony is contrary to the State’s position and indicates that the items recovered from the garage and the garbage were indeed a factor in this case. Accordingly, we find that the State did not have independent probable cause to arrest K.M. on his porch. Was There Sufficient Attenuation? Having found that no independent probable cause existed to arrest K.M., we now determine whether Mom’s delivery of the television, K.M.’s arrest, and K.M.’s subsequent confession were attenuated from the initial illegal search. “The fruit-of-the-poisonous tree doctrine is an outgrowth of the exclusionary rule providing that ‘the fourth amendment violation is deemed the “poisonous tree,” and any evidence obtained by exploiting that violation is subject to suppression as the “fruit” of that poisonous tree.’ ” People v. Burns, 2016 IL 118973, ¶ 47 (quoting People v. Henderson, 2013 IL 114040, ¶ 33). Courts have recognized several exceptions to the exclusionary rule. See In re Jarrell C., 2017 IL App (1st) 170932, ¶ 24. The Exceptions To The Exclusionary Rule Those exceptions are the independent source doctrine the inevitable discovery doctrine and the attenuation doctrine. The exception at issue here is the attenuation doctrine, under which evidence challenged for a fourth amendment violation is admissible if the connection between the unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstances. Utah v. Strieff, 579 U.S. ___, ___, 136 S. Ct. 2056, 2061 (2016). “The attenuation doctrine evaluates the causal link between the government’s unlawful act and the discovery of evidence, which often has nothing to do with a defendant’s actions.” Id. at ___, 136 S. Ct. at 2061. Brown v. Illinois Our inquiry is guided by the three factors articulated in Brown v. Illinois, 422 U.S. 590 (1975). First, we consider the “temporal proximity” between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search.  Second, we examine “the presence of intervening circumstances.” Third, we consider “the purpose and flagrancy of the official misconduct.” Fourth, if a confession is being challenged, whether Miranda warnings were given. The State argues that Mom’s conduct in producing the television was a voluntary act, free from any taint of the illegal search, and constituted an intervening circumstance that provided independent probable cause to seize the television. However, the record belies the State’s contention. The record demonstrates that after the illegal search and the recovery of the victim’s documents and computer accessories, the detective’s discussion with Mom on the phone prompted her return home. Upon her return, he then explained to her in person the “situation and case status.” The police never broke the causal connection between their illegal search and obtaining the television. The officers never left K.M.’s property, which demonstrates that the taint of the unconstitutional conduct was ongoing at the time that the police made contact with Mom. Any contact with Campbell during that timeframe was sufficiently a part of the taint including her delivery of the television. Holding We conclude that there was no independent intervening event that broke the causal chain between the illegal search and the discovery of the television. Here, the police officers illegally searched the curtilage of K.M.’s home twice in a short time span. There was no warrant authorization to search nor was there any indication of circumstances justifying an exception to the search warrant requirement. The police only attempted to contact Mom once they had recovered the items from the garage and garbage reported missing by the victim. The police had no warrant or exigency to be on the property; thus any action the officers had on the property after the second call was akin to embarking “upon a course of illegal conduct in hope that some incriminating evidence *** might be found.” Jennings, 296 Ill. App. 3d at 765. We determine that this factor weighs in favor of K.M.’s argument for suppression. Taken together, all the factors weigh in favor of suppressing the evidence. We find that there was no attenuation between the illegal search of property, the officers obtaining the television, and K.M.’s arrest. As such, we hold that the trial court erred in denying the motion for suppression as to the television and to quash K.M.’s subsequent arrest. The record is silent as to, inter alia, K.M.’s testimony and circumstances around his confession. We cannot make an independent determination of the admissibility of respondent’s confession. Therefore, we find it appropriate to remand the case for an attenuation hearing on this issue. For the foregoing reasons, we reverse the judgment of the trial court and remand for further proceedings.

Police Search This Property Without A Warrant State Concedes Some Illegality

<p>After Illinois passed the Cannabis Regulation and Tax Act which became effective in 2020, can police still search a car when they smell cannabis?</p> <h2>The Old “Smell Of Weed Rule” In Illinois Before Decriminalization Of 2020</h2> <div>The warrantless search of a car is authorized “where a trained and experienced police officer detects the odor of cannabis emanating from a defendant’s vehicle.” <em>People v. Stout</em>, 106 Ill.2d 77, 88 (1985)</div> <div> <p>The question today, is if this rule survived the cannabis law change in 2020.</p> <h2><strong>In This Episode…</strong></h2> <p><em>“The officer would probably be better suited to try and find more information, more probable cause, to layer that probable cause.”</em> — John “Jack” Duggan</p> <h2><strong>Attorney John Duggan</strong></h2> <p>Jack’s father is a retired Chicago Police Officer. Jack followed in his father’s footsteps and became a Police Officer for the Village of Oak Park. While working as a Police Officer, Jack decided to continue his studies and attended The John Marshall Law School.</p> <p> Jack focuses his practice in the areas of Real Estate, Family Law, Estate Planning, and selected criminal matters.</p> <h2><strong>Jack Duggan’s Contact Information</strong></h2> <p>782 Busse Highway<br /> Park Ridge, IL 60068<br /> john@johnmdugganlaw.com</p> <p><a href= "http://www.johnmdugganlaw.com/">http://www.johnmdugganlaw.com/</a></p> <h2><strong>Attorney Jeff Hall</strong></h2> <p><em>“I basically call it the ‘sniff and search’ statute.”</em> — Jeff Hall</p> <div class="wp-block-media-text alignwide"><img class= "wp-image-12585" src= "https://illinoiscaselaw.com/wp-content/uploads/2020/03/jeff-hall.jpeg" sizes="(max-width: 225px) 100vw, 225px" srcset= "https://illinoiscaselaw.com/wp-content/uploads/2020/03/jeff-hall.jpeg 225w, https://illinoiscaselaw.com/wp-content/uploads/2020/03/jeff-hall-150x150.jpeg 150w" alt="" /> <div class="wp-block-media-text__content"> <p><em>“I basically call it the ‘sniff and search’ statute.”</em> – Jeff Hall</p> </div> </div> <p>Jeffrey R. Hall has practiced law since 2004, concentrating in the area of Criminal Law, DUI, Traffic Law, Driver’s License & FOID Card Reinstatement’s. </p> <p>He began his legal career as an Assistant State’s Attorney in Tazewell County, IL.</p> <p>Jeff Hall helped draft SB228 (passed on July 29, 2016), the popular Cannabis Decriminalization Bill and was an integral part of the legislative process, changing Illinois law from a “Zero Tolerance” state for cannabis related DUIs, to a more reasonable law that focused more on impaired driving.</p> <h2><strong>Jeff Hall’s</strong> <strong>Contact Information</strong></h2> <p>316 SW Washington Street, Suite 1A<br /> Peoria, IL 61602</p> <p>jhall@hallrustomfritz.com</p> <p><a href= "http://www.centralillinoislawyers.com/">http://www.centralillinoislawyers.com/</a></p> <h2><strong>Links & Resources</strong></h2> <ul> <li><a href= "http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=3992&ChapterID=35"> Cannabis Regulation and Tax Act</a></li> <li><a href= "http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1937&ChapterID=53"> Cannabis Control Act</a></li> <li><a href= "http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=062500050HCh%2E+11+Art%2E+V&ActID=1815&ChapterID=49&SeqStart=120100000&SeqEnd=122400000"> Illinois Vehicle Code</a></li> <li><a href= "http://www.ilga.gov/legislation/ilcs/documents/062500050K11-502.15.htm"> The Sniff & Search Law – 625 ILCS 5/11-502.15</a></li> </ul> <h2><strong>What The Illinois Cannabis Regulation And Tax Act Says About Lawful Limits?</strong></h2> <p><a href= "http://www.ilga.gov/legislation/ilcs/documents/041007050K10-10.htm"> 410 ILCS 705/10-10. Possession Limit.</a></p> <div>“(a) Except if otherwise authorized by this Act, for a person who is 21 years of age or older and a resident of this State, the possession limit is as follows: <p><br /> (1) 30 grams of cannabis flower;<br /> (2) no more than 500 milligrams of THC contained in cannabis-infused product;<br /> (3) 5 grams of cannabis concentrate; and<br /> (4) for registered qualifying patients…”</p> </div> <h2><strong>Strict Prohibition of Cannabis Possession For Those Under 21</strong></h2> <p><a href= "http://www.ilga.gov/legislation/ilcs/documents/041007050K10-15.htm"> 410 ILCS 705/10-15. Persons under 21 years of age</a>.</p> <div>“(b) Notwithstanding any other provisions of law authorizing the possession of medical cannabis, nothing in this Act authorizes a person who is under 21 years of age to possess cannabis. A person under 21 years of age with cannabis in his or her possession is guilty of a civil law violation as outlined in paragraph (a) of Section 4 of the Cannabis Control Act.<br /> (c) If the person under the age of 21 was in a motor vehicle at the time of the offense, the Secretary of State may suspend or revoke the driving privileges of any person for a violation of this Section under Section 6-206 of the Illinois Vehicle Code and the rules adopted under it.”</div> <h2><strong>Further Limitations And Prohibition Of Cannabis In Certain Places</strong></h2> <p><a href= "http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=3992&ChapterID=35"> 410 ILCS 705/1-35. Limitations and penalties.</a></p> <div>“a) This Act does not permit any person to engage in, and does not prevent the imposition of any civil, criminal, or other penalties for engaging in, any of the following conduct…</div> <div>(2) possessing cannabis: (D) in a vehicle not open to the public unless the cannabis is in a reasonably secured sealed, container and reasonably inaccessible while the vehicle is moving; or…</div> <div>(3) using cannabis:<br /> (D) in any motor vehicle;<br /> (F)…in any public place; or<br /> (G) knowingly in close physical proximity to anyone under 21 years of age who is not a registered medical cannabis patient under the Compassionate Use of Medical Cannabis Program Act…</div> <div>4) smoking cannabis in any place where smoking is prohibited under the Smoke Free Illinois Act;”</div> <h2><strong>The Cannabis Control Act Still Criminalizes Possession Of The Following Amounts Of Cannabis…</strong></h2> <p><a href= "http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072005500K4"> 720 ILCS 550/4. Cannabis Control Act</a>.</p> <div>“Except as otherwise provided in the Cannabis Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person knowingly to possess cannabis. Any person who violates this Section with respect to:</div> <div>(c) more than 30 grams but not more than 100 grams of any substance containing cannabis is guilty of a <strong>Class A misdemeanor</strong>; provided, that if any offense under this subsection (c) is a subsequent offense, the offender shall be guilty of a Class 4 felony;</div> <div>(d) more than 100 grams but not more than 500 grams of any substance containing cannabis is guilty of a <strong>Class 4 felony</strong>; provided that if any offense under this subsection (d) is a subsequent offense, the offender shall be guilty of a Class 3 felony;</div> <div>(e) more than 500 grams but not more than 2,000 grams of any substance containing cannabis is guilty of a <strong>Class 3 felony</strong>;</div> <div>(f) more than 2,000 grams but not more than 5,000 grams of any substance containing cannabis is guilty of a <strong>Class 2 felony</strong>;</div> <div>(g) more than 5,000 grams of any substance containing cannabis is guilty of a <strong>Class 1 felony</strong>.”</div> <h2><strong>Delivery And Possession With Intent To Deliver Cannabis Remains Illegal</strong></h2> <p><a href= "http://ilga.gov/legislation/ilcs/fulltext.asp?DocName=072005500K5"> 720 ILCS 550/5. Cannabis Control Act</a>.</p> <div>“Except as otherwise provided in the Cannabis Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis. Any person who violates this Section with respect to:</div> <div>(a) not more than 2.5 grams of any substance containing cannabis is guilty of a <strong>Class B misdemeanor</strong>;</div> <div>(b) more than 2.5 grams but not more than 10 grams of any substance containing cannabis is guilty of a <strong>Class A misdemeanor</strong>;</div> <div>(c) more than 10 grams but not more than 30 grams of any substance containing cannabis is guilty of a <strong>Class 4 felony</strong>;</div> <div>(d) more than 30 grams but not more than 500 grams of any substance containing cannabis is guilty of a <strong>Class 3 felony</strong> for which a fine not to exceed $50,000 may be imposed;</div> <div>(e) more than 500 grams but not more than 2,000 grams of any substance containing cannabis is guilty of a <strong>Class 2 felony</strong> for which a fine not to exceed $100,000 may be imposed;</div> <div>(f) more than 2,000 grams but not more than 5,000 grams of any substance containing cannabis is guilty of a <strong>Class 1 felony</strong> for which a fine not to exceed $150,000 may be imposed;</div> <h2><strong>The Illinois Vehicle Code Still Criminalizes Cannabis Related DUI’s</strong></h2> <p><a href= "http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=062500050K11-501"> 625 ILCS 11-501</a>. Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof.</p> <div>“(a) A person shall not drive or be in actual physical control of any vehicle within this State while:</div> <div>(4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving;</div> <div>(7) the person has, within 2 hours of driving or being in actual physical control of a vehicle, a tetrahydrocannabinol concentration in the person’s whole blood or other bodily substance as defined in paragraph 6 of subsection (a) of Section 11-501.2 of this Code. Subject to all other requirements and provisions under this Section, this paragraph (7) does not apply to the lawful consumption of cannabis by a qualifying patient licensed under the Compassionate Use of Medical Cannabis Program Act who is in possession of a valid registry card issued under that Act, unless that person is impaired by the use of cannabis.”</div> <h2><strong>The “Sniff & Search” Law – 625 ILCS 5/11-501.15</strong></h2> <p><a href= "http://www.ilga.gov/legislation/ilcs/documents/062500050K11-502.15.htm"> 625 ILCS 5/11-502.15. Possession of adult use cannabis in a motor vehicle.</a></p> <div>“(a) No driver may use cannabis within the passenger area of any motor vehicle upon a highway in this State.</div> <div>(b) No driver may possess cannabis within any area of any motor vehicle upon a highway in this State except in a sealed, odor-proof, child-resistant cannabis container.</div> <div>(c) No passenger may possess cannabis within any passenger area of any motor vehicle upon a highway in this State except in a sealed, odor-proof, child-resistant cannabis container.</div> <div>(d) Any person who knowingly violates subsection (a), (b), or (c) of this Section commits a <strong>Class A misdemeanor</strong>.</div> <h2><strong>“Can’t Miss” Moments From </strong>Episode 745</h2> <p>✓ <strong>An officer who encounters the odor of cannabis in a car might have to start running through a mental checklist. What are the things they should be checking-off?</strong> <strong>(Go to 4:46)</strong></p> <p>✓ Legitimate law enforcement objectives are implicated by the smell of weed. After Illinois has decriminalized marijuana what legitimate law enforcement concerns remain on the table? <strong>(Go to 5:42)</strong></p> <p>✓ <strong>There is at least one situation where a car reeking of cannabis is going to get searched by the police. Jump to this spot to find out what that situation is. (Go to 7:50)</strong></p> <p>✓ What does a positive drug dog sniff mean now that some cannabis can be possessed legally? <strong>(Go to 11:50)</strong></p> <p>✓ <strong>How does the plain view doctrine affect this question? What have other legalized states done with this question of allowing officers to search car based on the smell of cannabis?</strong> <strong>(Go to 22:01)</strong></p> <p>✓ How a “sealed, odor-proof, child-resistant cannabis container” can be the difference between wide spread car searches in Illinois and/or very limited ones. <strong>(Go to 24:50)</strong></p> <p>✓ <strong>Urban Dictionary defines “hotboxing” as, “n. The practice of smoking marijuana in an enclosed space (e.g. a car or a small room) in order to maximize the narcotic effect.</strong>” <strong>(Go to 34:20)</strong></p> <h2><strong>See Also</strong></h2> <p>You may also want to check out…</p> <ul> <li><a href= "https://illinoiscaselaw.com/clecourses/3-districts-all-have-said-the-smell-of-weed-still-justifies-a-car-search/" target="_blank" rel="noreferrer noopener" aria-label= " (opens in a new tab)"><em>People v. Rice</em>, 2019 IL App (3d) 170134 (April)</a>. Episode 623 <strong>(Duration 7:36)</strong> (odor of cannabis indicative of criminal activity)</li> <li>Episode 556 – <a href= "https://illinoiscaselaw.com/the-best-reason-to-change-the-smell-of-cannabis-rule/" target="_blank" rel="noreferrer noopener">Interview With Charles Schierer | The Best Reason To Change The “Smell Of Cannabis” Rule</a></li> <li>Episode 509 – <a href= "https://illinoiscaselaw.com/clecourses/the-stench-of-weed-still-supports-probable-cause-for-a-full-vehicle-search/" target="_blank" rel="noreferrer noopener"><em>In re O.S</em>., 2018 IL App (1st) 171765 (June)</a> (1st District also says smell of weed rule is still valid) </li> <li>Episode 584 – <a href= "https://illinoiscaselaw.com/clecourses/riding-low-leads-to-reasonable-mistake-of-fact-and-a-traffic-stop/" target="_blank" rel="noreferrer noopener"><em>People v. Hill</em>, 2019 IL App (4th) 180041 (January)</a> (4th District says the same thing adding burnt or raw cannabis doesn’t matter that car is getting searched) </li> <li>Episode 621 – <a href= "https://illinoiscaselaw.com/clecourses/with-one-opinion-a-work-around-drug-dog-prohibitions-is-created/" target="_blank" rel="noreferrer noopener"><em>People v. Brandt</em>, 2019 IL App (4th) 180219 (April)</a> (officer smelled cannabis and that justified the warrant) </li> <li>Episode 340 – <a href= "https://illinoiscaselaw.com/the-magic-words-that-instantly-allow-an-officer-to-search-a-car-without-a-warrant-with-kim-bilbrey/" target="_blank" rel="noreferrer noopener">Kim Bilbrey on The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant</a></li> <li>Episode 558 – <a href= "https://illinoiscaselaw.com/clecourses/a-recap-of-recent-dui-probable-cause-cases/" target="_blank" rel="noreferrer noopener"><em>People v. Williams</em>, 2018 IL App (2d) 160683 (October)</a>(odor of alcohol alone means nothing)</li> <li>Episode 015 – <a href= "https://illinoiscaselaw.com/police-car-search-legal-in-illinois-if-they-smell-marijuana/"><em>People v. Abdur-Rhamim</em>, 2014 IL App (3d) 130558 (August)</a> (Police Can Search A Car In Illinois If The Smell Marijuana, So What Went Wrong Here For The Police?)</li> <li>Episode 276 – <a href= "https://illinoiscaselaw.com/you-just-cant-ignore-the-stench-of-weed-and-an-accident/" target="_blank" rel="noreferrer noopener">You Just Can’t Ignore The Stench Of Weed In An Auto Accident</a></li> <li>Episode 207 – <a href= "https://illinoiscaselaw.com/the-new-illinois-marijuana-law-a-ken-wang-debriefing/" target="_blank" rel="noreferrer noopener">With Ken Wang – Give Us 24 Minutes And You’ll Get a Comprehensive Debriefing on The New Illinois Marijuana Law</a></li> <li>Episode 251 – <a href= "https://illinoiscaselaw.com/jeffrey-hall-on-problems-with-the-illinois-cannabis-decriminalization-law/" target="_blank" rel="noreferrer noopener">With Jeffrey Hall –  On The Latest Developments And Problems With The Illinois Cannabis Decriminalization Law</a></li> <li>Episode 196 – <a href= "https://illinoiscaselaw.com/fourth-district-doing-something-different-with-dog-sniff-cases/" target="_blank" rel="noreferrer noopener">Dog Sniff Alert To Drugs Will Lead To Car Search</a></li> </ul> </div>

