People v. Campbell, 2019 IL App (1st) 161640 (April). Episode 630 (Duration 11:07) Court is not insensitive to claims of “dropsy” testimony and “testilying.” Charges Campbell was charged with nine counts of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C)) stemming from a traffic stop. He got one year in prison. Sees A Gun Due to a spade of recent shootings police were patrolling in unmarked convert vehicles.  Police stopped in front and behind a double parked car. Police immediately smelled cannabis. Defendant opened a rear door and started to run until told to get back in the car and he complied. As Campbell was returning to the Durango, an officer saw him retrieve a handgun with a wooden grip, later identified as a Smith & Wesson .38-caliber revolver, from his waistband and throw it onto the floorboard of the back seat. Campbell then got in and shut the door. Arrested The officer drew his service weapon and immediately began yelling “gun” to inform the other officers, who were surrounding the vehicle. Defendant was removed from the Durango and placed into custody. The incident happened within seconds. Defendant’s Story Defendant did not have a firearms owner’s identification card. He was just getting a ride home and the car stopped to let him out. When he got out police yelled at him so he got back in the car. At no point did he ever have a handgun on his person. Trial Court Believes The Officer The court noted that every witness has a bias, but it found that the officers’ testimony was consistent and credible and the varying terminology as to how the gun arrived on the floorboard was insignificant. Trial Court Didn’t Believe Defendant The court had some issues with the credibility and consistency of Campbell and his girlfriend’s testimony. Specifically, it was odd that she said that  she had not spoken to defendant about the case and that he did not have a key to an apartment where he had been living for several years. Issue Campbell argues that the evidence was insufficient to convict him on several grounds. He points to inconsistencies between the officers’ testimony and the police reports. He notes the lack of physical evidence connecting him to the gun. What Is More Plausible? He describes his own testimony as the more plausible version of events. Most importantly, however, he argues that the officers are incredible because it is beyond human experience to believe that he tossed the gun into the Durango in sight of the officers. This type of testimony is referred to as “dropsy” testimony. The State argues that, to the extent “dropsy” testimony exists, it is not a basis on which to categorically disbelieve the officers’ testimony. Dropsy Testimony A case involving “dropsy” testimony is one in which a police officer, to avoid the exclusion of evidence on fourth amendment grounds, falsely testifies that the defendant dropped the contraband in plain view. Many courts trace the origin of this description of officer testimony to a decision out of the New York Criminal Court in People v. McMurty, 314 N.Y.S.2d 194 (N.Y. Crim. Ct. 1970). See, e.g., United States v. Janis, 428 U.S. 433, 448 n.18 (1976) (citing McMurty, 314 N.Y.S.2d 194); State v. Brunori, 578 A.2d 139, 142 n.6 (Conn. App. Ct. 1990) (same); Ruiz v. State, 50 So. 3d 1229, 1232-33 (Fla. Dist. Ct. App. 2011) (same). In McMurty, the court explained the problem of “dropsy” testimony in some detail. The proliferation of “dropsy” testimony, arises out of the United States Supreme Court’s decision in Mapp v. Ohio, 367 U.S. 643 (1961). In Mapp, the court incorporated the exclusionary rule and held that it was enforceable against the states. Id. at 655. Before Mapp, a local police officer who engaged in unconstitutional conduct—an arrest based on less than probable cause, for example—could still see the evidence admitted at trial. In other words, a police officer could truthfully testify in state court that he or she stopped someone for no reason and the prosecution against that person would be unaffected. After Mapp, an officer’s truthful testimony that he or she stopped someone for no reason would result in suppression of the evidence. So, police made the great discovery that if the defendant drops the contraband on the ground, after which the policeman arrests him, the search is reasonable and the evidence is admissible. Put simply, Mapp led to police officers lying about their encounters with citizens to ensure that the evidence they unlawfully obtained would nonetheless be admitted later. See Janis, 428 U.S. at 447-48 n.18 (“exclusionary rule tends to lessen the accuracy of the evidence presented in court because it encourages the police to lie in order to avoid suppression of evidence” (citing McMurty, 314 N.Y.S.2d 194)). Illinois Courts On Dropsy Testimony Illinois courts have similarly defined “dropsy” cases as those in which an officer falsely testifies that a defendant dropped contraband in plain view “to avoid the exclusion of evidence on fourth-amendment grounds.” People v. Ash, 346 Ill. App. 3d 809, 816 (2004). See also A. McClurg, Good Cop, Bad Cop: Using Cognitive Dissonance Theory to Reduce Police Lying, 32 U.C. Davis L. Rev. 389, 400 (1999), and People v. Cunningham, 333 Ill. App. 3d 1045, 1049 (1st Dist. 2002) (drug case reversed because officer’s testimony found to be contrary to human experience and unworthy of belief the testimony of the arresting officer was so unlikely and improbable that it was unworthy of belief when he said he saw defendant drop the drugs in the car). But see People v. Cunningham, Docket No. 94971-Agenda 1-May 2004 (Illinois Supreme Court overules Cunningham and reinstates drug conviction where “one bad apple spoils the lot”) In Ash, however, the defendant made a far bolder claim, asserting that the mere existence of “dropsy” testimony in some cases meant that officers should be viewed as less trustworthy in all cases. More recently, this court has viewed the phenomenon of “dropsy” testimony with skepticism, describing the “widespread nature” of this kind of testimony as “alleged” and based only on anecdotal evidence. People v. Moore, 2014 IL App (1st) 110793-B, ¶¶ 12-13. Is It A Problem? Outside of Illinois, “dropsy” testimony has been acknowledged as a genuine problem confronting the criminal justice system. See, e.g., Janis, 428 U.S. at 447-48 n.18 (citing “studies and commentary” showing that the exclusionary rule “encourages the police to lie *** to avoid suppression”); United States v. Contreras, 820 F.3d 255, 267 (7th Cir. 2016) (finding, “cases in which defendants drop drugs in plain view invite skepticism” and noting scholarly documentation of “an increase of ‘dropsy’ cases” after Mapp); Dixon v. State, 327 A.2d 516, 517 (Md. 1974) (describing “dropsy” cases, along with inventory searches, as “afflict[ing] law enforcement with the yawning credibility gap”). In New York, the problem was so pervasive that the police themselves named this kind of false testimony: “testilying.” Of particular relevance here, a New York City report regarding police corruption indicates that officers frequently “testilied” about things like traffic violations, observing bulges in pockets, or plain view sightings of guns or drugs to justify potentially unlawful searches and seizures. City of N.Y., Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department: Commission Report 38 (1994). See also Christopher Slobogin, Testilying: Police Perjury and What to Do About It, 67 U. Colo. L. Rev. 1037, 1040 n.11 (1996) (citing City of N.Y., Commission to Investigate Allegations of Police Corruption and the AntiCorruption Procedures of the Police Department: Commission Report 36 (1994)). One Bad Apple Does Not Spoil The Lot Of course, it is not enough for us to conclude that untruthful “dropsy” testimony exists; we also must be cognizant of the way courts have treated it. As we see it, there are essentially three categories of treatment of “dropsy” testimony. 1) At one extreme, there are courts that decline to acknowledge at all that this type of testimony can be problematic. See Moore, 2014 IL App (1st) 110793-B ¶ 13 (assuming, but refusing to say, that the evidence of “dropsy” testimony “actually establishes a trend or problem”). 2) At the other extreme, courts have issued wholesale condemnations of this type of testimony. See People v. Cunningham, 333 Ill. App. 3d 1045, 1049 (1st Dist. 2002). See also People v. Quinones, 402 N.Y.S.2d 196, 198 (N.Y. App. Div. 1978) (rejecting officer’s “dropsy” testimony “as a matter of law” where it has “all appearances of having been patently tailored to nullify constitutional objections”). 3) But, the largest group of cases, including McMurty, sees “dropsy” testimony as a lurking saboteur of the fair administration of criminal justice while recognizing the testimony in each individual case must be evaluated for its own credibility. Even in McMurty, 314 N.Y.S.2d at 197 the court said judges must only decide the cases that come before them. A Way To Analyze These Cases? Critical whenever an officer testifies that the defendant dropped contraband in plain view is this question: would the officer’s detention or search of the defendant have violated the fourth amendment if he or she had not seen the defendant drop the contraband in plain view? If the answer is “no,” there is far less reason to doubt the credibility of the officer’s testimony because the officer has nothing to gain by lying about the drop. If, however, the answer is “yes,” both trial courts and courts of review should take care to analyze the credibility of the officer because the incentive to lie to avoid suppression of the evidence is at its highest. This Case Aside from a conclusory statement that, absent the plain view sighting of the gun, the officers “illegally searched the vehicle,” Campbell does not argue that the officers’ conduct would have violated the fourth amendment absent the “dropsy” testimony. We conclude that even without testimony about the observation of Campbell tossing the gun into the car, the officers’ conduct likely comported with the fourth amendment giving them little incentive to fabricate a “dropsy” narrative. Not Because They Smelled Cannabis Other officer’s said they could smell cannabis. While we are skeptical that an officer would have been able to smell cannabis in his moving car, even if the Durango’s windows were open, the observation of a traffic violation is a valid reason to conduct a Terry stop. People v. Hackett, 2012 IL 111781, ¶ 20 (decision to stop a car is reasonable where officer has probable cause to believe that driver committed traffic violation).  But Because A Stop & Passenger Removal Is Legal The Durango was illegally double-parked. Double-parking, or even stopping a car next to another car parked against the curb, violates the Illinois Vehicle Code. 625 ILCS 5/11-1303(a)(1)(a). Our supreme court has said it is well established that following a lawful traffic stop, police may, as a matter of course, order the driver and any passengers out of the vehicle pending completion of the stop without violating the protections of the fourth amendment. People v. Sorenson, 196 Ill. 2d 425, 433 (2001). In sum, removing the testimony about the tossing of the gun and keeping everything else the same, we cannot say that there would have been any illegality to cover up as far as the fourth amendment is concerned.  Several officers testified that they pulled up to the Durango to do a “narcotics investigation,” but even pretextual traffic stops are constitutional as long as the objective facts demonstrate cause for the stop. Whren v. United States, 517 U.S. 806, 812-13 (1996). In United States v. Robinson, 414 U.S. 218 (1973), we held that a traffic-violation arrest would not be rendered invalid by the fact that it was a mere pretext for a narcotics search. Given that the stop was lawful, nothing in the record suggests that the officers’ actions following the stop would have been unlawful. …But Court Is Skeptical We are skeptical of the idea that a person, with knowledge of the presence of a police officer, would throw contraband in view of that officer. But, the recognized reasons for an officer to present untruthful “dropsy” testimony are not present and so no reason exists for us to intrude on the trial court’s express credibility findings or second guess the officers’ testimony that defendant tossed the gun into the back seat. See People v. Henderson, 33 Ill. 2d 225, 229 (1965) (“Far from being contrary to human experience, cases which have come to this court show it to be a common behavior pattern for individuals having [contraband] on their person to attempt to dispose of them when suddenly confronted by authorities.”) Holding While we have serious reservations about the plausibility of a suspect openly discarding contraband with knowledge of police presence, on the facts and in light of the standard of review, we ultimately agree with the State and affirm defendant’s conviction. On the facts here, we cannot say that the officers would have been so overcome by a temptation to lie as to render their testimony incredible. Conviction affirmed. See Also Do We Make “Testilying” Easy? Episode 250 – People v. Wall, 2016 IL App (5th) 140596 (October) (Police Tell A Little Lie To Encourage Signing The Consent To Search) Episode 015 – People v. Abdur-Rahim, 2014 IL App (3d) 130558 (August) (trooper thinks he can smell cannabis) 

Criminal Nuggets A Criminal Law Podcast

Dropsy, Smells-Me, Front Seating, and Other Testilying Testimony Has To Be Weighed On It’s Own Merit

People v. Markham, 2019 IL App (3d) 180071 (April). Episode 626 (Duration 7:32) State says overdose immunity should not kick in since defendant was feeling good enough to ask for his wallet and keys. Gist This is a possession of heroin case. Facts The parties submitted the following stipulated facts for the court’s consideration: “1. A female companion and the defendant used heroin; 2. After going out into the kitchen and playing with her phone for a few minutes, the female companion re-entered the bedroom and observed the Defendant sitting in the bed turning purple; 3. Defendant was suffering a drug overdose; 4. The female then called 911 and commenced CPR; 5. Tazewell County Deputies were dispatched to [the home] in regards to a possible drug overdose; 6. When Deputies arrived they found [defendant] non-responsive and not breathing, and they commenced performing CPR on him; 7. One Deputy observed a syringe on a bedside table near the television; 8. As [defendant] was being prepped to be moved from the room to the ambulance, he began breathing on his own, eventually regaining consciousness; 9. As [defendant] was being prepared to be transported to the hospital, he requested his wallet and house keys from out of the closet to take with him to the hospital; 10. Deputy McKinney went into the closet to gather [defendant’s] wallet and keys; 11. Deputy McKinney found contraband (a rolled up dollar bill) sticking out of the wallet; 12. Inside the rolled up bill was a gray wrapper that appeared to be a gum wrapper which contained a grayish-white substance; 13. The grayish-white substance field tested positive for heroin; 14. That the amount of the substance recovered by law enforcement is within the amount identified in subsection (d) of 720 ILCS 570/414, which is less than 3 grams of a substance containing heroin; 15. That [defendant] is charged with Unlawful Possession of a Controlled Substance, 720 ILCS 570/402(c);” By agreement, the parties further supplemented the stipulated facts, listed above, to provide that “[t]he deputies were administering CPR, and at that time North Pekin officers arrived and administered two doses of Narcan to the defendant. The deputies continued the CPR. At that point [defendant’s] pulse came back, but he was not breathing on his own. And then— and to clarify, paramedics then arrived, and paramedics administered the two subsequent doses of Narcan.” Issue At issue in this appeal is whether law enforcement “acquired” the heroin in defendant’s wallet “as a result” of defendant obtaining “emergency medical assistance” or whether law enforcement discovered the heroin after the “emergency medical assistance” concluded and defendant’s condition became somewhat stable. Overdose Immunity Defendant filed a motion to dismiss the charge based on the statutory immunity from prosecution provision of section 414(c) of the Act )(720 ILCS 570/414(c)). Section 414 of the Act, titled “Overdose; limited immunity from prosecution,” provides: “(a) For the purposes of this Section, ‘overdose’ means a controlled substanceinduced physiological event that results in a life-threatening emergency to the individual who ingested, inhaled, injected or otherwise bodily absorbed a controlled, counterfeit, or look-alike substance or a controlled substance analog. (b) A person who, in good faith, seeks or obtains emergency medical assistance for someone experiencing an overdose shall not be charged or prosecuted for Class 4 felony possession of a controlled, counterfeit, or look-alike substance or a controlled substance analog if evidence for the Class 4 felony possession charge was acquired as a result of the person seeking or obtaining emergency medical assistance and providing the amount of substance recovered is within the amount identified in subsection (d) of this Section. (c) A person who is experiencing an overdose shall not be charged or prosecuted for Class 4 felony possession of a controlled, counterfeit, or look-alike substance or a controlled substance analog if evidence for the Class 4 felony possession charge was acquired as a result of the person seeking or obtaining emergency medical assistance and providing the amount of substance recovered is within the amount identified in subsection (d) of this Section. * * * (e) The limited immunity described in subsections (b) and (c) of this Section shall not be extended if law enforcement has reasonable suspicion or probable cause to detain, arrest, or search the person described in subsection (b) or (c) of this Section for criminal activity and the reasonable suspicion or probable cause is based on information obtained prior to or independent of the individual described in subsection (b) or (c) taking action to seek or obtain emergency medical assistance and not obtained as a direct result of the action of seeking or obtaining emergency medical assistance.” 720 ILCS 570/414. Purpose Of The Act The public act enacting section 414 of the Act includes a preamble stating, in relevant part: “WHEREAS, Drug-overdose deaths are the second leading cause of accidental death in the nation and deaths have increased significantly in recent years, in both the Chicago Metropolitan Area and across Illinois; and WHEREAS, The General Assembly finds that drug-overdose deaths could be substantially decreased if immunity from criminal prosecution for Class 4 felony violations of the Illinois Controlled Substances Act and Class 3 felony violations of the Methamphetamine Control and Community Protection Act were granted to a person possessing a small amount of the drug who, in good faith, seeks emergency medical assistance for someone experiencing a drug-related overdose and if this immunity were granted for the same Class 4 felony violations of the Illinois Controlled Substances Act and the Class 3 felony violations of the Methamphetamine Control and Community Protection Act to a person who is experiencing a drug-related overdose[.]” Pub. Act 97- 678, § 5 (eff. June 1, 2012) (adding 720 ILCS 570/414). People v. Teper See Episode 264 – People v. Teper, 2016 IL App (2d) 160063 (November) (defendant found slumped over in his car but drug possession prosecution was still allowed). Here, the State suggests the emergency ended before the discovery of the heroin by law enforcement. Based on these circumstances, the State submits that defendant cannot rely on the statutory immunity provisions of the Act once the true emergency requiring emergency medical assistance was resolved. The State cites People v. Teper, 2016 IL App (2d) 160063, in support of its argument. In Teper, officers received numerous reports of a driver slumped over her steering wheel in traffic. Upon arrival at the scene, officers first observed several hypodermic syringes, and one officer observed two Baggies of a brown rock-like substance in the vehicle. Based solely on the officer’s observations of the defendant’s physical appearance and the items in plain view inside the vehicle, the officers concluded the driver was likely experiencing an overdose and made the decision to administer Narcan.  In that case, the trial court determined that immunity from prosecution based on section 414 did not apply because “the triggering fact” for overdose intervention occurred after the officers observed suspected drugs and paraphernalia in plain view. Id. ¶ 12. In other words, the trial court found the officers were not summoned to the scene with knowledge of a drug overdose and developed probable cause to seize the contraband before realizing the driver was incapacitated due to a drug overdose. The Second District Appellate Court affirmed the trial court’s ruling. The reviewing court opined that, because the contraband was clearly and immediately visible, thereby establishing independent probable cause prior to the defendant obtaining emergency medical assistance, the statutory exception to immunity from prosecution set forth in section 414(e) of the Act was triggered. This Call Was More Specific Unlike Teper, the initial 911 call here conveyed the urgent necessity for emergency medical services due to a drug overdose in progress, triggering statutory immunity from the outset. Further, emergency medical assistance was in progress when an officer discovered contraband. For these reasons, we find Teper is factually distinguishable from the case at bar. The State contends the fact that defendant was physically able to make a request for his wallet and keys should have caused the trial court to conclude defendant was past the point of requiring emergency medical assistance. In fact, the State posits “it is impossible to argue defendant, at the moment he asked the question, was in need of emergency care.” The State’s argument is not only unpersuasive, it rewrites history. Here, when law enforcement entered the residence at the address provided during the 911 call, defendant was unresponsive, not breathing, and was revived due to the administration of CPR and four doses of Narcan. Moreover, at the time of defendant’s request for his wallet and keys, defendant was not out of danger as a result of the overdose since he was being “prepped” and “prepared” to be moved from the residence to a hospital by ambulance. Without this intervention at the residence and subsequent hospital care, it is likely that one more drug-related death would have been added to the already alarming state statistics. Narrow Interpretation We conclude the State’s narrow interpretation of the statutory phrase “as a result” is flawed. The State’s narrow interpretation would serve to eviscerate the undeniable purpose of the Act by discouraging those witnessing or experiencing an overdose from immediately calling for lifesaving emergency medical attention. In order for the Act to work and save lives as intended, those witnessing or experiencing a drug overdose must have immediate and absolute assurance that the courts will uphold the provisions of the Act by prohibiting prosecution for items observed by first responders at the scene after being summoned to that location to prevent a death by overdose. Holding We hold that the Act provides broad and unconditional protection from the prying eyes of law enforcement present at the scene of an overdose, regardless of whether that location is a personal residence, a business, a vehicle, and so on. For these reasons, with little guidance from existing precedent, we conclude the trial court correctly found that defendant was entitled to the immunities granted under section 414(c) of the Act because the heroin was discovered “as a result” of law enforcement entering the residence to provide emergency medical assistance as needed to prevent another needless death by overdose. The trial court’s decision granting defendant’s motion to dismiss is affirmed.