After Illinois passed the Cannabis Regulation and Tax Act which became effective in 2020, can police still search a car when they smell cannabis? The Old “Smell Of Weed Rule” In Illinois Before Decriminalization Of 2020 The warrantless search of a car is authorized “where a trained and experienced police officer detects the odor of cannabis emanating from a defendant’s vehicle.” People v. Stout, 106 Ill.2d 77, 88 (1985) The question today, is if this rule survived the cannabis law change in 2020. In This Episode… “The officer would probably be better suited to try and find more information, more probable cause, to layer that probable cause.” — John “Jack” Duggan Attorney John Duggan Jack’s father is a retired Chicago Police Officer. Jack followed in his father’s footsteps and became a Police Officer for the Village of Oak Park. While working as a Police Officer, Jack decided to continue his studies and attended The John Marshall Law School.  Jack focuses his practice in the areas of Real Estate, Family Law, Estate Planning, and selected criminal matters. Jack Duggan’s Contact Information 782 Busse Highway Park Ridge, IL 60068 john@johnmdugganlaw.com http://www.johnmdugganlaw.com/ Attorney Jeff Hall “I basically call it the ‘sniff and search’ statute.” — Jeff Hall “I basically call it the ‘sniff and search’ statute.” – Jeff Hall Jeffrey R. Hall has practiced law since 2004, concentrating in the area of Criminal Law, DUI, Traffic Law, Driver’s License & FOID Card Reinstatement’s.  He began his legal career as an Assistant State’s Attorney in Tazewell County, IL. Jeff Hall helped draft SB228 (passed on July 29, 2016), the popular Cannabis Decriminalization Bill and was an integral part of the legislative process, changing Illinois law from a “Zero Tolerance” state for cannabis related DUIs, to a more reasonable law that focused more on impaired driving. Jeff Hall’s Contact Information 316 SW Washington Street, Suite 1A Peoria, IL 61602 jhall@hallrustomfritz.com http://www.centralillinoislawyers.com/ Links & Resources Cannabis Regulation and Tax Act Cannabis Control Act Illinois Vehicle Code The Sniff & Search Law – 625 ILCS 5/11-502.15 What The Illinois Cannabis Regulation And Tax Act Says About Lawful Limits? 410 ILCS 705/10-10. Possession Limit. “(a) Except if otherwise authorized by this Act, for a person who is 21 years of age or older and a resident of this State, the possession limit is as follows: (1) 30 grams of cannabis flower; (2) no more than 500 milligrams of THC contained in cannabis-infused product; (3) 5 grams of cannabis concentrate; and (4) for registered qualifying patients…” Strict Prohibition of Cannabis Possession For Those Under 21 410 ILCS 705/10-15. Persons under 21 years of age. “(b) Notwithstanding any other provisions of law authorizing the possession of medical cannabis, nothing in this Act authorizes a person who is under 21 years of age to possess cannabis. A person under 21 years of age with cannabis in his or her possession is guilty of a civil law violation as outlined in paragraph (a) of Section 4 of the Cannabis Control Act. (c) If the person under the age of 21 was in a motor vehicle at the time of the offense, the Secretary of State may suspend or revoke the driving privileges of any person for a violation of this Section under Section 6-206 of the Illinois Vehicle Code and the rules adopted under it.” Further Limitations And Prohibition Of Cannabis In Certain Places 410 ILCS 705/1-35. Limitations and penalties. “a) This Act does not permit any person to engage in, and does not prevent the imposition of any civil, criminal, or other penalties for engaging in, any of the following conduct… (2) possessing cannabis: (D) in a vehicle not open to the public unless the cannabis is in a reasonably secured sealed, container and reasonably inaccessible while the vehicle is moving; or… (3) using cannabis: (D) in any motor vehicle; (F)…in any public place; or (G) knowingly in close physical proximity to anyone under 21 years of age who is not a registered medical cannabis patient under the Compassionate Use of Medical Cannabis Program Act… 4) smoking cannabis in any place where smoking is prohibited under the Smoke Free Illinois Act;” The Cannabis Control Act Still Criminalizes Possession Of The Following Amounts Of Cannabis… 720 ILCS 550/4. Cannabis Control Act. “Except as otherwise provided in the Cannabis Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person knowingly to possess cannabis. Any person who violates this Section with respect to: (c) more than 30 grams but not more than 100 grams of any substance containing cannabis is guilty of a Class A misdemeanor; provided, that if any offense under this subsection (c) is a subsequent offense, the offender shall be guilty of a Class 4 felony; (d) more than 100 grams but not more than 500 grams of any substance containing cannabis is guilty of a Class 4 felony; provided that if any offense under this subsection (d) is a subsequent offense, the offender shall be guilty of a Class 3 felony; (e) more than 500 grams but not more than 2,000 grams of any substance containing cannabis is guilty of a Class 3 felony; (f) more than 2,000 grams but not more than 5,000 grams of any substance containing cannabis is guilty of a Class 2 felony; (g) more than 5,000 grams of any substance containing cannabis is guilty of a Class 1 felony.” Delivery And Possession With Intent To Deliver Cannabis Remains Illegal 720 ILCS 550/5. Cannabis Control Act. “Except as otherwise provided in the Cannabis Regulation and Tax Act and the Industrial Hemp Act, it is unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis. Any person who violates this Section with respect to: (a) not more than 2.5 grams of any substance containing cannabis is guilty of a Class B misdemeanor; (b) more than 2.5 grams but not more than 10 grams of any substance containing cannabis is guilty of a Class A misdemeanor; (c) more than 10 grams but not more than 30 grams of any substance containing cannabis is guilty of a Class 4 felony; (d) more than 30 grams but not more than 500 grams of any substance containing cannabis is guilty of a Class 3 felony for which a fine not to exceed $50,000 may be imposed; (e) more than 500 grams but not more than 2,000 grams of any substance containing cannabis is guilty of a Class 2 felony for which a fine not to exceed $100,000 may be imposed; (f) more than 2,000 grams but not more than 5,000 grams of any substance containing cannabis is guilty of a Class 1 felony for which a fine not to exceed $150,000 may be imposed; The Illinois Vehicle Code Still Criminalizes Cannabis Related DUI’s 625 ILCS 11-501. Driving while under the influence of alcohol, other drug or drugs, intoxicating compound or compounds or any combination thereof. “(a) A person shall not drive or be in actual physical control of any vehicle within this State while: (4) under the influence of any other drug or combination of drugs to a degree that renders the person incapable of safely driving; (7) the person has, within 2 hours of driving or being in actual physical control of a vehicle, a tetrahydrocannabinol concentration in the person’s whole blood or other bodily substance as defined in paragraph 6 of subsection (a) of Section 11-501.2 of this Code. Subject to all other requirements and provisions under this Section, this paragraph (7) does not apply to the lawful consumption of cannabis by a qualifying patient licensed under the Compassionate Use of Medical Cannabis Program Act who is in possession of a valid registry card issued under that Act, unless that person is impaired by the use of cannabis.” The “Sniff & Search” Law – 625 ILCS 5/11-501.15 625 ILCS 5/11-502.15. Possession of adult use cannabis in a motor vehicle. “(a) No driver may use cannabis within the passenger area of any motor vehicle upon a highway in this State. (b) No driver may possess cannabis within any area of any motor vehicle upon a highway in this State except in a sealed, odor-proof, child-resistant cannabis container. (c) No passenger may possess cannabis within any passenger area of any motor vehicle upon a highway in this State except in a sealed, odor-proof, child-resistant cannabis container. (d) Any person who knowingly violates subsection (a), (b), or (c) of this Section commits a Class A misdemeanor. “Can’t Miss” Moments From Episode 745 ✓ An officer who encounters the odor of cannabis in a car might have to start running through a mental checklist. What are the things they should be checking-off? (Go to 4:46) ✓ Legitimate law enforcement objectives are implicated by the smell of weed. After Illinois has decriminalized marijuana what legitimate law enforcement concerns remain on the table? (Go to 5:42) ✓ There is at least one situation where a car reeking of cannabis is going to get searched by the police. Jump to this spot to find out what that situation is. (Go to 7:50) ✓ What does a positive drug dog sniff mean now that some cannabis can be possessed legally? (Go to 11:50) ✓ How does the plain view doctrine affect this question? What have other legalized states done with this question of allowing officers to search car based on the smell of cannabis? (Go to 22:01) ✓ How a “sealed, odor-proof, child-resistant cannabis container” can be the difference between wide spread car searches in Illinois and/or very limited ones. (Go to 24:50) ✓ Urban Dictionary defines “hotboxing” as, “n. The practice of smoking marijuana in an enclosed space (e.g. a car or a small room) in order to maximize the narcotic effect.” (Go to 34:20) See Also You may also want to check out… People v. Rice, 2019 IL App (3d) 170134 (April). Episode 623 (Duration 7:36) (odor of cannabis indicative of criminal activity) Episode 556 – Interview With Charles Schierer | The Best Reason To Change The “Smell Of Cannabis” Rule Episode 509 – In re O.S., 2018 IL App (1st) 171765 (June) (1st District also says smell of weed rule is still valid)  Episode 584 – People v. Hill, 2019 IL App (4th) 180041 (January) (4th District says the same thing adding burnt or raw cannabis doesn’t matter that car is getting searched)  Episode 621 – People v. Brandt, 2019 IL App (4th) 180219 (April) (officer smelled cannabis and that justified the warrant)  Episode 340 – Kim Bilbrey on The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant Episode 558 – People v. Williams, 2018 IL App (2d) 160683 (October)(odor of alcohol alone means nothing) Episode 015 – People v. Abdur-Rhamim, 2014 IL App (3d) 130558 (August) (Police Can Search A Car In Illinois If The Smell Marijuana, So What Went Wrong Here For The Police?) Episode 276 – You Just Can’t Ignore The Stench Of Weed In An Auto Accident Episode 207 – With Ken Wang – Give Us 24 Minutes And You’ll Get a Comprehensive Debriefing on The New Illinois Marijuana Law Episode 251 – With Jeffrey Hall –  On The Latest Developments And Problems With The Illinois Cannabis Decriminalization Law Episode 196 – Dog Sniff Alert To Drugs Will Lead To Car Search 

In 2020 Can Police Search Your Car If They Smell Marijuana?

<p>This is the February 2019 Illinois criminal case law audio round-up (the fast case law summary). Episode 598<strong> (Duration 14:12)</strong></p> <h2><strong>The February 2019 Top Illinois Criminal Law Cases (The Monthly Round-Up)</strong></h2> <p>Here’s a quick snapshot of the top cases:</p> <p>1. <strong><a href= "http://www.illinoiscourts.gov/Opinions/AppellateCourt/2019/3rdDistrict/3170258.pdf" target="_blank" rel="noreferrer noopener"><em>People v. Gawlak</em></a></strong></p> <p>Motions for DNA testing in old cases are distinct and separate civil hearings where counsel can come onboard for a limited purpose.</p> <p>2. <a href= "http://www.illinoiscourts.gov/Opinions/SupremeCourt/2019/123385.pdf" target="_blank" rel="noreferrer noopener"><em><strong>Timbs v. Indiana</strong></em></a></p> <p>Eight Amendment ban on excessive fines and forfeitures extends to the states.</p> <p>3. <a href= "http://www.illinoiscourts.gov/Opinions/AppellateCourt/2019/2ndDistrict/2160791.pdf" target="_blank" rel="noreferrer noopener"><em><strong>People v. Baker</strong></em></a></p> <p>Inadmissibility of prior consistent statement trumps hearsay exceptions.</p> <p>4. <strong><a href= "http://www.illinoiscourts.gov/Opinions/AppellateCourt/2019/1stDistrict/1161094.pdf" target="_blank" rel="noreferrer noopener"><em>People v. Davison</em></a></strong></p> <p>Another example of evidence that was admitted to demonstrate the course of the police investigation.</p> <p>5. <strong><a href= "http://www.illinoiscourts.gov/Opinions/AppellateCourt/2019/4thDistrict/4170148.pdf" target="_blank" rel="noreferrer noopener"><em>People v. Bradford</em></a></strong></p> <p>Looks like trial counsel did what they could with this ballistics expert.</p> <p>6. <a href= "http://www.illinoiscourts.gov/Opinions/AppellateCourt/2019/1stDistrict/1172322.pdf" target="_blank" rel="noreferrer noopener"><em><strong>In re K.M.</strong></em></a></p> <p>Police entered onto private property without a warrant to retrieve stolen property, the fallout is widespread.</p> <p>7. <a href= "http://www.illinoiscourts.gov/Opinions/AppellateCourt/2019/3rdDistrict/3170654.pdf" target="_blank" rel="noreferrer noopener"><em><strong>People v. Bowden</strong></em></a></p> <p>Mistake of law case; Theus is under attack.</p> <p>8. <a href= "http://www.illinoiscourts.gov/Opinions/AppellateCourt/2019/2ndDistrict/2160960.pdf" target="_blank" rel="noreferrer noopener"><em><strong>People v. Swenson</strong></em></a></p> <p>How not to ask about a school’s security.</p> <p>9. <a href= "http://www.illinoiscourts.gov/Opinions/AppellateCourt/2019/2ndDistrict/2160611.pdf" target="_blank" rel="noreferrer noopener"><em><strong>People v. Wise</strong></em></a></p> <p>Drugs are found upstairs when defendant was downstairs, is this still armed violence?</p> <p>10. <a href= "http://www.illinoiscourts.gov/Opinions/AppellateCourt/2019/1stDistrict/1162563.pdf" target="_blank" rel="noreferrer noopener"><em><strong>People v. Lee</strong></em></a></p> <p>Exactly what does the state have to prove in regards to possessing a gun with defaced serial number?</p> <p>11. <a href= "http://www.illinoiscourts.gov/Opinions/AppellateCourt/2019/4thDistrict/4170622.pdf" target="_blank" rel="noreferrer noopener"><em><strong>People v. Johnson</strong></em></a></p> <p>Defendant is allowed to explain why he missed his sentencing hearing even though the trial court technically has no jurisdiction.</p> <p>12. <a href= "http://www.illinoiscourts.gov/Opinions/AppellateCourt/2019/1stDistrict/1162894.pdf" target="_blank" rel="noreferrer noopener"><em><strong>People v. Contursi</strong></em></a></p> <p>Court must take into account the future ability to pay when assessing an appropriate felony fine.</p>

This is the February 2019 Illinois criminal case law audio round-up (the fast case law summary). Episode 598 (Duration 14:12) The February 2019 Top Illinois Criminal Law Cases (The Monthly Round-Up) Here’s a quick snapshot of the top cases: 1. People v. Gawlak Motions for DNA testing in old cases are distinct and separate civil hearings where counsel can come onboard for a limited purpose. 2. Timbs v. Indiana Eight Amendment ban on excessive fines and forfeitures extends to the states. 3. People v. Baker Inadmissibility of prior consistent statement trumps hearsay exceptions. 4. People v. Davison Another example of evidence that was admitted to demonstrate the course of the police investigation. 5. People v. Bradford Looks like trial counsel did what they could with this ballistics expert. 6. In re K.M. Police entered onto private property without a warrant to retrieve stolen property, the fallout is widespread. 7. People v. Bowden Mistake of law case; Theus is under attack. 8. People v. Swenson How not to ask about a school’s security. 9. People v. Wise Drugs are found upstairs when defendant was downstairs, is this still armed violence? 10. People v. Lee Exactly what does the state have to prove in regards to possessing a gun with defaced serial number? 11. People v. Johnson Defendant is allowed to explain why he missed his sentencing hearing even though the trial court technically has no jurisdiction. 12. People v. Contursi Court must take into account the future ability to pay when assessing an appropriate felony fine.

February 2019 Speed Round (The Illinois Criminal Case Law Round Up)

<p><a href= "http://www.illinoiscourts.gov/Opinions/AppellateCourt/2019/2ndDistrict/2160426.pdf" target="_blank" rel="noreferrer noopener"><em>People v. Monroy-Jaimes</em>, 2019 IL App (2d) 160426 (January)</a>. Episode 586 <strong>(Duration 9:38)</strong></p> <p>Interesting use of an informant, how much of it was legal?</p> <h2>Confidential Informant</h2> <p>Police had an individual who was in custody for having possessed drugs with the intent to deliver.</p> <p>This confidential informant identified a person named “Chilango,” who was later identified as the defendant, as someone who could provide cocaine.</p> <h2>The First Phone Call</h2> <p>At an officer’s direction, the informant placed a phone call to Chilango.</p> <p>The officer was able to hear both sides of the conversation. Although the conversation was in Spanish, This officer spoke fluent Spanish. The informant asked Chilango for five ounces of cocaine. Chilango stated that he could provide only two ounces right away or five ounces later.</p> <p>A short time later, the informant called Chilango again and stated that he could wait to get five ounces. They also discussed meeting at a BP gas station at 149 East Ogden Avenue in Hinsdale to conduct the drug sale.</p> <p>Chilango stated that he would call when he had the cocaine.</p> <h2>The Second Phone Call</h2> <p>Later, the officer directed the informant to call Chilango again.</p> <p>The officer heard both sides of the conversation. Chilango told the informant that he was waiting to get the cocaine but that they could meet at the gas station in about an hour. About a half-hour later, Chilango called the informant and to say that he was on the way to the gas station.</p> <h2>The Gas Station</h2> <p>At about 7 p.m., the informant received another call from Chilango, who asked for directions to the gas station.</p> <p>Chilango called again for more directions a few minutes later.</p> <p>Shortly after 7 p.m., the informant and the officer were parked with a view of the gas station. The informant told the officer that he saw Chilango arriving at the gas station in a Toyota Rav 4. Police observed the defendant pull into the gas station and park at a gas pump.</p> <p>The officer identified the defendant in court as the person he saw in the vehicle at the gas station. The defendant had not committed any traffic violations when he pulled into the gas station. After parking, the defendant exited his vehicle and went into the gas station.</p> <h2>The Third Phone Call</h2> <p>The informant received another call from Chilango at about 7:10 p.m.</p> <p>Chilango stated that he was at the gas station. At that point, the officer with the informant alerted surveillance officers, who went into the station and placed the defendant in custody. The officer then had the informant call Chilango’s phone number, and one of the surveillance officers answered the defendant’s phone.</p> <p>At the police station, the officer overheard the defendant talking and recognized the defendant’s voice as the voice of Chilango.</p> <h2>Issue</h2> <p>The defendant argues that the police did not have probable cause to arrest him.</p> <h2>Probable Cause</h2> <p>A warrantless arrest is valid only if supported by probable cause.</p> <p>Probable cause to arrest exists when the facts known to the police when they make the arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime. The existence of probable cause depends upon the totality of the circumstances at the time of the arrest. In addressing probable cause, we deal with probabilities.</p> <p>They are the factual and practical considerations of everyday life on which reasonable and prudent people, not legal technicians, act.</p> <p>Accordingly, whether probable cause exists depends upon commonsense considerations, and such a determination concerns the probability of criminal activity, rather than proof beyond a reasonable doubt. Indeed, probable cause does not require even a showing that the belief that the suspect had committed a crime was more likely true than false.</p> <h2>An Informant’s Tip</h2> <p>If the facts supplied in an informant’s tip are essential to a finding of probable cause, the tip must be reliable. People v. Johnson, 368 Ill. App. 3d 1073, 1081 (2006). An indication of the reliability of the tip is when the facts learned through police investigation independently verify a substantial part of the tip. People v. James, 118 Ill. 2d 214, 225 (1987).</p> <p>The reliability of the informant is another fact to be considered. The reliability of the informant is enhanced if he is known to the police. However, if an informant is offered leniency in exchange for information that incriminates others, such information is clearly suspect.</p> <p>Whether an informant has provided reliable information depends on the totality of the circumstances. </p> <h2>Not A Confidential Informant</h2> <p>In the present case, the informant’s reliability was established under the totality of the circumstances.</p> <p>The informant provided the tip in person while in police custody. This enhanced the reliability of the tip. A confidential informant is deemed more reliable than an anonymous informant. People v. Bryant, 389 Ill. App. 3d 500, 518-19 (2009); see also People v. Sanders, 2013 IL App (1st) 102696, ¶ 19 (recognizing the “difference between an anonymous tip and one from a known informant whose reputation can be ascertained and who can be held accountable if a tip turns out to be fabricated”).</p> <p><strong>Further, there was no evidence that the informant was given any specific inducement or promise in exchange for providing the information about the defendant and cooperating with the police.</strong></p> <h2>Information Corroborated By The Officer</h2> <p>In addition, the informant’s reliability was enhanced by the fact that much of the information relied upon to establish probable cause was based on the officer’s personal observations during the phone calls between the informant and the defendant. People v. Blake, 266 Ill. App. 3d 232, 242 (1994) (noting that an informant’s reliability was enhanced because “much of the information relied on to establish probable cause was based on the police officer’s personal observations rather than mere anecdotal information supplied by the informant”).</p> <p>Here, the officer listened in on all of the phone calls between the informant and the defendant. Much of the information provided by the informant was verified before the defendant’s arrest.</p> <h2>No Proven Track Record</h2> <p>The defendant argues that the informant was unreliable because there was no evidence that he had provided reliable information in the past. However, the lack of any such evidence does not change our conclusion. Prior reliable tips are simply one consideration in the totality of the circumstances as to whether the informant was reliable.</p> <h2>Analysis</h2> <p>This case involved an arranged purchase of narcotics of which the police had first-hand knowledge. This nullified much of the need for an informant with a proven track record.</p> <p>In this case, unlike in the cases cited by the defense, the officer listened as the informant and the defendant set up a specific drug transaction, and, the informant was not anonymous and much of the information was corroborated prior to the defendant’s arrest. As there were other factors supporting the informant’s reliability, a track record of supplying reliable information was not critical.</p> <p>The informant and the defendant reached a very specific agreement for the delivery of five ounces of cocaine, and the defendant arrived at the prearranged location. <strong>Further, there was no evidence that the informant was receiving any lessened punishment.</strong></p> <h2>Holding</h2> <p>Under the totality of the circumstances, the police were aware of facts sufficient to lead a reasonably cautious person to believe that the defendant had committed a crime. </p> <p>Based on all the circumstances, there was a fair probability that the defendant had brought cocaine to the gas station.</p> <p>The judgment of the circuit court of Du Page County is affirmed.</p> <h2>Informant’s Identity Was Not An Issue</h2> <p>As far as I can tell this informant was never identified in court and he did not testify. He clearly started making phone calls to prevent charges on himself. So there was a clear benefit to him. The only thing different here is that the police were there for all the phone calls, the negotiating and the plans for the transaction.</p> <p>Interesting question is if this informant was a “transactional” witness? At one point, the informant tells the officer that he saw Chilango arriving at the gas station in a Toyota Rav 4. Was that admissible? This guy eventually confesses in the interrogation but I think these are interesting questions.</p> <h2>Transactional Informant</h2> <p> The circumstances whereby disclosure of an unidentified informant is required are noted in Supreme Court Rule 412(j)(ii), which provides:</p> <p><em>“Informants. Disclosure of an informant’s identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall not be denied hereunder of the identity of witnesses to be produced at a hearing or trial.”</em> </p> <p>The standard is that disclosure required when an informant acted in the dual role of an informant-participant. A transactional informant has to be disclosed. See People v. Herron, 578 N.E.2d 1310, 218 Ill.App.3d 561 (September 1991). Where an informant’s knowledge is potentially significant on the issue of the defendant’s guilt or innocence, the defendant is prejudiced by the State’s denial of production.</p> <p>On the other hand, where the unnamed informant was neither a participant nor a material witness to the essential elements of the offense, the informant is not a crucial witness and his identity can be withheld. In Illinois, the factors considered by courts under this balancing test are whether the requests for disclosure related to the fundamental question of guilt or innocence rather than to the preliminary issue of probable cause; whether the informant played an active role in the criminal occurrence as opposed to being a mere tipster; and whether it has been shown that the informant’s life or safety would likely be jeopardized by disclosure of his identity.</p> <p>See also People v. Rose, 342 Ill.App.3d 203, 276 Ill.Dec. 754 (July 2003). Defendant has the burden to show that disclosure of the informant’s identity is necessary to prepare his defense. Deciding whether to require disclosure of this information involves balancing the public interest in protecting informants against a defendant’s right to prepare a defense. When informant is alleged to have participated in, witnessed, or helped to arrange the crime and disclosure will not jeopardize the informant’s safety, the privilege will generally give way to a defendant’s right to prepare his defense.</p> <p>On the other hand, where the informant neither participated in nor witnessed the offense, the informant is not a crucial witness and his identity may be withheld.</p>