Drug Overdose Immunity Enforced In The 3rd District

 People v. Kimble, 2019 IL 122830 (April). Episode 622 (Duration 9:42) Judge declared a mistrial kind of early, still double jeopardy was not implicated. Gist This was a sex abuse case. The lower appellate court prevented a new trial based on double jeopardy after the trial judge declared a mistrial. Deliberation The jury began deliberating at 10:50 a.m. About 2½ hours later, at their request, the jury returned to the courtroom to rewatch the videotaped interview of S.M. The jury then continued its deliberations at 2:15 p.m. About two hours later, at 4:25 p.m., the trial judge indicated on the record that she had received a note from the jury as follows: “After deliberating for five hours, and despite our best efforts, we are at an impasse.” The note was signed by the foreperson. Counsel was present for both parties. Not The First Time The trial judge indicated that this was the second time that she had received information from the jury that they were at an impasse. She explained that the jury had also informed the bailiff that they were at an impasse shortly after viewing the video. The trial judge informed the parties that she had instructed the bailiff to tell the jurors to continue to deliberate. Jury Brought Out “THE COURT: [Foreperson], I received your note that you are at an impasse. Can you tell me how long that you have been at that impasse? THE FOREPERSON: Pretty much a good part of the day. Four and a half hours or five hours. THE COURT: And nothing has changed during that period of time? THE FOREPERSON: Some numbers changed here and there, but we were stuck at a certain proportion. THE COURT: And how long has that existed? THE FOREPERSON: About I would say three hours. THE COURT: And you haven’t moved during that period of time? THE FOREPERSON: No, ma’am. THE COURT: Do you—let me ask, do you think if I sent you home for the night, let you sleep on it, would it do any good? Could you continue your deliberation tomorrow? Would that help at all? THE FOREPERSON: I asked that question, and it was indicated that it would not. THE COURT: It would not? THE FOREPERSON: No, ma’am.” Should They Prim Them? The following discussion was then had outside the presence of the jury: “ASSISTANT STATE’S ATTORNEY: Judge, I do understand the foreperson’s comments. I understand it seems as though they are completely deadlocked at this point and it might be futile for future further deliberation. However, I believe that procedurally, from the State’s point of view, we should at least attempt the Prim instruction before we discharge the jury. DEFENSE ATTORNEY: I would agree with the State, your Honor. THE COURT: Pardon? MR. HAIDUK: I would agree with the State. … THE COURT: I am fearful, folks, if I do that, you’re going to have some extremely angry jurors. ASSISTANT STATE’S ATTORNEY: I understand, Judge. THE COURT: There has been some very loud voices back there for a period of time. I think it would be futile to do that. Therefore, I would decline. ASSISTANT STATE’S ATTORNEY: Understood, Judge.” Hung Jury & Mistrial Declared At that point, the jurors were called back into the courtroom. The court then indicated that it would excuse the jurors and thanked them for their service. After discharging the jurors, the court declared a mistrial. Lower Court Barred A Retrial The appellate court barred a retrial based on double jeopardy. The court found that (1) defendant did not consent to or acquiesce in the trial court’s declaration of a mistrial, (2) the trial court’s decision to declare a mistrial resulted from an act of judicial indiscretion, and (3) there was no manifest necessity for the mistrial. See Episode 398 – People v. Kimble, 2017 IL App (2d) 160087, ¶¶ 28, 41, 56 (September). Double Jeopardy Law The double jeopardy clause of the fifth amendment, which applies to the states through the fourteenth amendment, provides that an accused may not be tried more than once for the same offense. U.S. Const., amend. V; Currier v. Virginia, 585 U.S. ___, ___, 138 S. Ct. 2144, 2149 (2018). We interpret our state’s double jeopardy provision identically to the federal provision. See Ill. Const. 1970, art. I, § 10; People v. Levin, 157 Ill. 2d 138, 159 (1993). The clause unequivocally provides three separate protections, barring retrial for the same offense after an acquittal, retrial after a conviction, and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969); Levin, 157 Ill. 2d at 144. Moreover, because jeopardy attaches when the jury has been impaneled and sworn, the constitutional provision also protects a defendant’s valued right to have his trial completed by a particular tribunal and to be spared from the burden of repeated proceedings, even where the trial does not finally resolve the merits of the charges. See Arizona v. Washington, 434 U.S. 497, 503-04 (1978) (quoting United States v. Jorn, 400 U.S. 470, 484 (1971)). Manifest Necessity When a mistrial has been declared, a retrial may proceed without offending double jeopardy principles if (1) the defendant consents to the mistrial or (2) there is a manifest necessity for the mistrial. Washington, 434 U.S. at 505; People ex rel. Roberts v. Orenic, 88 Ill. 2d 502, 508 (1981). Under these circumstances, the second trial is properly understood as the continuation of the original jeopardy arising from the first trial. Richardson v. United States, 468 U.S. 317, 325 (1984). The Supreme Court has emphasized that a manifest necessity ruling must be grounded in its own facts. The Court has expressly declined to require the mechanical application of any rigid formula when trial judges decide whether jury deadlock warrants a mistrial. In reviewing whether the trial court acted within its discretion in declaring a mistrial on the basis of a jury deadlock, lower courts have considered several nonexhaustive factors as useful guideposts. These factors include (1) statements from the jury that it cannot agree, (2) the length of the deliberations, (3) the length of the trial, (4) the complexity of the issues, (5) the jury’s communications to the judge, and (6) the potentially prejudicial impact of continued forced deliberations. The jury’s own statement that it is unable to reach a verdict has been repeatedly considered the most important factor in determining whether a trial court abused its discretion in declaring a mistrial. Issue The basis for defendant’s motion to bar retrial and the trial court’s denial of that motion both centered on whether the trial court exercised sound discretion in declaring a mistrial based on a manifest necessity. A Hung Jury Meets Manifest Necessity The Supreme Court, however, long ago explained that principles of double jeopardy do not bar reprosecution after discharge of a jury on the grounds that the jury cannot reach a verdict. The Court explained that the trial judge may declare a mistrial “whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the mistrial, or the ends of public justice would otherwise be defeated.” United States v. Perez, 22 U.S. 579, 580 (1824); see also People v. DeFrates, 395 Ill. 439, 446 (1946). The rule has been continuously reaffirmed because “a mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant’s consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide.” Jorn, 400 U.S. at 480. Thus, a defendant’s right to a complete trial with a chosen jury “must in some circumstances be subordinated to the public’s interest in fair trials designed to end in just judgments.” Id. Manifest Necessity Due to Deadlocked Jury The manifest necessity standard does not require that a mistrial be “necessary” in the strict sense of the word, but it does require a “high degree” of necessity. Settled law provides that a jury’s inability to reach a unanimous verdict is one circumstance that constitutes a manifest necessity permitting a retrial. Indeed, a deadlocked jury is the classic example of a situation when the manifest necessity standard is satisfied. Renico v. Lett, 559 U.S. 766, 774 (2010); see also Richardson, 468 U.S. at 324 (“We have constantly adhered to the rule that a retrial following a hung jury does not violate the Double Jeopardy Clause.”); Oregon v. Kennedy, 456 U.S. 667, 672 (1982) (a hung jury is the “prototypical example” that meets the “manifest necessity” standard) A trial judge’s decision to declare a mistrial when he considers the jury deadlocked should be accorded great deference by a reviewing court. While a trial judge may not act “irrationally or irresponsibly” in declaring a mistrial, the declaration will be upheld so long as it is the result of the trial judge’s exercise of “sound discretion.” Based on this highly deferential standard, the Supreme Court in Lett noted that it had never overruled a trial court’s declaration of a mistrial based on a jury’s inability to reach a verdict on the ground that the manifest necessity standard had not been met. Id. at 775. This Case: 2 Cases of Impasse Here, the record revealed two statements from the jury indicating its inability to agree on the verdict. The trial judge initially urged the jurors to continue to deliberate and subsequently took care to clarify where the jury stood with respect to the deliberative process. The trial judge specifically asked the foreperson whether additional time would be helpful. The jury emphatically indicated that it had been at an impasse for several hours, and the collective belief of the jurors, after the foreperson specifically inquired of them, was that it would be futile to continue to deliberate. The statements from the jury and the unequivocal communication with the foreperson supported the trial judge’s determination that further deliberations would have been futile. But Was The Mistrial Too Fast? The record reflects that this was not a long and highly complicated case. Rather, it was a relatively short trial, which primarily involved two days of witness testimony and videotaped statements and one defendant. The charges arose out of essentially the same operative conduct. At its core, the case was a credibility contest between S.M. and defendant. Although defendant disputes the amount of time the jury deliberated, the record reflects that the jury deliberated for at least several hours and rewatched the video of S.M. The trial judge gave the parties an opportunity to provide input and to comment on the foreperson’s remarks, and she considered their input prior to declaring a mistrial. Judge Had Some Discretion Additionally, the trial judge explained on the record her fear of coercing the jury into a decision by requiring further deliberations. She expressed concern about the potential for “extremely angry jurors” after hearing “very loud voices in the jury room for a period of time.” We will not substitute our judgment in characterizing the state of mind of the jurors. Under these circumstances, applying the relevant considerations, the record amply supports that it was not irrational, irresponsible, or otherwise unreasonable for the trial judge to conclude that the jury was unable to reach a verdict and that further deliberations would have been pointless and coercive. Yeah, But Was There Judicial Indiscretion? We reject defendant’s assertion, raised for the first time on appeal, that the trial judge’s declaration of the mistrial was a result of judicial indiscretion, rather than manifest necessity. Defendant maintains that the trial judge triggered the need to declare a mistrial by engaging in the ex parte communication, directing the jury to continue deliberating. He argues that the trial judge used the ex parte communication as the basis for her later decision to declare a mistrial, instead of giving the Prim instruction or allowing further deliberation. Neither the record nor the controlling law supports a finding that the trial judge’s initial communication prompted a mistrial. Initially, we reiterate that any communication from a judge to a jury, after the jury has begun deliberations, should be made in open court and in the presence of the parties. People v. Childs, 159 Ill. 2d 217, 227 (1994). Nevertheless, we have explained that a nonprejudicial ex parte communication does not impact the fairness of a defendant’s trial. People v. Johnson, 238 Ill. 2d 478, 489 (2010). Judge Did The Right Thing Here, the substance of the court’s communication to the jury in this case to “continue deliberating” was proper, constituting a clear and noncoercive response well within the court’s discretion. Furthermore, we note that defendant never objected to the ex parte communication itself nor raised it as a basis for granting his motion to bar reprosecution.  Prim Instruction Is Not Required Essentially, defendant argues that the trial court was responsible for the continued impasse by failing to give the jury the Prim instruction to provide them with further guidance. Contrary to defendant’s assertion, the trial judge was not obligated to give the Prim instruction at any time prior to declaring a mistrial. Nothing in our case law or the constitution indicates that the Prim instruction is mandatory, even on request of the parties, much less a prerequisite for finding a manifest necessity exists to declare a mistrial. Nor was the trial judge obligated to force the jury to deliberate for a minimum period. See Blueford v. Arkansas, 566 U.S. 599, 609 (2012); People v. Cowan, 105 Ill. 2d 324, 328 (1985) (no obligation to give the Prim instruction). It is within the trial court’s discretion whether to give that charge at any time during the proceedings, and the trial judge was in the best position to decide whether such an instruction would be helpful or, instead, coercive, leading the jury toward a verdict it otherwise would not have reached. We will not second-guess the trial court or substitute our judgment for the trial judge’s judgment or reweigh the evidence. A discretionary decision implies a range of acceptable outcomes. Holding We discern no basis to conclude that the trial judge abused her considerable discretion in deciding that a mistrial was justified by manifest necessity. Therefore, the double jeopardy clause did not bar reprosecution. Defendant may be retried, and the judgment of the appellate court is reversed. Cause remanded for a new trial. See Also Episode 620 – People v. Drake, 2019 IL 123734 (March) (appellate court can consider improperly admitted  evidence when deciding if double jeopardy attaches after a reversal)  Episode 583 – People v. Shoevlin, 2019 IL App (3d) 170258 (January) (Serious double jeopardy concerns are raised when the judge declares a mistrial in this domestic battery case.) 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 People v. Ventsias, 2014 IL App (3d) 130275 (July) (Double Jeopardy Does Not Attach on dismissed Charge, Double Jeopardy Attaches After a Guilty Plea) Episode 317 – People v. Staple, 2016 IL App (4th) 160061 (December)(How Double Jeopardy Really Works) 

Why A Hung Jury Generally Avoids Double Jeopardy Problems

 People v. Rice, 2019 IL App (3d) 170134 (April). Episode 623 (Duration 7:36) A strong indication from the 3rd district on what the smell of weed means for a car search. Charges Defendant Jeremiah Paige Rice was charged with one count of unlawful possession of a controlled substance (720 ILCS 646/60(b)(4) (methamphetamine possession) and was given 11 years. Facts Illinois State Police stopped defendant headed west on Interstate 80 for traveling 75 miles per hour in a 70-mile-per-hour zone. Defendant’s car had valid plates and was registered as a rental vehicle out of New Mexico. When he stopped defendant, the driver of the vehicle had rolled his window down and was showing his hands. Trooper smelled a strong odor of burnt cannabis when he approached the passenger side window of defendant’s vehicle. Defendant provided his identification and rental agreement for the vehicle. Defendant was cooperative and handled himself in a calm and collected manner. Trooper took defendant’s documents and returned to his squad car. After running a background check, he reported that defendant’s driver’s license was valid. He then decided to run defendant’s criminal history. Trooper called for backup because he planned to execute a search of the vehicle.  He did not observe any weapons or drugs in plain view inside the car. Based on the smell of cannabis, he believed that he had probable cause to search the vehicle for drugs. After backup arrived, Trooper asked defendant to exit the vehicle. The Search He escorted him to the back of the vehicle and informed him that he was going to conduct a search of his person. Trooper located a bulge in defendant’s right pants pocket, which he believed to be contraband. He pulled out a plastic bag of a leafy substance that looked like cannabis. Trooper placed defendant in handcuffs and put him in the squad car. Officers searched defendant’s vehicle and found two sealed envelopes containing $37,000 in U.S. currency. During a second search of the vehicle at the police station, investigators recovered a small shoe care kit. A plastic bag inside the shoe care kit contained 1300 multicolored pills that tested positive for methamphetamine.  Life Goes To Hell In 11 Minutes The stop lasted approximately 11 minutes from the moment Trooper turned on his emergency lights to the time he ordered defendant out of the car. Issue Defendant filed a motion to quash the arrest and suppress evidence. He argued that since possession of less than 10 grams of cannabis was no longer a criminal offense under section 4 of the Act, Trooper did not have probable cause to search defendant’s vehicle based on the smell of burnt cannabis alone. The issue is whether an officer can form probable cause to believe a crime has been committed in possessing cannabis based solely on the smell of burnt cannabis without some further evidence as to the weight of the cannabis given the change in the law. Trial Court Ruling “[I]t appears to the court that it’s still good law that smelling the odor of burnt cannabis gives the officer probable cause to search the vehicle, whether he finds five grams of cannabis or five tons of cannabis.” On Appeal Defendant argues on appeal that in light of the recent amendment to section 4 of the Act, the smell of burnt cannabis alone no longer provides a reasonable belief that a crime has occurred sufficient to support probable cause. He maintains that the odor of cannabis can no longer serve as a ground for probable cause or reasonable suspicion of criminal activity in light of the recent amendment to the Act decriminalizing the possession of small amounts of cannabis. See Pub. Act 99-697, §40 (eff. July 29, 2016) (decriminalizing the possession of not more than 10 grams of cannabis by categorizing it as a “civil law violation” punishable by a fine ranging from $100 to $200). Automobile Exception Under the automobile exception, police officers may search a vehicle without a warrant where probable cause exists to believe the vehicle contains evidence of criminal activity subject to seizure. People v. James, 163 Ill. 2d 302, 312 (1994). Probable cause means that there is a reasonable ground for belief of guilt and that the belief of guilt must be particularized with respect to the person to be searched or seized. Maryland v. Pringle, 540 U.S. 366, 371 (2003). In determining whether probable cause exists, a law enforcement officer may rely on training and experience to draw inferences and make certain deductions. Ornelas v. United States, 517 U.S. 690, 700 (1996). Probable cause exists when the facts known to the arresting officer at the time are sufficient to lead a reasonable person to believe that the defendant is engaged in criminal activity. Jones, 215 Ill. 2d at 273-74. The Smell of Weed It is well established that the distinctive odor of cannabis can be persuasive evidence of criminal activity. See People v. Stout, 106 Ill. 2d 77, 87 (1985). In Stout, our supreme court held that when an officer detects an odor of a controlled substance, the officer has probable cause to conduct a search of a vehicle if testimony has been elicited that the officer has training and experience in the detection of controlled substances.  Since then, Illinois courts have repeatedly recognized that the smell of burnt cannabis emanating from a vehicle will provide officers familiar with and trained in the detection of controlled substances with probable cause to search a vehicle. See People v. Weaver, 2013 IL App (3d) 130054, ¶ 32. This principle has been extended to include searches of the driver and any passengers. People v. Zayed, 2016 IL App (3d) 140780, ¶ 22; People v. Williams, 2013 IL App (4th) 110857, ¶ 34; People v. Strong, 215 Ill. App. 3d 484, 489-90 (1991). Still Associated With Criminal Activity  The majority of jurisdictions have found that decriminalization is not synonymous with legalization and that the odor of cannabis remains indicative of criminal activity despite the passage of statutes decriminalizing the possession of small amounts of marijuana. See In re O.S., 2018 IL App (1st) 171765, ¶ 28. Although defendant contends that Illinois has decriminalized small quantities of cannabis, marijuana possession remains unlawful under the Act. Section 4, as amended, states that “[i]t is unlawful for any person knowingly to possess cannabis.” 720 ILCS 550/4. As noted in In re O.S., “decriminalization is not synonymous with legalization.” In re O.S., 2018 IL App (1st) 171765, ¶ 29. Decriminalization Not Legalization Under Illinois law, the knowing possession of cannabis is still a criminal offense and possession of more than 10 grams remains an unlawful act subject to criminal penalties. Holding Here, the officers searched defendant’s vehicle because Trooper detected the odor of cannabis. As we have stated, the odor of cannabis as indicative of criminal activity remains viable notwithstanding the legislature’s decriminalization of the possession of a small amount of marijuana. Once Trooper identified the odor of burnt cannabis, probable cause for the search existed. Thus, the trial court properly concluded that the search was justified and denied defendant’s motion to suppress. Conviction of Bureau County is affirmed. See Also 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 556 - Interview With Charles Schierer | The Best Reason To Change The “Smell Of Cannabis” Rule Episode 558 - People v. Williams, 2018 IL App (2d) 160683 (October)(odor of alcohol alone means nothing) Episode 340 – Kim Bilbrey on The Magic Words That Instantly Allow An Officer To Search A Car Without A Warrant Episode 015 – Police Car Search Legal in Illinois if They Smell Marijuana…Police Officer Describes A Faint Odor Of Marijuana 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 