People v. Monroy-Jaimes, 2019 IL App (2d) 160426 (January). Episode 586 (Duration 9:38) Interesting use of an informant, how much of it was legal? Confidential Informant Police had an individual who was in custody for having possessed drugs with the intent to deliver. This confidential informant identified a person named “Chilango,” who was later identified as the defendant, as someone who could provide cocaine. The First Phone Call At an officer’s direction, the informant placed a phone call to Chilango. The officer was able to hear both sides of the conversation. Although the conversation was in Spanish, This officer spoke fluent Spanish. The informant asked Chilango for five ounces of cocaine. Chilango stated that he could provide only two ounces right away or five ounces later. A short time later, the informant called Chilango again and stated that he could wait to get five ounces. They also discussed meeting at a BP gas station at 149 East Ogden Avenue in Hinsdale to conduct the drug sale. Chilango stated that he would call when he had the cocaine. The Second Phone Call Later, the officer directed the informant to call Chilango again. The officer heard both sides of the conversation. Chilango told the informant that he was waiting to get the cocaine but that they could meet at the gas station in about an hour. About a half-hour later, Chilango called the informant and to say that he was on the way to the gas station. The Gas Station At about 7 p.m., the informant received another call from Chilango, who asked for directions to the gas station. Chilango called again for more directions a few minutes later. Shortly after 7 p.m., the informant and the officer were parked with a view of the gas station. The informant told the officer that he saw Chilango arriving at the gas station in a Toyota Rav 4. Police observed the defendant pull into the gas station and park at a gas pump. The officer identified the defendant in court as the person he saw in the vehicle at the gas station. The defendant had not committed any traffic violations when he pulled into the gas station. After parking, the defendant exited his vehicle and went into the gas station. The Third Phone Call The informant received another call from Chilango at about 7:10 p.m. Chilango stated that he was at the gas station. At that point, the officer with the informant alerted surveillance officers, who went into the station and placed the defendant in custody. The officer then had the informant call Chilango’s phone number, and one of the surveillance officers answered the defendant’s phone. At the police station, the officer overheard the defendant talking and recognized the defendant’s voice as the voice of Chilango. Issue The defendant argues that the police did not have probable cause to arrest him. Probable Cause A warrantless arrest is valid only if supported by probable cause. Probable cause to arrest exists when the facts known to the police when they make the arrest are sufficient to lead a reasonably cautious person to believe that the arrestee has committed a crime. The existence of probable cause depends upon the totality of the circumstances at the time of the arrest. In addressing probable cause, we deal with probabilities. They are the factual and practical considerations of everyday life on which reasonable and prudent people, not legal technicians, act. Accordingly, whether probable cause exists depends upon commonsense considerations, and such a determination concerns the probability of criminal activity, rather than proof beyond a reasonable doubt. Indeed, probable cause does not require even a showing that the belief that the suspect had committed a crime was more likely true than false. An Informant’s Tip If the facts supplied in an informant’s tip are essential to a finding of probable cause, the tip must be reliable. People v. Johnson, 368 Ill. App. 3d 1073, 1081 (2006). An indication of the reliability of the tip is when the facts learned through police investigation independently verify a substantial part of the tip. People v. James, 118 Ill. 2d 214, 225 (1987). The reliability of the informant is another fact to be considered. The reliability of the informant is enhanced if he is known to the police. However, if an informant is offered leniency in exchange for information that incriminates others, such information is clearly suspect. Whether an informant has provided reliable information depends on the totality of the circumstances.  Not A Confidential Informant In the present case, the informant’s reliability was established under the totality of the circumstances. The informant provided the tip in person while in police custody. This enhanced the reliability of the tip. A confidential informant is deemed more reliable than an anonymous informant. People v. Bryant, 389 Ill. App. 3d 500, 518-19 (2009); see also People v. Sanders, 2013 IL App (1st) 102696, ¶ 19 (recognizing the “difference between an anonymous tip and one from a known informant whose reputation can be ascertained and who can be held accountable if a tip turns out to be fabricated”). Further, there was no evidence that the informant was given any specific inducement or promise in exchange for providing the information about the defendant and cooperating with the police. Information Corroborated By The Officer In addition, the informant’s reliability was enhanced by the fact that much of the information relied upon to establish probable cause was based on the officer’s personal observations during the phone calls between the informant and the defendant. People v. Blake, 266 Ill. App. 3d 232, 242 (1994) (noting that an informant’s reliability was enhanced because “much of the information relied on to establish probable cause was based on the police officer’s personal observations rather than mere anecdotal information supplied by the informant”). Here, the officer listened in on all of the phone calls between the informant and the defendant. Much of the information provided by the informant was verified before the defendant’s arrest. No Proven Track Record The defendant argues that the informant was unreliable because there was no evidence that he had provided reliable information in the past. However, the lack of any such evidence does not change our conclusion. Prior reliable tips are simply one consideration in the totality of the circumstances as to whether the informant was reliable. Analysis This case involved an arranged purchase of narcotics of which the police had first-hand knowledge. This nullified much of the need for an informant with a proven track record. In this case, unlike in the cases cited by the defense, the officer listened as the informant and the defendant set up a specific drug transaction, and, the informant was not anonymous and much of the information was corroborated prior to the defendant’s arrest. As there were other factors supporting the informant’s reliability, a track record of supplying reliable information was not critical. The informant and the defendant reached a very specific agreement for the delivery of five ounces of cocaine, and the defendant arrived at the prearranged location. Further, there was no evidence that the informant was receiving any lessened punishment. Holding Under the totality of the circumstances, the police were aware of facts sufficient to lead a reasonably cautious person to believe that the defendant had committed a crime.  Based on all the circumstances, there was a fair probability that the defendant had brought cocaine to the gas station. The judgment of the circuit court of Du Page County is affirmed. Informant’s Identity Was Not An Issue As far as I can tell this informant was never identified in court and he did not testify. He clearly started making phone calls to prevent charges on himself. So there was a clear benefit to him. The only thing different here is that the police were there for all the phone calls, the negotiating and the plans for the transaction. Interesting question is if this informant was a “transactional” witness? At one point, the informant tells the officer that he saw Chilango arriving at the gas station in a Toyota Rav 4. Was that admissible? This guy eventually confesses in the interrogation but I think these are interesting questions. Transactional Informant  The circumstances whereby disclosure of an unidentified informant is required are noted in Supreme Court Rule 412(j)(ii), which provides: “Informants. Disclosure of an informant’s identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall not be denied hereunder of the identity of witnesses to be produced at a hearing or trial.”  The standard is that disclosure required when an informant acted in the dual role of an informant-participant. A transactional informant has to be disclosed. See People v. Herron, 578 N.E.2d 1310, 218 Ill.App.3d 561 (September 1991). Where an informant’s knowledge is potentially significant on the issue of the defendant’s guilt or innocence, the defendant is prejudiced by the State’s denial of production. On the other hand, where the unnamed informant was neither a participant nor a material witness to the essential elements of the offense, the informant is not a crucial witness and his identity can be withheld. In Illinois, the factors considered by courts under this balancing test are whether the requests for disclosure related to the fundamental question of guilt or innocence rather than to the preliminary issue of probable cause; whether the informant played an active role in the criminal occurrence as opposed to being a mere tipster; and whether it has been shown that the informant’s life or safety would likely be jeopardized by disclosure of his identity. See also People v. Rose, 342 Ill.App.3d 203, 276 Ill.Dec. 754 (July 2003). Defendant has the burden to show that disclosure of the informant’s identity is necessary to prepare his defense. Deciding whether to require disclosure of this information involves balancing the public interest in protecting informants against a defendant’s right to prepare a defense. When informant is alleged to have participated in, witnessed, or helped to arrange the crime and disclosure will not jeopardize the informant’s safety, the privilege will generally give way to a defendant’s right to prepare his defense. On the other hand, where the informant neither participated in nor witnessed the offense, the informant is not a crucial witness and his identity may be withheld.

When Is A Criminal Informant Considered A Witness Who Has To Testify?

<p>In Episode 738 <strong>(Duration 35:06)</strong> Illinois attorney Daniel Epstein sat down with the Criminal Nuggets Podcast and told us about his vision for the Illinois Supreme Court.</p> <h2><strong>In This Episode…</strong></h2> <p><em>“These rules people don’t think about very much actually have a real impact on our substantive rights and whether we find truth in our courts.”</em> — Daniel A. Epstein</p> <p>How can the Illinois Supreme Court use its supervisory power to improve our criminal justice system?</p> <p>Daniel has some big ideas that could make a big difference. For starters we can:</p> <ul> <li>Rewrite some of the rules of evidence</li> <li>Create broader criminal discovery <strong>(Go to 24:54)</strong></li> <li>Allow some form of a criminal deposition <strong>(Go to 13:51)</strong></li> <li>Listen to the entire episode to hear all of Daniel Epstein’s ideas.</li> </ul> <h2><strong>Who Is Daniel Epstein</strong>?</h2> <p>Daniel Epstein is a candidate for justice of the Illinois Supreme Court. He’s running to be elected to the state’s highest court.</p> <p>Before entering the race he was an attorney with Jenner & Block in Chicago and he worked on the following types of cases:</p> <ul> <li>Appeals</li> <li>Civil Rights</li> <li>Post Conviction Litigation</li> <li>Immigration</li> <li>Domestic Violence Orders of Protection</li> <li>Criminal Defense</li> <li>Complex Commercial Civil Litigation</li> <li>Intellectual Property</li> <li>Government Contracts</li> <li>Internal Investigations</li> </ul> <h2><strong>Campaign Information</strong></h2> <p>Evanston, IL<br /> info@epsteinforsupremecourt.com</p> <p><a href= "https://www.epsteinforsupremecourt.com/">https://www.epsteinforsupremecourt.com/</a></p> <h2><strong>“Can’t Miss” Moments:</strong></h2> <p>✓ <em>“The most important way that I’m different is that I’m talking about reform, and in particular, use of the court’s </em>non adjudicative<em> power.”</em> – Daniel A. Epstein</p> <p>✓ <strong>Did you know more than one third of the justices on the Supreme Court of the United States and the Illinois Supreme Court went from being attorneys straight to the supreme court without any prior judicial experience?</strong> <strong>(Go to 2:11)</strong></p> <p>✓ The Illinois Supreme Court is unique because it is not just a case decider it is also a policy maker. It writes the rules.  <strong>(Go to 2:58)</strong></p> <p>✓ <em><strong>“No one on the Supreme Court is a biometrician. They don’t do biometrics they review biometrics.”</strong></em> <strong>(Go to 4:15)</strong></p> <p>✓ The thing that got Daniel Epstein into the race was a case. It was an attempt murder case and it illuminated one glaring problem in our criminal justice system. <strong>(Go to 5:25)</strong></p> <p>✓ <strong>In this episode you’ll discover an answer to one of biggest puzzles affecting Illinois criminal justice reform: How does a guy like Jon Burge get away with doing what he did for 20 year? In other words, why didn’t the system uproot and reveal his malfeasance much sooner?</strong> <strong>(Go to 7:26)</strong></p> <p>✓ Are you comfortable with the fact that our forensic labs and our court system “earns” more money for every conviction it produces? See the Criminal And Traffic Assessment Act and the Statute on Fines, Fees,& Assessments. <strong>(Go to 8:34)</strong></p> <p>✓ <em><strong>“In order to keep the system alive there needs to be a flow of money. In some cases our courts have really contorted themselves in order to carry water for a legislature that has been unwilling to fund or system at a level that justice requires.”</strong></em> <strong>(Go to 12:15)</strong></p> <p>✓ Bond is about public safety and ensuring people come back to court. Bond is not about this one thing that Daniel finds outrageous. <strong>(Go to 12:30)</strong></p> <p>✓ <strong>It’s a well known secret that some Cook County prosecutors do this as a form of trial prep? It might be “legal” but also not what the rules intended. (Go to 18:14)</strong></p> <p>✓ We actually use to believe trial by ambush was the best system. We don’t believe that anymore. There is a better way. There’s nothing wrong from learning from our mistakes and reforming. <strong>(Go to 21:04)</strong></p> <p>✓ <strong>Why prosecutors may support and benefit from some of Daniel Epstein’s criminal justice reform ideas.</strong> <strong>(Go to 22:21)</strong></p> <p>✓ <em>“An ounce of prevention is worth a pound of cure.”</em> How true this is when applied to our criminal justice system. <strong>(Go to 23:49)</strong></p> <p>✓ <strong>What you need to know about the “Open File Rule.” Other states do it, it reduces the work load for prosecutors and it could make a big difference for us in Illinois</strong>. <strong>(Go to 24:54)</strong></p> <p>✓ Listen to what Daniel Epstein has to say about wrongful convictions. I asked if if it’s a large problem, a small problem or no problem at at? <strong>(Go to 28:26)</strong></p> <h2><strong>Links & Resources</strong></h2> <ul> <li><a href= "https://www.chicagotribune.com/business/ct-biz-six-flags-biometrics-lawsuit-20190125-story.html"> The Six Flags Biometrics Case</a></li> <li><a href= "http://www.illinoiscourts.gov/SupremeCourt/Rules/Art_IV/ArtIV.htm#402"> Illinois Supreme Court Rule 402</a></li> <li><a href= "https://www.chicagotribune.com/news/ct-jon-burge-chicago-police-torture-timeline-20180919-htmlstory.html"> Jon Burge Notorious Chicago Detective Who Tortured Suspects</a></li> <li><a href= "http://www.ilga.gov/legislation/publicacts/100/100-0987.htm">Public Act 100-0987 The Criminal And Traffic Assessment Act</a></li> <li><a href= "https://www.wglt.org/post/understanding-illinois-new-court-fines-and-fees-law"> Understanding Illinois’ New Court Fines And Fees Law</a></li> <li><a href= "http://www.illinoiscourts.gov/SupremeCourt/Rules/Art_IV/ArtIV.htm#414"> Illinois Rule Of Evidence 414 On Criminal Depositions</a></li> <li><a href= "http://www.illinoiscourts.gov/SupremeCourt/Evidence/Evidence.htm#702"> Illinois Rule Of Evidence 702 On Expert Witnesses</a></li> </ul>

In Episode 738 (Duration 35:06) Illinois attorney Daniel Epstein sat down with the Criminal Nuggets Podcast and told us about his vision for the Illinois Supreme Court. In This Episode… “These rules people don’t think about very much actually have a real impact on our substantive rights and whether we find truth in our courts.” — Daniel A. Epstein How can the Illinois Supreme Court use its supervisory power to improve our criminal justice system? Daniel has some big ideas that could make a big difference. For starters we can: Rewrite some of the rules of evidence Create broader criminal discovery (Go to 24:54) Allow some form of a criminal deposition (Go to 13:51) Listen to the entire episode to hear all of Daniel Epstein’s ideas. Who Is Daniel Epstein? Daniel Epstein is a candidate for justice of the Illinois Supreme Court. He’s running to be elected to the state’s highest court. Before entering the race he was an attorney with Jenner & Block in Chicago and he worked on the following types of cases: Appeals Civil Rights Post Conviction Litigation Immigration Domestic Violence Orders of Protection Criminal Defense Complex Commercial Civil Litigation Intellectual Property Government Contracts Internal Investigations Campaign Information Evanston, IL info@epsteinforsupremecourt.com https://www.epsteinforsupremecourt.com/ “Can’t Miss” Moments: ✓ “The most important way that I’m different is that I’m talking about reform, and in particular, use of the court’s non adjudicative power.” – Daniel A. Epstein ✓ Did you know more than one third of the justices on the Supreme Court of the United States and the Illinois Supreme Court went from being attorneys straight to the supreme court without any prior judicial experience? (Go to 2:11) ✓ The Illinois Supreme Court is unique because it is not just a case decider it is also a policy maker. It writes the rules.  (Go to 2:58) ✓ “No one on the Supreme Court is a biometrician. They don’t do biometrics they review biometrics.” (Go to 4:15) ✓ The thing that got Daniel Epstein into the race was a case. It was an attempt murder case and it illuminated one glaring problem in our criminal justice system. (Go to 5:25) ✓ In this episode you’ll discover an answer to one of biggest puzzles affecting Illinois criminal justice reform: How does a guy like Jon Burge get away with doing what he did for 20 year? In other words, why didn’t the system uproot and reveal his malfeasance much sooner? (Go to 7:26) ✓ Are you comfortable with the fact that our forensic labs and our court system “earns” more money for every conviction it produces? See the Criminal And Traffic Assessment Act and the Statute on Fines, Fees,& Assessments. (Go to 8:34) ✓ “In order to keep the system alive there needs to be a flow of money. In some cases our courts have really contorted themselves in order to carry water for a legislature that has been unwilling to fund or system at a level that justice requires.” (Go to 12:15) ✓ Bond is about public safety and ensuring people come back to court. Bond is not about this one thing that Daniel finds outrageous. (Go to 12:30) ✓ It’s a well known secret that some Cook County prosecutors do this as a form of trial prep? It might be “legal” but also not what the rules intended. (Go to 18:14) ✓ We actually use to believe trial by ambush was the best system. We don’t believe that anymore. There is a better way. There’s nothing wrong from learning from our mistakes and reforming. (Go to 21:04) ✓ Why prosecutors may support and benefit from some of Daniel Epstein’s criminal justice reform ideas. (Go to 22:21) ✓ “An ounce of prevention is worth a pound of cure.” How true this is when applied to our criminal justice system. (Go to 23:49) ✓ What you need to know about the “Open File Rule.” Other states do it, it reduces the work load for prosecutors and it could make a big difference for us in Illinois. (Go to 24:54) ✓ Listen to what Daniel Epstein has to say about wrongful convictions. I asked if if it’s a large problem, a small problem or no problem at at? (Go to 28:26) Links & Resources The Six Flags Biometrics Case Illinois Supreme Court Rule 402 Jon Burge Notorious Chicago Detective Who Tortured Suspects Public Act 100-0987 The Criminal And Traffic Assessment Act Understanding Illinois’ New Court Fines And Fees Law Illinois Rule Of Evidence 414 On Criminal Depositions Illinois Rule Of Evidence 702 On Expert Witnesses 

Daniel Epstein Is Running For The Illinois Supreme Court

Traffic Stop Based On Mistaken Identity Is Considered A Reasonable Mistake of Fact

<p><a href= "http://www.illinoiscourts.gov/Opinions/AppellateCourt/2019/3rdDistrict/3170258.pdf" target="_blank" rel="noopener noreferrer"><em>People v. Shoevlin</em>, 2019 IL App (3d) 170258 (January)</a>. Episode 583 <strong>(Duration 11:04)</strong></p> <p>Serious double jeopardy concerns are raised when the judge declares a mistrial in this domestic battery case.<span id= "more-11526"></span></p> <h2>Gist</h2> <p>In this trial for domestic battery the defendant is a women.</p> <p>She is accused of choking, scratching, and hitting her husband in the face with her keys. They got into an argument on who was getting the kids over the weekend.</p> <h2>Closing Argument</h2> <p>During closing argument counsel for the defense stated that defendant</p> <p><em>“had been scorned and he wanted to break [defendant’s] heart; he wanted to break her as a person and ruin her life. That’s why after January 21, 2016[,] he came to this courthouse and filed dissolution of marriage. He wants to take the house from her, he wants to take her kids from her, and he wants to ruin her life. He knows that if she gets a conviction in this case, her kids are going to be taken away.”</em></p> <p>Counsel continued,</p> <p><em>“That’s why he’s making all of this up and why the State can’t prove this case beyond a reasonable doubt. It didn’t happen.”</em></p> <h2>Judge Perturbed</h2> <p>For some reason this really annoyed the judge.</p> <p>The Judge said he thought counsel’s statement prejudiced the jury. The court asked defense counsel:</p> <p><em>“Why would you say that her kids are going to be taken away? Why would you say that? The jury now thinks that if she gets a conviction that as a function of law her kids will be taken away. I can’t think of anything more prejudicial.”</em></p> <p><em>“Another thing that we tell [the jury] is that they cannot have sympathy for one side or the other in a jury trial. You can’t get up there and say look at this poor woman, look what’s going to happen to her if she gets convicted, which was the sum total of what it was that you said when you told the jurors remember, she gets convicted, she loses her children. You made an iron clad statement as if it was an ipso facto thing, conviction, loses the children. Now, I know what you meant, and that isn’t what you meant in a legal sense, but the jury couldn’t make that distinction. And another thing we tell them is don’t take the punishment into account, but you were telling them in advance take that into account. She gets convicted, she is losing her children.”</em></p> <h2>State Moves For A Mistrial</h2> <p>Immediately thereafter, the State moved for a mistrial.</p> <h2>Mistrial Granted</h2> <p>After recessing for five minutes, the court returned and announced:</p> <p><em>“I’ve thought about this and there are only two other things I could do, potentially. First, I could give an instruction telling the jury to disregard that statement, but then they will think that [defense counsel] was correct when he made that statement. I could give an instruction telling the jury to completely disregard [defense counsel] because he doesn’t know what he’s talking about, but that would completely prejudice the jury against the defendant and if [she] were convicted in this case [defense counsel’s] ineffective assistance of counsel will be the first issue heard on appeal. I don’t think [defense counsel] intentionally said what he said or that he wanted to prejudice the jury. He was doing very well up until that statement. I’m granting the mistrial…the State’s entitled to a fair trial, okay? They couldn’t get up there and say whoa, whoa, whoa, wait a minute, she is not going to lose her kids, that’s not going to happen, don’t listen to that.”</em></p> <h2>Motion To Dismiss On Double Jeopardy</h2> <p>After the trial court set a date for a new trial, defendant filed a motion to dismiss alleging that a new trial would violate the double jeopardy clause of the fifth amendment. Defendant argues that the trial court erred in denying her motion to dismiss the subsequent criminal complaint on double jeopardy grounds because no manifest necessity existed to declare a mistrial.</p> <h2>Defendant Didn’t Object</h2> <p>While we agree that a defendant who consents to a mistrial, either explicitly or implicitly, generally may not assert that double jeopardy bars her subsequent retrial, that is not what happened here.</p> <p>In this case, defendant never had an opportunity to object to the State’s request for a mistrial. Instead, as soon as the State requested the mistrial—immediately following the trial court’s “I can’t think of anything more prejudicial” remark—the court asked defense counsel, “what do you suggest I do to remedy this?” Defense counsel responded to the court’s question, essentially arguing against the request for a mistrial, by stating that the jury would understand he was referring to Edward’s state of mind rather than making a statement of law.</p> <p>This argument shows defendant neither explicitly nor implicitly agreed to the mistrial.</p> <p>The court then took a 5 minute recess, and when it came back without seeking further comment from either party declared the mistrial. Based on the speed in which the below proceedings occurred, we find that defendant did not have an opportunity to object to the State’s request for mistrial.</p> <h2>The Double Jeopardy Clause</h2> <p>The fifth amendment to the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. The Illinois Constitution likewise provides that “[n]o person shall be compelled in a criminal case to give evidence against himself nor be twice put in jeopardy for the same offense.” Ill. Const. 1970, art. I, § 10; see also 720 ILCS 5/3-4(a)(3). </p> <p>The double jeopardy clause protects against</p> <p>(1) a second prosecution for the same offense following acquittal, <br /> (2) a second prosecution for the same offense following conviction, and <br /> (3) multiple punishments for the same offense.</p> <p>The constitutional protection against double jeopardy attaches once the jury is impaneled and sworn. This is so because a defendant is entitled to have his or her trial completed before a particular tribunal. A second trial increases the financial and emotional burden on the accused, prolongs the period in which he or she is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted.</p> <p>As such, the State is generally entitled to only one opportunity to prosecute a defendant.</p> <h2>How A Mistrial Effects Double Jeopardy</h2> <p>Where a trial court declares a mistrial without the defendant’s consent, it deprives the defendant of his “valued right” to have a particular tribunal decide her fate. Thus, when a trial court declares a mistrial without the defendant’s consent, a second trial is prohibited unless the State demonstrates a <strong>manifest necessity</strong> for the mistrial.</p> <p>In determining whether manifest necessity exists for a mistrial, the trial court must balance the defendant’s interest in having the trial completed in a single proceeding, reserving the possibility of obtaining an acquittal before that particular tribunal, against the strength of the justification for declaring a mistrial rather than attempting to continue the trial to a verdict.</p> <p>The circumstances must be very extraordinary and striking. The necessity for a mistrial must be imperious.</p> <h2>Mistrial Double Jeopardy Factors</h2> <p>A number of factors may be considered in determining whether a “manifest necessity” warranted a mistrial, including:</p> <p>(1) whether the difficulty was the product of the actions of the prosecutor, defense counsel, or trial judge, or was events over which the participants lacked control<br /> (2) whether the difficulty could have been intentionally created or manipulated by the prosecution to strengthen its case<br /> (3) whether the difficulty, prejudice, or other legal complication might have been ‘cured’ by another alternative that would have preserved the trial’s fairness<br /> (4) whether the trial judge actually considered the alternatives to a mistrial<br /> (5) whether a subsequent conviction would be subject to reversal on appeal<br /> (6) whether the trial judge acted in the heat of the trial confrontation<br /> (7) whether the trial judge’s decision rested on an evaluation of the demeanor of the participants, the ‘atmosphere’ of the trial, or any other factors that similarly are not amenable to strict appellate review<br /> (8) whether the trial judge granted the mistrial solely for the purpose of protecting the defendant against possible prejudice<br /> 9) whether the evidence the State presented, prior to the mistrial, suggested a weakness in its case (e.g., a witness failed to testify as anticipated)<br /> (10) whether the jurors had heard enough of the case to formulate some tentative opinions<br /> (11) whether the case had proceeded so far as to give the prosecution a substantial preview of the defense’s tactics and evidence and<br /> (12) whether the composition of the jury was unusual.</p> <p>It is of the utmost importance that a trial court carefully considers all reasonable alternatives prior to declaring a mistrial. Whether the trial judge gave counsel an opportunity to be heard regarding a mistrial is of major importance, as is the amount of time devoted to the mistrial decision. A hasty decision, reflected by a rapid sequence of events culminating in a declaration of a mistrial, tends to indicate insufficient concern for the defendant’s constitutional rights.</p> <h2>Defendant Was Not Driving This Bus</h2> <p>In this case the trial court <em>sua sponte</em> removed the jury from the room and questioned defense counsel regarding his closing argument—an argument to which the State did not object. While the State ultimately requested a mistrial, it did so only after the court announced that it could not “think of anything more prejudicial” than counsel’s statement.</p> <p>The court proceeded to reject each remedy it thought of during its five minute recess and immediately declared a mistrial without seeking further input from defense counsel or the State. The trial court’s decision to grant the mistrial in this case after the jury heard all the evidence was clearly a hasty decision.</p> <h2>Sure The Statement Was Improper</h2> <p>We agree with the trial judge that defendant’s argument was improper.</p> <p>However, based on the totality of the evidence presented in this case, the jury was well aware that the parties were divorcing, that the husband was seeking custody of the children, and that DCFS was involved in some manner. In fact, defense counsel’s theory of the case was that the husband fabricated the incident to give him an advantage in the dissolution and custody proceedings.</p> <h2>Holding</h2> <p>Thus, we find that defense counsel’s closing statement in this case did not justify the trial court’s declaration of a mistrial.</p> <p>Because the State failed to demonstrate a manifest necessity for the mistrial, we reverse the trial court’s denial of defendant’s motion to dismiss the subsequent criminal complaint on double jeopardy grounds.</p> <p>We reverse the judgment of the circuit court of Will County.</p> <h2>See Also</h2> <ul> <li>Episode 398 – <a href= "https://illinoiscaselaw.com/clecourses/how-the-judge-handled-this-deadlocked-jury-lead-to-mistrial-and-double-jeopardy-problems/" target="_blank" rel="noopener noreferrer"><em>People v. Kimble</em>, 2017 IL App (2d) 160087 (September)</a> (judge declares a mistrial too early and now the state cannot recharge defendant).</li> <li>Episode 279 – <a href= "https://illinoiscaselaw.com/dui-dismissal-does-not-implicate-double-jeopardy/" target="_blank" rel="noopener noreferrer"><em>People v. Staple</em>, 2016 IL App (4th) 160061 (December)</a> (defendant plead guilty to misdemeanor DUI, so the trial judge dismissed the felony DUI without implicating double jeopardy)</li> <li>Episode 389 – <a href= "https://illinoiscaselaw.com/clecourses/prosecutor-gets-sick-in-the-middle-of-trial-and-cant-continue/" target="_blank" rel="noopener noreferrer"><em>People v. Threatte</em>, 2017 IL App (2d) 160161 (August)</a> (prosecutor got sick in the middle of trial and mistrial was declared)</li> <li>Episode 040  – <a href= "https://illinoiscaselaw.com/when-does-double-jeopardy-attach-during-a-sentencing-hearing/" target="_blank" rel="noopener noreferrer"><em>People v. Guillen</em>, 2014 IL App (2d) 131216 (November)</a> (defendant tried to plead guilty to a misdemeanor DUI, the the judge allowed them to dismiss the charges so they could indict on felony charges)</li> <li>Episode 041 – <a href= "https://illinoiscaselaw.com/more-on-double-jeopardy-definition/" target="_blank" rel="noopener noreferrer">More on Double Jeopardy Definition</a></li> </ul>