3 Districts All Have Said The Smell Of Weed Still Justifies A Car Search

People v. Patel, 2019 IL App (2d) 170766 (March). State failed to produce discover for the SSS Hearing, they subsequently blew Trainor. Charges Defendant was charged with two counts of driving while under the influence of alcohol (625 ILCS 5/11-501(a)(1), (a)(2) (West 2016)), improper lane usage (id. § 11-709(a)), and speeding (id. § 11-601(b)). He was suspended. Files Petition Before his first appearance defendant petitioned to rescind the summary suspension of his driving privileges (see id. § 2-118.1(b)). Along with that petition, defendant filed and served on the State motions for discovery and notices to produce pursuant to Illinois Supreme Court Rules 214 and 237. The discovery requests included, among other things, the booking room video and the breathalyzer accuracy-check records. The State filed no objections to any of the requests. The Civil Discovery Rules Rule 201. General Discovery Provisions (b) Scope of Discovery. (1) Full Disclosure Required. Except as provided in these rules, a party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts. The word “documents,” as used in Part E of Article II, includes, but is not limited to, papers, photographs, films, recordings, memoranda, books, records, accounts, communications and electronically stored information as defined in Rule 201(b)(4). (d) Time Discovery May Be Initiated. Prior to the time all defendants have appeared or are required to appear, no discovery procedure shall be noticed or otherwise initiated without leave of court granted upon good cause shown. (k) Reasonable Attempt to Resolve Differences Required. The parties shall facilitate discovery under these rules and shall make reasonable attempts to resolve differences over discovery. Every motion with respect to discovery shall incorporate a statement that counsel responsible for trial of the case after personal consultation and reasonable attempts to resolve differences have been unable to reach an accord or that opposing counsel made himself or herself unavailable for personal consultation or was unreasonable in attempts to resolve differences.             Rule 214. Discovery of Documents, Objects, and Tangible Things-Inspection of Real Estate (a) Any party may by written request direct any other party to produce for inspection, copying, reproduction photographing, testing or sampling specified documents, including electronically stored information as defined under 201(b)(4), objects or tangible things, or to permit access to real estate for the purpose of making surface or subsurface inspections or surveys or photographs, or tests or taking samples, or to disclose information calculated to lead to the discovery of the whereabouts of any of these items, whenever the nature, contents, or condition of such documents, objects, tangible things, or real estate is relevant to the subject matter of the action. The request shall specify a reasonable time, which shall not be less than 28 days after service of the request except by agreement or by order of court, and the place and manner of making the inspection and performing the related acts. See more on discovery in criminal cases. Discovery Delayed 25 days later the State ordered all of the requested materials from the arresting police department. On the first scheduled court date (31 days following the filing of the petition to rescind), the parties appeared on defendant’s petition. Before any hearing began, defendant told the court that he wanted to resolve the State’s failure to comply with his discovery requests. After the court noted that no motion to compel was in the record, defendant apparently tendered to the court a written motion. That motion is not in the record before this court. The prosecutor advised the court that, although the State had made a good-faith effort to comply with defendant’s discovery requests, it did not yet have the materials defendant wanted. The prosecutor did not elaborate on what precisely constituted this good-faith effort. However, the prosecutor agreed that all of the materials that defendant sought were relevant and discoverable, and he indicated that he would have those materials for defendant the following week at the latest. After advising the court that the parties had not held any conference pursuant to Illinois Supreme Court Rule 201(k), the prosecutor said that the State was ready to proceed on defendant’s petition to rescind. Defendant told the court that he had tried to talk to the prosecutor that morning about the discovery requests. The prosecutor asserted that that conversation, which consisted solely of the parties’ agreement to present the problem to the court, did not amount to a conference as required under Rule 201(k). Defendant then indicated that he was not ready to proceed on his petition. Delay Attributed To Defendant He asked the court to attribute to the State the delay in holding a hearing or, alternatively, to infer that the requested discovery materials were favorable to him. Over defendant’s objection, the court   (1) held defendant’s motion to compel in abeyance (2) ordered the State to produce the requested discovery by September 21, 2017, which was the next court date, and (3) tolled the statutory period in which defendant was entitled to a hearing (see 625 ILCS 5/2-118.1(b)).   Motion To Rescind Suspension Based On Timing On the next court date defendant filed a motion to rescind the suspension, arguing that he was entitled to a rescission because he was not given a timely hearing. In court that day, the prosecutor advised the court that the State had now complied with all of the discovery requests. Defendant asked the court to rescind the suspension because the delay in holding the hearing on the petition was attributable to the State. The court refused to do so, observing that, given that the State had tendered discovery to defendant, the issue of the State’s failure to comply was moot. The court also noted that, mootness aside, there was no indication that the parties had participated in a Rule 201(k) conference, which was necessary before any sanction could be imposed on the State. Issue At issue in this appeal is whether the statutory summary suspension of defendant’s driving privileges should have been rescinded because the State’s delay in tendering to defendant the discovery he requested denied him a timely and meaningful hearing. A Timely Hearing Required Section 2-118.1(b) of the Illinois Vehicle Code (625 ILCS 5/2-118.1(b)) provides that a defendant “shall” be given a hearing on his petition to rescind within 30 days after the petition is received or on the first appearance date. In People v. Schaefer, 154 Ill. 2d 250, 253 (1993), our supreme court explained that the statute “created two alternative dates for a hearing on a defendant’s challenge to a summary suspension:   (1) on the first court date set in the traffic citation issued to the defendant ***; or (2) within 30 days of a defendant’s written request for a hearing on his petition to rescind.”   “The word ‘shall’ conveys that the legislature intended to impose a mandatory obligation.” People v. Moreland, 2011 IL App (2d) 100699, ¶ 8. The failure to comply with the requirements of section 2-118.1(b) results in the rescission of the suspension, unless the delay is “occasioned by the defendant.” In re Summary Suspension of Driver’s License of Trainor, 156 Ill. App. 3d 918, 923 (1987). See also People v. Mizaur, 376 Ill. App. 3d 1066, 1067 (2007), where we held that a court date set out in a defendant’s bail bond constitutes the “first appearance date” for purposes of section 2-118.1(b) of the Illinois Vehicle Code. No Reason For The Delay We find no confirmation in the record that the State produced any discovery to defendant on or before the day it was tendered in. The State has never disputed that it would have been feasible to produce all responsive discovery to defendant, had the State acted on defendant’s requests in a more timely fashion. The record shows that the State simply failed to make any effort toward procuring the requested materials until 25 days after defendant served his requests on the State. By that time, the first appearance date was less than a week away. Conspicuously absent from the record is any excuse from the prosecutor as to why it took 25 days to begin the process of procuring the materials or why the process could not be expedited once the prosecutor learned that the materials might be unavailable for the court date. Answering Ready Is Not A Discovery Cure Moreover, the prosecutor’s answer that the State was “ready” for the hearing, unfairly shifted to defendant the burden of the State’s noncompliance with discovery. The State put defendant in the untenable position of having to either   (1) proceed to a timely hearing that day without the materials that were needed to attempt to establish a prima facie case for rescission or (2) answer “not ready” for the hearing, thereby acquiescing to a continuance for purposes of tolling the time requirements contained in section 2-118.1(b) of the Illinois Vehicle Code.   See Guillermo, 2016 IL App (1st) 151799, ¶ 25 (holding that an agreed continuance “temporarily suspended the running of the period within which a hearing on the defendant’s petition to rescind had to be held”). There Was No 201(k) Violation  The State urges, and the trial court found, that defendant failed to comply with Rule 201(k) before presenting his motion to compel. The record demonstrates defendant’s compliance with Rule 201(k). Prior to presenting a motion to compel, defense counsel asked the court to pass the case so that he could continue conferring with the prosecutor about discovery. When the matter was recalled, defense counsel informed the court that he had spoken to the prosecutor about what the State “did not have and wasn’t capable of producing.” The prosecutor complained to the court that defense counsel had failed to offer to work things out or to get another date the next week.   What the prosecutor was essentially arguing, and what the court essentially found, was that Rule 201(k) required defense counsel to waive defendant’s rights under section 2-118.1(b) of the Illinois Vehicle Code by agreeing to a continuance. We are aware of no authority indicating that defense counsel was required to do so.   Furthermore, nothing in the record suggests that defendant was aware that the State would be unable to tender discovery in court that day. When it became clear that the State could not produce discovery on, defense counsel appropriately discussed the matter with the prosecutor before presenting a motion to compel. This Is Not A Discovery Sanction This holding has nothing to do with discovery sanctions. Unless defendant occasioned the delay in the proceedings, he was entitled to a hearing that complied with the time constraints of section 2-118.1(b) of the Illinois Vehicle Code. In the absence of any excuse from the prosecutor as to why the State failed to timely produce the requested materials—which were admittedly discoverable and even integral to the defense—and in the absence of any justification by the trial court for attributing the time to defendant, there is simply no basis to conclude that defendant occasioned the delay of the hearing. Holding Under these circumstances, the delay of the rescission hearing, should have been attributed to the State rather than to defendant. Consequently, we determine that the trial court abused its discretion in ruling otherwise, i.e., in its decision to “toll Trainor” for one week while the State complied with its discovery obligations. Under the circumstances, and in light of the expedited nature of the rescission proceedings at hand, it is not apparent what more defense counsel could have done to resolve the discovery issues, short of waiving his client’s right to a timely hearing. For the reasons stated, we reverse the judgment of the circuit court of Du Page County denying defendant’s petition to rescind the statutory summary suspension of his driving privileges. The clerk of this court shall immediately notify the Secretary of State that defendant’s statutory summary suspension has been rescinded. 

Court Is Taking The Discovery Rules Seriously In Summary Suspension Hearings

People v. Spicer, 2019 IL App (3d) 170814 (March). Episode 602 (Duration 11:56) Can the prosecution compel you to give up your phone password? Charges Defendant was arrested for unlawful possession of a controlled substance and later also charged with knowingly possessing cocaine with the intent to distribute. Drug Dog Alert Defendant was a passenger in a vehicle that was pulled over for a traffic stop. A drug dog alerted on the vehicle. The officers searched the vehicle, where they found a prescription pill bottle containing cocaine inside a brown leather bag near where defendant was sitting. The bag also contained: A scale with Suspected cocaine residue A box containing 20 plastic baggies. The Phone When defendant was arrested police found a cell phone on his person. Defendant refused to provide the passcode to unlock it. Warrant & Motion To Compel Try as the might police could not access the contents of the phone. They sought and received a search warrant for the phone. However, defendant would not provide the passcode and the State moved to compel the information. Issue The State argues that the fifth amendment’s privilege against self incrimination does not protect Defendant from being compelled to provide the passcode to unlock his legally seized cell phone and submits the trial court erred in denying its motion to compel. Fifth Amendment A person cannot be compelled to testify against himself in a criminal case. U.S. Const., amend. V. The fifth amendment applies when the defendant is compelled to make a testimonial communication that incriminates himself. Fisher v. United States, 425 U.S. 391, 408 (1976). For the fifth amendment privilege to apply, “a communication must be testimonial, incriminating, and compelled.” People v. Haleas, 404 Ill. App. 3d 668, 672 (2010) (quoting Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 542 U.S. 177, 189 (2004)). An act of production is testimonial when the government compels the defendant “to make extensive use of ‘the contents of his own mind’ ” to communicate a statement of fact. United States v. Hubbell, 530 U.S. 27, 43 (2000). See also voluntary confessions in Illinois. The Foregone Conclusion Doctrine The foregone conclusion doctrine is an exception to the fifth amendment privilege. Per the doctrine, where the existence, location and authenticity of the evidence is a foregone conclusion, that is, it “adds little or nothing to the sum total of the Government’s information,” the fifth amendment does not protect the act of production. The exception applies when the State demonstrates with “reasonable particularity” that when it sought the act of production, the State knew the evidence existed, the evidence was in the defendant’s possession and it was authentic. United States v. Greenfield, 831 F.3d 106, 116 (2d Cir. 2016). See also The Exclusionary Rule. Fisher v. United States In this case the government wanted defendant’s tax records which he took from his accountant and gave to his lawyer. See Fisher v. United States, 425 U.S. 391 (1976). The court said… It is doubtful that implicitly admitting the existence and possession of the papers rises to the level of testimony within the protection of the Fifth Amendment. The papers belong to the accountant, were prepared by him, and are the kind usually prepared by an accountant working on the tax returns of his client…The existence and location of the papers are a foregone conclusion, and the taxpayer adds little or nothing to the sum total of the Government’s information by conceding that he, in fact, has the papers. Under these circumstances, by enforcement of the summons, ‘no constitutional rights are touched. The question is not of testimony, but of surrender.” Fisher v. United States, 425 U.S. 391, 425 (1976); quoting In re Harris, 221 U. S. 274, 221 U. S. 279 (1911). See Also Matter of Harris In this case the defendant was in bankruptcy and he was ordered to tender his books to the receiver. He refused claiming “the fifth” and the court said… But no constitutional rights are touched. The question is not of testimony, but of surrender, not of compelling the bankrupt to be a witness against himself in a criminal case, present or future, but of compelling him to yield possession of property that he no longer is entitled to keep. If a trustee had been appointed, the title to the books would have vested in him by the express terms of § 70, and the bankrupt could not have withheld possession of what he no longer owned on the ground that otherwise he might be punished. That is one of the misfortunes of bankruptcy if it follows crime. The right not to be compelled to be a witness against oneself is not a right to appropriate property that may tell one’s story.” Matter of Harris, 221 U.S. 274 (1911). Is It Testimonial? Before this case, Illinois courts have not decided whether compelling a defendant to provide his passcode is testimonial. Courts from foreign jurisdictions are split on the issue.  G.A.Q.L. v. State (Florida case) This opinion relied on G.A.Q.L. v. State, 257 So.3d 1058 (Fla. Dist. Ct. App., Oct. 24, 2018) and found it to be persuasive and well reasoned. In G.A.Q.L., the State of Florida sought to compel the driver involved in a fatal car accident to reveal the passcodes to access his phone and to his iTunes account which was needed to update the phone. The reviewing court determined that forcing a person to reveal his passcode was testimonial and could be violative of the person’s fifth amendment rights.   The court reasoned that forcing a person to reveal a passcode results in “implied factual statements” and necessitates use of the mind not to obtain the decryption for its own sake, but for the purpose of obtaining the files protected by the encryption. The State was not seeking the passcode itself but the information unlocked by the passcode, the court found the defendant was required to use his mind and demonstrate the factual basis that he could access his phone.  Accordingly, the court considered the requested information to be testimonial and protected by the fifth amendment.  Foregone Conclusion Doctrine Does Not Apply To This Case Here, the State is not seeking the passcode per se but the information it will decrypt. The cases that declare the passcode to be a nontestimonial communication operate under a finding that a passcode merely reveals information that is a foregone conclusion. Thus, the exception to the fifth amendment privilege applies. So too, in this case the focus is not on the passcode but the information the passcode protects. The State claims it sustained its burden of proving with reasonable particularity that it knew the passcode existed, that Defendant knew the passcode and that it would be authenticated by entering it into Defendant’s phone. However, what the State actually needed to establish with reasonable particularity was the contents of the phone, which it did not do. This Is A Fishing Expedition The State does not know what information might be on Defendant’s phone but surmises that cell phones are often used in unlawful drug distribution and such information would be available on Defendant’s phone. The State has not provided a particularized description of that information or even evidence that any useful information exists on the phone. The State does not identify any documents or specific information it seeks with reasonable particularity. The State is engaging in a fishing expedition and the foregone conclusion exception does not apply here. Forgone Conclusion Doctrine Itself Not Met Here Even if we were to conclude that the foregone conclusion exception properly focuses on the passcode, the State did not and could not satisfy the requirements for the foregone conclusion exception. While the State is aware that the passcode existed and that Defendant knew it, the State could not know that the passcode was authentic until after it was used to decrypt Defendant’s phone. Moreover, the production of Defendant’s passcode would provide the State more information than what it already knew. Therefore, the foregone conclusion does not apply. Holding Although the focus of the foregone conclusion is on the passcode, in our view, it properly should be placed on the information the State is ultimately seeking, which is not the passcode but everything on Defendant’s phone. We find that requiring Defendant to provide his passcode implicates his fifth amendment right against self-incrimination and the trial court did not err in denying the State’s motion to compel. For the foregoing reasons, the judgment of the circuit court of Rock Island County is affirmed.

Can The State Compel You To Give Up Your Phone Passcode?