People v. Shoevlin, 2019 IL App (3d) 170258 (January). Episode 583 (Duration 11:04) Serious double jeopardy concerns are raised when the judge declares a mistrial in this domestic battery case. Gist In this trial for domestic battery the defendant is a women. She is accused of choking, scratching, and hitting her husband in the face with her keys. They got into an argument on who was getting the kids over the weekend. Closing Argument During closing argument counsel for the defense stated that defendant “had been scorned and he wanted to break [defendant’s] heart; he wanted to break her as a person and ruin her life. That’s why after January 21, 2016[,] he came to this courthouse and filed dissolution of marriage. He wants to take the house from her, he wants to take her kids from her, and he wants to ruin her life. He knows that if she gets a conviction in this case, her kids are going to be taken away.” Counsel continued, “That’s why he’s making all of this up and why the State can’t prove this case beyond a reasonable doubt. It didn’t happen.” Judge Perturbed For some reason this really annoyed the judge. The Judge said he thought counsel’s statement prejudiced the jury. The court asked defense counsel: “Why would you say that her kids are going to be taken away? Why would you say that? The jury now thinks that if she gets a conviction that as a function of law her kids will be taken away. I can’t think of anything more prejudicial.” “Another thing that we tell [the jury] is that they cannot have sympathy for one side or the other in a jury trial. You can’t get up there and say look at this poor woman, look what’s going to happen to her if she gets convicted, which was the sum total of what it was that you said when you told the jurors remember, she gets convicted, she loses her children. You made an iron clad statement as if it was an ipso facto thing, conviction, loses the children. Now, I know what you meant, and that isn’t what you meant in a legal sense, but the jury couldn’t make that distinction. And another thing we tell them is don’t take the punishment into account, but you were telling them in advance take that into account. She gets convicted, she is losing her children.” State Moves For A Mistrial Immediately thereafter, the State moved for a mistrial. Mistrial Granted After recessing for five minutes, the court returned and announced: “I’ve thought about this and there are only two other things I could do, potentially. First, I could give an instruction telling the jury to disregard that statement, but then they will think that [defense counsel] was correct when he made that statement. I could give an instruction telling the jury to completely disregard [defense counsel] because he doesn’t know what he’s talking about, but that would completely prejudice the jury against the defendant and if [she] were convicted in this case [defense counsel’s] ineffective assistance of counsel will be the first issue heard on appeal. I don’t think [defense counsel] intentionally said what he said or that he wanted to prejudice the jury. He was doing very well up until that statement. I’m granting the mistrial…the State’s entitled to a fair trial, okay? They couldn’t get up there and say whoa, whoa, whoa, wait a minute, she is not going to lose her kids, that’s not going to happen, don’t listen to that.” Motion To Dismiss On Double Jeopardy After the trial court set a date for a new trial, defendant filed a motion to dismiss alleging that a new trial would violate the double jeopardy clause of the fifth amendment. Defendant argues that the trial court erred in denying her motion to dismiss the subsequent criminal complaint on double jeopardy grounds because no manifest necessity existed to declare a mistrial. Defendant Didn’t Object While we agree that a defendant who consents to a mistrial, either explicitly or implicitly, generally may not assert that double jeopardy bars her subsequent retrial, that is not what happened here. In this case, defendant never had an opportunity to object to the State’s request for a mistrial. Instead, as soon as the State requested the mistrial—immediately following the trial court’s “I can’t think of anything more prejudicial” remark—the court asked defense counsel, “what do you suggest I do to remedy this?” Defense counsel responded to the court’s question, essentially arguing against the request for a mistrial, by stating that the jury would understand he was referring to Edward’s state of mind rather than making a statement of law. This argument shows defendant neither explicitly nor implicitly agreed to the mistrial. The court then took a 5 minute recess, and when it came back without seeking further comment from either party declared the mistrial. Based on the speed in which the below proceedings occurred, we find that defendant did not have an opportunity to object to the State’s request for mistrial. The Double Jeopardy Clause The fifth amendment to the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. The Illinois Constitution likewise provides that “[n]o person shall be compelled in a criminal case to give evidence against himself nor be twice put in jeopardy for the same offense.” Ill. Const. 1970, art. I, § 10; see also 720 ILCS 5/3-4(a)(3).  The double jeopardy clause protects against (1) a second prosecution for the same offense following acquittal,  (2) a second prosecution for the same offense following conviction, and  (3) multiple punishments for the same offense. The constitutional protection against double jeopardy attaches once the jury is impaneled and sworn. This is so because a defendant is entitled to have his or her trial completed before a particular tribunal. A second trial increases the financial and emotional burden on the accused, prolongs the period in which he or she is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. As such, the State is generally entitled to only one opportunity to prosecute a defendant. How A Mistrial Effects Double Jeopardy Where a trial court declares a mistrial without the defendant’s consent, it deprives the defendant of his “valued right” to have a particular tribunal decide her fate. Thus, when a trial court declares a mistrial without the defendant’s consent, a second trial is prohibited unless the State demonstrates a manifest necessity for the mistrial. In determining whether manifest necessity exists for a mistrial, the trial court must balance the defendant’s interest in having the trial completed in a single proceeding, reserving the possibility of obtaining an acquittal before that particular tribunal, against the strength of the justification for declaring a mistrial rather than attempting to continue the trial to a verdict. The circumstances must be very extraordinary and striking. The necessity for a mistrial must be imperious. Mistrial Double Jeopardy Factors A number of factors may be considered in determining whether a “manifest necessity” warranted a mistrial, including: (1) whether the difficulty was the product of the actions of the prosecutor, defense counsel, or trial judge, or was events over which the participants lacked control (2) whether the difficulty could have been intentionally created or manipulated by the prosecution to strengthen its case (3) whether the difficulty, prejudice, or other legal complication might have been ‘cured’ by another alternative that would have preserved the trial’s fairness (4) whether the trial judge actually considered the alternatives to a mistrial (5) whether a subsequent conviction would be subject to reversal on appeal (6) whether the trial judge acted in the heat of the trial confrontation (7) whether the trial judge’s decision rested on an evaluation of the demeanor of the participants, the ‘atmosphere’ of the trial, or any other factors that similarly are not amenable to strict appellate review (8) whether the trial judge granted the mistrial solely for the purpose of protecting the defendant against possible prejudice 9) whether the evidence the State presented, prior to the mistrial, suggested a weakness in its case (e.g., a witness failed to testify as anticipated) (10) whether the jurors had heard enough of the case to formulate some tentative opinions (11) whether the case had proceeded so far as to give the prosecution a substantial preview of the defense’s tactics and evidence and (12) whether the composition of the jury was unusual. It is of the utmost importance that a trial court carefully considers all reasonable alternatives prior to declaring a mistrial. Whether the trial judge gave counsel an opportunity to be heard regarding a mistrial is of major importance, as is the amount of time devoted to the mistrial decision. A hasty decision, reflected by a rapid sequence of events culminating in a declaration of a mistrial, tends to indicate insufficient concern for the defendant’s constitutional rights. Defendant Was Not Driving This Bus In this case the trial court sua sponte removed the jury from the room and questioned defense counsel regarding his closing argument—an argument to which the State did not object. While the State ultimately requested a mistrial, it did so only after the court announced that it could not “think of anything more prejudicial” than counsel’s statement. The court proceeded to reject each remedy it thought of during its five minute recess and immediately declared a mistrial without seeking further input from defense counsel or the State. The trial court’s decision to grant the mistrial in this case after the jury heard all the evidence was clearly a hasty decision. Sure The Statement Was Improper We agree with the trial judge that defendant’s argument was improper. However, based on the totality of the evidence presented in this case, the jury was well aware that the parties were divorcing, that the husband was seeking custody of the children, and that DCFS was involved in some manner. In fact, defense counsel’s theory of the case was that the husband fabricated the incident to give him an advantage in the dissolution and custody proceedings. Holding Thus, we find that defense counsel’s closing statement in this case did not justify the trial court’s declaration of a mistrial. Because the State failed to demonstrate a manifest necessity for the mistrial, we reverse the trial court’s denial of defendant’s motion to dismiss the subsequent criminal complaint on double jeopardy grounds. We reverse the judgment of the circuit court of Will County. See Also Episode 398 – People v. Kimble, 2017 IL App (2d) 160087 (September) (judge declares a mistrial too early and now the state cannot recharge defendant). Episode 279 – People v. Staple, 2016 IL App (4th) 160061 (December) (defendant plead guilty to misdemeanor DUI, so the trial judge dismissed the felony DUI without implicating double jeopardy) Episode 389 – People v. Threatte, 2017 IL App (2d) 160161 (August) (prosecutor got sick in the middle of trial and mistrial was declared) Episode 040  – People v. Guillen, 2014 IL App (2d) 131216 (November) (defendant tried to plead guilty to a misdemeanor DUI, the the judge allowed them to dismiss the charges so they could indict on felony charges) Episode 041 – More on Double Jeopardy Definition 

Double Jeopardy Trap Snaps And Ensnares This Judge

<p><a href= "http://www.illinoiscourts.gov/Opinions/SupremeCourt/2019/123385.pdf" target="_blank" rel="noopener"><em>People v. Relwani</em>, 2019 IL 123385 (January)</a>. Episode 582<strong> (Duration 10:18)</strong></p> <p>Defendant needed to say something about the private nature of the Walgreen’s parking lot.<span id="more-11520"></span></p> <p>Here’s the lower court opinion.</p> <p><a href= "https://illinoiscaselaw.com/clecourses/never-forget-defendant-must-make-a-prima-facie-case-in-a-statutory-summary-suspension-hearing/" target="_blank" rel="noopener"><em>People v. Relwani</em>, 2018 IL App (3d) 170201 (February)</a>. Episode 471 <strong>(Duration 7:01)</strong></p> <h2>Charges</h2> <p>Defendant was charged with driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2)).</p> <h2>Found In His Car</h2> <p>He was found alone in an altered or partially unconscious state behind the steering wheel of a running car in a Joliet Walgreens parking lot at about 3:30 a.m. Under the Illinois implied consent statute (625 ILCS 5/11-501.1), his driver’s license was summarily suspended by the Secretary of State.</p> <h2>Issue</h2> <p>Defendant claims that rescission is warranted because he was arrested in a privately owned Walgreens parking lot that did not meet the definition of a “public highway,” as required by the implied consent law.</p> <p>The dispositive question in this appeal is narrow:</p> <p>Was a defendant seeking rescission of the statutory summary suspension of his driver’s license required to offer affirmative evidence to satisfy his initial burden of making a prima facie showing that he was not on a “public highway” while in control of his car?</p> <h2>Defendant Testified</h2> <p>At the hearing on his petition to rescind, defendant was the only witness.</p> <p>He said he was parked in a Walgreens parking lot located at 1801 Ingalls Avenue in Joliet and was sleeping behind the wheel of his car when he was woken up by police officers, who arrested him for DUI.</p> <p>During the State’s cross-examination, defendant was often unable to provide clear or responsive answers.</p> <p>He admitted, however, that the police found him in his car with the keys in the ignition and the engine running. When the State asked whether the reason he did not remember performing some field sobriety tests was “because he was intoxicated and had taken heroin and clozapine (a psychotropic drug used as an antipsychotic medication) that night,” defendant answered,</p> <p>“I, I don’t know. I guess.”</p> <p>While defendant was able to confirm he told the police that he “had been driving from the restaurant in Chicago with his family” earlier that evening, he did not recall if he also told them that he had “used heroin and clozapine for his birthday that night” and was “not sure” whether “there was an open bottle of Budweiser beer in his car.”</p> <h2>Directed Finding Granted</h2> <p>At the close of defendant’s case, the State successfully moved for a directed finding, arguing that he had not met his burden of proof in seeking rescission of his statutory summary suspension.</p> <p>The judge said “here, we have not truly established the fact, by the petitioner’s case, that this truly was—they said he was in the Walgreens, that it was a privately-owned parking lot. If I don’t know that, I can’t assume that simply because it is the parking lot of Walgreens.”</p> <p>The trial court denied defendant’s motion to reconsider.</p> <h2>Public Highway</h2> <p>A parking lot would be considered a “public highway” for summary suspension purposes if it is publicly maintained and open to the public for vehicular travel. See <a href= "http://ilga.gov/legislation/ilcs/documents/062500050K1-126.htm" target="_blank" rel="noopener">625 ILCS 5/1-126</a> (defining “highway” for purposes of the Illinois Vehicle Code).</p> <p>A “highway” is defined as “the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel or located on public school property.” 625 ILCS 5/1-126.</p> <p>While on its face the idea that a parking lot can be a “public highway” may seem to be easily dismissed, “a parking lot that is publicly maintained and open to use by the public for vehicular travel will constitute a ‘highway,’ even if the parking lot is on privately owned property.” <em>People v. Helt</em>, 384 Ill. App. 3d 285, 288 (2008).</p> <h2>Implied Consent Requires Public Highway</h2> <p>Under the Illinois Vehicle Code, the implied consent statute in DUI cases states:</p> <p><em>“Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent *** to a chemical test or tests of blood, breath, other bodily substance, or urine for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds or any combination thereof in the person’s blood if arrested *** [for a DUI offense] ***.”</em></p> <p>625 ILCS 5/11-501.1(a).</p> <p>Critically, for purposes of the Illinois Vehicle Code,  Based on that definition, a property is a “public highway” within the meaning of the implied consent statute if it is both “publicly maintained” and either open to use by the vehicular public or it constitutes public school property. 625 ILCS 5/1-126.</p> <h2>The Orth Standard</h2> <p>In People v. Orth, 124 Ill. 2d 326, 337-38 (1988), this court concluded that “the motorist, who is requesting judicial rescission of [a summary] suspension, should bear the burden of proof” and must present a prima facie case supporting that request.</p> <p>While defendant agrees that he was required to establish a prima facie case to support his rescission request, he maintains that he met that burden by relying on the purported inference that any parking lot by a Walgreens store is private property.</p> <p>If, and only if, defendant makes a sufficient prima facie showing, thereby avoiding a directed finding, “the burden will shift to the State to come forward with evidence in rebuttal justifying suspension.” Orth, 124 Ill. 2d at 338.</p> <p>In Orth, the motorist argued that the statutory summary suspension of his driver’s license should be rescinded because the result of his breath test was unreliable.</p> <h2>Prima Facia Case</h2> <p>This court explained that to make a prima facie case, the motorist had to present evidence “of any circumstance which tends to cast doubt on the test’s accuracy, including, but not limited to, credible testimony by the motorist that he was not in fact under the influence of alcohol.</p> <p>If the trial judge finds such testimony credible then the burden shifts to the State. Orth, 124 Ill. 2d at 341. In making a prima facie case, a defendant “has the primary responsibility for establishing the factual and legal bases” for the requested action.</p> <p>A prima facie case is “a party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” Black’s Law Dictionary 1310 (9th ed. 2009).</p> <h2>He Said He Was In A Walgreen Parking Lot</h2> <p>Applying that standard to defendant’s contention in this case, he had to offer evidence that the trial court found to be credible. In addition, to ward off the State’s motion for directed verdict and shift the evidentiary burden to the State, defendant’s proffered evidence had to “tend to cast doubt on” whether the parking lot constituted a “public highway” as defined by the relevant statute.</p> <p>Our examination of the record reveals that the only portion of his testimony that even tangentially related to whether the parking lot was a “public highway” was even more abbreviated. In its entirety, that testimony consisted of two short colloquies. Where defendant is asked if he was in a Walgreen’s parking lot and he answered “yes.”</p> <p>Defendant asserts this purported inference: the parking lot by the Joliet Walgreens store where police found him is private property, not a “public highway” as defined in the Illinois Vehicle Code. The sole basis for defendant’s claimed inference is, necessarily, the above-quoted testimonial snippets.</p> <p>Nonetheless, he contends that an inference based on those brief snippets is sufficient to overcome his burden of making a prima facie showing that the parking lot was outside the reach of the implied consent statute.</p> <p>We disagree.</p> <h2>Analysis</h2> <p>As we have explained, to make his prima facie case, defendant had to offer evidence that “tend[ed] to cast doubt on” whether that parking lot was “publicly maintained” or open to use by the motoring public. See 625 ILCS 5/1-126.</p> <p>The sum total of the substantive evidence defendant offered on the relevant question in this case consisted of (1) the lot’s association with a Walgreens store and (2) its street address. Defendant’s testimony did not even specify the proximity or physical connection of the parking lot to the storefront or the location of his car within the parking lot.</p> <p>To make his prima facie case, defendant was obliged to produce “enough evidence to allow the fact-trier to infer the fact at issue and rule in his favor.” Black’s Law Dictionary 1310 (9th ed. 2009).</p> <div class="content-box-yellow"> <p>Here, defendant’s mere reference to “Walgreens,” without more, establishes nothing about either the identity of the entity that maintained the lot or the public’s use of the lot. Those are the essential substantive components for a prima facie showing that the parking lot was not a “public highway” within the meaning of the relevant statutes.</p> </div> <p>Defendant must provide some affirmative evidence and cannot rely on a passing reference and mere supposition to avoid a directed finding. Here, defendant’s prima facie showing fell well short of the required mark.</p> <h2>Holding</h2> <p>We conclude the trial court’s finding that defendant failed to present a prima facie case for rescission is not against the manifest weight of the evidence. It is certainly not clearly evident from the minimal evidence defendant presented that the trial court should have arrived at the opposite conclusion or that its conclusion was unreasonable, arbitrary, or not based on the evidence.</p> <p>Affirmed.</p> <p>Defendant was required to offer some affirmative evidence that the parking lot where he was arrested for DUI was not a public highway within the definition in the Illinois Vehicle Code to make his prima facie case and fend off the State’s motion for a directed finding. Because he failed to provide that quantum of evidence, we uphold the trial court’s directed finding for the State.</p> <h2>What He Could Have Done</h2> <div class="content-box-yellow"> <p>After all, property constitutes a “public highway” only if it is both “publicly maintained” and either open to use by the vehicular public or is public school property. 625 ILCS 5/1-126 (West 2016) (defining “highway” for purposes of the Illinois Vehicle Code). To avoid a directed finding against him, defendant could have made a prima facie offering of evidence that tended to cast doubt on either one of those statutory requirements.</p> </div> <p>It was not truly burdensome for defendant to provide some affirmative evidence simply tending to cast doubt on the parking lot being publicly maintained. Subpoenas or extensive searches of property records would not have been required to support his initial claim.</p> <p>By focusing on the alleged difficulty of determining whether a public entity maintains the parking lot, he ignores the equally viable option of making his prima facie case by offering affirmative evidence that tends to cast doubt on whether the parking lot is open to public use.</p> <p>Something as simple as evidence of a posted “private property” sign may, in the proper circumstances, suffice to satisfy the prima facie burden of proof in a rescission action, shifting the burden to present evidence on the lot’s “public highway” status to the State.</p> <p>Here, defendant did not attempt to make even that minimal showing. </p>