This is the March 2019 Illinois criminal case law audio round-up (the fast case law summary). The March 2019 Top Illinois Criminal Law Cases (The Monthly Round-Up)   Here’s a quick snapshot of the top cases: 1. People v. Patel State failed to produce discover for the SSS Hearing, they subsequently blew Trainor. 2. People v. Caraballo Officer was not certified at the time of the breathalyzer, but he was substantially certified. 3. People v. Sanchez Defendant is arrested at his home where he found plastered and driven back to the crash scene by police. 4. People v. Thomas Police see a defendant hand a gun to another person and then try to run and hide. 5. People v. Holmes An essentially anonymous tip was treated as wholly unreliable resulting in an outright reversal of this gun conviction. 6. People v. Webb Another version of UUW is held unconstitutional; this time it’s the one banning tasers. 7. People v. Cunningham Defendant gets 3 years for shooting himself in the leg in a housing project; this UUW version is constitutional. 8. People v. Drake Although the reversal is still good the lower court judgement that double jeopardy barred a retrial is reversed. 9. People v. Lewis One gun expert testified about the work done a different expert who was out on medical leave. 10. People v. Spicer Can the prosecution compel you to give up your phone password? 11. People v. Othman Has the plain error gotten much more liberal? 12. People v. Smith Kid is available for cross even though they don’t remember the actual allegation of sexual abuse. 13. People v. McArthur 17 year old held for more than 70 hours before his probable cause hearing, nonetheless, his confessions were all voluntary. 14. People v. Ruiz Defendant’s conversation with his coarresttee is recorded and his friend kept telling him he always takes things too far. 15. People v. Corral Kid got his eyewitness expert witness on the stand, but the witness was not allowed to get into what she thought about the reliability of the witness. 16. People v. Macklin Was defense counsel ineffective for not calling an eyewitness expert witness? 17. In re J.P. Juvenile court act allows a judge to order the removal of a gang tattoo. 18. People v. Rebollar-Vergara Defendant gets into an argument with a guy and his buddy ups and shoots him, then sloppy questioning happens in the grand jury room. 19. People v. Garcia Prosecutor used an inartful example to illustrate accountability, but this was not plain error. 20. People v. Holt The split deepens between the Second, Fourth and Third Districts on these burglary/retail theft convictions. 21.  People v. Bausch Grabbing your wife’s purse can constitute insulting and provoking contact. 22. People v. McCurine Defendant says he was prejudiced and due process was violated when the state was allowed to tell the jury he was charged with being a habitual criminal. 23. People v. James Another SORA conviction reversed because police failed to investigate the circumstances of his living arrangement. 24. People v. Johnson No valid jury waiver in the record even though he apparently signed the waiver form. 25. People v. Thomas Defendant refused to sign the jury waiver but still wanted a bench trial. 26. People v. Maya Even “obvious” matters of sound trial strategy may be rebutted by defendant, here the lawyer kept a sheriff’s deputy on the jury. 27. People v. Mooney Agreeing to continuance was ineffective, outright reversal is the only remedy.

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

People v. Mooney, 2019 IL App (3d) 150607 (March). Episode 599 (Duration 9:21) Agreeing to continuance was ineffective, outright reversal is the only remedy. Charge Defendant, Bryant K. Mooney Jr., appeals following his conviction for driving while license suspended. Issue He argues, inter alia, that defense counsel was ineffective for twice agreeing to the State’s motions for continuances on the day of trial, thus tolling the speedy trial clock. On appeal, defendant argues that defense counsel rendered ineffective assistance by failing to move for dismissal based on a violation of his statutory speedy trial rights. Alternatively, he argues that counsel was ineffective for twice agreeing to continuances and agreeing that the speedy trial clock should be tolled when it was the State that needed the second continuance and the State’s actions that necessitated the third. Gist The State concedes that the first continuance in defendant’s case, issued on October 27, 2014, was wholly attributable to the prosecution. Between the filing of defendant’s speedy trial demand on August 19, 2014, and the second continuance on January 5, 2015, 139 days elapsed that are indisputably attributable to the State. Each of the second and third continuances resulted in delays of more than 21 days, and thus either continuance would have caused the speedy trial period to elapse unless attributable to defendant. Speedy Trial Demand On August 19, 2014, defense counsel filed a speedy trial demand, requiring that defendant be tried no later than January 26, 2015. That same day, pursuant to defense counsel’s request, the court set the matter for a jury trial on October 27, 2014.  First Delay Six days before the scheduled jury trial, the State filed a motion for continuance. In the motion, the State claimed that the arresting officer would be unavailable on the scheduled trial date because of a previously scheduled court appearance in a different county. On October 27, 2014, defense counsel announced ready for trial, but the court granted the State’s motion and set the matter for trial on January 5, 2015.  Second Delay On the morning of January 5, 2015, defense counsel again announced ready for trial, adding that defendant was requesting a bench trial. The court immediately told counsel, without further explanation: “[Y]ou understand the predicament I am in so if it is going to go, it is not going to go until this afternoon probably.” The prosecutor explained that its testifying officer in the case had not slept in two days and had to work that night at 6 p.m. The prosecutor opined that such a situation was not desirable but conceded “there is a speedy trial demand by the defendant so we have to fit it within a certain time frame.” The court agreed, stating, “[w]e have to get this done” and noting that only 20 days remained on the speedy trial clock. The court instructed the parties to return at 12:15 that afternoon in an attempt to begin the trial. The prosecutor commented: “And if we know it is going to go long, I will make my motion at that time.” Then a written order bearing that date appears in the common law record. The order, a preprinted form with some items circled and blanks filled in, schedules a trial for March 24, 2015, a date significantly later than the January 26 deadline established by defendant’s speedy trial demand. The order indicates that the continuance is on the motion of defendant. It also indicates that “Defendant agrees that speedy is tolled.” Third Delay On March 24, 2015, defense counsel again requested a bench trial but told the court that she had been tendered a video instanter and would be requesting a new trial date. The court inquired as to why, in a matter originally scheduled for trial the previous October, a video was only now being tendered. The prosecutor responded that he did not know. The following colloquy ensued: “THE COURT: Is there any way you can watch the video and try the case?[DEFENSE COUNSEL]: Today? THE COURT: Well, yeah, we do have a short day today. We have to find something to do in the afternoons.[DEFENSE COUNSEL]: If Your Honor prefers, I can try. I would prefer— THE COURT: You can try? What does the video entail in driving?[THE STATE]: Him driving? I have an expert on that topic coming up. THE COURT: Because if defense counsel is vehemently moving for the motion to continue this date because you gave her the discovery late, she has grounds to do it. Are you vehemently moving for the motion for continuance?[DEFENSE COUNSEL]: Judge, I am asking for a motion to continue. THE COURT: All right, I am going to grant your continuance. Sorry, officer. She’s got grounds. New date. When can he be back?” The parties did not set a date while on the record. However, the written order (again a preprinted form) issued that day shows that the trial was set for April 21, 2015. The written order again indicates that the continuance was on the motion of defendant and that “[d]efendant agrees that speedy is tolled.” The Trial The matter proceeded to a bench trial on April 21, 2015, at which the court found defendant guilty of driving while license suspended. The court sentenced defendant to a term of 24 months’ probation. Speedy Trial By Statute Section 103-5(b) of the Code holds that a defendant free on bail or recognizance must be brought to trial within 160 days of his speedy trial demand. 725 ILCS 5/103-5(b). The Code further dictates that “[d]elay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried.” Id. § 103-5(f). Thus, to show a violation of his speedy trial right, a defendant must show that he did not “cause or contribute to the delays.” People v. Staten, 159 Ill. 2d 419, 426 (1994). “A defense counsel’s express agreement to a continuance may be considered an affirmative act contributing to a delay which is attributable to the defendant.” People v. Kliner, 185 Ill. 2d 81, 114 (1998).  What Were The Reasons For TheDelay? Defendant’s argument requires this court to ask the questions: (1) Why would counsel agree that the speedy trial clock would be tolled and (2) What impact did these agreements have on defendant’s right to a speedy trial? Notably, the reports of proceedings from the dates of the second and third continuances demonstrate unequivocally that neither continuance was factually attributable to defendant. State Witness Had A Problem On January 5, 2015, the date of the second continuance, defense counsel announced ready for trial. Thereafter, the court and prosecutor discussed an apparent scheduling issue with the testifying officer, and the matter was ultimately continued. Delays occasioned by the unavailability of a State’s witness or by the court’s schedule cannot be attributed to a defendant. See Bonds, 401 Ill. App. 3d at 677; Kliner, 185 Ill. 2d at 119. Late Discovery Causes The Last Continuance While the third continuance, on March 24, 2015, was explicitly on defense counsel’s motion, that motion was made only after the State tendered a video of the arrest moments before trial. The delay caused by defense counsel’s motion should not be held attributable to a defendant if that motion was necessitated by the State’s late filing of discovery. At oral argument, the State emphasized that the prosecutor was under no obligation to tender the video at all in this misdemeanor case. We find this to be irrelevant. Whether or not any obligation existed, the fact is that the prosecutor did tender the video, and it would have been inappropriate for defense counsel to proceed to a trial without thoroughly reviewing that piece of evidence. Analysis Despite these facts and the relevant law, counsel twice agreed that the speedy trial clock would be tolled. On the occasion of the second of the three continuances, counsel even allowed an order to be entered indicating that the continuance was on her motion. Having announced she was ready for trial on January 5, 2015, there is no apparent trial strategy motive for agreeing to any delay. Similarly, on March 24, 2015, there is no apparent strategic benefit to defendant from counsel agreeing to toll the speedy trial clock. Defendant having asserted his statutory right to a speedy trial, defense counsel was duty bound to zealously protect that right. Instead, counsel twice agreed, despite her expressed readiness for trial on both of the scheduled dates, to allow both continuances and concessions of tolling to be attributed to defendant. This, failure was objectively unreasonable under prevailing professional norms, and it rendered counsel’s performance deficient. Clearly Prejudicial To Defendant The more difficult question is that of prejudice. Had counsel’s performance not been deficient—that is, had counsel not agreed to twice toll the speedy trial clock—is there a reasonable probability that the outcome would have been different? There is no perfect way to reconstruct what would have happened had counsel acted appropriately. Hanging over this uncertainty is the actuality that defendant was—had the final two continuances been properly attributed—brought to trial outside of the 160-day window. In a similar situation, our supreme court found that a continuance was attributable to the circuit court, even though the record indicated it had been on defendant’s motion. People v. Beyah, 67 Ill. 2d 423, 426, 428-29 (1977). The Beyah court did not engage in any reconstruction, or speculate as to what would have happened had the circuit court’s order been correct in the first place. Instead, the court found that the defendant had been tried outside of the applicable window and reversed defendant’s conviction outright.  In so doing, the court commented: “To conclude, under these circumstances, that the delay was occasioned by defendant would be a mockery of justice.” Id. at 428. The same is no less true here. Must Prevent A Mockery Of Justice Defendant’s speedy trial period should have ended on January 26, 2015, but because of counsel’s deficient performance, it did not. To pretend otherwise would be a mockery of justice. On a broader scale, a finding of no prejudice here would leave this defendant, and myriad other defendants who might find themselves in this situation, with absolutely no recourse. The legislature has granted criminal defendants a statutory right to a speedy trial. Where counsel’s actions serve to undermine that right, those actions must be subject to an ineffectiveness challenge. “A right without a remedy is no right at all.” People ex. rel Endicott v. Huddleston, 34 Ill. App. 3d 799, 807 (1975). To hold the inevitable speculation against a defendant would be to hold that counsel’s actions in agreeing to the continuances or agreeing to toll the speedy trial clock are, essentially, unreviewable. Holding Accordingly, we find that defense counsel’s performance was deficient and that this deficiency was prejudicial in that it resulted in defendant being brought to trial outside of the statutorily prescribed 160-day period. We therefore reverse defendant’s conviction for driving while license suspended outright. 

State Blows Speedy Trial Even Though Defense Counsel Agreed To The Continuance

 People v. Holmes, 2019 IL App (1st) 160987 (March). Episode 601 (Duration 9:33) An essentially anonymous tip was treated as wholly unreliable resulting in an outright reversal of this gun conviction. Gist Police approach a man with a gun and pat him down. Facts A Chicago police officer received information from a sergeant, who received information from an unidentified Chicago Park District security guard, whose source of information was unknown, that a man in Brainerd Park had a gun in his pocket. The man was described as black, about five-and-a-half feet tall, wearing a purple shirt and black jeans. Two or three minutes after talking to the sergeant, the officer and his partner saw defendant, who matched the description. There was nothing inappropriate about defendant’ conduct. Nonetheless, the officers approached defendant, and one of the officers immediately touched the pocket of his jeans. The officer felt what he recognized as the trigger and trigger guard of a gun. The officers ordered defendant to the ground, put him in handcuffs, and placed him under arrest. Issue Defendant now challenges the initial seizure, before his arrest, as an unconstitutional Terry stop. He argues that the officers did not have reasonable suspicion to stop him. In particular, both the security guard’s identity and the source of information remain unknown, “effectively” an anonymous tip, which, without more, cannot provide a reasonable suspicion of criminal activity. Defendant asserts that the officer’s frisk of his person constituted a Terry stop sufficient to trigger the protections of the fourth amendment and that the tip lacked the requisite legal corroboration to establish reasonable suspicion for a Terry stop and frisk. Guard Not Anonymous The State responds that the tip was reliable and not anonymous and contained sufficient information to support the Terry stop. The State argues the tip that led to defendant’s detention came from an identifiable security guard. The State assures us that we can rely on the security guard’s tip because it was given in person and security guards are presumptively more trustworthy reporters of crime than ordinary eyewitnesses. Terry Stops Broadly speaking, Terry, 392 U.S. 1, governs. Terry gives officers a “narrowly drawn authority” to detain people and search for weapons where they reasonably believe that “criminal activity may be afoot” and that the person seized “may be armed and presently dangerous.” Id. at 27, 30. A seizure, short of an arrest, is justified only where an officer “reasonably suspects that the person apprehended is committing or has committed a criminal offense.” Arizona v. Johnson, 555 U.S. 323, 326 (2009). Once seized, he or she may only be frisked if an officer “reasonably suspect[s] that the person stopped is armed and dangerous.” Id. Informant Tips In short, the validity of the initial stop constitutes a necessary precondition to the validity of any later search. Informant tips “may vary greatly in their value and reliability.” Adams v. Williams, 407 U.S. 143, 147 (1972). Cases involving known informants are “stronger cases” than those involving anonymous tipsters. In all cases involving tips, anonymous or otherwise, paramount concerns involve the informant’s “veracity, reliability, and basis of knowledge.” Alabama v. White, 496 U.S. 325, 328 (1990). Anonymous Tip An anonymous tip, without more, generally provides “virtually nothing” by which one could conclude that the tipster is honest, that his or her information is reliable, or that he or she has a basis by which to predict a suspect’s criminal activity.  See People v. Lopez Episode 549 – People v. Lopez, 2018 IL App (1st) 153331 (October) (Anonymous Tip On A DUI Has Got To Be Specific) In every legally relevant respect, the tip on which the officers relied is strikingly similar to the tip in Lopez. Just as the officer in Lopez, the officer received his tip from another officer. While the sergeant told the officer that he received information about a man with a gun from a park security guard, just as in Lopez, no testimony identified the ultimate source of the information that the first officer received. Finally, just as the officer in Lopez, the officer confirmed that defendant matched the general description but did not notice defendant doing anything illegal when he saw him. Analysis The State’s argument depends on multiple assumptions that the record does not support. The State assumes that the security guard provided the tip in person; the record reveals that the officer did not know how the security guard reported the sergeant. The State argues that security guards by nature are more reliable eyewitnesses, but we do not know whether the security guard was actually an eyewitness or learned his or her information elsewhere or, for that matter, whether he or she was an experienced or inexperienced security guard. There is nothing in the record to indicate whether the guard personally observed the gun possession or if the guard received the information from somebody else. Just as the officer in Lopez, the officer was told a general description of defendant’s appearance and that he was somewhere in the park. Nothing in the record explains the source of the security guard’s information. As a result, we cannot say that the security guard was an “eyewitness.”  For that reason, the institutional pressures that bear on security guards to avoid falsely implicating someone do not apply. For example, a guard who hears of some criminal activity from another source does not bear personal responsibility for the error if the source turns out to be wrong. He or she can simply pass on the blame for the incorrect information to the unknown source. Given all of these unknowns, we agree with defendant that the tip was “effectively anonymous” and did not support a finding of reasonable suspicion.  We see no reason for the State not to have called the park security guard, if he or she is as identifiable as the State purports, to give a firsthand account. But They Description Of The Man Was Spot-On As a final argument, the State asks us to find the tip reliable because the sergeant’s description—a black man, 5 feet, 6 inches to 5 feet, 8 inches tall, wearing a purple shirt and black jeans—was more specific than the description in J.L. See 529 U.S. at 268 (“a young black male standing at a particular bus stop and wearing a plaid shirt”). So what. We fail to see any indication in J.L. that the outcome would have differed had the tipster been able to describe J.L.’s height. J.L. expressly rejected location and physical appearance as sufficient indicators of the most important fact necessary for a Terry stop: suspicion of criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. So Much We Don’t Know We do not know how the security guard came across the information in the first place, whether he or she personally observed the gun possession or whether it was reported by another source. Similarly, while we know that it was only two to three minutes from the time the sergeant told the officer and Montes about the man with a gun to the time that defendant was stopped, we have no idea how long it took from the time of the original observation of the man with the gun to the time the sergeant was told. We may know where the sergeant got his information, but the identity of the ultimate source of the tip—which was undisputedly the State’s burden to provide—remains a mystery. Holding We find the security guard’s tip insufficiently reliable. We reverse the trial court’s denial of defendant’s motion to suppress and reverse his conviction outright. We cannot confirm the reliability of the tip the officers received because there is too much that we do not know about it. We do not reverse defendant’s conviction as a criticism of the officers. We reverse because the State failed to meet its burden to identify the source of the tip—despite its repeated claims that the security guard, who could confirm the source, would be easy to find—rendering the tip’s reliability irrecoverably suspect. We find that defendant’s seizure was unlawful, having been based on a factually insufficient and unreliable tip. We reverse the trial court’s denial of defendant’s motion to suppress evidence. Because the State will be unable to proceed without evidence of the gun on remand, we reverse defendant’s conviction outright. See Also Episode 101 – Navarette v. California, 134 S.Ct 1683 (2014) (April) (police received reliable tip that a driver ran the caller off the rode)  Episode 468 – People v. Meo, 2018 IL App (2d) 170135 (March) (Gas station attendant calls the police on defendant to report he almost hit the building, so DUI stop justified.) 

When Easily Identifiable Informants Are Treated As Anonymous Tipsters

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)

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

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

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?

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)

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?

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

Smart lawyers know the caselaw. Here, practicing attorneys are injected with all the latest criminal nuggets of valuable legal information. Listeners walk into criminal court immune from ignorance on the latest decisions. The tidbits and key points Illinois appellate judges are making are no longer hidden in voluminous text. For the first time in their careers, practitioners don't have to invest the enormous amounts of time usually required to sift through hundreds of pages of legal text. Now, their ears serve as the portals to vast, instant knowledge. Audio law learning not only will make you the smartest lawyer on the case, you will also have fun! And its all FREE.

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Criminal Nuggets A Criminal Law Podcast

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