People v. Relwani, 2019 IL 123385 (January). Episode 582 (Duration 10:18) Defendant needed to say something about the private nature of the Walgreen’s parking lot. Here’s the lower court opinion. People v. Relwani, 2018 IL App (3d) 170201 (February). Episode 471 (Duration 7:01) Charges Defendant was charged with driving under the influence of alcohol (DUI) (625 ILCS 5/11-501(a)(2)). Found In His Car He was found alone in an altered or partially unconscious state behind the steering wheel of a running car in a Joliet Walgreens parking lot at about 3:30 a.m. Under the Illinois implied consent statute (625 ILCS 5/11-501.1), his driver’s license was summarily suspended by the Secretary of State. Issue Defendant claims that rescission is warranted because he was arrested in a privately owned Walgreens parking lot that did not meet the definition of a “public highway,” as required by the implied consent law. The dispositive question in this appeal is narrow: Was a defendant seeking rescission of the statutory summary suspension of his driver’s license required to offer affirmative evidence to satisfy his initial burden of making a prima facie showing that he was not on a “public highway” while in control of his car? Defendant Testified At the hearing on his petition to rescind, defendant was the only witness. He said he was parked in a Walgreens parking lot located at 1801 Ingalls Avenue in Joliet and was sleeping behind the wheel of his car when he was woken up by police officers, who arrested him for DUI. During the State’s cross-examination, defendant was often unable to provide clear or responsive answers. He admitted, however, that the police found him in his car with the keys in the ignition and the engine running. When the State asked whether the reason he did not remember performing some field sobriety tests was “because he was intoxicated and had taken heroin and clozapine (a psychotropic drug used as an antipsychotic medication) that night,” defendant answered, “I, I don’t know. I guess.” While defendant was able to confirm he told the police that he “had been driving from the restaurant in Chicago with his family” earlier that evening, he did not recall if he also told them that he had “used heroin and clozapine for his birthday that night” and was “not sure” whether “there was an open bottle of Budweiser beer in his car.” Directed Finding Granted At the close of defendant’s case, the State successfully moved for a directed finding, arguing that he had not met his burden of proof in seeking rescission of his statutory summary suspension. The judge said “here, we have not truly established the fact, by the petitioner’s case, that this truly was—they said he was in the Walgreens, that it was a privately-owned parking lot. If I don’t know that, I can’t assume that simply because it is the parking lot of Walgreens.” The trial court denied defendant’s motion to reconsider. Public Highway A parking lot would be considered a “public highway” for summary suspension purposes if it is publicly maintained and open to the public for vehicular travel. See 625 ILCS 5/1-126 (defining “highway” for purposes of the Illinois Vehicle Code). A “highway” is defined as “the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel or located on public school property.” 625 ILCS 5/1-126. While on its face the idea that a parking lot can be a “public highway” may seem to be easily dismissed, “a parking lot that is publicly maintained and open to use by the public for vehicular travel will constitute a ‘highway,’ even if the parking lot is on privately owned property.” People v. Helt, 384 Ill. App. 3d 285, 288 (2008). Implied Consent Requires Public Highway Under the Illinois Vehicle Code, the implied consent statute in DUI cases states: “Any person who drives or is in actual physical control of a motor vehicle upon the public highways of this State shall be deemed to have given consent *** to a chemical test or tests of blood, breath, other bodily substance, or urine for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds or any combination thereof in the person’s blood if arrested *** [for a DUI offense] ***.” 625 ILCS 5/11-501.1(a). Critically, for purposes of the Illinois Vehicle Code,  Based on that definition, a property is a “public highway” within the meaning of the implied consent statute if it is both “publicly maintained” and either open to use by the vehicular public or it constitutes public school property. 625 ILCS 5/1-126. The Orth Standard In People v. Orth, 124 Ill. 2d 326, 337-38 (1988), this court concluded that “the motorist, who is requesting judicial rescission of [a summary] suspension, should bear the burden of proof” and must present a prima facie case supporting that request. While defendant agrees that he was required to establish a prima facie case to support his rescission request, he maintains that he met that burden by relying on the purported inference that any parking lot by a Walgreens store is private property. If, and only if, defendant makes a sufficient prima facie showing, thereby avoiding a directed finding, “the burden will shift to the State to come forward with evidence in rebuttal justifying suspension.” Orth, 124 Ill. 2d at 338. In Orth, the motorist argued that the statutory summary suspension of his driver’s license should be rescinded because the result of his breath test was unreliable. Prima Facia Case This court explained that to make a prima facie case, the motorist had to present evidence “of any circumstance which tends to cast doubt on the test’s accuracy, including, but not limited to, credible testimony by the motorist that he was not in fact under the influence of alcohol. If the trial judge finds such testimony credible then the burden shifts to the State. Orth, 124 Ill. 2d at 341. In making a prima facie case, a defendant “has the primary responsibility for establishing the factual and legal bases” for the requested action. A prima facie case is “a party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” Black’s Law Dictionary 1310 (9th ed. 2009). He Said He Was In A Walgreen Parking Lot Applying that standard to defendant’s contention in this case, he had to offer evidence that the trial court found to be credible. In addition, to ward off the State’s motion for directed verdict and shift the evidentiary burden to the State, defendant’s proffered evidence had to “tend to cast doubt on” whether the parking lot constituted a “public highway” as defined by the relevant statute. Our examination of the record reveals that the only portion of his testimony that even tangentially related to whether the parking lot was a “public highway” was even more abbreviated. In its entirety, that testimony consisted of two short colloquies. Where defendant is asked if he was in a Walgreen’s parking lot and he answered “yes.” Defendant asserts this purported inference: the parking lot by the Joliet Walgreens store where police found him is private property, not a “public highway” as defined in the Illinois Vehicle Code. The sole basis for defendant’s claimed inference is, necessarily, the above-quoted testimonial snippets. Nonetheless, he contends that an inference based on those brief snippets is sufficient to overcome his burden of making a prima facie showing that the parking lot was outside the reach of the implied consent statute. We disagree. Analysis As we have explained, to make his prima facie case, defendant had to offer evidence that “tend[ed] to cast doubt on” whether that parking lot was “publicly maintained” or open to use by the motoring public. See 625 ILCS 5/1-126. The sum total of the substantive evidence defendant offered on the relevant question in this case consisted of (1) the lot’s association with a Walgreens store and (2) its street address. Defendant’s testimony did not even specify the proximity or physical connection of the parking lot to the storefront or the location of his car within the parking lot. To make his prima facie case, defendant was obliged to produce “enough evidence to allow the fact-trier to infer the fact at issue and rule in his favor.” Black’s Law Dictionary 1310 (9th ed. 2009). Here, defendant’s mere reference to “Walgreens,” without more, establishes nothing about either the identity of the entity that maintained the lot or the public’s use of the lot. Those are the essential substantive components for a prima facie showing that the parking lot was not a “public highway” within the meaning of the relevant statutes. Defendant must provide some affirmative evidence and cannot rely on a passing reference and mere supposition to avoid a directed finding. Here, defendant’s prima facie showing fell well short of the required mark. Holding We conclude the trial court’s finding that defendant failed to present a prima facie case for rescission is not against the manifest weight of the evidence. It is certainly not clearly evident from the minimal evidence defendant presented that the trial court should have arrived at the opposite conclusion or that its conclusion was unreasonable, arbitrary, or not based on the evidence. Affirmed. Defendant was required to offer some affirmative evidence that the parking lot where he was arrested for DUI was not a public highway within the definition in the Illinois Vehicle Code to make his prima facie case and fend off the State’s motion for a directed finding. Because he failed to provide that quantum of evidence, we uphold the trial court’s directed finding for the State. What He Could Have Done After all, property constitutes a “public highway” only if it is both “publicly maintained” and either open to use by the vehicular public or is public school property. 625 ILCS 5/1-126 (West 2016) (defining “highway” for purposes of the Illinois Vehicle Code). To avoid a directed finding against him, defendant could have made a prima facie offering of evidence that tended to cast doubt on either one of those statutory requirements. It was not truly burdensome for defendant to provide some affirmative evidence simply tending to cast doubt on the parking lot being publicly maintained. Subpoenas or extensive searches of property records would not have been required to support his initial claim. By focusing on the alleged difficulty of determining whether a public entity maintains the parking lot, he ignores the equally viable option of making his prima facie case by offering affirmative evidence that tends to cast doubt on whether the parking lot is open to public use. Something as simple as evidence of a posted “private property” sign may, in the proper circumstances, suffice to satisfy the prima facie burden of proof in a rescission action, shifting the burden to present evidence on the lot’s “public highway” status to the State. Here, defendant did not attempt to make even that minimal showing. 

DUI License Suspension On Private Property

<p>Episode 724 <strong>(Duration 33:57)</strong>. Chicago defense attorney Peter Lewis explains what a litigant can do when their criminal discovery is missing the police body cam video.</p> <p></p> <h2><strong>In This Case...</strong></h2> <p> </p> <blockquote class="wp-block-quote"> <p><em>The State's Attorney's position is if they didn't get it from the police then it doesn't exist.</em></p> <cite>Attorney Peter Lewis</cite></blockquote> <p> </p> <h2><strong>Am I Entitled To Have The Police Body Cam In My Case?</strong></h2> <p></p> <p>Yes. Generally, speaking a criminal defendant is going to be entitled to possess a copy of the police body cam or cams involved in his or her case. The interesting question is what to do when you don't get it.</p> <p></p> <h2><strong>Attorney Peter Lewis</strong></h2> <p> </p> <p>Peter Lewis has been an Illinois attorney since 2004. He currently has an extensive criminal law practice. He handles cases throughout Cook County and the collar counties.</p> <p> </p> <h2><strong>Contact Information</strong></h2> <p> </p> <p>5508 West Lawrence Ave<br /> Chicago, IL 60630<br /> 773-853-0223</p> <p> </p> <p><a href="http://pwlewislaw.com/">http://pwlewislaw.com/</a></p> <p> </p> <h2><strong>Main Areas Of Law</strong></h2> <p> </p> <p> In Chicago what are the three main areas of law that govern the police use of body cameras?</p> <p> </p> <ul> <li><a href= "https://www.justice.gov/opa/file/925846/download">United States Department of Justice & Chicago Police Department Consent Decree</a></li> <li><a href= "http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=3662&ChapterID=11&SeqStart=100000&SeqEnd=1000000"> Illinois Law Enforcement Officer-Worn Body Camera Act</a></li> <li><a href= "http://directives.chicagopolice.org/directives/data/a7a57b38-151f3872-56415-1f38-89ce6c22d026d090.pdf?hl=true"> Chicago Police Department Special Order S03-14 on Body Worn Cameras</a></li> </ul> <p> </p> <h2><strong>What Does The Consent Decree Say About Body Cam?</strong></h2> <p> </p> <p>What does the Justice Department's Chicago Police Department Consent Decree say about the use of police body cams?</p> <p> </p> <p>On <a href= "https://www.justice.gov/opa/file/925846/download#page=9">page 6 of the report</a> it says,</p> <p></p> <p>...that the Justice Department supports the City’s decision to accelerate its plan to ensure that all CPD officers have body cameras.</p> <p></p> <p>In the <a href= "https://www.justice.gov/opa/file/925846/download#page=154">"Recommendations"</a> section of the report, it says that CPD should "adopt use of force practices that minimize the use of fore." <a href= "https://www.justice.gov/opa/file/925846/download#page=155">Subsection (i) states</a>,</p> <p> </p> <blockquote class="wp-block-quote"> <p>Equip all patrol officers and supervisors, and officers who regularly interact with the public, including tactical officers, with body cameras, and develop a body camera policy delineating officers’ responsibilities regarding the consistent and appropriate use of body cameras and the retention and review of body camera footage.</p> <cite>Consent Decree</cite></blockquote> <p> </p> <h2><strong>Important Details From The Illinois Body Cam Act</strong></h2> <p> </p> <p>✓ The Illinois Law Enforcement Officer-Worn Body Camera Act does not require that police departments employ body cams. The act merely provides guideline for departments that wish to use them. The act also includes minimal feature and procedures that must be followed if a department chooses to use body cams. <strong>(Go to 4:04)</strong></p> <p> </p> <p>✓ <em>"No officer may hinder or prohibit any person, not a law enforcement officer, from recording a law enforcement officer in the performance of his or her duties in a pubic place or when the officer has no reasonable expectation of privacy."</em> 50 ILCS 706/10-20(11)</p> <p> </p> <p>✓ Generally, body cam videos <strong>ARE NOT</strong> subject to FOIA requests unless you have been arrested, are a victim, or a witness. See 50 ILCS 706/10-20(b)</p> <p> </p> <h2><strong>Did You Know?</strong></h2> <p> </p> <p>✓ As of right now every single Chicago Police Department patrol officer is suppose to be using a fully functioning and operable body cam device. <strong>(Go to 2:59)</strong></p> <p> </p> <h2><strong>What You Need To Know About The Chicago Police Department Body Cam Special Order</strong></h2> <p> </p> <p>The policy says in clear unmistakable terms that,</p> <p> </p> <blockquote class="wp-block-quote"> <p>All sworn members and their immediate supervisors assigned to a Bureau of Patrol district normally assigned to field duties and any other member at the discretion of the district commander will be assigned and utilize a BWC.</p> <cite>CPD Special Order S03-14</cite></blockquote> <p> </p> <p>This is one of the most important things listed in Special Order S03-14, it's under the "Operational Procedures" section. <strong>(Go to 6:20)</strong></p> <p> </p> <p>An attorney trying to hunt down body cam footage may want to know the following to help facilitate the search <strong>(Go to 10:08)</strong>:</p> <p> </p> <ul> <li>Name of person arrested</li> <li>Date of arrest</li> <li>RD number</li> <li>Incident number</li> <li>Name of officers involved</li> <li>Badge number of officers involved</li> <li>Beat Number</li> </ul> <p> </p> <p>✓ CPD currently has 8,200 video cams issued to officers. This should be enough to cover the entire patrol division. <strong>(Go to 14:50)</strong></p> <p> </p> <h2><strong>"Can't Miss" Moments:</strong></h2> <p> </p> <p>✓ <strong>In video recordings you often see an officer stop and do this with his equipment right before he engages with a subject</strong>. <strong>(Go to 7:01)</strong></p> <p> </p> <p>✓ Body cam equipment involves more than a camera. The devices includes a camera and hard drive that can hold at least 10 hour of video. At the end of a shift all the recordings go into one master super data base. <strong>(Go to 8:04)</strong></p> <p> </p> <p>✓ <strong>Peter says CPD should not be allowed to do this one critical thing in regards to this body cam issue. A third independent body should involved and do this when there is an arrest</strong>. <strong>(Go to 9:16)</strong></p> <p> </p> <p>✓ You ever hear of a beat number and RD number? You may want to know what these are if you're hunting down body cam recordings. Peter Lewis explains this, just <strong>(Go to 9:16)</strong>.</p> <p> </p> <p>✓ <strong>This one fact provides the state with zero motivation to hunt and search for something that might exist but is buried somewhere</strong>. <strong>(Go to 12:25)</strong></p> <p> </p> <p>✓ The question then is what do we do when you know a video exists but for some reason it was not tendered to you during discovery? <strong>(Go to 14:16)</strong></p> <p> </p> <p>✓ <strong>These particular police units come into a lot of contact with the public. You could say they're in the thick of it. Oddly, these units don't wear body cams. What's that all about?</strong> <strong>(Go to 14:50)</strong></p> <p> </p> <h2><strong>What Do You Do When You Don't Get Police Body Cam In Your Discovery?</strong></h2> <p> </p> <p>✓ The question then is what do we do when you know a video exists but for some reason it was not tendered to you during discovery? <strong>(Go to 14:16)</strong></p> <p> </p> <p>✓ <strong>A Kladis motion is often filed when there has been a violation of discovery. This remedy is rare, but it can lead to the suppression of evidence.</strong> <strong>(Go to 18:30)</strong></p> <p> </p> <p>✓ Peter's discovery violation motion is titled, "Motion To Exclude Testimony of State's Witnesses And For Other Relief Or Sanction The Court Deems Appropriate". It incorporates parts of the state statute and the CPD special order. <strong>(Go to 19:00)</strong></p> <p> </p> <blockquote class="wp-block-quote"> <p>If a court or other finder of fact finds by a preponderance of the evidence that a recording was intentionally not captured, destroyed, altered, or intermittently captured in violation of this Act, then the court or other finder of fact shall consider or be instructed to consider that violation in weighing the evidence, unless the State provides a reasonable justification.</p> <cite>50 ILCS 706/10-30</cite></blockquote> <p> </p> <p>✓ <strong>The State statute is kind of soft. It doesn't exactly say that evidence can be barred or excluded.</strong> <strong>(Go to 22:36)</strong></p> <p> </p> <p>✓ This is a last ditch effort thing to do when you see that a judge is not going to give you sanctions for missing body cam video. Do this when you got no other cards to play. <strong>(Go to 25:50)</strong></p> <p> </p> <h2><strong>Links & Resources</strong></h2> <p> </p> <ul> <li><a href= "https://www.justice.gov/opa/file/925846/download">United States Department of Justice & Chicago Police Department Consent Decree</a></li> <li><a href="http://chicagopoliceconsentdecree.org/faq/">More About The CPD Consent Decree</a></li> <li><a href= "http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=3662&ChapterID=11&SeqStart=100000&SeqEnd=1000000"> 50 ILCS 706/10-1 et seq. - Illinois Law Enforcement Officer-Worn Body Camera Act</a></li> <li><a href= "http://directives.chicagopolice.org/directives/data/a7a57b38-151f3872-56415-1f38-89ce6c22d026d090.pdf?hl=true"> Chicago Police Department Special Order S03-14 on Body Worn Cameras</a></li> <li><a href= "http://www.illinoiscourts.gov/opinions/supremecourt/2011/December/110920.pdf"> <em>People v. Kladis</em>, 2011 IL 110920</a></li> <li><a href= "https://chicago.cbslocal.com/2019/07/30/inspector-general-chicago-police-body-cameras/"> How Often Do Chicago Police Officers Fail To Activate Their Body Cameras? It’s Hard To Know - CBS Chicago</a></li> <li><a href= "https://chicago.cbslocal.com/2019/05/04/key-body-camera-footage-missing-after-chicago-police-officers-raid-wrong-homes-point-guns-at-children/"> Key Body Camera Footage Missing After Chicago Police Officers Raid Wrong Homes, Point Guns At Children - CBS Chicago</a></li> </ul> <p> </p> <h2><strong>See Also</strong></h2> <p> </p> <p>You may also want to check out...</p> <p> </p> <ul> <li><a href= "https://illinoiscaselaw.com/what-to-do-what-to-do-about-lost-destroyed-or-missing-video/"> <em>People v. Montgomery</em>, 2018 IL App (2d) 160541 (October)</a>. Episode 555 <strong>(Duration 14:02)</strong> (What To Do, What To Do About Lost, Destroyed, or Missing Video?)</li> <li><a href= "https://illinoiscaselaw.com/significance-of-the-evidence-and-bad-faith-drive-discovery-violation-and-destruction-of-evidence-issues/" target="_blank" rel="noreferrer noopener" aria-label= " (opens in a new tab)"><em>People v. Cunningham</em>, 2018 IL App (1st) 153367 (June)</a>. Episode 517 <strong>(Duration 12:37)</strong> (Significance Of The Evidence And Bad Faith Drive Discovery Violation And Destruction Of Evidence Issues)</li> <li><a href= "https://illinoiscaselaw.com/dui-discovery-sanctions-upheld/"><em>People v. Moravec</em>, 2015 IL App (1st) 133869 (November 2015)</a>. Episode 105 <strong>(Duration 8:00)</strong> (Defendant wins sanctions to exclude all evidence after CPD ignores repeated requests for the POD video.)</li> <li><a href= "https://illinoiscaselaw.com/behind-the-scenes-of-the-curtis-lovelace-trial-attorney-evan-parke-discloses-how-the-defense-team-made-use-of-foia/"> Episode 320</a> <strong>(Duration 52:38)</strong> (Behind The Scenes Of The Curtis Lovelace Trial | Attorney Evan Parke Discloses How The Defense Team Made Use Of FOIA)</li> </ul> <p></p>

Episode 724 (Duration 33:57). Chicago defense attorney Peter Lewis explains what a litigant can do when their criminal discovery is missing the police body cam video. In This Case... The State's Attorney's position is if they didn't get it from the police then it doesn't exist. Attorney Peter Lewis Am I Entitled To Have The Police Body Cam In My Case? Yes. Generally, speaking a criminal defendant is going to be entitled to possess a copy of the police body cam or cams involved in his or her case. The interesting question is what to do when you don't get it. Attorney Peter Lewis Peter Lewis has been an Illinois attorney since 2004. He currently has an extensive criminal law practice. He handles cases throughout Cook County and the collar counties. Contact Information 5508 West Lawrence Ave Chicago, IL 60630 773-853-0223 http://pwlewislaw.com/ Main Areas Of Law  In Chicago what are the three main areas of law that govern the police use of body cameras? United States Department of Justice & Chicago Police Department Consent Decree Illinois Law Enforcement Officer-Worn Body Camera Act Chicago Police Department Special Order S03-14 on Body Worn Cameras What Does The Consent Decree Say About Body Cam? What does the Justice Department's Chicago Police Department Consent Decree say about the use of police body cams? On page 6 of the report it says, ...that the Justice Department supports the City’s decision to accelerate its plan to ensure that all CPD officers have body cameras. In the "Recommendations" section of the report, it says that CPD should "adopt use of force practices that minimize the use of fore." Subsection (i) states, Equip all patrol officers and supervisors, and officers who regularly interact with the public, including tactical officers, with body cameras, and develop a body camera policy delineating officers’ responsibilities regarding the consistent and appropriate use of body cameras and the retention and review of body camera footage. Consent Decree Important Details From The Illinois Body Cam Act ✓ The Illinois Law Enforcement Officer-Worn Body Camera Act does not require that police departments employ body cams. The act merely provides guideline for departments that wish to use them. The act also includes minimal feature and procedures that must be followed if a department chooses to use body cams. (Go to 4:04) ✓ "No officer may hinder or prohibit any person, not a law enforcement officer, from recording a law enforcement officer in the performance of his or her duties in a pubic place or when the officer has no reasonable expectation of privacy." 50 ILCS 706/10-20(11) ✓ Generally, body cam videos ARE NOT subject to FOIA requests unless you have been arrested, are a victim, or a witness. See 50 ILCS 706/10-20(b) Did You Know? ✓ As of right now every single Chicago Police Department patrol officer is suppose to be using a fully functioning and operable body cam device. (Go to 2:59) What You Need To Know About The Chicago Police Department Body Cam Special Order The policy says in clear unmistakable terms that, All sworn members and their immediate supervisors assigned to a Bureau of Patrol district normally assigned to field duties and any other member at the discretion of the district commander will be assigned and utilize a BWC. CPD Special Order S03-14 This is one of the most important things listed in Special Order S03-14, it's under the "Operational Procedures" section. (Go to 6:20) An attorney trying to hunt down body cam footage may want to know the following to help facilitate the search (Go to 10:08): Name of person arrested Date of arrest RD number Incident number Name of officers involved Badge number of officers involved Beat Number ✓ CPD currently has 8,200 video cams issued to officers. This should be enough to cover the entire patrol division. (Go to 14:50) "Can't Miss" Moments: ✓ In video recordings you often see an officer stop and do this with his equipment right before he engages with a subject. (Go to 7:01) ✓ Body cam equipment involves more than a camera. The devices includes a camera and hard drive that can hold at least 10 hour of video. At the end of a shift all the recordings go into one master super data base. (Go to 8:04) ✓ Peter says CPD should not be allowed to do this one critical thing in regards to this body cam issue. A third independent body should involved and do this when there is an arrest. (Go to 9:16) ✓ You ever hear of a beat number and RD number? You may want to know what these are if you're hunting down body cam recordings. Peter Lewis explains this, just (Go to 9:16). ✓ This one fact provides the state with zero motivation to hunt and search for something that might exist but is buried somewhere. (Go to 12:25) ✓ The question then is what do we do when you know a video exists but for some reason it was not tendered to you during discovery? (Go to 14:16) ✓ These particular police units come into a lot of contact with the public. You could say they're in the thick of it. Oddly, these units don't wear body cams. What's that all about? (Go to 14:50) What Do You Do When You Don't Get Police Body Cam In Your Discovery? ✓ The question then is what do we do when you know a video exists but for some reason it was not tendered to you during discovery? (Go to 14:16) ✓ A Kladis motion is often filed when there has been a violation of discovery. This remedy is rare, but it can lead to the suppression of evidence. (Go to 18:30) ✓ Peter's discovery violation motion is titled, "Motion To Exclude Testimony of State's Witnesses And For Other Relief Or Sanction The Court Deems Appropriate". It incorporates parts of the state statute and the CPD special order. (Go to 19:00) If a court or other finder of fact finds by a preponderance of the evidence that a recording was intentionally not captured, destroyed, altered, or intermittently captured in violation of this Act, then the court or other finder of fact shall consider or be instructed to consider that violation in weighing the evidence, unless the State provides a reasonable justification. 50 ILCS 706/10-30 ✓ The State statute is kind of soft. It doesn't exactly say that evidence can be barred or excluded. (Go to 22:36) ✓ This is a last ditch effort thing to do when you see that a judge is not going to give you sanctions for missing body cam video. Do this when you got no other cards to play. (Go to 25:50) Links & Resources United States Department of Justice & Chicago Police Department Consent Decree More About The CPD Consent Decree 50 ILCS 706/10-1 et seq. - Illinois Law Enforcement Officer-Worn Body Camera Act Chicago Police Department Special Order S03-14 on Body Worn Cameras People v. Kladis, 2011 IL 110920 How Often Do Chicago Police Officers Fail To Activate Their Body Cameras? It’s Hard To Know - CBS Chicago Key Body Camera Footage Missing After Chicago Police Officers Raid Wrong Homes, Point Guns At Children - CBS Chicago See Also You may also want to check out... People v. Montgomery, 2018 IL App (2d) 160541 (October). Episode 555 (Duration 14:02) (What To Do, What To Do About Lost, Destroyed, or Missing Video?) People v. Cunningham, 2018 IL App (1st) 153367 (June). Episode 517 (Duration 12:37) (Significance Of The Evidence And Bad Faith Drive Discovery Violation And Destruction Of Evidence Issues) People v. Moravec, 2015 IL App (1st) 133869 (November 2015). Episode 105 (Duration 8:00) (Defendant wins sanctions to exclude all evidence after CPD ignores repeated requests for the POD video.) Episode 320 (Duration 52:38) (Behind The Scenes Of The Curtis Lovelace Trial | Attorney Evan Parke Discloses How The Defense Team Made Use Of FOIA) 

Chicago Police Body Cam Discovery With Peter Lewis: What To Do When You Don't Get It

<h2>Residential Burglary In Illinois</h2> <p>In Illinois residential burglary is class 1 felony. The crime is defined by statute this way:</p> <div> <p><em>A person commits residential burglary when he or she knowingly and without authority enters or knowingly and without authority remains within the dwelling place of another, or any part thereof, with the intent to commit therein a felony or theft.</em> <a href= "http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K19-3">720 ILCS 5/19-3(a)</a>.</p> </div> <p>See also the <a href= "https://illinoiscaselaw.com/crimes/">Illinois Crimes Index</a>. </p> <h2>Illinois Residential Burglary Sentence</h2> <p>Since the Illinois residential burglary statutes defines it as a class 1 felony that means the sentencing range is between 4 to 15 years. However see the below chart for more sentencing information.</p> <table> <tbody> <tr> <td><strong>Charge</strong></td> <td><strong>Statute</strong></td> <td><strong>Felony</strong></td> <td><strong>Range</strong></td> <td><strong>Extended Term</strong></td> <td><strong>Max  Fine</strong></td> </tr> <tr> <td>Residential Burglary</td> <td>720 ILCS 5/19-3(a)  </td> <td>Class 1 </td> <td>4-15 yrs</td> <td>15-30 yrs</td> <td>$25,000</td> </tr> </tbody> </table> <p>The most important sentencing aspect to know about Illinois residential burglary is that it is considered a non-probationable offense. That means an individual who is convicted of residential burglary is by law required to be sentenced to prison time even if the individual has absolutely no criminal history or prior convictions in their record.</p> <p>See the <a href= "https://illinoiscaselaw.com/sentencing-index/">Illinois Sentencing checklist</a> for more sentencing details.</p> <h2>General Burglary Statute In Illinois </h2> <p>However, the Illinois burglary statute is a little more broad than just residential burglary. The more general form of the burglary statute provides the following:</p> <p>Section 19-1(a) of the Illinois Criminal Code provides, in part, that…</p> <div> <p><em>“A person commits burglary when without authority he or she knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any part thereof, with intent to commit therein a felony or theft.”</em> <a href= "http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt.+19&ActID=1876&ChapterID=0&SeqStart=63000000&SeqEnd=63800000%20%20%20">720 ILCS 5/19-1(a)</a>.</p> </div> <h2>General Burglary Sentence In Illinois</h2> <p>“Burglary committed in, and without causing damage to, a watercraft, aircraft, motor vehicle, railroad car, or any part thereof is a Class 3 felony.</p> <p>Burglary committed in a building, housetrailer, or any part thereof or while causing damage to a watercraft, aircraft, motor vehicle, railroad car, or any part thereof is a Class 2 felony.” <a href= "http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt.+19&ActID=1876&ChapterID=0&SeqStart=63000000&SeqEnd=63800000%20%20%20">720 ILCS 5/19-1(b)</a></p> <table> <tbody> <tr> <td><strong>Charge</strong></td> <td><strong>Statute</strong></td> <td><strong>Felony</strong></td> <td><strong>Range</strong></td> <td><strong>Extended Term</strong></td> <td><strong>Max  Fine</strong></td> </tr> <tr> <td>Burglary to watercraft, aircraft, motor vehicle, railraod (no damage)</td> <td>720 ILCS 5/19-1(a)  </td> <td>Class 3</td> <td>2-5 yrs</td> <td>5-10 yrs</td> <td>$25,000</td> </tr> <tr> <td>Burglary to building, housetrailer, or damage to watercraft, aircraft, motor vehicle, railraod</td> <td>720 ILCS 5/19-1(a)  </td> <td>class 2</td> <td>3-7 yrs</td> <td>7-14 yrs</td> <td>$25,000</td> </tr> </tbody> </table> <h2>There Are 2 Ways To Commit Burglary</h2> <p>Thus, under the statute, there are two ways to commit the crime of burglary:</p> <p>(1) By entering without authority and with the intent to commit a felony or theft, or <br /> (2) By remaining without authority and with the intent to commit a felony or theft. </p> <h2>Correct Way To Interpret The Burglary Statute</h2> <p>In regards to a retail store, like Walmart, a person can only be guilt of burglary “remaining without authority with intent…” if the person lawfully enters a public building and then commits theft AND exceeds the physical scope of his authority.</p> <p>In other words, burglary by remaining requires evidence that a defendant, with the intent to commit a felony or theft, is found in a place where the public is not authorized to be.</p> <div> <p><strong>This section is not intended to apply to ordinary shoplifting scenarios.</strong></p> </div> <p>Rather, it refers to situations in which a person lawfully enters a place of business, but, in order to commit a theft or felony:</p> <p>(1) hides and waits for the building to close<br /> (2) enters an unauthorized area within the building; or<br /> (3) continues to remain on the premises after being asked to leave.</p> <p>However, if the state can prove that a person enters with the intent to steal then a burglary under the first section can still be sustained because it is presumed that that a shopkeeper did not grant permission for someone to enter just to steal.</p> <h2>See Also</h2> <ul> <li><a href= "https://illinoiscaselaw.com/one-kind-of-retail-theft-in-illinois-cannot-be-a-burglary/"> <em>People v. Bradford</em>, 2016 IL 118674 (March)</a> Episode 155 <strong>(Duration 7:52)</strong> ( burglary by remaining requires evidence that a defendant, with the intent to commit a felony or theft, is found in a place where the public is not authorized to be)</li> <li><a href= "https://illinoiscaselaw.com/burglary-of-retail-store-is-allowed-in-some-illinois-appellate-districts/" rel="noopener noreferrer"><em>People v. Burlington</em>, 2018 IL App (4th) 150642 (March)</a> Episode 472 <strong>(Duration 7:42) </strong>(if the state can prove you entered a store with intent to steal they can charge you with a burglary)</li> <li><a href= "https://illinoiscaselaw.com/retail-theft-statute-countermands-this-class-of-burglaries/" rel="noopener noreferrer"><em>People v. Johnson</em>, 2018 IL App (3d) 150352 (January)</a> Episode 456 <strong>(Duration 11:30) </strong>(3rd District was not allowing the state to charge a burglary of a store)</li> <li><a href= "https://illinoiscaselaw.com/second-fourth-districts-come-out-against-the-third-district-on-the-burglary-of-retail-store-question/"> <em>People v. Moore</em>, 2018 IL App (2d) 160277 (June)</a> Episode 505 <strong>(Duration 4:40)</strong> (2nd District joins the 4th District and comes out against the 3rd District interpretation of the Illinois burglary statute)</li> <li><a href= "https://illinoiscaselaw.com/another-non-violent-career-criminal-spared-some-time-in-the-second-division-of-the-first-district/"> People v. Allen, 2017 IL App (1st) 151540 (December)</a> Episode 430 <strong>(Duration 9:24)</strong> (see how this defendant avoided mandatory class X sentencing on his burglary conviction)</li> <li><a href= "https://illinoiscaselaw.com/criminal-trespass-illinois/">Related Charge of Criminal Trespass To Property</a></li> </ul>

Residential Burglary In Illinois In Illinois residential burglary is class 1 felony. The crime is defined by statute this way: A person commits residential burglary when he or she knowingly and without authority enters or knowingly and without authority remains within the dwelling place of another, or any part thereof, with the intent to commit therein a felony or theft. 720 ILCS 5/19-3(a). See also the Illinois Crimes Index.  Illinois Residential Burglary Sentence Since the Illinois residential burglary statutes defines it as a class 1 felony that means the sentencing range is between 4 to 15 years. However see the below chart for more sentencing information. Charge Statute Felony Range Extended Term Max  Fine Residential Burglary 720 ILCS 5/19-3(a)   Class 1  4-15 yrs 15-30 yrs $25,000 The most important sentencing aspect to know about Illinois residential burglary is that it is considered a non-probationable offense. That means an individual who is convicted of residential burglary is by law required to be sentenced to prison time even if the individual has absolutely no criminal history or prior convictions in their record. See the Illinois Sentencing checklist for more sentencing details. General Burglary Statute In Illinois  However, the Illinois burglary statute is a little more broad than just residential burglary. The more general form of the burglary statute provides the following: Section 19-1(a) of the Illinois Criminal Code provides, in part, that… “A person commits burglary when without authority he or she knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any part thereof, with intent to commit therein a felony or theft.” 720 ILCS 5/19-1(a). General Burglary Sentence In Illinois “Burglary committed in, and without causing damage to, a watercraft, aircraft, motor vehicle, railroad car, or any part thereof is a Class 3 felony. Burglary committed in a building, housetrailer, or any part thereof or while causing damage to a watercraft, aircraft, motor vehicle, railroad car, or any part thereof is a Class 2 felony.” 720 ILCS 5/19-1(b) Charge Statute Felony Range Extended Term Max  Fine Burglary to watercraft, aircraft, motor vehicle, railraod (no damage) 720 ILCS 5/19-1(a)   Class 3 2-5 yrs 5-10 yrs $25,000 Burglary to building, housetrailer, or damage to watercraft, aircraft, motor vehicle, railraod 720 ILCS 5/19-1(a)   class 2 3-7 yrs 7-14 yrs $25,000 There Are 2 Ways To Commit Burglary Thus, under the statute, there are two ways to commit the crime of burglary: (1) By entering without authority and with the intent to commit a felony or theft, or  (2) By remaining without authority and with the intent to commit a felony or theft.  Correct Way To Interpret The Burglary Statute In regards to a retail store, like Walmart, a person can only be guilt of burglary “remaining without authority with intent…” if the person lawfully enters a public building and then commits theft AND exceeds the physical scope of his authority. In other words, burglary by remaining requires evidence that a defendant, with the intent to commit a felony or theft, is found in a place where the public is not authorized to be. This section is not intended to apply to ordinary shoplifting scenarios. Rather, it refers to situations in which a person lawfully enters a place of business, but, in order to commit a theft or felony: (1) hides and waits for the building to close (2) enters an unauthorized area within the building; or (3) continues to remain on the premises after being asked to leave. However, if the state can prove that a person enters with the intent to steal then a burglary under the first section can still be sustained because it is presumed that that a shopkeeper did not grant permission for someone to enter just to steal. See Also People v. Bradford, 2016 IL 118674 (March) Episode 155 (Duration 7:52) ( burglary by remaining requires evidence that a defendant, with the intent to commit a felony or theft, is found in a place where the public is not authorized to be) People v. Burlington, 2018 IL App (4th) 150642 (March) Episode 472 (Duration 7:42) (if the state can prove you entered a store with intent to steal they can charge you with a burglary) People v. Johnson, 2018 IL App (3d) 150352 (January) Episode 456 (Duration 11:30) (3rd District was not allowing the state to charge a burglary of a store) People v. Moore, 2018 IL App (2d) 160277 (June) Episode 505 (Duration 4:40) (2nd District joins the 4th District and comes out against the 3rd District interpretation of the Illinois burglary statute) People v. Allen, 2017 IL App (1st) 151540 (December) Episode 430 (Duration 9:24) (see how this defendant avoided mandatory class X sentencing on his burglary conviction) Related Charge of Criminal Trespass To Property 

Illinois Residential Burglary Statute Makes It A Class 1 Felony

<p>Episode 698 <strong>(Duration 29:54)</strong>. Attorney Michael Wepsiec of Murphosboro, Illinois deconstructs the custodial sexual misconduct criminal law statute.</p> <p> </p> <h2><strong>In This Episode...</strong></h2> <p><em>"'Hey I'm on parole, date me.' No body says that."</em> -- Michael Wepsiec</p> <h2><strong>Attorney Michael Wepsiec</strong></h2> <p>Attorney Michael Wepsiec has over 34 years of legal experience.</p> <p>He is the former elected States's Attorney of Jackson County Illinois. Before that he has the Carbondale city attorney, and before that he was an assistant state's attorney in Jackson County.</p> <h2><strong>Contact Information</strong></h2> <p>The Wepsiec Law Office<br /> 1502 Walnut St<br /> Murphysboro, IL 62966<br /> (618) 565-5206</p> <h2><strong>The Illinois Custodial Sexual Misconduct Statute</strong></h2> <p>In Illinois custodial sexual misconduct is found under <a href= "http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K11-9.2"> 720 ILCS 5/11-9.2</a>. The section provides that...</p> <div> <p>(a) A person commits custodial sexual misconduct when:<br />           (1) he or she is an employee of a penal system and engages in sexual conduct or sexual penetration with a person who is in the custody of that penal system;<br />          (2) he or she is an employee of a treatment and detention facility and engages in sexual conduct or sexual penetration with a person who is in the custody of that treatment and detention facility; or<br />          (3) he or she is an employee of a law enforcement agency and engages in sexual conduct or sexual penetration with a person who is in the custody of a law enforcement agency or employee.<br /> <br /> (b) A probation or supervising officer, surveillance agent, or aftercare specialist commits custodial sexual misconduct when the probation or supervising officer, surveillance agent, or aftercare specialist engages in sexual conduct or sexual penetration with a probationer, parolee, or releasee or person serving a term of conditional release who is under the supervisory, disciplinary, or custodial authority of the officer or agent or employee so engaging in the sexual conduct or sexual penetration.</p> </div> <h2><strong>"Can't Miss" Moments:</strong></h2> <p>✓ The Illinois statute on custodial sexual misconduct came into effect in 1997. Before that the regular sexual assault and official misconduct charges weren't doing the job. Here's why...<strong>(Go to 5:14)</strong></p> <p>✓ <strong>Prisons and correctional facilities are big business down in southern Illinois</strong><strong>. Where there are prisons there will be custodial sexual misconduct.</strong> <strong>(Go to 6:35)</strong></p> <p>✓ Really hard to imagine how this law could be stretched into unintended conduct, I mean the law is really clear on what it is trying to prevent. Nonetheless, Wepsiec found a set up facts that leave you wondering if the law was meant to go there. <strong>(Go to 7:20)</strong></p> <p>✓ <strong>The one thing a guy is going to keep off his online dating profile. For some people it leads to disappointment and a dud date. For others it can lead to a criminal charge.</strong> <strong>(Go to 8:20) & (Go to 11:07)</strong></p> <p>✓ How a workman's comp claim can lead to criminal charges, and I don't mean fraud charges. In this case, a workman's comp claim lead to a charge of custodial sexual misconduct. <strong>(Go to 9:05)</strong></p> <p>✓ <strong>A parolee parked outside your residence on a Saturday morning just might get you charged with a crime. Push play to find out how.</strong> <strong>(Go to 9:55)</strong></p> <p>✓ The secret to getting a parolee to say anything you want to hear. (Hint: this only works if you're a parole agent.) <strong>(Go to 10:03)</strong></p> <p>✓ <strong>Did you know legally speaking that a person who is on parole also called mandatory supervised release is in the custody of the Illinois Department of Corrections?</strong> <strong>(Go to 11:43)</strong></p> <p>✓ <em>"A person commits custodial sexual misconduct when he or she is an employee of a penal system and engages in sexual conduct or sexual penetration with a person who is in the custody of THAT penal system"</em>. Clearly, the law is written to prevent guards who are directly in authority over inmates in the guard's facility. <strong>(Go to 12:08)</strong></p> <p>✓ <strong>Heaven forbid you ever have to dig into the legislative history of a bill. When Wepsiec did it Barack Obama's name turned up.</strong> <strong>(Go to 13:26)</strong></p> <p>✓ The one key distinction between the Illinois Department of Juvenile Justice and the Illinois Department of Corrections made all the difference in the world to one downstate resident. Everything turned on the phrase "that penal system." <strong>(Go to 15:05)</strong></p> <p>✓ <strong>Here's a clear example of when we wouldn't want to charge a Jackson County Jail guard with custodial sexual misconduct, this ain't exactly "Orange is the New Black". (Go to 18:19)</strong></p> <p>✓ Does anyone object to charging politicians under this provision in the code? <strong>(Go to 19:35)</strong></p> <p><em>✓ "<strong>You know, I see some stuff now, and I'm going 'why in the heck did they file that?'."</strong> <strong>(Go to 20:47)</strong></em></p> <p>✓ The four rules to following a case. This was the standard Michael tried to live by when he was on the other side. When he was brining charges as a prosecutor he always tried to honor these principles. It's the last prong were prosecutors really distinguish themselves. <strong>(Go to 21:03)</strong></p> <p>✓ <strong>Here's a clear example of conduct the statute was intended to prevent. (CAUTION: these words are harsh, but they're not Michaels.)</strong> <strong>(Go to 23:35)</strong></p> <h2><strong>Links & Resources</strong></h2> <ul> <li><a href= "http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K11-9.2"> 720 ILCS 5/11-9.2. Custodial sexual misconduct</a></li> <li><a href="https://www.jacksoncounty-il.gov/">Jackson County Illinois</a></li> <li><a href="http://www.murphysboro.com/">Murphysboro, Illinois</a></li> <li><a href="https://siu.edu/">Southern Illinois University</a></li> <li><a href="https://siusalukis.com/">Salukis</a></li> <li><a href= "https://www2.illinois.gov/idoc/facilities/Pages/pinckneyvillecorrectionalcenter.aspx"> Pinckneyville Correctional Center</a></li> <li><a href= "https://www2.illinois.gov/idoc/facilities/Pages/menardcorrectionalcenter.aspx"> Menard Correctional Center</a></li> <li><a href= "https://www2.illinois.gov/idoc/facilities/Pages/logancorrectionalcenter.aspx"> Logan Correctional Center</a></li> <li><a href= "http://www.dhs.state.il.us/page.aspx?item=86377">Chester Mental Health Center</a></li> <li><a href= "http://www.dhs.state.il.us/page.aspx?module=12&officetype=10&county=Madison"> Alton Mental Health Center</a> </li> <li><a href= "https://www2.illinois.gov/idjj/Pages/Harrisburg_IYC.aspx">Illinois Youth Center Harrisburg</a></li> <li><a href= "https://www2.illinois.gov/idoc/Pages/default.aspx">Illinois Department of Corrections</a></li> <li><a href= "https://www2.illinois.gov/idjj/Pages/default.aspx">Illinois Department of Juvenile Justice</a></li> <li><a href= "http://ilga.gov/legislation/ilcs/documents/072500050K111-6.htm">Bill of Particulars - 720 ILCS 5/111-6</a></li> </ul> <h2><strong>See Also</strong></h2> <p>You may also want to check out...</p> <ul> <li><a href="https://illinoiscaselaw.com/crimes/">The Illinois Crimes Index</a> </li> <li><a href= "https://illinoiscaselaw.com/what-to-do-about-fatally-flawed-criminal-charges-alan-downen-interview/"> <em>People v. Rowell</em>, 229 Ill. 2nd 82 (May 2008)</a> Episode 686 <strong>(Duration 31:58)</strong> (What To Do About Fatally Flawed Criminal Charges: Alan Downen Interview)</li> <li><a href= "https://illinoiscaselaw.com/expert-witness-defined-by-marisa-tomei-from-my-cousin-vinny/"> Marisa Tomei From My Cousin Vinny Great Example Of How An Expert Witness Works & Origin Of The Term "Yoots" In Law</a></li> </ul>

Episode 698 (Duration 29:54). Attorney Michael Wepsiec of Murphosboro, Illinois deconstructs the custodial sexual misconduct criminal law statute.   In This Episode... "'Hey I'm on parole, date me.' No body says that." -- Michael Wepsiec Attorney Michael Wepsiec Attorney Michael Wepsiec has over 34 years of legal experience. He is the former elected States's Attorney of Jackson County Illinois. Before that he has the Carbondale city attorney, and before that he was an assistant state's attorney in Jackson County. Contact Information The Wepsiec Law Office 1502 Walnut St Murphysboro, IL 62966 (618) 565-5206 The Illinois Custodial Sexual Misconduct Statute In Illinois custodial sexual misconduct is found under 720 ILCS 5/11-9.2. The section provides that... (a) A person commits custodial sexual misconduct when:           (1) he or she is an employee of a penal system and engages in sexual conduct or sexual penetration with a person who is in the custody of that penal system;          (2) he or she is an employee of a treatment and detention facility and engages in sexual conduct or sexual penetration with a person who is in the custody of that treatment and detention facility; or          (3) he or she is an employee of a law enforcement agency and engages in sexual conduct or sexual penetration with a person who is in the custody of a law enforcement agency or employee. (b) A probation or supervising officer, surveillance agent, or aftercare specialist commits custodial sexual misconduct when the probation or supervising officer, surveillance agent, or aftercare specialist engages in sexual conduct or sexual penetration with a probationer, parolee, or releasee or person serving a term of conditional release who is under the supervisory, disciplinary, or custodial authority of the officer or agent or employee so engaging in the sexual conduct or sexual penetration. "Can't Miss" Moments: ✓ The Illinois statute on custodial sexual misconduct came into effect in 1997. Before that the regular sexual assault and official misconduct charges weren't doing the job. Here's why...(Go to 5:14) ✓ Prisons and correctional facilities are big business down in southern Illinois. Where there are prisons there will be custodial sexual misconduct. (Go to 6:35) ✓ Really hard to imagine how this law could be stretched into unintended conduct, I mean the law is really clear on what it is trying to prevent. Nonetheless, Wepsiec found a set up facts that leave you wondering if the law was meant to go there. (Go to 7:20) ✓ The one thing a guy is going to keep off his online dating profile. For some people it leads to disappointment and a dud date. For others it can lead to a criminal charge. (Go to 8:20) & (Go to 11:07) ✓ How a workman's comp claim can lead to criminal charges, and I don't mean fraud charges. In this case, a workman's comp claim lead to a charge of custodial sexual misconduct. (Go to 9:05) ✓ A parolee parked outside your residence on a Saturday morning just might get you charged with a crime. Push play to find out how. (Go to 9:55) ✓ The secret to getting a parolee to say anything you want to hear. (Hint: this only works if you're a parole agent.) (Go to 10:03) ✓ Did you know legally speaking that a person who is on parole also called mandatory supervised release is in the custody of the Illinois Department of Corrections? (Go to 11:43) ✓ "A person commits custodial sexual misconduct when he or she is an employee of a penal system and engages in sexual conduct or sexual penetration with a person who is in the custody of THAT penal system". Clearly, the law is written to prevent guards who are directly in authority over inmates in the guard's facility. (Go to 12:08) ✓ Heaven forbid you ever have to dig into the legislative history of a bill. When Wepsiec did it Barack Obama's name turned up. (Go to 13:26) ✓ The one key distinction between the Illinois Department of Juvenile Justice and the Illinois Department of Corrections made all the difference in the world to one downstate resident. Everything turned on the phrase "that penal system." (Go to 15:05) ✓ Here's a clear example of when we wouldn't want to charge a Jackson County Jail guard with custodial sexual misconduct, this ain't exactly "Orange is the New Black". (Go to 18:19) ✓ Does anyone object to charging politicians under this provision in the code? (Go to 19:35) ✓ "You know, I see some stuff now, and I'm going 'why in the heck did they file that?'." (Go to 20:47) ✓ The four rules to following a case. This was the standard Michael tried to live by when he was on the other side. When he was brining charges as a prosecutor he always tried to honor these principles. It's the last prong were prosecutors really distinguish themselves. (Go to 21:03) ✓ Here's a clear example of conduct the statute was intended to prevent. (CAUTION: these words are harsh, but they're not Michaels.) (Go to 23:35) Links & Resources 720 ILCS 5/11-9.2. Custodial sexual misconduct Jackson County Illinois Murphysboro, Illinois Southern Illinois University Salukis Pinckneyville Correctional Center Menard Correctional Center Logan Correctional Center Chester Mental Health Center Alton Mental Health Center  Illinois Youth Center Harrisburg Illinois Department of Corrections Illinois Department of Juvenile Justice Bill of Particulars - 720 ILCS 5/111-6 See Also You may also want to check out... The Illinois Crimes Index  People v. Rowell, 229 Ill. 2nd 82 (May 2008) Episode 686 (Duration 31:58) (What To Do About Fatally Flawed Criminal Charges: Alan Downen Interview) Marisa Tomei From My Cousin Vinny Great Example Of How An Expert Witness Works & Origin Of The Term "Yoots" In Law 

A Break Down Of The Illinois Custodial Sexual Misconduct Statute With Michael Wepsiec

<p><a href= "http://www.supremecourt.gov/opinions/04pdf/03-923.pdf"><em>Illinois v. Caballes, 543 U.S. 405 (2005)</em></a>. SCOTIS Notice <strong>(Duration 1:43)</strong></p> <p>This is the SCOTUS case that set the framework for the use of drug dogs in the United States.</p> <p><img class="aligncenter size-full wp-image-1576" src= "https://illinoiscaselaw.com/wp-content/uploads/2015/02/police-dog-with-words.jpg" alt="People v. Caballes on police drug dogs" width="740" height= "401" /></p> <p>[insert mp3 player]</p> <p>This opinion normalized the use of drug dogs by police departments during traffic stops. The case concluded that police don't need a warrant when they walk a drug dog around a car during a traffic stop.</p> <table> <tbody> <tr> <td><strong>Issue</strong></td> <td>Do police need a warrant to use a drug dog to sniff a car during a traffic stop?</td> </tr> <tr> <td><strong>Facts</strong></td> <td>Driver was stopped and ticketed for speeding. During the traffic stop, a canine unit appeared and a dog handler walked the dog around the car. The police dog alerted on the trunk. Police searched the trunk. Driver was arrested for trafficking cannabis. Everything happened in under 10 minutes. He was sentenced to 12 years.</td> </tr> <tr> <td><strong>Analysis</strong></td> <td>A privacy interest (that society recognizes as reasonable) cannot exist from aromas that come from completely illegal contraband. There is no right to privacy that protects illegal smells.</td> </tr> <tr> <td><strong>Holding</strong></td> <td>Conviction was affirmed because there was no 4th amendment violation.</td> </tr> <tr> <td><strong>Related Cases</strong></td> <td> <ul> <li><a href= "http://www.supremecourt.gov/opinions/12pdf/11-564_5426.pdf"><em>Florida v. Jardines</em>, 133 S.Ct. 1409 (2013)</a> (drug dog brought to front stoop of a house)</li> <li><a href= "https://scholar.google.com/scholar_case?case=16921239878556783842&hl=en&as_sdt=400006"> <em>Florida v. Harris</em>, 133 S.Ct. 1050 (2013)</a> (drug dog reliability is determined by a totality of the circumstances)</li> <li><em>Rodriquez v. United States</em>, 135 S. Ct. 1609 (2015) (any delay during a traffic stop to give the dog time to arrive is unreasonable)</li> </ul> </td> </tr> </tbody> </table> <p>[insert video]</p> <h2>Key Facts In Illinois v. Caballes</h2> <p>Key facts in the case include ...</p> <ul> <li>Defendant’s car stopped</li> <li>He’s ticketed for speeding</li> <li>During stop canine unit appeared</li> <li>Sniff dog handler walks the dog around car</li> <li>Drug dog alerts on the trunk</li> <li>Car searched</li> <li>Cannabis discovered</li> <li>Convicted for trafficking cannabis</li> <li>Everything happened in under 10 minutes</li> </ul> <p>The case began as a traffic stop for speeding. The car was stopped and driver ticketed for speeding. During the traffic stop, a canine unit appeared and a dog handler walked the dog around the car. The police dog alerted on the trunk. Police searched the trunk. Driver was arrested for trafficking cannabis.</p> <p>Everything happened in under 10 minutes.</p> <h2>Key Finding </h2> <p>Key findings from the court:</p> <ul> <li>Police Dog Drug Sniffs are Not Searches</li> <li>Practical Limits Remain</li> <li>Not That Many K-9 Units</li> <li>Police Can Not Cause an Undue Delay</li> </ul> <p>The case worked its way up to the United States Supreme Court, where the Court’s central finding was that:</p> <blockquote> <p>“That any interest in possessing contraband cannot be deemed legitimate, ‘and thus, governmental conduct that only reveals the possession of contraband’ compromises no legitimate privacy interest.” Quoting <a href= "http://caselaw.findlaw.com/il-supreme-court/1174155.html"><em>United States v. Place</em></a>, 462 U. S. 696 (1983).</p> </blockquote> <p><strong>You don’t have a privacy interest in illegal smells.</strong></p> <h2>The Aftermath of Illinois v. Caballes</h2> <p>This case threatened to blow this issue wide open in favor of the police and the use of drug dogs. The central finding that a police dog sniff was not a search meant the use of drug dogs could perhaps be expanded to other areas besides a traffic stop.</p> <p>The gist of the ruling is that a privacy interest (that society recognizes as reasonable) cannot exist from aromas that come from completely illegal contraband.</p> <p><em>“A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”</em>  <em>Caballes</em>, 543 U.S. 405 (2005).</p> <p>So if a sniff is not a search police can probably do more of them without running afoul of the 4th amendment.</p> <h2><strong>There Are Still Limitations</strong></h2> <p>Yet, even <em>Caballes </em>recognized limits on the use of police dogs during a traffic stop. Beginning with <em>Caballes</em> itself, we can see that fundamental limits on the use of sniffer dogs during traffic stops were built right into the system.</p> <p>The Court approvingly noted that the police officers detaining Caballes did not delay the traffic stop just so that the drug dog could finish the sniffing.</p> <p><strong>This is important.</strong></p> <p>Had the Court found <em>undue delay</em>, the clear inference is that the case would have come out differently. This is what the court is talking about when it mentions a “prolonged” traffic stop.</p> <p>The Court wrote that:</p> <blockquote> <p>“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” <em>Caballes</em>, 543 U.S. 405 (2005).</p> </blockquote> <div class="content-box-yellow">If the police try to slow down the interaction with the driver so that the police dog has time to make it to the scene of a traffic stop, that would be illegal.</div> <p>Similarly, delaying the writing of the ticket or returning a driver’s license so slowly that the dog has time to finish the sniff is unconstitutional. This may also be referred to as going “outside the scope” of the traffic stop.</p> <p><strong>This “no delay” or “scope” rule serves as a real and practical limitation on the use of police dogs.</strong></p> <h3>Any Undue Delay is Unconstitutional</h3> <p>The simple fact is that K-9 units are far less numerous than normal patrol vehicles. This specialized team is typically only called out on special assignments. The practicality of having a drug dog at every traffic stop is impossible.</p> <p>The criminal defense bar, however, has to be vigilant about recognizing stone walling by the police. Any proof of an unconstitutional delay must be brought to the trial court’s attention in a motion to suppress evidence illegally seized.</p>

Illinois v. Caballes, 543 U.S. 405 (2005). SCOTIS Notice (Duration 1:43) This is the SCOTUS case that set the framework for the use of drug dogs in the United States. [insert mp3 player] This opinion normalized the use of drug dogs by police departments during traffic stops. The case concluded that police don't need a warrant when they walk a drug dog around a car during a traffic stop. Issue Do police need a warrant to use a drug dog to sniff a car during a traffic stop? Facts Driver was stopped and ticketed for speeding. During the traffic stop, a canine unit appeared and a dog handler walked the dog around the car. The police dog alerted on the trunk. Police searched the trunk. Driver was arrested for trafficking cannabis. Everything happened in under 10 minutes. He was sentenced to 12 years. Analysis A privacy interest (that society recognizes as reasonable) cannot exist from aromas that come from completely illegal contraband. There is no right to privacy that protects illegal smells. Holding Conviction was affirmed because there was no 4th amendment violation. Related Cases Florida v. Jardines, 133 S.Ct. 1409 (2013) (drug dog brought to front stoop of a house) Florida v. Harris, 133 S.Ct. 1050 (2013) (drug dog reliability is determined by a totality of the circumstances) Rodriquez v. United States, 135 S. Ct. 1609 (2015) (any delay during a traffic stop to give the dog time to arrive is unreasonable) [insert video] Key Facts In Illinois v. Caballes Key facts in the case include ... Defendant’s car stopped He’s ticketed for speeding During stop canine unit appeared Sniff dog handler walks the dog around car Drug dog alerts on the trunk Car searched Cannabis discovered Convicted for trafficking cannabis Everything happened in under 10 minutes The case began as a traffic stop for speeding. The car was stopped and driver ticketed for speeding. During the traffic stop, a canine unit appeared and a dog handler walked the dog around the car. The police dog alerted on the trunk. Police searched the trunk. Driver was arrested for trafficking cannabis. Everything happened in under 10 minutes. Key Finding  Key findings from the court: Police Dog Drug Sniffs are Not Searches Practical Limits Remain Not That Many K-9 Units Police Can Not Cause an Undue Delay The case worked its way up to the United States Supreme Court, where the Court’s central finding was that: “That any interest in possessing contraband cannot be deemed legitimate, ‘and thus, governmental conduct that only reveals the possession of contraband’ compromises no legitimate privacy interest.” Quoting United States v. Place, 462 U. S. 696 (1983). You don’t have a privacy interest in illegal smells. The Aftermath of Illinois v. Caballes This case threatened to blow this issue wide open in favor of the police and the use of drug dogs. The central finding that a police dog sniff was not a search meant the use of drug dogs could perhaps be expanded to other areas besides a traffic stop. The gist of the ruling is that a privacy interest (that society recognizes as reasonable) cannot exist from aromas that come from completely illegal contraband. “A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.”  Caballes, 543 U.S. 405 (2005). So if a sniff is not a search police can probably do more of them without running afoul of the 4th amendment. There Are Still Limitations Yet, even Caballes recognized limits on the use of police dogs during a traffic stop. Beginning with Caballes itself, we can see that fundamental limits on the use of sniffer dogs during traffic stops were built right into the system. The Court approvingly noted that the police officers detaining Caballes did not delay the traffic stop just so that the drug dog could finish the sniffing. This is important. Had the Court found undue delay, the clear inference is that the case would have come out differently. This is what the court is talking about when it mentions a “prolonged” traffic stop. The Court wrote that: “A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Caballes, 543 U.S. 405 (2005). If the police try to slow down the interaction with the driver so that the police dog has time to make it to the scene of a traffic stop, that would be illegal. Similarly, delaying the writing of the ticket or returning a driver’s license so slowly that the dog has time to finish the sniff is unconstitutional. This may also be referred to as going “outside the scope” of the traffic stop. This “no delay” or “scope” rule serves as a real and practical limitation on the use of police dogs. Any Undue Delay is Unconstitutional The simple fact is that K-9 units are far less numerous than normal patrol vehicles. This specialized team is typically only called out on special assignments. The practicality of having a drug dog at every traffic stop is impossible. The criminal defense bar, however, has to be vigilant about recognizing stone walling by the police. Any proof of an unconstitutional delay must be brought to the trial court’s attention in a motion to suppress evidence illegally seized.

Illinois v. Caballes: The Police Drug Dog Sniffer Case

<p><a href= "https://courts.illinois.gov/Opinions/SupremeCourt/2008/May/104279.pdf"> <em>People v. Rowell</em>, 229 Ill. 2nd 82 (May 2008)</a>. Episode 686 <strong>(Duration 31:58)</strong></p> <p>What's the best way to handle legally insufficient criminal charges? In this episode you get a feel for what it's like working in the criminal law.</p> <p></p> <p><img class="alignleft size-full wp-image-10477" src= "https://illinoiscaselaw.com/wp-content/uploads/2019/10/Fatally-Flawed-Charges.jpg" alt="What To Do About Legally Insufficient Charging Documents?" width="700" height="400" /></p> <p>Subscribe: <a href= "https://itunes.apple.com/us/podcast/criminal-nuggetss-podcast/id904877345&=1"> Apple Podcasts</a> | <a href= "https://www.google.com/podcasts?feed=aHR0cDovL2NyaW1pbmFsbnVnZ2V0cy5saWJzeW4uY29tL3Jzcw%3D%3D" target="_blank" rel="noopener noreferrer">Google Podcasts</a> | <a href= "https://open.spotify.com/show/2hzuxc3e2Xot9eBI4TuncG" target= "_blank" rel="noopener noreferrer">Spotify</a> | <a href= "http://subscribeonandroid.com/criminalnuggets.libsyn.com/rss">Android</a> | <a href="http://criminalnuggets.libsyn.com/rss">RSS</a> | <a href="http://traffic.libsyn.com/criminalnuggets/686.mp3" download="">Direct Download</a></p> <p><a class="button" href= "https://itunes.apple.com/us/podcast/criminal-nuggetss-podcast/id904877345&=1" target="_blank" rel="noopener noreferrer">APPLE PODCASTS</a> <a class="button" href= "https://www.google.com/podcasts?feed=aHR0cDovL2NyaW1pbmFsbnVnZ2V0cy5saWJzeW4uY29tL3Jzcw%3D%3D" target="_blank" rel="noopener noreferrer">GOOGLE PODCASTS</a></p> <p><a class="button" href= "https://open.spotify.com/show/2hzuxc3e2Xot9eBI4TuncG" target= "_blank" rel="noopener noreferrer">SPOTIFY</a> <a class="button" href="http://subscribeonandroid.com/criminalnuggets.libsyn.com/rss" target="_blank" rel="noopener noreferrer">ANDROID</a> <a class= "button" href="http://criminalnuggets.libsyn.com/rss" target= "_blank" rel="noopener noreferrer">RSS</a></p> <p><a class="button" href= "http://traffic.libsyn.com/criminalnuggets/686.mp3" download= "">DIRECT DOWNLOAD</a></p> <p>Illinois attorney Alan Downen walks us through the detailed intricacies of just one issue in criminal litigation:</p> <h2><strong>In This Episode...</strong></h2> <p><em>"There's an old saying about losing your 'tall'. 'Tall' is your favorite marble."</em> -- Alan Downen.</p> <h2><strong>Illinois Attorney Alan Downen</strong></h2> <p>Alan Downen has been a member of the Illinois bar since 1974. He's a solo practitioner concentrating his practice in the areas of criminal, DUI, traffic law.</p> <p>His office is in McLeansboro, Illinois.</p> <h2><strong>"Can't Miss" Moments:</strong></h2> <p>✓ <strong>Here's an example of the kind of fatally flawed or legally insufficient charging document we are talking about: A defendant charged with aggravated domestic battery is charged by information. However, the information is missing the mental state. It doesn't state if defendant acted "knowingly" or "intentionally". It also omits the type of battery the defendant is alleged to have done. It doesn't say if he caused bodily harm or committed insulting or provoking contact. (Go to 3:35)</strong></p> <p>✓ What's the law now? What does a court do when it's confronted with a legally insufficient complaint? Well it depends. There are two legal standards. If a motion to dismiss is filed pretrial the court will adopt a "strict construction" policy and automatically dismiss the charges without prejudice. That means the state is free to refile. If the motion to dismiss if filed on appeal or after the trial is over then a defendant must show prejudice to get the charges dismissed. <strong>(Go to 5:07)</strong></p> <p>✓ <strong>Some defense attorneys say they don't the prosecution a darn thing. There's nothing wrong with lying in the weeds and springing the issue on the state when the time is right.</strong> <strong>(Go to 6:40)</strong></p> <p>✓ Why some judges really hate a motion to dismiss, and why they'll accuse you of "sandbagging" and other dastardly legal things.  <strong>(Go to 7:16) & (Go to 15:40)</strong></p> <p>✓ <strong><em>"Like any attorney, if the judge asks you a question and you answer like this, 'Yea - I'm ready to go' when you know that there's a problem. That's kinda troublesome to me as an attorney...But that's kinda the scenario."</em> (Go to 8:42)</strong></p> <p>✓ The problem with informing the state they have a bad charge. <strong>(Go to 9:20)</strong></p> <p>✓ <strong>Why it better to save your motion to dismiss until after the trial has started. Sure, you have to show prejudice but a few cases demonstrate that can be done. </strong> <strong>(Go to 9:51)</strong></p> <p>✓ The thing about the <em>Rowell</em> case is that it really highlights how a defense attorney can go about demonstrating the prejudice that results to an accused with a fatally flawed charging document is filed against them.  This is the "bible" on insufficient charging instruments. <strong>(Go to 11:49)</strong></p> <p>✓ <strong>Talk about getting caught in court with your pants down. This might be every prosecutor's worst nightmare. </strong> <strong>(Go to 11:20)</strong></p> <p>✓ The number one lesson for prosecutors about this discussion is this. Some of them will do it. Many more won't and that's exactly why criminal defense can be so fun sometimes.  <strong>(Go to 13:55)</strong></p> <p>✓ <strong>Why defense attorneys sometimes win by filing "the wrong" motion against all precedent and contrary to clearly applicable laws, and why judges are quick to grant you these "meritless" motions.</strong> <strong>(Go to 17:49)</strong></p> <p>✓ <em>"You have a duty to the court as a lawyer to be honest and forthright. But you also have a duty to your client. Sometimes, as you say, the lines are just real clear."</em> <strong>(Go to 22:29)</strong></p> <p>✓ <strong>What an older attorney told Alan about the practice of law. Why sometimes it's best to do nothing even when you know something can be done.</strong> <strong>(Go to 24:25)</strong></p> <h2><strong>Links & Resources</strong></h2> <ul> <li><a href= "http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072500050K111-3"> 725 ILCS 5/11-3(a)(3)</a> states that In Illinois "a charge shall be in writing and allege the commission of an offense by: Setting forth the nature and elements of the offense charged;"</li> <li><a href= "https://courts.illinois.gov/Opinions/SupremeCourt/2008/May/104279.pdf"> <em>People v. Rowell</em>, 229 Ill. 2nd 82 (May 2008)</a> (Illinois Supreme Court finds prejudice to the defense from a fatally flawed charging document.)</li> <li><a href= "https://courts.illinois.gov/R23_Orders/AppellateCourt/2017/3rdDistrict/3140814_R23.pdf"> <em>People v. Pendleton</em>, 2017 IL App (3d) 140814-U (March)</a> (trial court erred in denying defendant’s midtrial motion to dismiss because defendant was prejudiced by the insufficient charges)</li> </ul> <h2><strong>See Also</strong></h2> <p>You may also want to check out...</p> <ul> <li>Episode 419 - <a href= "https://illinoiscaselaw.com/what-to-do-when-the-judge-falls-asleep-during-trial/" rel="noopener noreferrer"><em>People v. Sheley</em>, 2017 IL App (3d) 140659 (October)</a> (concurring opinions discussing "sandbagging" and why it's a disfavored practice)</li> <li>Episode 399 - <a href= "https://illinoiscaselaw.com/the-old-insufficient-complaint-booby-trap-is-finally-dismantled/"> <em>People v. Frazier</em>, 2107 IL App(5th) 140493 (July)</a> (defense attorney accused of being ineffective for filing the motion to dismiss after the trial had started)</li> <li>Episode 249 - <a href= "https://illinoiscaselaw.com/aggravated-dui-proximate-cause-cannabis-case/"> <em>People v. Swif</em>t, 2016 IL App (3d) 140604 (October)</a> (because defendant waited until the trial to begin he had to show prejudice to win a dismissal)</li> </ul>

 People v. Rowell, 229 Ill. 2nd 82 (May 2008). Episode 686 (Duration 31:58) What's the best way to handle legally insufficient criminal charges? In this episode you get a feel for what it's like working in the criminal law. Subscribe: Apple Podcasts | Google Podcasts | Spotify | Android | RSS | Direct Download APPLE PODCASTS GOOGLE PODCASTS SPOTIFY ANDROID RSS DIRECT DOWNLOAD Illinois attorney Alan Downen walks us through the detailed intricacies of just one issue in criminal litigation: In This Episode... "There's an old saying about losing your 'tall'. 'Tall' is your favorite marble." -- Alan Downen. Illinois Attorney Alan Downen Alan Downen has been a member of the Illinois bar since 1974. He's a solo practitioner concentrating his practice in the areas of criminal, DUI, traffic law. His office is in McLeansboro, Illinois. "Can't Miss" Moments: ✓ Here's an example of the kind of fatally flawed or legally insufficient charging document we are talking about: A defendant charged with aggravated domestic battery is charged by information. However, the information is missing the mental state. It doesn't state if defendant acted "knowingly" or "intentionally". It also omits the type of battery the defendant is alleged to have done. It doesn't say if he caused bodily harm or committed insulting or provoking contact. (Go to 3:35) ✓ What's the law now? What does a court do when it's confronted with a legally insufficient complaint? Well it depends. There are two legal standards. If a motion to dismiss is filed pretrial the court will adopt a "strict construction" policy and automatically dismiss the charges without prejudice. That means the state is free to refile. If the motion to dismiss if filed on appeal or after the trial is over then a defendant must show prejudice to get the charges dismissed. (Go to 5:07) ✓ Some defense attorneys say they don't the prosecution a darn thing. There's nothing wrong with lying in the weeds and springing the issue on the state when the time is right. (Go to 6:40) ✓ Why some judges really hate a motion to dismiss, and why they'll accuse you of "sandbagging" and other dastardly legal things.  (Go to 7:16) & (Go to 15:40) ✓ "Like any attorney, if the judge asks you a question and you answer like this, 'Yea - I'm ready to go' when you know that there's a problem. That's kinda troublesome to me as an attorney...But that's kinda the scenario." (Go to 8:42) ✓ The problem with informing the state they have a bad charge. (Go to 9:20) ✓ Why it better to save your motion to dismiss until after the trial has started. Sure, you have to show prejudice but a few cases demonstrate that can be done.  (Go to 9:51) ✓ The thing about the Rowell case is that it really highlights how a defense attorney can go about demonstrating the prejudice that results to an accused with a fatally flawed charging document is filed against them.  This is the "bible" on insufficient charging instruments. (Go to 11:49) ✓ Talk about getting caught in court with your pants down. This might be every prosecutor's worst nightmare.  (Go to 11:20) ✓ The number one lesson for prosecutors about this discussion is this. Some of them will do it. Many more won't and that's exactly why criminal defense can be so fun sometimes.  (Go to 13:55) ✓ Why defense attorneys sometimes win by filing "the wrong" motion against all precedent and contrary to clearly applicable laws, and why judges are quick to grant you these "meritless" motions. (Go to 17:49) ✓ "You have a duty to the court as a lawyer to be honest and forthright. But you also have a duty to your client. Sometimes, as you say, the lines are just real clear." (Go to 22:29) ✓ What an older attorney told Alan about the practice of law. Why sometimes it's best to do nothing even when you know something can be done. (Go to 24:25) Links & Resources 725 ILCS 5/11-3(a)(3) states that In Illinois "a charge shall be in writing and allege the commission of an offense by: Setting forth the nature and elements of the offense charged;" People v. Rowell, 229 Ill. 2nd 82 (May 2008) (Illinois Supreme Court finds prejudice to the defense from a fatally flawed charging document.) People v. Pendleton, 2017 IL App (3d) 140814-U (March) (trial court erred in denying defendant’s midtrial motion to dismiss because defendant was prejudiced by the insufficient charges) See Also You may also want to check out... Episode 419 - People v. Sheley, 2017 IL App (3d) 140659 (October) (concurring opinions discussing "sandbagging" and why it's a disfavored practice) Episode 399 - People v. Frazier, 2107 IL App(5th) 140493 (July) (defense attorney accused of being ineffective for filing the motion to dismiss after the trial had started) Episode 249 - People v. Swift, 2016 IL App (3d) 140604 (October) (because defendant waited until the trial to begin he had to show prejudice to win a dismissal) 

What To Do About Fatally Flawed Criminal Charges: Alan Downen Interview

<p><a href= "http://www.illinoiscourts.gov/Opinions/AppellateCourt/2018/2ndDistrict/2160724.pdf" target="_blank" rel="noopener"><em>People v. Khan</em>, 2018 IL App (2d) 160724 (October)</a>. Episode 561 <strong>(Duration 18:46)</strong></p> <p>Dude posted a message on facebook that he carries a gun on the college campus and people gonna end up in a body bag if they don't stop messing with him.</p> <h2>Gist</h2> <p>Defendant, Aden D. Khan, was convicted of committing disorderly conduct by making a threat of violence against persons at a school (720 ILCS 5/26-1(a)(3.5)) and sentenced to 30 months’ probation.</p> <h2>Facts</h2> <p>At the time, defendant was 17 years old.</p> <p>He was suspended for five days for that post. Then he posted the thing about brining a gun to the North Central College campus every day.</p> <p>Defendant admitted he did the posting and said it was a joke. He got arrested this time.</p> <h2>Disorderly Conduct</h2> <p>As pertinent here, a person commits disorderly conduct when he or she</p> <p><em>“knowingly *** [t]ransmits or causes to be transmitted a threat of destruction of a school building or school property, or a threat of violence, death, or bodily harm directed against persons at a school, school function, or school event, whether or not school is in session.”</em></p> <h2>A Threat</h2> <p><em>“[a] threat is knowingly transmitted if the defendant transmitted a communication for the purpose of issuing a threat of violence directed at persons at a school and with knowledge that the transmitted communication will be viewed as a threat of violence directed at persons at a school.”</em></p> <h2>The Indictment</h2> <p>The indictment against defendant charged that, he</p> <p><em>“knowingly transmitted a threat of violence directed against persons at a school, being North Central College, in that on www.facebook.com/NCCConfessions.1, defendant posted, ‘I bring a gun to school every day. Someday someone is going to p*** me off and end up in a bag.’ ”</em></p> <h2>Issue</h2> <p>Defendant argues in part that under Elonis and People v. Relerford, 2017 IL 121094, the statute violates constitutional guarantees of free speech (see U.S. Const., amend. I; Ill. Const. 1970, art. I, § 4) because the State need prove only that a defendant knew that he was transmitting a threat, without having to prove that he actually intended to make the recipient feel threatened.</p> <p>He contends first that the school-threat law is unconstitutional on its face because it does not require a sufficient mental state. </p> <h2>Elonis v. United States</h2> <p>In Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001 (2015), the Supreme Court read a heightened scienter requirement into a federal statute that criminalizes transmitting a threatening statement that a person knows or should know would intimidate a reasonable recipient.</p> <p>The Facebook post was, titled “The people who i want to kill most.” The list included</p> <p><em>“1. my stepmother who has f*** up my life[,] 2. my father for the same reason[,] 3. my brother for tormenting me since birth[,] 4. f*** brandon for talking hella s*** and for being a f***[,] 5. ruben bautista for talking too much s*** and cuz i already promised to kill him[,] 6. whatever a*** told casper that i was planning to shoot up the school[,] 7. whatever a*** told casper that i carried a knife[,] 8. the pope, just for laughs[,] 9. ms. limacher: worst teacher ever. gave me a referral for spitting on the sidewalk[, and] 10. god, if he/she/it exists.”</em></p> <p>In Elonis, the defendant was convicted of violating a federal statute that makes it a crime to transmit “any communication containing any threat…to injure the person of another.” Elonis, 575 U.S. at ___, 135 S. Ct. at 2004 (quoting 18 U.S.C. § 875(c) (2006)).</p> <p>The statute in Elonis containted no mental state so the court read a scienter requirement into it. Given its construction of the statute, the Court saw no need to reach any first-amendment issues.</p> <h2>Jury Instructions</h2> <p>Among the instructions that the court gave the jury were the following.</p> <p>First, “[a] person commits the offense of disorderly conduct when he knowingly transmits a threat of violence directed against persons at his school whether or not school is in session and he intends that the threat would place those persons in reasonable apprehension of violence.”</p> <p>Second, “[a] threat is knowingly transmitted if the defendant transmitted a communication for the purpose of issuing a threat of violence directed at persons at a school and with knowledge that the transmitted communication will be viewed as a threat of violence directed at persons at a school.”</p> <h2>Mini-Holding</h2> <p>We recognize that the trial court instructed the jury that the State had to prove beyond a reasonable doubt that defendant did intend to make recipients of his message feel threatened. As we shall explain, the statute under which defendant was charged does not actually impose such a requirement on the State and need not do so in order to pass constitutional scrutiny.</p> <p>There is a reasonable construction of the statute here that obviates any constitutional infirmity.</p> <h2>But See Also People v. Diomedes</h2> <p>In People v. Diomedes, 2014 IL App (2d) 121080, ¶ 3, the defendant was charged with disorderly conduct for e-mailing a threat of violence against the dean of his former school, Geneva High. The e-mail was sent to an anti-bullying activist who had spoken there some time earlier.</p> <p>Diomedes implicitly held that the school-threat provision of the disorderly conduct statute is not facially unconstitutional. The provision can and may be applied to the knowing communication of a message if the defendant knows that a reasonable speaker would foresee the message as communicating, to a reasonable recipient, a serious intent to commit harm.</p> <p>Thus, under Diomedes, the provision includes a mental-state requirement that is consistent with the first amendment.</p> <h2>A True Threat Is Required</h2> <p>The knowledge that the communication is a “true threat” is sufficient.</p> <p>In Diomedes they defined a true threat this way, as to:</p> <p><em>“encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.”</em></p> <h2>But See People v. Wood</h2> <p>In <a href= "https://illinoiscaselaw.com/clecourses/did-this-assistant-public-defender-violate-confidentiality-when-he-told-the-judge-about-the-weird-phone-call/" target="_blank" rel="noopener">People v. Wood, 2017 IL App (1st) 143135</a> the defendant was convicted of threatening the judge who had presided over his criminal case.</p> <p>As pertinent here, the statute required the State to prove that</p> <p>(1) he had knowingly and willfully communicated a threat to a public official and<br /> (2) the threat would place the official in reasonable apprehension of immediate or future bodily harm.</p> <p>720 ILCS 5/12-9(1)(a)(1)(i).</p> <p>The appellate court held that he had not been proved guilty beyond a reasonable doubt. The court observed that a conviction required “intentionality on the defendant’s part,” i.e., the making of a true threat.</p> <p>The statute at issue in Wood differs from the one here in that it explicitly requires that the offending communication be of such a character as to place the recipient in reasonable apprehension of harm.</p> <div class="content-box-yellow"> <p>Nonetheless, in its construction of “threat,” Wood is consistent with our opinion in Diomedes. Both opinions follow the command of our supreme court to construe a statute to uphold its constitutionality if reasonably possible.</p> </div> <h2>What Disorderly Conduct and Threatening A Public Official Have In Common</h2> <p>Thus, as used in each statute, the combination of the terms “knowingly” and “threat” requires the State to prove that</p> <p>(1) the defendant knowingly made the statement and<br /> (2) the statement was a true threat</p> <p>We return to the interpretation of the school-threat provision as a whole.</p> <p>The existence of a true threat is one element. As we held in Diomedes, there is also the requirement that the defendant knowingly transmit a true threat and not merely that he should know that he is doing so.</p> <p>Thus, if the defendant does not know that he is transmitting a true threat, which is unprotected by the first amendment, he is not guilty. Insofar as this case is governed by Diomedes and Wood, the school-threat provision of the disorderly conduct statute is constitutional.</p> <div class="content-box-yellow"> <p>The provision does not punish protected conduct, because it applies only to communications that are true threats, which are unprotected. It also requires the State to prove that the defendant knew that he was transmitting a true threat.</p> </div> <h2>Elonis Is Not A Problem</h2> <p>Insofar as Elonis applies here, it does not help defendant.</p> <p>Without directly considering first-amendment issues, the Court implicitly held that, by requiring</p> <p>(1) the mental state of either intent or knowledge and<br /> (2) the communication of a threat to injure another person, both firstamendment problems and the danger of criminalizing innocent conduct were obviated.</p> <p>Nothing in Elonis is inconsistent with Diomedes and Wood; indeed, they essentially said the same thing.</p> <p>The primary difference is that in Elonis the Court read a mental state of intent or knowledge into a statute that prohibited communicating threats, whereas in Diomedes and Wood the courts recognized that the statutes already contained the mental state of knowledge.</p> <h2>Jury Instructions Favored Defendant</h2> <p>Defendant’s case was tried on the theory that the State had to prove intent, a higher standard.</p> <p>The statute required the State to prove that defendant knowingly communicated a true threat—that he knew that his words were a serious expression of an intent to cause harm. The instructions told the jury that the State also had to prove that he intended that his words cause such apprehension. In other words, the jury instructions rewrote the statute in defendant’s favor.</p> <h2>State Wins Either Way</h2> <p>Fortunately, however, we need not decide whether the issue on appeal is the sufficiency of the proof of the offense as defined by the statute or the sufficiency of the offense as redefined by the jury instructions.</p> <p>The evidence was sufficient either way.</p> <p>The jury did not exceed its prerogative in finding that defendant knew that his promise to kill someone would cause a reasonable recipient to fear violence to the community.</p> <div class="content-box-yellow"> <p>Further, the jury reasonably inferred that defendant intended his message to cause at least some people to fear violence, as that was a natural and foreseeable reaction to a person telling them that he went to campus every day armed with a firearm and was bound to use it on slight provocation.</p> </div> <h2>Holding</h2> <p>A jury may infer that a defendant intended the natural and probable consequences of his act. For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.</p> <h2>See Also</h2> <ul> <li>Episode 425 - <a href= "https://illinoiscaselaw.com/clecourses/most-of-stalking-statute-back-on-the-table-except-for-this-one-little-part/" target="_blank" rel="noopener"><em>People v. Relerford</em>, 2017 IL 121094 (November)</a> (anti-stalking statute remains unconstitutional)</li> <li>Episode 543 - <a href= "https://illinoiscaselaw.com/clecourses/threatening-a-public-official-requires-intentionality-from-defendant/" target="_blank" rel="noopener"><em>People v. Goodwin</em>, 2018 IL App (1st) 152045 (September)</a> (threatening a public official requires intentionality from defendant - this defendant yelled at a prosecutor)</li> <li>Episode 426 - <a href= "https://illinoiscaselaw.com/clecourses/did-this-assistant-public-defender-violate-confidentiality-when-he-told-the-judge-about-the-weird-phone-call/" target="_blank" rel="noopener"><em>People v. Wood</em>, 2017 IL App (1st) 143135 (November)</a> (defendant left a crazy, ranting voicemail and really let the judge have it but it didn't constitute threatening a public official) </li> <li>Episode 089 - <a href= "https://illinoiscaselaw.com/threatening-a-public-official-bad-ass-public-defender/" target="_blank" rel="noopener">People v. Dye, 2015 IL App (4th) 130799 (August)</a> (defendant snaps at his public defender and she lashed back but he didn't threaten a public official)</li> </ul>

People v. Khan, 2018 IL App (2d) 160724 (October). Episode 561 (Duration 18:46) Dude posted a message on facebook that he carries a gun on the college campus and people gonna end up in a body bag if they don't stop messing with him. Gist Defendant, Aden D. Khan, was convicted of committing disorderly conduct by making a threat of violence against persons at a school (720 ILCS 5/26-1(a)(3.5)) and sentenced to 30 months’ probation. Facts At the time, defendant was 17 years old. He was suspended for five days for that post. Then he posted the thing about brining a gun to the North Central College campus every day. Defendant admitted he did the posting and said it was a joke. He got arrested this time. Disorderly Conduct As pertinent here, a person commits disorderly conduct when he or she “knowingly *** [t]ransmits or causes to be transmitted a threat of destruction of a school building or school property, or a threat of violence, death, or bodily harm directed against persons at a school, school function, or school event, whether or not school is in session.” A Threat “[a] threat is knowingly transmitted if the defendant transmitted a communication for the purpose of issuing a threat of violence directed at persons at a school and with knowledge that the transmitted communication will be viewed as a threat of violence directed at persons at a school.” The Indictment The indictment against defendant charged that, he “knowingly transmitted a threat of violence directed against persons at a school, being North Central College, in that on www.facebook.com/NCCConfessions.1, defendant posted, ‘I bring a gun to school every day. Someday someone is going to p*** me off and end up in a bag.’ ” Issue Defendant argues in part that under Elonis and People v. Relerford, 2017 IL 121094, the statute violates constitutional guarantees of free speech (see U.S. Const., amend. I; Ill. Const. 1970, art. I, § 4) because the State need prove only that a defendant knew that he was transmitting a threat, without having to prove that he actually intended to make the recipient feel threatened. He contends first that the school-threat law is unconstitutional on its face because it does not require a sufficient mental state.  Elonis v. United States In Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001 (2015), the Supreme Court read a heightened scienter requirement into a federal statute that criminalizes transmitting a threatening statement that a person knows or should know would intimidate a reasonable recipient. The Facebook post was, titled “The people who i want to kill most.” The list included “1. my stepmother who has f*** up my life[,] 2. my father for the same reason[,] 3. my brother for tormenting me since birth[,] 4. f*** brandon for talking hella s*** and for being a f***[,] 5. ruben bautista for talking too much s*** and cuz i already promised to kill him[,] 6. whatever a*** told casper that i was planning to shoot up the school[,] 7. whatever a*** told casper that i carried a knife[,] 8. the pope, just for laughs[,] 9. ms. limacher: worst teacher ever. gave me a referral for spitting on the sidewalk[, and] 10. god, if he/she/it exists.” In Elonis, the defendant was convicted of violating a federal statute that makes it a crime to transmit “any communication containing any threat…to injure the person of another.” Elonis, 575 U.S. at ___, 135 S. Ct. at 2004 (quoting 18 U.S.C. § 875(c) (2006)). The statute in Elonis containted no mental state so the court read a scienter requirement into it. Given its construction of the statute, the Court saw no need to reach any first-amendment issues. Jury Instructions Among the instructions that the court gave the jury were the following. First, “[a] person commits the offense of disorderly conduct when he knowingly transmits a threat of violence directed against persons at his school whether or not school is in session and he intends that the threat would place those persons in reasonable apprehension of violence.” Second, “[a] threat is knowingly transmitted if the defendant transmitted a communication for the purpose of issuing a threat of violence directed at persons at a school and with knowledge that the transmitted communication will be viewed as a threat of violence directed at persons at a school.” Mini-Holding We recognize that the trial court instructed the jury that the State had to prove beyond a reasonable doubt that defendant did intend to make recipients of his message feel threatened. As we shall explain, the statute under which defendant was charged does not actually impose such a requirement on the State and need not do so in order to pass constitutional scrutiny. There is a reasonable construction of the statute here that obviates any constitutional infirmity. But See Also People v. Diomedes In People v. Diomedes, 2014 IL App (2d) 121080, ¶ 3, the defendant was charged with disorderly conduct for e-mailing a threat of violence against the dean of his former school, Geneva High. The e-mail was sent to an anti-bullying activist who had spoken there some time earlier. Diomedes implicitly held that the school-threat provision of the disorderly conduct statute is not facially unconstitutional. The provision can and may be applied to the knowing communication of a message if the defendant knows that a reasonable speaker would foresee the message as communicating, to a reasonable recipient, a serious intent to commit harm. Thus, under Diomedes, the provision includes a mental-state requirement that is consistent with the first amendment. A True Threat Is Required The knowledge that the communication is a “true threat” is sufficient. In Diomedes they defined a true threat this way, as to: “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.” But See People v. Wood In People v. Wood, 2017 IL App (1st) 143135 the defendant was convicted of threatening the judge who had presided over his criminal case. As pertinent here, the statute required the State to prove that (1) he had knowingly and willfully communicated a threat to a public official and (2) the threat would place the official in reasonable apprehension of immediate or future bodily harm. 720 ILCS 5/12-9(1)(a)(1)(i). The appellate court held that he had not been proved guilty beyond a reasonable doubt. The court observed that a conviction required “intentionality on the defendant’s part,” i.e., the making of a true threat. The statute at issue in Wood differs from the one here in that it explicitly requires that the offending communication be of such a character as to place the recipient in reasonable apprehension of harm. Nonetheless, in its construction of “threat,” Wood is consistent with our opinion in Diomedes. Both opinions follow the command of our supreme court to construe a statute to uphold its constitutionality if reasonably possible. What Disorderly Conduct and Threatening A Public Official Have In Common Thus, as used in each statute, the combination of the terms “knowingly” and “threat” requires the State to prove that (1) the defendant knowingly made the statement and (2) the statement was a true threat We return to the interpretation of the school-threat provision as a whole. The existence of a true threat is one element. As we held in Diomedes, there is also the requirement that the defendant knowingly transmit a true threat and not merely that he should know that he is doing so. Thus, if the defendant does not know that he is transmitting a true threat, which is unprotected by the first amendment, he is not guilty. Insofar as this case is governed by Diomedes and Wood, the school-threat provision of the disorderly conduct statute is constitutional. The provision does not punish protected conduct, because it applies only to communications that are true threats, which are unprotected. It also requires the State to prove that the defendant knew that he was transmitting a true threat. Elonis Is Not A Problem Insofar as Elonis applies here, it does not help defendant. Without directly considering first-amendment issues, the Court implicitly held that, by requiring (1) the mental state of either intent or knowledge and (2) the communication of a threat to injure another person, both firstamendment problems and the danger of criminalizing innocent conduct were obviated. Nothing in Elonis is inconsistent with Diomedes and Wood; indeed, they essentially said the same thing. The primary difference is that in Elonis the Court read a mental state of intent or knowledge into a statute that prohibited communicating threats, whereas in Diomedes and Wood the courts recognized that the statutes already contained the mental state of knowledge. Jury Instructions Favored Defendant Defendant’s case was tried on the theory that the State had to prove intent, a higher standard. The statute required the State to prove that defendant knowingly communicated a true threat—that he knew that his words were a serious expression of an intent to cause harm. The instructions told the jury that the State also had to prove that he intended that his words cause such apprehension. In other words, the jury instructions rewrote the statute in defendant’s favor. State Wins Either Way Fortunately, however, we need not decide whether the issue on appeal is the sufficiency of the proof of the offense as defined by the statute or the sufficiency of the offense as redefined by the jury instructions. The evidence was sufficient either way. The jury did not exceed its prerogative in finding that defendant knew that his promise to kill someone would cause a reasonable recipient to fear violence to the community. Further, the jury reasonably inferred that defendant intended his message to cause at least some people to fear violence, as that was a natural and foreseeable reaction to a person telling them that he went to campus every day armed with a firearm and was bound to use it on slight provocation. Holding A jury may infer that a defendant intended the natural and probable consequences of his act. For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed. See Also Episode 425 - People v. Relerford, 2017 IL 121094 (November) (anti-stalking statute remains unconstitutional) Episode 543 - People v. Goodwin, 2018 IL App (1st) 152045 (September) (threatening a public official requires intentionality from defendant - this defendant yelled at a prosecutor) Episode 426 - People v. Wood, 2017 IL App (1st) 143135 (November) (defendant left a crazy, ranting voicemail and really let the judge have it but it didn't constitute threatening a public official)  Episode 089 - People v. Dye, 2015 IL App (4th) 130799 (August) (defendant snaps at his public defender and she lashed back but he didn't threaten a public official) 

Disorderly Conduct Conviction For Making A Threat Must Get Past Free Speech Protection

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